OIL ENTORCI’M N! & COMPLIAN !
COMPIMDIUM
VOLUME TWO
? 1€ ) 4(
4. ¼
Office of Enforcement & Compliance Assurance
Septembe]r 1998
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E
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Friday
April 24, 1992
Part V
Environmental Protection
Agency
Department of
Transportation
Coast Guard
Designation of Areas and Area
Committees Under the Oil Pollution Act
of 1990; Notices
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15198
Federal Register I Vol. 57, No. 80 / Friday, April 24. 1992 1 NotIces
ENVIRONMENTAL PROTECTION
AGENCY
ISWH-FRL-404 1-1)
DesIgnation of Areas and Area
Committees Under the O l Poliutlon
Act of ‘1990
AGENCY: U.S Environmental Protection
Agency (EPA)
Aciosc Notice.
$UMMARY The purpose of this notice is
to designate Areas for planning
purposes and to appoint qualified
Federal. State. and local agency
personnel as Area Committees to
prepare Area Contingency Plans
pursuant to section 311(J)(4) of the Clean
Water Act (CWA). as amended by the
Oil Pollution Act of 1990 (OPA). The
OPA. signed into law on August 18.
1990, amends existing provisions of the
CWA and creates major new authorities
addressing oil spill pre ention and
response.
GAitS: Comments must be recetved on
or before May 28, 1992.
ADORESSES: Comments should be
submitted in thplicate to: Chemical
Emergency Preparedness and
Prevention Office. Superfund Docket
Clerk. Docket Number OPA/AC , room
2427, U.S Environmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460.
FOR FURTHER INFORMAflOW CONTACT
Ms. Sarah Bauer, Chemical Emergency
Preparedness and Prevention Office
(OS-IZO). U.S Environmental Protection
Agency. 401 M Street. SW.. Washington.
DC 29460 (202) 260—8247.
AuTi4oqrrr. Section 311(j)(4) of the
Clean Water Act, 33 U.S.C. 1321(13(4). as
amended by the Oil Pollution Act of
1990 section 4202(b), Public Law 1O1-
380.
BACKG*0uN0 Under CWA section
311(j)(4)(Bj. Area Contingency Plans
must be developed by Area Committees.
under the direction of the Federal On-
Scene Coordinator (OSCJ for their Area.
Under section 311(j)(4)(D), these plans
are reviewed and approved by the
President.
Pursuant to OPA section
4202(b)(1)(A). the President designates
areas for which Area Contingency Plana
are established. Through section 1(b) of
Executive Order 12777 (56 FR 54757;
October 22. 1991), the President
delegated to the Adminiatrator of the
U S. Environmental Protection Agency
(EPA). responsibility for designating the
Areas and appointing the Committee.
for the “In]and Zone.” as defIned by the
National Oil and Hazardous Substances
Pollution Contingency Plan (NCP) 40
CFR 300.5). The U.S. Coast Guard has
responsibthty for designating Areas and
appointing Committees for the Coastal
Zone as defined by the NCJ’.
EPA Is currently developing a
proposed rulemaking to revise the NCP
as required by section CWA section
311(d), as amended. EPA anticipate.
thai in that propose). the Agency will
address the relationship between Area
Contingency Plans and the OSC
Contingency Plans currently provided
for in 300.210(c)(1) of the NCP.
$UPPLEMEHTARY INPORMA ’flON
Designation of Areas
EPA Is publishing todays notice to
meet the requirement to designate Areas
wider OPA section 4202(bfll)(A). Under
the existing response and planning
framework under the NCP. the territory
of the United States is covered by 13
Regional Response Teams (RRTs) and
Regional Contingency Plans (RCPs). The
zones of the 13 RRT . follow the 10
standard Federal regions except for the
following 3 subregional areas that have
their own RRT: (lJ Puerto Rico and the
US. Virgin Islands; (2) Alaska. and (3)
Hawaii, Guam. Northern Mariana
Islands, Pacific Island Governments,
and American Sat!noa (see Figure 1). The
Inland areas of the 13 RRTs will serve as
the designated Areas for the Inland
Zone. The U.S. Coast Guard will be
issuing a notice to designate Areas for
the Coastal Zone. These Coastal Zone
Areas will be based on the 48 U.S Coast
Guard Captains of the Port (COTP)
areas. The areas covered by COTPs are
smaller than the RRT areas and Lnciute
major river systems associated with the
ports
OPA section 4202(bHl)(A) also
requires that in designating areas. “the
President shall ensure that all navigable
waters, adjoining shorelines, and wate
of the exclusive economic zone are
subject to an Area Contingency Plan.”
EPA believes that its approach for
designating Areas for the Inland Zone
wIll moat effectively allow the Agency
to meet the statutory requirement that
all navigable waters and adjoining
shorelines be subject to a Plan by
Initially building upon the basLc existing
oil spill planning and response structure.
onot
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Figure 1
13 REGIONAL RESPONSE TEAM AREAS
,0
c
I
Alaka
Hawaii, Guam, Noflh.m
Marlana Islands, Pacific
island Governments, and
American Samoa
I
Puerlo Rico and
She U.S. Virgin Islands
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Federal Register f VoL 57 No 80 / Friday, AprIl 24, 1992 / Notices
The Agency is now evaluating smaller
or subregional Areas for possible
designation, arid anticipales that the
authority to designate smaller or
subregional Areas will be delegated to
the Agency ’s Regional Administrators.
In the process of designating these
Areas, every section in a Region will be
screened. Designation of such Areas
would be based on an analysis of the
potential risk of oil spills and the
environmental sensitivity of areas
within each Region. If smaller or
subregional Areas are designated. they
will be published in the Federal
Register. The analysis of these
geographic Areas will include site-
specific information and will include
consideration of the following a teria.
—The pattem of past spills and the
likeithood 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 and/or
topographic features;
—The location of water supplies: and
—The location and capabilities of
existing preparedness and response
organizations
These cntena are consistent with the
requirements in CWA section
3 ’11(J)(4)(C) that each Area Contingency
Plan “describe the area covered by the
plan. including the areas of special
economic or environmental Importance
that might be damaged by a discharge”
arid with EPA’s understanding that the
relevant information Is generally
a vailable.
Boundaries of subregional geographic
areas would not be limited by political
boundaries of Regions or States arid
their political subdivisions because oil
spills can cause environniental harm in
more than one Region or State. Regional
Administrators would coordinate on any
Area designations that extend beyond
Regional boundaries. Such designations
would require the approval of all
Regional Administrators whose Regions
are affected.
P.RTs should be involved in both the
designation process and plan
development process to facilitate Long-
term coordination between the RRTs
and the Area Committees. Likewise,
each Area Committee shall consult with.
the appropriate RRT and address its
concerns in developing Area
Contingency Plans.
As provided in OPA section
4202(b)(l)(B). Area Contingency Plans
were to be submitted to EPA no Later
than February 1& 1992. The Regional
Administrator will request each RRT to
review the appropriate Area
Contingency Plan and provide
recommendations regarding approval.
The Regional Administrators, however,
shall approve Area Contingency Plans.
The Agency believes that RRTs should
serve in an advisory role because their
expertise In oil spill response will be a
valuable asset to the Regional
Administrators in evaluating Area
Contingency Plans.
Rather than use the entire Inland Zone
of the Region as an Area. a Regional
Adnilnistra tot may designate new Areas
and Area Committees or start a process
to designate subregional geographic
Areas and Area Committees. Some such
Areas may be designated during the
initial implementation of the area
contingency planning re 9 uireinents .
while others may be designated at a
later date. Fo ’r example. one EPA Region
Is considering designating 14 areas
covering the entire region. Other
Regions may act in accordance with the
designation of the initial Area while
considering subdesignations within that
Area.
Designation of Area Committees
I hereby designate the 13 individual
RRTs as the Initial Area Committees. I
also plan to delegate the authority to the
Regional Administrators to designate a
different committee or committee
members. If a Regional Administrator
designates new Areas the RRT will
serve as the Area Committee for the
balance of the RRT’s area. unless the
Regional Administrator designates s
different committee for the balance of
the Region. The Regional Administrator
should consult with the RRT on Area
designations. and appointments to Area
Committees.
For any areas other than the 13 RRT
areas. representatives of each agency
comprising the RRT should be
considered for membership on the Area
Committee. Each RRT agency may
recommend representatives to serve on
iuch Area Committee. EPA Regional
Administrators would appoint qualified
individuals to Area Committees for
subregional Areas designated. To
facilitate coordination between the two
organizations. the Regional
Administrator may designate RRT
representatives for membership on Area
ConunIuees. especially for Federal sid
State representation
In addition to any RRT agency
representatives, there will be
appropriate reptesentatives from each
State and from local goverwrient in the
Area. Including representatives of Stats
Emergency Rasponse Contmlulona
(SERCs) and Local Emergency Plann
Committees (LEPCs) established and.
the Emergency Planning and Community
Rlght ’to-ICnow Act Furthermore. the
Area Committee may consult with other
appropriate representatives where the
knowledge and expertise of these
representatives may facilitate the work
of the Area Committee. These other
representatives may include facility
owners or operators, cleanup
contractors, emergency planning and
response officials, members of
academia, environmental groups. and
other persons with a demonstrated
Interest in environmental matters in the
Area. The primary purpose of an Area
Committee will be to develop a plan for
the Area under the supervision of the
EPA OSC to anticipate and avoid
potential spill response problems prior
to an ofl spilL
RRTs are composed of representatives
of the 14 Federal agencies having broad
environmental responsibilities. State
agency representatives, Indian tribes.
and Local representatives (as arranged
by the States’ representatives). RRTs are
officially designated by the NCP for
interagency and intergovernmental
planning and coordination of
preparedness and response actions at
the regional leveL They are responsible
for developing Regional Contingency
Plans (RCPs) to address oil and
hazardous substance spills (40 CFR
300.115). The RRT/RCP structure was
developed over 20 years ago and was
originally designed to address oil spills
and later expanded to include
hazardous substance releases. Hence.
RRTs have the desired composition.
functions, and experience to fulfill the
role of Area Commit tees.
In developing the guidance provided
in this notice for designating Areas and
Area Committees wider CWA section
311 (j). the Agency has consulted
extensively with EPA Regional
representatives, the U.S. Coast Guard.
and other interested agencies EPA is
Interested in obtaining public comment
on this notice to ensure that It best
fulfills statutory objectives and
requirements. and to facilitate the
public’s understanding of how Area
Committees will function.
Dated: April 14. 1992.
Wil ia K. ftelfly,
AdminisU’ -eIor.
(FR Doc. g -azz3 Filed 4.45 dm1
coot
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Federal Register I Vol. 57. No. 80 I Friday 1 April 24, 1992 1 NotIces
rcno si-cioj
Ott Po8utlon Act 011990; DesignatIng
Am F Area Commmee .
AOUICC Coast Guard, DOT.
ACTIOlt Notice.
SUVUARY The Coast Guard Is providing
notice of designated areas for which
Area Committees are required to
conduct local oil epi 11 contingency
planning under the Oil Pollution Act of
1990 Other areas will be designated by
the Environmental Protection Agency in
a separate notice. Ths division of
responsibility reflects the working
arrements between the two agencies
under existing national and regional oil
spill contingency planning. This notice
will permit planning to begin.
PO PURThLR INFOaMATION CONTACT
Pamela hi. Pelcovits, Protect Manager,
Oil Pollution Act Staff, Department of
Transportation. U.S. Coast Guard, 2100
Second St., SW., Washington. DC )593—
0001, ( ) 7-640
siwpt. apnaav D FowaATiosc The Oil
Pollution Act of 1990 (Pub. L 101-380)
DPA 90) was enacted to reduce oil
iills and to Improve the nation’s
,irepaiethes and ability to respond to
them. OPA 90 creates a comprehensive
prevention, response, liability, and
compensation regime for dealing with
vessel end facility-genera ted oil
pollution.
Subtitle (b) of title IV of OPA 90
amend, section 311 of the Federal Water
Pollution Control Act (33 U.S .C. 1321)
(FWPCA) and contains certain stand
alone provisions requiring enhanced
response systems to clean up oil epi 11 s.
In particular, section 42 (a) of OPA 90
amends section 311 (j) of the FWPCA. to
define the role of Area Committees In
the contingency planning process and
production of Area Contingency Plans
(ACPa). .Each ACP must Include worst
case scenarios and lists of equipment
and personnel that are available for the
removal of worst case spills. In case of
an oil spill, an ACP would be
implemented In con unclion with the
amended National Contingency Plan
(NCP), to be developed under section
311(d) of the FWPCA. as amended by
section 4 }1 of OPA9O.
Section 4202(b)(1) of OPA 90 dIrect,
the President to designate the areas for
vhich Area Committees (whose
neinbers are to be appointed by the
President) are to prepare ACPs under
amended section 311(j)(4) of the
FWPC& Each Area Conunittee is to
submit an ACP to the President by
February 28 1992. for approvaL
Executive Order (EO) 1V77 of 22
October 1901. delegates the President’s
many responsibilItIes under OPA 90 to
appropriate executive agencies.
Pursuant to this EO, the authority of the
Presid nt to designate areas for the
“coastal zone” Is delegated to the
Secretary of Transportation. The
Secretary has redelegated this authority
to the Commandant, U.S. Coast Guard.
The term “coastal zone.” is defined In
the cerrent NCP (40 CFR 300.5), to mean
all United States waters subject to the
tide, United States waters of the Great
Lakes. specified ports and harbors on
Inland rivers, and the waters of the
Exclusive Economic Zone (EEZ). The
Coast Guard’s Notice of intent (56 FR
33481), which was published on 22 July
1991. considered coastal zone areas to
be published In a later notice, so that
advanced planning could be Initiated to
meet the mandated deadlines.
In addition, under the EQ. the
authority to designate areas for the
“inland zone,” also defined In the NCPI
Is delegated to the Administrator of the
Envionnientii Protection Agency (EPA).
Accordingly, a separate notice to
designate areas for the Inland zone”
will be Issued by the EPA
The existing NO’ divides the United
States, its territories, and Its possessions
Including portions of the high seas, Into
13 areas of responsibility. Each of the 13
areas of responsibility Is divided further
into coastal and inland zones. These
areas correspond to the 10 standard
Federal region, with the exception of
the separate areas established for (1)
Puerto Rico and the U,S. Virgin Islands
of Region fl (2) Alaska of Region X and
(3) Hawaii. Guam. Northern Mariana
Islands, Pacific Island Governments.
and American Samoa of Regkm DC. Each
of these areas is covered by-Its own
Regional Response Team (RRT) and
Regional Contingency Plan (RCP).
The Coast Guard further divides the
United States. lb territories, and its
possessions Into 47 CaptaIn of the Port
( COTP ) zones which cover all of the’
United States, Including portions of the
high seas. Each COTP zone is described
in the Coast Guard regulations t 33
CFR part3. Within theIr respective
zones, COWs and their representatives
enforce port safety, security. and marine
environmental protection regaistlons.
Each Coast Goard COTP I, also the
predesignated Federal On-Scene
Coordinatoi (OSC) under the NCP for
the coastal portion of a COTP zone.
In the Coast Guard’s Notice of Intent
(Sb FR 33481), published on 22 July 1991,
It was Indicated that the coastal zone
areas would be called “Port Areas” due
J 5201
to a different, and specific meaning of
the term “area” for the Coast Guard. In
reevaluating nAming the coastal zone
areas “Port Areas”, we found It more
Important to maintain consistency and
avoid confusion within the National
Response System (PiRSJ , rather than
Internally within the Coast Guard.
Therefore, the term “Area” will be used
In lieu of the term “Port Area” In the
coastal sone as well as In the inland
zone.
The Coast Guard has designated as
areas, those portions of the COTP
which are within the coastal zone, for
which Area Committees will prepare
AQ’s, The specific Area boundaries are
not listed In this notice. The boundaries
for inland end coastal zones have been
defined dearly by the Coast Guard
COTPs and the EPA Regional
Administrators through Memoranda-of-
Understanding. The precise boundaries
are described in the RCPs published for
each of the 13 areas of responsibility
under the NCP. The boundaries also are
found In the current loca. contingency
plan for each CX)TP. RCPs are available
for viewing at the Coast Guard District
and COW Offices listed in Table L
COW local contingency plans within
each Coast Guard District are available
for viewing at each District Office and
at respective COTP Offices.
When publishe& the amended NCP
will delegate to each COTP as OSC, the
authority to further divide an Area, to
address significant local requirements or
concerns. If an Area Is divided, each
portion then will constitute a separate
Area for which a separate Area
Committee will prepare and submit a
separate ACP. Some Areas In the
coastal zone may be divided during the
initial Implnmentation of the
contingency planning requirements of
OPA 90. while other Areas may be
divided at a later date.
By using COrP zones as a basis for
defining Areas, the Coast Guard will
meet the requirement of section
4202(b)(1) (of OPA 90), to ensurre that all
nav able waters, adjoining shorelines,
and w Iters of the EEZ within the
coastal zone, are subject to an ACP.
The Coast Guard encourages
representatives of State end local
government agerides and Interested
members of the public to contact the
Port Operations Department at COW
Offices for further Information
concerning OPA 90. Including coastal
zone Area boundaries. The addresses
and telephone numbers for COTP
Offices are listed In Table 1.
‘!ARTUEPIT OF TRANSPORTATION
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15202
Dated. March Ii. 1992.
AL Hena.
RearAdmiral. US Coast Cuord. Chief. Office
cJMorsne Safet ,. Security and En v,runmentoi
Protection.
Table 1.—US. Coast Guard Dizbicl and
aplain o(the Port Offices
Pint Coast Guard District Comma ader.
Coast Guard Bldg.. 408 Atlantic Ave.. Boston.
MA 02210-23k. 611/223-4441
Commanding Officer. Manna Safety Office
Portland. 78 Pearl St.. Portland, ME 04112.-
0198.207/780-3251
Commanding Officer. Marine Safety Office
Provuience. John O’Pastore Federal
Building. Providence. RJ 02908—1798.401/
828-5365.
Captain of the Port Long island Sound. do
USO Group. 120 Woodward Ave.. New
Haven. CT 06512—3698. 203/468-4484
Commanding Officer. Manna Safety Office
Boston. 455 Commercial Street. Boston. MA
02109-1045.617 1225-3025
Captain of the Port. New York. do USCC
Group. Governor, Island. New York. NY
10004—3000. 212f 668-7917
Second Coast Guard District. Commander.
1430 OZi e Street. Si LOUIS. MO 63203-2398.
314 1539—2655
Commanding Officer. Marine Safety Office
Si Louis. Suite 1215.1222 Spruce St.. St.
Louis. MO 83103—2635. 314/539—3091
Commanding Officer. Manna Safety Office
Huntington. 1415 6th Ave.. Huntinglon. WV
25701-24 304/520-6524
Coaunandrng Officer. Marina Safery Office
Louisville. Room 360. 800 Martin Luther
King Jr. Place. Louisville. ICY 40202-2230.
502/582-5194
Commanding Officer, Marine Safety Office
Paducah. P.O. Box 7509.200 Katterjohn
Bld g . 1501 Broadway. Paducah. KY 42002-
7509.502/442—1621
Commanding Officer. Marine Safety Office
Memp)us. Suite 1301.200 Jefferson Ave..
Memphis. TN 38103-2300.901/544-3941
Commanding Officer. Marine Safety Office
P t1sburgh. Suite 700. Kouman Bldg.
Forbes Ave & Stan wick St. Pittsburgh. PA
15222—1371. 412/644—5806
Fifth Coast Guard District. Commander.
Federal Bldg. 431 Crawford St . Portsmouth.
VA 25?04-.5004. 804! 396-6638
Commanding Officer. Marine Safety Office
Baltimore. Customhouse. 40 S Gay St.
Baltimore. MD 21202—4022. 301/982—5121
Commanding Officer. Marine Safety Office.
PhiladeLphia. I Washington Ave..
Philadelphia. PA 19147-4395. 215/271-4803
Commanding Officer. Marine Safety Office
Hampton Roads. Norfolk Federal Bldg.
Granby St.. Norfolk. VA 23510-1888.804/
441-3362
Commanding Officer. Marine Safety Office
Wilmington. SuIte 500.272 N. Front St.
Wilmington. NC 28401-3907.919/343-4882
Seventh Coast Guard Diatrici. C nmsnder,
Brickell Plaza 814.909 S.E. lit Ave. MlamL
El. 33131-3050.305/536-5651
Commanding Officer. Manna Safety Office
MIami. 155 S. Miami Ave.. MiamI. El.
33150-18* .fJ5/539-66Pi
Commanding Officer, Marine Safety Office
JacksonviUe, Room 213. 2831 Talleyrand
Ave.. Jackjoavllie. El.. 32206-3497.904/791-
2640
Commanding Officer. Marine S Tety Office
Tampa. 155 ColumbIa Dr. Tampa. El.
33606—3598, $13/ —2194
Commanding Officer. Marine Safety Office
( srIeston. 196 Tradd SL Oinrieatoo. SC
39401-1909. 503/724-8699
Commanding Officer. Marine Safety Office
Savannah. P.O. Box 8191. Savannah. GA
314124191.912/944—4371
Commanding Officer. Marine Safely Office
San Juan, P.O. Box S-3866. Old San Juan.
PR. 90002-3686.900/944-2097
Eighth Coast Guard District Commander,
Hale Bo s Federal Bldg.. tin. 1331.501
Magerme St. New Orleans, LA 70130..3396.
504/589-8901
Commanding Officer. Marine Safety Office
New Orleans. Tidewater Bldg. 1440 Canal
Street New Orleans. LA 70112-2711.504/
Commanding OffIcer. Marine Safety Office
Corpus Otristi. P.O. Box 1021. Corpua -
Christi. TX 73403-1621.512/088-3162
Commanding Officer. Manna SMety Office
Houston. P.O. Box 448. Galena Park. TX
fl541 —0448 . 713/871—5132
Commanding Officer, Marine Safety Office
Port Arthur. Federal Bldg.. 2875 75th St. 4
Hwy 09. Putt Arthur. TX 77640-2099. 400/
Commanding Officer, Marine Safety Office
Morgan City, em 202. & ) David Dr.. Morgan
City. LA.. 70390—1304.504/384—2406
Commanding Officer. Marine Safety Office
Galveston. Post Office Bldg. em. 313.601
Rosenberg. Galveston. TX 77550-1105.409/
766-3678
Commanding Officer, Marine Safety Office
M bi)e. P.O Box 2024. MobIle AL 36652—
2924. 335/ i—2286
Ninth Coast Guard District Commander. 2240
E. 9th Street Cleveland. OH 44199-2080. 218/
552—3994
Commanding Officer, Marine Safety Office
Buffalo, Rm. 1111, Federal Bldg.. 211 Weal
Huron SL Buffalo. NY 14202-2195.716(848-
4166
Commanding Officer. Marine Safety Office
Cleveland. 1065 East 9th SL Cleveland. OH
44114—1992. 210/522—4405
Comirianding Officer. Marine Safety Office
Duluth. Canal Park. Duluth. M I 53802—2352.
218/720-3290
Commanding Officer. Marine Safely Office
Milwaukee. 2420 S. Lincoln Memorial Dr.
Milwaukee. WI 53207-1997.414/747-7159
Commanding Officer. Manne Safety Offi
Toledo, Rin. 50 1. Federal Bldg.. 234 Sau’
St. Toledo. OH 43604-1590.439/259-41
Commanding Officer. Marine Safety O ..
Chicago. 8105 Canal St.. Clilcego, B.
50607-4573.312/353—3eV. -
Commanding Officer. Marine Safety Offlce.
Detroit. Ft. of Mt. Elliot Ave.. Detroit. Mi
48207-4380. 313/588-9493 .
Captain of the Port. Grand Haven. cjo USCZ
Group. 050 Harbor Ave.. Grand Haven. MI
49417.618/547-4504
Captain of the Port. Sault Sit. Mine, c/a.
US Group, Sault Ste. Marie. ML 99783-
9501.906/372-3210
Eleventh Coast Guard District Commander,
400 Oceengale. Long Beach. CA 90622—5399.
213/499—5330
Commanding Officer. Marine Safety Office
Long Beach. Los Angeles/Long Beach. 165
N. Pico Ave. Long Beach. CA 90802-1096.
213)499- 5573
Commanding Officer. Marine Safety Office
San Francisco. Bldg. 14 Coast Guard Island
Alameda. CA 94500.4100. 425)437—3062
Commanding Officer, Marine Safety Office.
Sen Diego. 2710 N. Harbor Dr., San Diego.
CA 92101—1064.619/557—5877
Thirteenth Coast Guard District. Commander.
Jackson federal Bldg.. 915 Second Ave..
Seattle.. WA 96174-1067.206/442-5233
Commanding Officer. Marine Safety Office
Portland. 6767 N. Basin Avenue. Portland.
OR 97217-3920.503/240-0317
Commanding Officer. Marine Safety Office
Puget Sound. Bldg. 1/Pier 36.1529 Alaskar
Way S. Seattle, WA 98136-2192. /? -
5536
Fourteenth Coast Guard District
Commander. 9th floor, room 9153. Prince
Kalaruanaole Federal Bldg.. 300 Ala Moans
Blvd. Honolulu. HI 98650-4982. 806/541-2114
Commanding Officer. Marine Safety Office
Honolithi. Rm. 1.433 Ala Moans Blvd..
Honolulu. HI 96813-4999.506/541-2068
Commanding Officer. Marine Safety Office
Guam. Box 178. FPO San Francisco. CA.
96630/5000. 671/477—3340
Seventeenth Coast Guard. Commander. P.O
Box 3-5000. juneau. AX 99802-1217.907/463-.
2210
Commanding Officer, Marine Safety Office
Juneau. Suite 2A. 2760 Sherwood Lii.
Juneau. AX 99801-4343.907/5864288
Commanding Officer. Marine Safety Office
Valdee. P.O. Box 486. Valdee. AX 99686-
0486. 907(83 4?91
Commanding Officer. Marine Safety Office
Anchor*ge. Federal Bldg & U.S.
Courthouse Box 17. 701 C St. Anchorage.
AK 99513—0065. 907JV1—51 ’
IFR Doc. 92-0272 Filed 4-23-02. 8 ’43 am)
Federal Registet / VoL 57. No.80 f Friday , April 2419 I Notices
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Part II
ri
Department of
Commerce
National Oceanic and Atmospheric
Administration
Guidance for Facility and Vessel
Response Plans Fish and Wildlife and
SensItive Environments; Notice
a
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14714
Federal Register / Vol. 59, No. 60 / Tuesday. March 29. 1994 / Notices
DEPARTMEN ’T OF COMMERCE
National Oceanic and Atmospheric
Administration
Guidance for Facility and Vessel
Response Plans Fish and Wildlife and
Sensitive Environments
AGENCY: National Oceanic and
Atmospheric Adniinistratioh (NOAA),
Commerce.
AC7)ON: Notice.
SUMMARY NOAA is issuing this Notice
as interim guidance on fish and wildlife
and sensitive environments for the
regulated community required to submit
Oil Pollution Act Facility or Vessel
Response Plans to U.S. Environmental
Protection Agency or U.S. Coast Guard.
This Notice is listed in the following
outhne:
Appendix 3. Federal Agencies Responsible
for Specific Environmental Resources.
Appendix 11: Critical Habitats for
Endangered/Threatened Species.
Appendix II I. Federally Protected Areas.
Appendix IV: Sensitive Biological and
HUmSD.Use Resources.
Appendix V: Ranking of Shoreline Habitats
impacted by 011 Spills.
Appendix VF Mailing Addresses and
Phone Numbers for Regional Offices.
ADDRESSES: Limited additional copies
are available by calling or writing the
Oil Pollution Act (OPA9O) Staff, (G—
MS), 2100 Second St. SW., W c iir rin
DC 20953; (202) 267-6740. This number
is equipped to record messages 24 hours
a day.
FOR FURTb P ii’WORM.&TlON CONTACY loan
Snider, Ph.D.. NOAA.HAZMAT Liaison.
do US(X (C-MET). 2100 2nd St. SW.,
rm 2100. Washington DC 20230; (202)
267 6 122, Fax (202) 267—4825.
SUPPLEMENTARY INFOR&MTION Under
section 311 of the Clean Water Act
(CWA). as amended by the Oil Polhiti
Act of 1990 (OPAl. carta n facilities
(including some onshore facilities,
pipelines, and rolling stock as defined
in 40 ‘R part 112, 33 CFR part 150,49
G’Rpart 194 and 49 CFR part 106),
offshore facilities, and vessels are
required to prepare and submit response
plans. This pliirrning req uirement is
meant to include all tank vessels and
those Facilities that could reasonably be
expected to cause substantial harm to
the environment by a discharge of oil or
a hazardous substance into navigable
waters (as defined in 40 G’R part 110.1).
adioining shorelines, or the exclusive
economic zone. At this time, only oil
discharges are being addressed by this
Notice. The CWA, as amended by OPA,
requires that these response plans be
consistent with Area Contingency Plans
(ACPs). The A s are being prepared by
Area Cocnmfltees, composed of qualified
personnel from Federal. State, and local
agencies, who will identif ’ and
prioritize for protection specific
locations that may fall under the
categories of fish and wildhfe and
sensitive environments. New
requirements for addressing fish and
wildlife and sensitive environments
were called for in sections 4201(b) and
4202(a) of OPA. These Sections required
“fish and wildlife response pLans
for the immediate and effective
protectlon ‘ “and “joint
preplAnnmg by the Area Committees
induding e • protection of sttive
en’iuronmentnl areas, and pr ectioC.
rescue, and rehabilitation of fisheries
andwildlife ’ ‘ .“Theccmpletedfis.h
and wildlife and sensitive environments
plans will likely be geographic-specific
annexes to the AC¼. and should be the
primary source of natural reso ce
information that should be used by
facility and vessel owners or operators
during response planning. These
annexes will reflect local scientific
knowledge, responder experience, and
community priorities. Sensitive
environments identified by Area
Commitees niey include areas tive
to the effects from a spill event, and
areas which if impacted may endanger
human health. in prepanng or updating
their response plans, owners and
&e iougly encouza ed to
contact the Enviroiunental Protection
Agency EPA3- end U.S. Coast Cuard
1U -chthred Area Committees to
ensure consistency in the definition of
sensitive environments and priorities
for actions to be taken in the event of
a zjifl
This document is provided as
guidance to owners and operators until
the geo nryl&-speciflc fish and wildlih
and nsitive environments annexes in
A s are cumpleted. It does not
supersede or replace these annexes, but
rather provides some interim guidanr
on fish and wildlife and sensitive
environments, and background
information regarding those annexes. it
is also intended to assist owns’s and
operators by listing some references
being used by the Area Committees in
determining protection pnorities and
appropriate cleanup strategies. This
guidance is not meant to provide a
complete listing of sources that Area
Committees are using to develop their
fish and wildlife and sensitive
environments annexes. Rather, It
provides a description of the basic type
of information that Area Committees use
to establish protection priorities.and
cleanup strategies.
Proximity of the potential discharge
source to fish and wildlife and sensitive
environments has been identified as a
factor in the substantial harm
evaluation. (See appendix Cof4O CFR
part 112 from EPA’s NPRM of February
17. 1993 on Non-Tmunsportation-Related
Onshore Facilities.) Environments may
be identified as sensitive (as described
in the proposed changes to 40 CFR
300.210(c)(4) and detailed in the fish
end wildlife and sensitive environments
annexes to the AO’s) by either their
legal designation, or evaluations of Area
Committees (for planning) or members
of the spill response Unified Command
Structure (during responses). These
areas may include wetlands, National
and State parks. critical habitats for
endangeredithieateried species,
wilderness and natural areas, marine
sanctuanes and estuarine reserves,
conservation areas, preserves, wildlife
areas, wildlife refuges, wild and scenic
rivers, recreational areas, national
forests, public drinking water intakes,
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 and
agricultural surface water intakes, bird
nesting areas. critical biological resource
areas, designated migratory routes, and
designated seasonal habitats. The Area
Committee and the spill response
Unified Command Structure may
consult with the natural resource
management agencies, to determine
edditional areas to be considered
sensitive environments for the purposes
of OPA.
This document includes appendices.
which provide basic environmental
reference information for facility and
vessel owners and operators to use in
the development and update of their
response plans. Appendix I provides a
list of Federal agencies that are
responsible for specific envirorunental
resources. Appendix 1] provides further
information to assist owners and
operators in identifying boundaries of
critical habitats for endangered/
threatened species identified by the
National Marine Fisheries Service
(NMFS) and the Fish and Wildlife
Service (FWS). (Appendix I I lists the
seasons associated with critical habitats
for some endangered species. Since it is
not known when a discharge might
o ur. owners and operators should
base their response planning on the
worst case. I.e., a discharge that occurs
during the critical habitat season.)
Appondix .Ili proviclesaiistof some
Federally protected areas. In ETA’s Rule
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Federal Register I Vol. 59, No. 60 / Tuesday, March 29, 1994 / Notices
14715
CMical habitat toe Designated or Proposed Eniangredtflveatened Species _...
Habitat Used by Des ’ gnated cc Proposed Endangeredribreatened Species or Marine Mammals
Nabonai Marine Sanctuaries
I lat ionaiP a r ks ..
Federal Wilderness Areas .... ..........,.. _...........
NabonaiEstuayProgtarnAreas _.... ....... .....
NearCoasSWatesProgramAres. _. . _.............. —..
C l danUkesProgramCnbc&Area...... ..
National Monurnert —.-.-- -..... -..--... - -.. — - -.-......-. - -. ———
National Reaeational Areas ....._._ ..... ---. -.. —
J abon&Presesves. _ _ ... .... - .
on Non-Transponation-Related Onshore
Facilities, Appendices 1 through III will
be referenced as the lists that owners
(3) Resource extraction sites, such as
subsistence sites, commercial fisheries
areas. aquaculture sites, water intakes
Manual. Temperate Coastal
Environments” (NOAA, December 1992)
and “Shoreline Countermeasures
and operators will use in self-
determining their substantial harm
(with regards to the factor on proximity
to sensitive environments),
The lists in appendix [ V and V will
further help owners and operators
develop protection priorities until the
AC? geographic-specific Annexes on
Fish and Wildlife and Sensitive
Environments are completed. These
tables are not necessarily applicable for
purposes other than spill preparedness
and response. Appendix IV addresses
the biological and human-use aspects of
area sensitivity and the assoaated
activities that represent the most risk for
those resources. It has been abstracted
from information developed by natural
resource trustee agencies and t ical
experts.
Natural resources are rnostat risk
from oil spills when: (1 ) Large nnmb rs
of individuals are concentrated in a
relatively small area, such as bays where
rafts of waterfowl concentrate during
migration and overwintering;
(2) Wildlife come ashore Icr birthing,
resting, or molting , such as seal
haulouts and marine turtle nesting:
(3) Early life stages are present in
somewhat restricted
nursery areas for anadroinous fish, turtle
nesting beaches, and bird rookeries;
(4) Areas important to specific life
stages or migration patterns, such as
foraging or overwintering sites, are
imnacted by oil;
(5) Specific areas are own to be
vital sow’ces for propagation, such as
oyster seed beds;
(6) The species are threatened or
endangered; and
(7) A significant percentage of the
ponulation is lIkely to be exposed to oil.
fiurnan.use resources at risk from oil
spills can be divided into four -
components: (1) High recreational use
and shoreline aceioss areas,
(2) Officiatly designated natural
and other water resource usage and
resource extraction s ue areas; and
(4) Archaeological. historical, and
cultural sites.
Water resource usage areas that may
require protection include surface water
intakes and groundwater recharge zones
and well fields. Groundwater protection
may be of particular concern for spills
of light products in rivers where wells
are located in the flood plain and are
hydraulically connected to the river.
Appendix V ranks several shoreline
habitats by their relative sensitivity to
oil spiiis. The sensitivity ranking is
controlled by the following factors: (1)
Relative exposure to wave, tidal, and
river flow energy;
(2) Shoreline type (e.g., rocky cliffs,
sand beaches, marshes);
(3) type (grain sire,
mobility, oil penetration, and
t.rafflcability); and
(4) Biological productivity and
sensitivity,
The concept of ranking coastal
environments on a relative sensitivity
scale was originally developed in 1976
and has since been refined and
ex nded to include all shoreline types
in No’th America, inc luding the Great
Lakes and riverine environments. The
ranking is based on an understanding of
the physical and biological character of
the shoreline environment, not just the
substrate type and grain size. Area
Committees determine protection and
cleanup priorities for areas by reviewing
their shoreline and resource sensitivity
as well as other local factors.
Subsequently, the appropriate
protection and cleanup methods for the
different environments are determined.
Further information on preferred
cleanup methods for different
environments and factors to consider for
inecharucal protection can be found in
the following documents available from
the National Tecimicat Information
Manual: Tropical Coastal
Environments” (NOAA, May 1993).
Furt her information is anticipated to be
available. including ‘ Environsnerttal
Impacts of Freshwater Spill Response
Options” (NOAAfAmerican Petroleum
Institute, in press mid-1994), and
“Mechanical Protection Guidelines”
in press mid-1994).
To facilitate the update of Vessel and
Facility Response Plans and the
incorporation of recent information,
appendix VI lists mailing addresses and
phone numbers for regional offices In
addition, owners and operators should
note that the appropriate agencies
responsible for fish and wildlife and
sensitive environments will periodically
update their sensitive environment
information as well as agency lists This
is due to: Legal changes (i.e., changes in
law or regulations to federally protected
areas and species). updates to Area
Contingency Plans and changes in
agency contact information. Owners and
operators are responsible for ensuring
that their response plans and their plan
updates reflect recent fish and wildlife
and sensitive environments information.
Area Contingency Plans,wilt
periodically be updated to reflect these
new designations, as well.
Dated. March 23, 1994.
Frank W. Maleney,
p s1stmmru borMobou id)
°‘ National Oceanic mid
Atmosphencsdmmistrcbon, DOC
Appendix I—Federal Agencies That
Are Responsible 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 maps, fer
resource management areas,
Service: “Shoreline Countermeasures
the areas under their jurisdiction.
Wetlands, as defined in 40 CFR Part 230.3
Areas
Responsible Federal Agency
EPA’; COE; 001/FINS, ELM, NPS;
USDAIFS
D0I)FWS, ELM, NPS; NOAA/NMFS;
LJSDA/FS.
DOLIFWS, ELM, N , NOMJNMFS;
USDWFS.
N0& AJNOS.
DOt/NPS.
DOIIFWS, ELM, NPS; USDNFS.
EPA’.
EPA ’.
EPA ’ .
DOi!NPS: IJSDA!FS.
DOUNPS, USDNFS.
OOIJNPS.
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14716
Federal Register / VoL 59. No. 60 1 Tuesday. March 29. 1994 / Notices
Areas
Responsible Federal Agency
National Wildlife Refuges
CoastaJ Barner Resource System (units, undeveloped, paliaily developed)
National River Reach Designated as Recreational
DOI/FWS.
DOI/FWS. NPS.
EPA, DOI/BLM.
DOL’BLM. NIPS. USDAJFS.
DOIIBLM. USDNFS.
DOl/FWS. NOM/NMFS
DOL/FWS
DOt/NPS , BLM USDAIFS
DOI LM
USOAJFS
Federai or State Designated Wild and Scenic Rivers
National Conservation Areas ....... .. .. -
Hatcheries -
Waterfowt Management Areas ....._ - -
Cultwaf Rescizces . ...._.._...... _ . _... _. - -
Areas of Critical Environmental Concern ..___._ .. - .. . .. . . ...
National Forest System ..... .... ....... ..
Where EPA designated as the responsible agenc). the inlormalion may be ovided by me appropnaie Regional off ce.
Note Please contact State or local agencies for ,nlorrnavon on resources they manage.
Acronyrnc:
BLM—Bureau of Land Management.
COB—US Army Corps of Engineers.
DOl—Depertinent at the 1enor.
EPA—US Erwwocimental Protection Agency.
FS—US Forest Service.
FWS—ljS F ti and Wiidlrfe Service.
NMFS—NabonaJ Manne Fi enes Service
NOA4—Nat Oceanic and Atmospheric Administration
NOS-4 ationai Ocean Service.
UPS—National Park Service.
USDA—US Department of Agriculture
A D1X fl—Critical Habitats for
Ezidangeredfrhrealesied Spc’r4 .c
Designated Cñt cal Habitat for ti /MT’S
Species
The following locations have been
designated as orrtical habitats for NMFS
species. These habitats are considered
sensitive environments and axe preserved by
the government. Habitat boundaries for the
NMFS species listed below axe Identified in
50 GR parts 226 and 227. This list is not all-
inclusive Owners and operators should
contact the appropriate NMFS region listed
in Appendix V I for further infocuiation.
NMFS Species
Location
Hawaiian Mo c SeaJ ,
Northwest Hawaiian
Leatherback Sea
Islanth. Sandy
Turtle, Stelier Sea
Pont, St. Croix.
Lion.
USVI. AK/North Pa-
erfic Coast (35
rookery
Winter-run Chinook
Sacramento River.
Salmon, Snake
CA. Columbia and
River Salmon.
Snake Rvrs., ID,
OR. WA.
2 Primor rSecaooa! Habitats
Primary seasonal habitats i.e , species
dismbutions) for endangered species as
identified in recovery plans and other
technical documents are listed below.
Owners and operators shoiald contact the
appropriate NMFS region listed in appendix
VI for further information.
Northern Right Whole (Final Recovery Plan.
December 1991)
Florida—Georgia coast from 28°N to 32°N
during the months of Decemberthxough
March Calving and nursely area.
Cape Cod—Massachusetts Bay dnring the
months of March through September.
Primary feeding areas.
Great South Channel on the western edge
of Georges Bank and Jeffrey’s Ledge during
the months of March through September
Primary feeding area
Hunipbock Whale—east coast population
(Final Recovery Plan. November 1991)
Gulf of Maine. Great South Channel.
Steliwagen Bank. and Jeffrey ’s Ledge during
the period from mid-April through rind-
November. Primary feeding area.
Silver Bank and Navidad Bank off the coast
of Pi to Rico. coa l areas aff the northwest
coast of Puerto Rico. end the US Virgin
Islands from niid ’December through early
April. Calving and nursery area.
Humpback Whak—west coast population
(Final Recovery Plan. November 1991)
Hawaiian Islands (Central North Pacific
stock) and Guam (Western North PacIfic
stock) from December through April. Calving
and nursery area.
Cenflul and western Gulf of Alaska.
including Prince William Sound. Shelikof
Strait. Barren Islands and the southern
coastline of the Alaska peninsula during the
months of May through November. Primary
fording ar
Inside Paor e end coastal waters of the
southeast Alaska panhandle frcen Yskutat
Bay south to Queen Charlotte So’ .od from
May to November. This area includes Glacier
Bay. Icy Strait. Stephens Passage!Frederick
Sound, Seymour Canal. Sitka Sound. Cape
Fairweather, Lynn Canal. Sumner Strait,
Dixon Entrance, the west coast of Prince
Wales Island, and the Fairweather grounds
which is an offshore bank. Primary feeding
area
Shortneise Sturge e (NOAA Tethnical Report
NMFS 14 and Food arid Agriculture
Organization. Fishenes Synopsis No.
140).
The following east coast rivers and boys
shcold be included: Kennebec River,
Andrescoggin River. Moatsweag Bay.
Memmack River. Connecticut River. Hudson
River. Delaware River, Wacoomew River
(including Winyah Bay). Lake Marion-
Wateree River, lowerSevannab River,
Altamaha River. Ocinnulgee River, and St
Johns River.
Gray Whale (5 year Status Review)
Northern Bering and southern Chukcbi
Seas. Primary feeding areas.
Unlike other whale spec ie s. the gray whale
is particularly vulnerable during its
migration period because it migrates very
close to shore. In areas such as Monterey and
Point Conception It migrates within two
miles of shore. The entire west coast from
Alaska to the Mexican border should be
listed during the migration periods
Southbound migration is during the months
of October through December. and
northbound migration is from mid-Februaiy
to ApriL
Sacromeiflo River Wzrrter-iinn Chinook
Salmon (Designated Critical Habttat
Sacrameri River Wintes-Run Chinook
Salmon Proposed Rule. 57 FR 36626.
August 14.1992)
The following waterways. bottom and
water of the waterways. and adiacent riparian
zones are included. (1) S amento River
from Keswick Dam. Shasta County (River
Mile 302) to Chipps Island (River Mile 0) at
the westward margin of Sacramento-San
Joaquin Delta. (2) all waters from Chipps
Island westward to Carquinez Bridge.
including Honker Bay, Grizzly Bay, Suisuri
Bay, and Carquinez Strait; (3) Il waters of
San Pablo Bay westward of the Carquinez
Bridge. and (4) all waters of San Francisco
Bay from San Pablo Bay to the Golden Gate
Bridge
3 inland Crri n! Hab itats for EM’S Species
Critical habitats fox threateiied and
endangered species are considered sensitive
cuvitofli’ae!itS . They are areas in which
federal a ucivs must consider the effects of
their actrvities (or activities they permit) on
the species tinder the Endangered Species
Act. section 7. Critical habitat boundaries for
theFWS species are listed in 50GR 17.95.
This list Is not all-inclusive Habitats used by
eningeredspecnes erenot 4tsied specifically
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Federal Register I VoL 59. No. 60 / Tuesday. March 29. 1994 / Notices
in the R and may require professional
tudginent to identify. Owners end operators
Id contact the appropriate FWS office
I in appendix VI for further informatIon.
Appendia rn—Federally Protected Areas
i. National Marine Sanctuaries (NMS) arid J JotJono!Esluafine Research Reserves (NERRJ
P .talional k4acwie Sancauaries
Location
Regulation
MONITOR NMS ._ -__ .___ .__ ...._
Key Large NMS . ._____ .._ ._ .........
Channel Islands NMS ._.
Point ReyesfFarallon tsland AS — .......
Looe Key NMS ..........._...._.
Grays Reel NMS . . ...
Steitwagen Bank NMS ..___._. ._.._._... .. .......
Fagatele Bay NMS .. ......_............. .........____ .
Coi ell Bank NMS .__._.___..........
Florida Keys NMS ._
Flower Carder, Banks NMS
Monterey Bay NMS ..........._ .....
NC
Ft.
CA
CA
FL
GA
MA
AS
CA
FL
1’X
CA
15 CFR Part 924.
15 CFR pail 929.
15 CFR Pail 935.
15 CFR Pail 936
15 CFR Part 937.
15 CFR Part 938.
15 CFR Part 940.
15 CFR Pail 941.
15 CFR Pail 942.
pending’.
15 CFR Part 943
15 CFR Part 944.
‘Currently designated an Niby the Of of Ocean and Coastal Resowoe Management, Sanctuaries and Reserves Dr sron. t lolificabon In
CFRts pending.
WeftsNERR_... . . .. ..._._... .....................,
GreatBayNERR__._.
WaquoitB ay HERR.._____
Narraganselt Bay NtRR
Hudson River HERR
Old Woman Creek HERR
Chesapeake Bay HERR (tot Maryland)
Chesapeake Bay NERR (tot Virg,ma) —
‘oilti Carolina HERR
pelo Island HERR ___________
. .bos Bay HERR ______
Apalactecola River HERR
Rookery Bay PJERR._ —.
Weeks Bay HERR
T uaria Rr . i HERR
Elkhom Slough HERR
South Slough HERR
Pac ria Bay HERR _____
Warmanu Valley HERR
Ahepoo-Corrtrahao Edisto Basin HERR
Delaware HERR
North Inlet-Wmyah Bay NERA
St Lawrence River Basin N RR
General information on these sanctuaries
and reserve programs can be found in these
regulations.
—National Marine Sanctuary Program 15
part 922)
—National Estuarine Research Reserve
Program (15 CFR part 921)
For additional information on area
boundanes for all NMS sites, all proposed
new sanctuaries, and information on polnb-
of-contact with the National Estuaxine
Research Reserve sItes contact: Department of
Commerce, NOAA. Office of Ocean end
Coasial Resource Management, Sanctuaries
and Reserves DivisIon. 1305 East West
Hi jiway. SSMC4. Silver Spring, MD 20910.
2. Fedenzliy Proected In land Areas
Federal regulations protect namerous
inland areas. These include National Park,
and National Wildlife Reftiges. wñdex.’ess
areas, National forests, and others These
areas are listed In Appendix L Owners and
operators sbouid contact the responsible
Federal agency, also l Isted in Appendix I. for
ares boundaries, information on proposed
new areas and applicable regulations.
BIUflSO 000C 3510-es-P
PolEstL nne Research Reserve
Area of concern
Rachel Carson Refuge, ME.
Durham. NH.
MA.
Ri.
NY.
Huron. OH.
AnnapolG, MD.
Gloucester Pt.. VA.
Wilnvngton, NC.
GA.
GuayarrM ., PR.
FL
Naples. FL
Faimope, AL
lrr enal Beach. CA.
WalsaawJle. CA.
Chaiteslon, OR.
Mt. Vernon. WA.
Qatmu, HI.
SC.
DE.
SC.
NY.
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14718 Federal Register / Vol. 59, No. 60 / Tuesday, March 29. 1994 / Notices
APPENDiX IV
SENSITIVE BIOLOGICAL AND HUMAN-USE RESOURCES
RESOURCE CATEGORY JB.CATEGORY AREA OF SENSITIVE ACIIVITY
Sea bocs Sea3s Wairurea Rzzlouts
Sea ouer M . Whales C c a ca areas
Terrestrial Mammals Waler .associM l &pe’ 4 ’ C c tra areas
(e.g., o r, beaver, mink )
PMit igued rcica I por t babi s as ider ñ5ed by
reso ag cy
Birds Waterfowl Nesting i a m /w inter ing
Diving birds Rookerics Foragelwlnxering ax
Scabirds Rookeries V(mxer conc o axeat
Wading beds Rookaiea ]mp l f age s
Shorebirds Nesting tes Impcz nt inigratiam
opov LltS
GulVrcras Nesting sites
Rapiots Nest si ats Imxacanl forage
Other migra y species Nesting iite Impcx nt migraricm
atopover sites Winter coecen n areas
EMangered apecins Important habiata, as idenxi&d by
Anadrorn fl Spawning streams
Bczh apaw s Spawning beahea
Nursery ms Areat i c r sU nearshore species
Enthngered species Important habita i . at i4 .ntif d by
ag cy
Sheflflsh MoU Secd beds, Abundant beds l d mus l
bed dangered beshwaxer mm
Shtimpfc rsha.Ptobatcr Nw,er areas; coneez ati areas
Rep 1ea/Anupbibians Wates-associatad speci i N atry areas; cau atior areas
(e.g., sea willea, allig ra )
Pi’ i gued zpec es Important habitats, at 4f ztifiød by
resoarec ag y
Endangered species Important areas, U jii i ti 4 by
re wcc ag cy
Recreation Marinas, boat ramps, b .
B hint/diving areas, High-use axeas
Siate/coimty/other parts
Management Areas Pedthlly protected areas (sec Appendix I)
Slate and kicaJ protected areas (sec appropriate agency)
Resoorce ExuacDoa Sub istexr’e Designated anbaisrence harvest areas
Conimercinl fl s C eatioa areas
Aqtaculnue f flities Waxer iniakes/per poads
Water intakes Drin ngfirriptioa/other
Other wa suppbes •(see introductory rcxQ
Other ce u on ades
caiunil Resouzces Arch 1ogical sites Water astzleia?d sties
Histcriesl sties Waxer-associated sites
Nauve lands Resern*lculturIlly impar sites
S zvc Modified &orn NOAA ‘Guidelines (or Developing Digital Ezt nmcnlal Sensitivity
Ifld T (ESI) Atla and Dar2hntes ’ (April, 1993).
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Federal Register I VoL 59, No. 60 / Tue day , March 29, 1994 / Notices
1471 ,
APPENDIX V
Ranking of Shoreline Rahitata lmpaeted by Oil Spills
This appeadix rank sh line habitats by their relative degree of sensitivity to oil
spills in estuarine , lacustrine, and tiverine envin n nts. Facility and vessel o and
opaa s should use the scale to develop pm ction priorities. Upon cotnvletion by the
Area Olrrb . Jtries of geographic-apeelfic an es in the Area Contingency Plans, resp isc
plans should be nsistcnt with the appropriate Area Contingency Plan annexc&
Sci sitwe
Mocfifiai ocxi NOAA ‘ 1 Guidclines frrDevelcçing Digital Enviro I
S sith ’ity Index ( ES! ) Atlases and Databases’ (A il l993) , other NOAA guidanc* fer
freshwater cnvir s , and PWS National Wethuv(t Research Center . NOAA ES! nwps
f 4,astal wateri the Great I y be viewed the US CXflP offices at
NOAA offk es in SeanI W’- ngti’-
Most
Estoaiine Lacustrine Riverine
10 Freshwater swamps and Freshwater swamps Freshwater swamps ath
shes, ngrovcs, and n shes marshes
— ------------------
9 Sheltered tidal flats Sheiltereid san4fmud Muddy unvegezated
flats, sheltered substrates, vegetated
vegetated low banks low banks
8 Sheltered m c tl Sheltered roarnuade Sheltered fl nQt1ti
s u es, sheltered uctwes, sheltered s c vegetate
iocky shores rps in bedrock steeply sloping bluffs
7 -
6 Rip rap uctwes, Rip rap strucures, Rip rap suocteres, gravel
gravel be gravelbeaches opinggravel
5 Mixed sand and Mixed sand and Mixed sand and gravel
gravel be d es gravel beaches bars, gently sloping mixed
sand and gravel banks
4 Coarse-grained sand Sand bearlies Sandy bars, gently sloping
beaches sandy banks
3 FIne-grained sand Eroding scarps In Exposed, eroding banb in
unconsolidated sedimts
2 Wave.cut plaxf ins in Shelving bufr Rocky shoals. bedrock
xo r
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14720
Federal Register / Vol. 59, No.60 / Tuesday , March 29, 1994 / Notices
Appendix VI—Mailang Addresses and Phone
Numbers for Regional Offices
1. Area Committ
For more Information on the EPA and
US -chaired Area Committees. please
conta the appropriate Regional EPA office
(see item 4) or the appropriate USCG COTP
office (see Item 9).
2. BLM State Offices
US BLM—Alaska, 222 West 7th Ave., $13,
A.nchorage. AK 99513—7599. Telephone.
(907) 271—5076
US BLM—Arizona, 3707 North 7th St., P0
Box 16563. Phoenix. AZ 85011. Telephone:
(602) 650-0206
US BLM—CahIornLa. Federal Building. 2800
Cottage Way. Sa amento. CA 95825.
Telephone: (916) 978-4743
US BLM—Colorado. 2850 Youngfleld St..
Lakewood. CO 80215. Telephone (303)
239—3700
US ELM—Eastern States. Office, 7450 Boston
Blvd... Springfield, VA 22153. Telephone:
(703) 440—1700
US ELM—idaho, 3380 Americana Terrace,
Boise, ID 8.3706. Telephone: (208) 384—
3001
US BLM—Montana, Granite Towers, 222 N.
32nd St., P0 Box 36800. Billings. MT
59107. Telephone. (406) 255—2904
US BLM—Nevada.Federai BuildIng. 850
Harvard Way, P0 Box 12000. Reno, NV
89520-006. Telephone. (702) 785-6590
US ELM—New Meidco, 1474 Rodeo Rd., P0
Box 27115, Santa Fe, NM 87502—7115,
Telephone: (505) 438—7501
US BLM—Oregon. 1300 NE 44th Ave.. P0
Box 2965, Portland, OR 97208, Telephone.
(503) 280—7026 -
US BLM—Utah. 324 S. State St., SuIte 301,
Salt Lake City. UT 84211—2303, Telephone.
(801) 539—4010
US ELM—Wyoming. 2515 Warren Ave.. P0
Box 182P, Cheyenne. WY 82003.
Telephone: (307) 775-6001
3. COE Division Offices
US Army Corps of Engineers, Huntsville
Division. P0 Box 1600. Huntsville. AL
35807—4301, Telephone (205) 955-.5460
US Army Corps of Engineers, Lower Miss.
Valley Div.. Rsgulstor ’ Branch P0 Box 80,
Vickabuig, MS 39181—0080, Telephone:
(601) 634—5818
US Army Corps of Engineers. Missouri River
Division, Planning Branch 12565 West
Center Rd., Omaha, NE 68244—3869,
Telephone. (402) 221—7267
US Army Corps of Engineers. New England
Division. Operations Branch, 424 Trapelo
Rd., Waltham, MA 02254—9149,
Telephone. (617) 647—8321
US Army Corps of Engineers. North Atlantic
Division, Regulatory Branch. 90 Church
St. New York., NY 10007—2979, Telephone.
(212) 264—3996
US Army Corps of Engineers, North Central
Division, iii North Canal St., Chicago, IL
60606—7205, Telephone: (312) 353—6310
US Army Corps of Engineers. North Pacific
Division, PlanningfEngineering Branch, PC
Box 2870, Portland, OR 97208—2870,
TelephoneS (503) 326—3780
US Army Corps of Engineers, Ohio River
Division, ConstriOperations Branch PC
Box 1159, C Incinnati, OH 45201—1159,
Telephone: (513) 684—6811
US Army Corps of Engineers. Pacthc Ocean
Division, ConstiOperations Branch. Bldg
230, Ft. Shatter, MI 96858—5440,
Telephone: (808) 438—9293
US Army Corps of Engineers, South Atlantic
Division, Constrf Operations Branch, 77
Forsyth St. SW, Rm. 313. Atlanta, GA
30335-6801,Telephone: (404) 331—6740
US Army Corps of Engineers. Transatlantic
Division. ConstfOperetions Branch, PC
Box 2250, Winchester, VA 22601—1450,
Telephone (703)665-3629
US Army Corps of Engineers. South Pacific
Division, ConstriOperatlons Branch, 630
Sansome St.. P.m. 720, San Francisco, CA
94111—2206. Telephone. (415) 705—1226
US Army Corps of Engineers. Southwestern
Division, ConstrfOperations Division.
1114 Commerce St., Dallas, TX 75242—
0216. Telephone: (214) 767—2436
Nole’ Please contact the Division to
determine the appropriate district office
responsible for a particular area of concern.
4 EPA Regional Offices
US EPA, Region 1, Emergency Response
Sect.. 60 Westview St. Lexington, MA
02173. ettn: Response Plan Coord..
Telephone: (617) 860-4361
US EPA. Region 2. RPB. Removal and
Emergency Preparedness Programs. (MS-
211). 2890 Woodbridge Ave., Edison, NJ
08837. Telephone: (908) 321—6656
US EPA. Region 3. Oil and Title UI Sect.
(3HW34), 841 Chesnut St., 9th Fl.,
Philadelphia, PA 19107, Telephone: (215)
597—5998/1357
US EPA, Region 4. Emergency Resp. &
Removal Br., 345 Courtland St. NE. let Fl.,
Atlanta. GA 30365. Telephone: (404) 347—
3931
US EPA. Region 5. EERB (HSE -5fl. 77 West
Jackson Blvd., 5th Fl.. Chicago. IL 60604—
3507. Telephone. (312) 88&-6236
US EPA. Region 6, (62-EP). Contingency
Planning Sect, First Interstate Bank Tower.
1445 Ross Ave., Dallas, TX 75202—2 733
Telephone: (214) 655—2270
US EPA. Region 7, EPPB (ENSV). 25 Funston
Rd., 2nd FL, Kansas City, KS 66115.
Telephone: (913) 551—5000
US EPA, Region 8, Prevention Sect. (HWM•
ER), One Denver Place, 999 18th St.. Ste.
500, Denver. CO 80202—2405, Telephone’
(303) 293—1603
US EPA. Region 9, ERS (1183), 75 Hawthorne
St., San Francisco, CA 94105, Telephone:
(415) 744—1500
US EPA. Region 10, SRIS (HWII4), 1200
Sixth Ave., 11th FL, Seattle, WA 98101,
Telephone: (206) 553—1090
5 NMFS Regional Offices
NMFS Northeast Region. Director. One
Blackburn Dr., Gloucester. MA 01930,
Telephone: (508) 281—9250
NMPS Southeast Region. Director. 9450
Koger Blvd.. St. Petersburg, FL 33702,
Telephone: (813) 893—3141
NMFS Alaska Region. Director. Post Office
Box 21668. Juneau, AK 99802, Telephone:
(907) 588—7221
NMFS Northwest Region, Director, 7600
Sand Point Way NE, Seattle, WA 98115—
0070, Telephone. (206) 526-6150
NMFS Southwest Region. Director. 501 W
Ocean Blvd., $4200, Long Beach, CA
90802—4213. Telephone (310) 980—4001
6. NPS Regional Offices
NPS, North Atlantic Region. 15 State St.
Boston, MA 02109. Telephone. (617) 223—
5200
NPS. Mid.Atlantic Region. 143 S 3rd St.
Philadelphia. PA 19106. Telephone (215)
597—7013
NPS. Southeast Region. 75 Spring St.
Atlanta, GA 30303, Telephone. (404) 331—
4998
NPS, Midwest Region. 1709 Jackson St.,
Omaha, NE 68102. Telephone (402) 221—
3471
NPS. Rocky Mountain Region. P0 Box 25287,
Denver. CO 80225. Telephone (303) 969—
2100
NPS, Southwest Region. PC Box 728, Santa
Fe. NM 87504—0728. T Iephone (505)
988-6012
NPS. Western Region. 600 Harrison St . Ste
600. San Francisco, CA 94107. Telephone
(415) 745—3955
NPS, Pacific NW Region. 83 S King St . Ste.
212. Seattle, WA 98104. Telephone (206)
553—5565
NPS, Alaska Region, 2525 Gamble St.,
Anchorage, AK 99503, Telephone (907)
257—2687
7. FWS Regional Offices
US FWS, Region 1, 911 NE 11th A ’e,
Portland. OR 97232—4181. Telephone
(503) 231—6118
US FWS, Region 2, P0 Box 1306, 500 Gold
Ave. SW, Rin. 3018, Albuquerque. NM
87103. Telephone. (505) 766—2321
US FWS, Region 3, Whipple Federal Bldg , I
Federal Dr.. Fort Snelling, MN 55111,
Telephone: (612) 725—3502
US FWS, Region 4,1875 Century Blvd.,
Atlanta. GA 30345. Telephone (404) 679—
4000
US FWS, Region 5,300 Westgate Center Dr.,
Hadley. MA 01035—9589. Telephone (413)
253—8301
US FWS, Region 6. P0 Box 25486. Denver
Federal Center. Denver, CO 80225.
Telephone. (303) 236—7920
US FWS, RegIon 7, 1011 East Tudor Rd.
Anchorage. AK 99503. Telephone (907)
786-3542
8. FS Regional Offices
US Forest Service, Northern Region. Federal
Bldg.. P0 Box 7669, Missoula, MT 59807,
Public Affairs: (406) 329—3092
US Forest Service, Rocky Mountain Region.
740 Sirnms St., Lakewood, CO 80401.
Public Service’ (303) 275—5041
US Forest Service, Southwestern Region.
Federal Bldg., 517 Gold Ave SW,
Albuquerque. NM 87102. Public Affairs.
(505) 842—3291
US Forest Service, lntermountain Region.
Federal Building. 324 25th St., Ogden, UT
84401, Public Affairs. (801) 625-5352
US Forest Service. Pacific Southwest Region.
630 Sansorne St., San Francisco, CA 9-4111.
Public Affairs (415) 705—2874
US Forest Service. Pacific Northwest Region.
333 SW 1st Ave.. PC Box 3623. Portland,
OR 97208. Public Affairs (503) 326—4154
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Federal Register / Vol. 59, No. 60 I Tuesday, March 29. 1994 / Notices
14721
US Forest Service, Southern Region. 1720
Peachtree Rd. NW, Atlanta, GA 30367.
Telephone. (404) 347—7229
US Forest Service, Eastern Region, 310 West
Wisconsin Ave.. Milwaukee, WI 53203,
Public Affairs (414) 297—3620
US Forest Service, Alaska Region. Federal
Office Building. PU Box 21628, Juneau, AK
99802, Public Affairs (907) 586—8806
9 USCG District Qff ces and Area
Coznmitlees tAGs)
Note: The USCC has no Third. Fourth,
Sixth. Tenth, Twelfth, Fifteenth, or Sixteenth
District.
(Acronyms AC Area Comnnttee. CC Coast
Guard, (X)TP Captain of the Port, MSD
Marine Safety Detachment. MSO Marine
Safety Office, USCG US Coast Guard)
Fiz I District
District Office Commander, 1st CC District
tm), John Foster Williams CC Bldg .408
Atlantic Ave , Boston, MA 02210—3350,
TelephoneS (617) 223—8444, Fax. (617)
223—8094
Maine and New Hampshire AC’
Commanding Officer, USCC MSO. P0 Box
108, Downtown Station, Portland. ME
04112—1096, Telephone (207) 780—3251,
Fax. (207) 780—3567
Long Island Sound AC’ CX)TP, Long Island
Sound. do USCG Group. 120 Woodward
Ave., New Haven, CI 06512—3698,
Telephone. (203) 468—4451, Fax: (203)
468—4445
Boston AC’ Commanding Officer. USCC
MSO. 445 Commercial St., Boston, MA
02109—1045, Telephone. (617) 223—3025,
Fax. (617) 223—3032
Providence AC: Commanding Officer, USCG
MSO. 20 R.isho Ave , E. Providence, Ri
02914—1215. Telephone. (401) 528—5335,
Fax (401) 528—5202
Long Island Sound AC COTP, Now York. c/
0 USCC Group, Governor’s Is., Bldg 108.
New York, NY 10004—5000, Telephone.
(212) 668-7917, Fax (212) 668—7759
Second District
District Office Commander, 2nd CC District
(meps). 1222 Spruce St . Suite 2.102G. St.
Louis, MO 63103—2832, Telephone (314)
539—2655, Fax: (314) 539—2649
Area Committees (No USCX Area
Committees)
Fifth District
District Office Commander, 5th CC District
(mep), Federal Bldg , 431 Crawford St.,
Portsmouth, VA 23704—5004, Telephone:
(804) 398—6389, Fax (804) 398—6503
Philadelphia Coastal AC: Commanding
Officer, USCC MSO, I Washington Ave.,
Philadelphia. PA 19147—4395, Telephone-.
(215) 271—4803, Fax: (215) 271—4833
Southern Coastal North Carolina AC:
Commanding Officer, USCC MSO. 272 N
Front St., Suite 500, Wilmington, NC
28401—3907, Telephone. (919) 343—4882,
Fax- (919) 343—4423
Maryland Coastal AC: Commanding Officer.
USCC MSO, Customhouse. 40 Gay St..
Baltimore, MD 21202—4022. Telephone:
(410) 962—5121, Fax. (410) 962—0930
Virginia Coastal AC, NE.. Mirth Carolina
Coastal AC Commanding Officer, USCC
MSO. Norfolk Federal Bldg.. 200 Granby
St . Norfolk, VA 23510—1888. Telephone:
(804) 441—3302. Fax: (804) 441—3262
Seventh District
District Office. Commander, 7th CC District
(mep), Brickell Plaza Bldg .909 SE 1st
Ave., Miami, FL 33131—3050, Telephone:
(305) 536—5651, Fax: (305) 536-5091
Jacksonville AC Commanding Officer, USCG
MSO. 2831 Talleyrand Ave., Rm 213,
Jacksonville. FL 32206—3497, Telephone.
(904) 232—2640. Fax. (904) 232—2664
Caribbean AC Commanding Officer, USCG
MSO, PU Box 3666, San Juan, PR 00902—
3666, Telephone (809) 729-6800 ext. 300.
Fax (809) 722—2697
Charleston AC. Commanding Officer. USCC
MSO. 196 Tradd St , Charleston, SC
29401—1 899. Telephone (803) 724—7683,
Fax (803) 724—7705
Savannah AC Commanding Officer. USCG
MSO. P0 Box 8191, Savannah. GA 314 12—
8191,Telephone. (912)652—4353. Fax
(912) 652—4052
South Florida AC Commanding Officer.
USCC MSO, 51 SW 1st Ave.. 5th Fl,
Miami. FL 33130—1609, Telephone (305)
536—5691, Fax’ (305) 536—7005
Tampa AC: Commanding Officer, USCC
MSO. 155 Columbia Dr.. Tampa. FL
33606-3598, Telephone- (813)228-2191,
Fax. (813) 226—2399
Eighth District
District Office Commander, 8th CC District
(rnep), Hale Boggs Federal Bldg.. Rm 1331,
501 Magazine St.. New Orleans. LA 70130—
3396. Telephone (504) 589—6271. Fax.
(504) 589—4999
Morgan City AC. Commanding Officer. USCG
MSO, 800 David Dr., Rm 232, Morgan
City. LA 70380-1304, Telephone. (504)
384—2406, ext. 161, Fax: (504) 589—6793
S Texas Coastal Zone AC Commanding
Officer, USCG MSO. PU Box 1621, Corpus
Christi. TX 78403—1621, Telephone: (512)
888—3192. Fax. (512) 888—3115
Houston/Galveston AC- Commz nding Officer,
USCC MSO, Houston. PC Box 446, Galena
Park, TX 77547—0446, Telephone: (713)
671—5199. Fax: (713) 671—5177
Mobile AC Florida Panhandle AC
Commanding Officer, USCC MSO, 150 N
Royal St., PC Box 2924, Mobile, AL 36652—
2924. Telephone. (205) 441—5201, Fax:
(205) 441-6169
New Orleans AC-Commanding Officer,
USCC MSO. 1440 Canal St., Tidewater
BIdg ,, New Orleans. LA 70112-2711.
Telephone (504) 589—6196, Fax. (504)
589—6216
SW Louisiana-SE Texas AC. Commanding
Officer, USCG MSO. Federal Bldg.. 2875
75th St. & Hwy 69, Port Arthur, TX 77640—
2099, Telephone. (409) 723—6513, Fax:
(409) 723—6534
Ninth District
District Office; Commander, 9th CC District
(mep). 1240. East 9th Street, Cleveland, OH
44199-2060. Telephone: (216) 522—4405.
Fax: (216) 522—3290
Cleveland AC Commanding Officer, USCC
MSO. 1055 East 9th St., Cleveland, OH
44114—1092. Telephone. (216)522—4405.
Fax (216) 522—3290
Sault Ste Marie AC. Commanding Officer,
USCG MSO. do USCC Group, Sault Ste.
Marie. 337 Water Si. Sault Ste Mane. Ml
49783—9501, Telephone. (906) 635—3210,
Fax (906) 635—3238
Eastern Wisconsin AC Commanding Officer.
USCG MSO, 2420 S Lincoln Memorial Dr.
Milwaukee, WI 53207—1997. Telephone
(414) 747—7156. Fax’ (414) 747—7108
Duluth .Supenor AC Commanding Officer,
USCG MSO, Canal Park, 660 S. Lake St.,
Duluth, MN 55802—2352,Telephone (218)
720—5274, Fax: (218) 720—5258
Buffalo AC Commanding Officer, USCC
MSO. Federal Bldg.. Rm. 1111,111 W
Huron St., Buffalo, NY 14202—2395.
Telephone (716) 846—4168, Fax (716)
846—4171
Western Lake Erie AC’ Commanding Officer.
Federal Bldg., Rmn 501, 234 Summit St.,
Toledo, OH 43604—1590,Telephone (419)
259—6398. Fax (419) 259—6374
Detroit AC Commanding Officer, USCG
MSO. 110 Mt Elliot Ave - Detroit, Ml
48207—4380, Telephone (313) 568-9580.
Fax (313) 568—9581
Grand Haven AC WTP. Grand Haven, 650
HarborAve ,Grand Haven, Mi 49417,
Telephone (616) 847—4502. Fax (616)
847—4525
Chicago AC Commanding Officer. USCG
MSO. 215 W 83rd Si, Ste D, Burr Ridge.
IL 60521—7059. Telephone’ (708) 789—
5830, Fax (708) 789—5843
Eleventh District
District Office Commander. 11th CC District
(mer), 501 W. Ocean Blvd . Long Beach. CA
90822—5399. Telephone (310) 980—4300.
Fax: (310) 980—4381
Santa BatharoNentum AC, Gantrul Coast
AC Commanding Officer. USCC MSD, 111
Harbor Way. Santa Barbara, CA 93109-
2315. Telephone- (805) 942—7430, Fax
(805) 942—7968
San Frnncisco BoyandDeita Region AC.
North Coast AC Commanding Officer.
USCC MSO, San Francisco. Bldg 14, Coast
Guard Island, Alameda, CA 94501—5100,
Telephone: (510) 437—3135. Fax: (510)
437—3072
San Diego AC. Commanding Officer. USCG
MSO, 2710 North Harbor Dr., San Diego.
CA 92101—1064. Telephone (619) 557—
5860, Fax: (619) 557—6769
Los Angeles/Lang Beach Harbor AC. Orange
County AC- Commanding Officer. USCG
MSO. Long Beach, 165 N Pico Avenue.
Long Beach. CA 90802—1096, Telephone
(310) 980—4429, Fax- (310) 499—4415
Thirteenth District
Dzstnct Office:Commander. 13th CC District
(mer), Jackson Federal Bldg.. 915 Second
Ave . Seattle, WA 98174-1067, Telephone-
(206) 553—1711. Fax (206) 553—0768
Puget Sound AC Commanding Officer.
USCC MSO, Puget Sound, 1519 Alaskan
Way S., Pier 36. Bldg 1, Seattle, WA
98134—1192. Telephone. (206) 286—5550.
Fax (206) 286—5544
Portland AC Commanding Officer, USCC
MSO. 6767 N Basin Ave.. Portland, OR
97217—3929, Telephone. (503) 240—9355.
Fax: (503) 240—9302.
Fourteenth District
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1472Z
Federal Register f VoL 59, No. 60 / Tuesday. March 29, 1994 / Notices
Distrkt (mice: Commander. 14th Dzstict
(trier). Prince )KX Federal Bldg.. Rm 9249.
300 Ala Moana Blvd.. Honolulu. 1096850-
49.82. Telephone: (808) 541—2114. Faic
(808) 541—2126
Guam AC. ftlau AC. Common wealth of the
Nonhent Monanas Islands AC:
Command ing Officer. US a ; MSO. Guam,
Box 176. PSC 455. FF0 AP 96540—1056.
Telephone: &-011—671—550—7340{lntl).
Far 8—011-471—339—6210 [ Int’l)
Hawai i /Amer ican Samoa AC Commanding
Offices. US(3 MSO. 433 Ala Moana Blvd..
Rn 1. Honolulu. HI 96813-4909.
Telephont (808) 542—2061. Fax: 8O8)
541—3154
5 nnweath D id
D istrict Office. Commander, 17th Dastict
(rnep). P0 Box 25517. Juneau, AK 99602—
5517. Telephone. (907) 463—2005. Fax:
(907) 483—2218
Western Alaska AC Commanding Officer.
USGG 1450. Federa l B ldg. & US
Courthouse. 510 L Si, Suite 100.
Anchorage. AK 99501—1946. Telephone:
(907) 271—6710. Far (907) 271-6751
Southeast Alaska AC: Commanding Officer.
USIX M W. 2760 Sherwood L a Ste.. ZA.
Juneau. AK 99801—8545. Telephone 1907)
463—2450. Far (907) 463—2445
Pr ince William Sound AC: Commanding
Officer. US MSO, P0 Box 486. Valder,
AK 99686—0486, Telephone 1907) 835.-
4791. Fax (907) 835—5153
(FR Doc. 94—7314 Filed 3—28—04.8.45 emi
WU.D4O 000e 35t041.-P
-------
ERRATA SHEET: NOAA FR Notice
Guidance for Facility and Vessel Response Plans
Fish and Wildlife and Sensitive Environments
March 29, 1994, (FR Vol. 59, No. 60, Pt. 2, pp. 14713 - 14722)
Pg. 14714, CoIl, Addresses, Line 5, read: “... DC 20593;
Pg. 14714, Col 1, Further Information Contact, Line 4, read: “... DC 20593; ...“
Pg. 14716, Coil, APPENDIX 11.1, table, read:
NMFS SPECIES LOCATION
Hawaiian Monk Seal Northwest Hawaiian Islands
Leatherback Sea Turtle Sandy Point, St. Croix, USVI
Steiler Sea Lion AK/North Pacific Coast (35 rookery sites)
Winter-run Chinook Salmon Sacramento River, CA
Snake River Salmon Columbia and Snake Rivers, ID, OR, WA
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28642
Federal Register / Vol. 61, No 109 / Wednesday, June 5,1996 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
DEPARTMENT OF TRANSPORTATION
Coast Guard
Research and Special Programs
Administration
DEPARTMENT OF THE INTERIOR
Minerals Management Service
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
(FRL-6512-81
The National Response Team’s
integrated Contingenc ’ Plan Guidance
AGENCY: Environmental Protection
Agency (EPA). U S Coast Guard
(USCG). Minerals Management Service
(MMS), Research and Special Programs
Administration (RSPA), Occupational
Safety and Health Administration
(OSHA).
AC11ON: Notice.
• a--
SUMMARY: The U.S. Environmental
Protection Agency, as the chair of the
National Response Team (NRT), is
announcing the availability of the NRT’s
Integrated Contingency Plan Guidance
(“one plan”). This guidance is intended
to be used by facilities to prepare
emergency response plans. The intent of
the NRT 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 or
integrated contingency plan (ICP) This
notice contains the suggested ICP
outline as well as guidance on how to
develop an ICP and demonstrate
compliance with various regulatory
requirements. The policies set out in
this notice are intended solely as
guidance.
ADDRESSES: Additional copies of this
one-plan guidance can be obtained by
writing to the following address:
William Finan, U.S Environmental
Protection Agency, Mail Code 5101, 401
M Street SW, Washington. DC 20460
Copies of the ICP Guidance are also
available by calling the EPCRAIRCRA/
Superfund Hotline at (800) 424—9346 (in
the Washington, DC. metropolitan area,
(703) 412—9810). In addition, this
guidance is available electronically at
the home page of EPA’s Chemical
Emergency Preparedness and
Prevention Office (http//www.epa.gov/
swercepp/)
FOR FURTHER INFORMATION CONTACT:
William Finan, U S. Environmental
Protection Agency, Mail Code 5101, 401
M Street, SW , Washington, DC 20460,
at (202) 260—0030 (E-Mail
homepage..eppo@epamail.epa.gov—
please include “one plan” in the subject
line) In addition, the EPCRA/RCRAI
Superfund Hotline can answer general
questions about the guidance
For further information and guidance
on complying with specific regulations,
contact for EPA’s Oil Pollution
Prevention Regulation Bobbie Lively-
Diebold, U.S Environmental Protection
Agency, Mail Code 5203G. 401 M Street,
SW.. Washington, DC 20460, at (703)
356—8774 (E-Mail
Livelyi3arbara@epamail.epa.gov), or the
SPCC Information Line at (202) 260—
2342); for the U.S. Coast Guard’s
Facility Response Plan Regulation
LCDR Mark Hamilton, U.S Coast Guard,
Commandant (G—MOR), 2100 2nd
Street, SW., Washington, DC 20593, at
2o2—267—1q83 (E-Mail M.HainiltonlG-
M03@CGSMTP.uscg.mil); for DOT/
RSPA’s Pipeline Response Plan
Regulation: Jim Taylor, U.S. Department
of Transportation, Room 2335, 400 7th -
Street, SW., Washington, DC 20590 at
(202) 366—8860 (E-Mail
OPATEAM RSPA.DOT.GOV); for
pertinent OSHA regulations, contact
either your Regional or Area OSHA
office; for DOIJMMS’ Facility Response
Plan RegulationS Larry Ake, U.S
Department of the Interior—Minerals
Management Service, MS 4700, 381
Elden Street, Herndon, VA 22070—4817
at (703) 787—1567 (E-Mail Larry
Ake@SMTP.MMS.GOV), for EPA’s Risk
Management Program Regulation:
William Finan (see above); and for
RCRA’s Contingency Planning
Requirements, contact the EPCRAI
R RA/Superfund Hotline (see above).
The NRT welcomes comments on
specific implementation issues related
to this guidance. Please provide us with
information about the successful use of
this guidance, about problems with
using this guidance, as well as
suggestions for improving the guidance.
Send comments to William Finan (see
above) or to any of the other people
listed in the previous paragraph.
SUPPLEMENTARY INFORMATION:
Presidential Review Findings
Section 112(r)(10) of the Clean Air Act
required the President to conduct a
review of federal release prevention,
mitigation, and response authorities.
The Presidential Review was delegated
to EPA, in coordination with agencies
and departments that are members of
the National Response Team (NRT) The
Presidential Review concluded that,
while achieving its statutory goals to
protect public safety and the
environment, the current system is
complex, confusing, and costly It
identified seveial key problem areas and
recommended a second phase to
address these issues One of the issues
identified by the Presidential Review is
the multiple and overlapping federal
requirements for facility emergency
response plans
NRT Policy Statement
This one-plan guidance is intended to
be used by facilities to prepare
emergency response plans for
responding to releases of oil and non-
radiological hazardous substances The
intent of NRT 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 or
integrated contingency plan (ICP), A
number of statutes and regulations,
administered by several federal
agencies, include requirements for
emergency response planning. A
particular facility may be subject to one
or more of the following federal
regulations:
• EPA’s Oil Pollution Prevention
Regulation (SPCC and Facility Response
Plan Requirements)—40 CFR part
112.7(d) and 112.20—.21,
• MMS’s Facility Response Plan
Regulation—30 CFR part 254;
• RSPA’s Pipeline Response Plan
Regulation—49 CFR part 194;
• USCG’s Facility Response Plan
Regulation—33 CFR part 154, Subpart F;
• EPA’s Risk Management Programs
Regulation—40 CFR part 68;
• OSHA’s Emergency Action Plan
Regulation—29 CFR 1910.38(a),
• OSHA’s Process Safety Standard—
29 CFR 1910.119;
• OSI-IA’s HAZWOPER Regulation—
29 CFR 1910.120; and
• EPA’s Resource Conservation and
Recovery Act Contingency Planning
Requirements—40 CFR part 264,
Subpart D, 40 CFR part 265, Subpart D,
and 40 CFR 279.52.
In addition, facilities may also be
subject to state emergency response
planning requirements that this
guidance does not specifically address
Facilities are encouraged to coordinate
development of their ICP with relevant
state and local agencies to ensure
compliance with any additional
regulatory requirements.
Individual agencies’ planning
requirements and plan review
procedures are not changed by the
advent of the ICP format option This
one-plan guidance has been developed
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26643
to assist facilities in demonstrating
compliance with the existing federal
emergency response planning
requirements referenced above.
rAithough it does not relieve facilities
from their current obligations, it has
been designed specifically to help meet
those obligations Adherence to this
guidance is not required in order to
comply with federal regulatory
requirements Facilities are free to
continue maintaining multiple plans to
demonstrate federal regulatory
compliance, however, the NRT believes
that an integrated plan prepared in
accordance with this guidance is a
preferable alternative
The NRT realizes that many existing
regulations pertaining to contingency
planning require review by a specific
agency to determine compliance with
applicable requirements. ttis not the
intent of the NRT to modify existing
agency review procedures or to
supersede the requirements of a
regulation.
This one-plan guidance was
developed through a cooperative effort
among numerous NRT agencies, state
and local officials, and industry and
community representatives. The NRT
and the agencies responsible for
reviewing and approving federal
response plans to which the 1(7 option
akiplies agree that integrated response
ans prepared in the format provided
this guidance will be acceptable and
oe the federally preferred method of
response planning. The NRT realizes
that alternate formats for integrating
multiple plans already exist and that
others likely will be developed. Certain
facilities may find those formats more
desirable than the one proposed here.
The NRT believes that a single
functional plan is preferable to multiple
plans regardless of the specific format
chosen. While they are acceptable, ether
formats may not allow the same ease of
coordination with external plans in any
case, whatever format a facility chooses,
no individual NRT agency will require
an integrated response planning for mat
differing froze the 1CP format described
here. The NRT anticipates that future
development of all federal regulations,
addressing emergency response
planning ‘illl hicdrporato,useof the ICP
guidance. Also, developers of state and
local requirements will be encouraged
to be consistent with this document.
The 1(7 guidance does not change
existing regulatory requirements; rather,
it provides a format for organizing and
presenting material currently required
by the regulations. Individual
‘°ulations are often more detailed than
IUP guidance. To ensure full
.ipliance, facilities should continue
to read and comply with all of the
federal regulations that apply to them
Furiherirore, fauhties submitting an
ICP (in whatever format) for agency or
department review will need to provide
a cross-reference to existing regulatory
requirements so that plan reviewers can
verify compliance with these
requirements The guidance contains a
series of matrices designed to assist
owners and operators in consolidating
various plans and documenting
compliance with federal regulatory
requirements. (See Attachments 2 and
3.) The matrices can be used as the basis
for developing a cross-reference to
various regulatory requirements.
This guidance also provides a useful
contingency planning template for
owners and operators of facilities not
subject to the federal regulations cited
previously
LEPC plans are developed by I.EPCa in
coordination with facility emergency response
coordinaicri under eeclion 303 of ihe Emergency
Planning and Community ttighi.io-Know Act
2 Axea Coaiingency Plans are developed by Area
Coniraiiiees pursuant lo section 42021at1&) of the
Oil Poltuiiion Act of 1990 (OPAl
specific regulatory requirements to
ensure that facility plans are consistent
with external planning efforts Industry
use of this guidance along with active
participation on local and Area
Committees will improve the level of
emergency preparedness and is
therefore highly encouraged
In some areas, it may he possible to
go beyond simple coordination of plans
and actually integrate certain
Lnformation from faci l ity plans with
corresponding areas of external plans
The adoption of a single, common ICP
outline such as the one proposed in this
guidance would facilitate a move
toward integration of facility plans with
local, state, and federal plans
The projected results described above
will ultimately serve the mutual goal of
the response community to more
efficiently and effectively protect public
health, worker safety, the environment,
and property.
This one-plan guidance is provided
for any facility subject to federal
contingency planning regulations and is
also recommended for use by other
facilities to improve emergency
preparedness through planning. In this
context, the term “facility” is meant to
have a wide connotation and may
include, but is not limited to, any
mobile or fixed onshore or offshore
building, structure, installation,
equipment, pipe, or pipeline.
Facility hazards need to be addressed
in a comprehensive and coordinated
manner. Accordingly, this guidance is
broadly constructed to allow for
facilities to address a wide range of risks
in a manner tailored to the specific
needs of the facility. This includes both
physical and chemical hazards
associated with events such as chemical
releases, oil spills, fires, explosions, and
natural disasters
Organizational Concepts
Integrated Contingency Plan
Philosophy
The ICP will minimize dup ltcation in Scope
the preparation and use of emergency
response plans at the same facility and
will improve economic efficiency for
both the regulated and regulating
communities. Facility expenditures for
the preparation, maintenance,
submission, and update of a single plan
should be much lower than for multiple
plans
The use of a single emergency
response plan per facility will eliminate
confusion for facility first responders
who often must decide which of their
plans is applicable to a particular
emergency. The guidance is designed to
yield a highly functional document for
use in varied emergency situations
while providing a mechanism for
complying with multiple agency
requirements Use of a single integrated
plan should also improve coordination
between facility response personnel and
local, state, and federal emergency -
re ponse personnel
The adoption of a standard plan
format should facilitate integration of
plans within a facility, in the event that The IC! ’ format provided in this one-
large facilities may need to prepare plan guidance (See Attachment 1 ) is
separate plans for distinct operating , organized Into three main sections: an
units. The 10’ concept should also , , . introductory section, a c èjilan, md a
allow coordination of fkcLlity plails with ‘r series of supportlnflnnex s. t 1t (è’
plans that are maintained by loca)..., ’ lmport nt to notethat the elèmehti’’’
emergency planning committees contained in these seCtions are not new
(LEPCs),’ Area Committees, 2 co- ‘ concepts, but accepted emergency
operatives, and mutual aid response activities that are currently
organizations. In some cases, there are addressed in various forms in existing
__________ contingency planning regulations. The
goal of the NRT is not to create new
planning requirements, but to provide a
mechanism to consolidate existing
concepts into a single functional plan
structure This approach would provide
a consistent basis for addressing
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Federal Register / Vol 61, No. 1O / Wednesday, June 5. 1996 / Notices
emergency response concerns as it gains
widespread use among facilities
The introduction section of the plan
format is designed to provide facility
response personnel, outside responders,
and regulatory officials with basic
information about the plan and the
entity it covers It calls for a statement
of purpose and scope, a table of
contents, information on the current
revision date of the plan, general facility
information, and the key contact(s) for
plan development and maintenance.
This section should present the
information in a brief factual manner.
The structure of the sample core plan
and annexes in this guidance is based
on the structure of the National
Interagency Incident Management
System (NIEMS) Incident Command
System (ICS). NIIMS ICS is a nationally
recognized system currently in use by
numerous federal, state, and local
organizations (e g.. some Area
Committees under OPA). NIIMS ICS is
a type of response management system
that has been used successfully in a
variety of emergency situations,
including releases of oil or hazardous
substances. NIIMS ICS provides a
commonly understood framework that
allows for effective interaction among
response personnel. Organizing the ICP
along the lines of the NIIMS ICS will
allow the plan to dovetail with
established response management
practices, thus facilitating its ease of use
during an emergency
The core plan is intended to contain
essential response guidance and
procedures Annexes would contain
more detailed supporting information
on specific response management
functions. The core plan should contain
frequent references to the response
critical annexes to direct response
personnel to parts of the ICP that
contain more detailed information on
the appropriate course of action for
responders to take during various stages
of a response. Facility planners need to
find the right balance between the
amount of information contained in the
core plan versus the response critical
annexes (Annexes 1 through 3).
Lnformation required to support
response actions at facilities with
multiple hazards will likely be
contained in the annexes. Planners at
facilities with fewer hazards may choose
to include most if not all information in
the core plan Other annexes (e.g.
Annexes 4 through 8) are dedicated to
providing information that is non-
critical at the time of a response (e.g..
cross-references to demonstrate
regulatory compliance and background
planning information). Consistent with
the goal of keeping the size of the ICP
as manageable as practicable, it is not
necessary for a plan holder to provide
its field responders with all the
compliance documentation (e.g.,
Annexes 4 through 8) that it submits to
regulatory agencies. Similarly, it may
not be necessary for a plan holder to
submit all annexes to every regulatory
agency for review
Basic headings are consistent across
the core plan and annexes to facilitate
ease of use during an emergency These
headings provide a comprehensive list
of elements to be addressed in the core
plan and response annexes and may not
be relevant to all facilities. Planners
should address those regulatory
elements that are applicable to their
particular facilities Planners at facilities
with multiple hazards will need to
address most, if not all, elements
included in this guidance. Planners at
facilities with fewer hazards may not
need to address certain elements. If
planners choose to strictly adopt the ICP
outline contained in this guidance but
are not required by regulation to address
all elements of the outline, they may
simply indicate “not applicable” for
those items where no information is
provided. A more detailed discussion of
the core plan and supporting annexes
follows.
Core Plan
The core plan is intended to reflect
the essential steps necessary to initiate,
conduct, arid terminate an emergency
response actionS recognition.
notification, and initial response,
including assessment, mobilization, and
implementation This section of the
plan should be concise and easy to
follow. A rule of thumb is that the core
plan should fit in the glovebox of a
response vehicle The core plan need
not detail all procedures necessary
under these phases of a response but
should provide information that is time
critical in the earliest stages of a
response and a framework to guide
responders through key steps necessary
to mount an effective response. The
response action section should be
convenient to use and understandable at
the appropriate skill level.
The NRT recommends the use of
checklists or flowcharts wherever
possible to capture these steps in a
concise easy-to-understand manner. The
core plan should be constructed to
contain references to appropriate
sections of the supporting annexes for
more detailed guidance on specific
procedures. The NRT anticipates that
for a large, complex facility with
multiple hazards the annexes will
contain a significant amount of
information on specific procedures to
follow For a small facility with a
limited number of hazard scenarios, the
core plan may contain most if not all of
the information necessary to carry out
the response thus obviating the need for
more detailed annexes. The checklists,
depending on their size and complexity,
can be in either the core or the support
section
The core plan should reflect a
hieiarchy of emergency response levels
A system of response levels is
commonly used in emergency planning
for classifying emergencies according to
seriousness and assigning an
appropriate standard response or series
of response actions to each level. Both
complex and simple industrial facilities
use a system of response levels for
rapidly assessing the seriousness of an
emergency and developing an
appropriate response This process
allows response personnel to match the
emergency and its potential impacts
with appropriate resources and
personnel. The concept of response
levels should be considered iii
developing checklists or flowcharts
designed to serve as the basis for the
core plan. Note that for those facilities
subject to planning requirements under
OPA, response levels in the core plan
may not necessarily correspond to
discharge planning amounts (e.g.,
average most probable discharge,
maximum most probable discharge, and
worst case discharge).
Facility owners and operators should
determine appropriate response levels
based on 1) the need to initiate time-
urgent response actions to minimize or
prevent unacceptable consequences to
the health and safety of workers, the
public, or the environment; and 2) the
need to communicate critical
information concerning the emergency
to offsite authorities. The consideration
and development of response levels
should, to the extent practicable, be
consistent with similar efforts that may
have been taken by the LEPC. local Area
Committee, or mutual aid organization
Response levels, which are used in
communications with offsite authorities,
should be fully coordinated and use
consistent terminology.
Annexes
The annexes are designed to provide
key supporting information for
conducting an emergency response
under the core plan as well as document
compliance with regulatory
requirements not addressed elsewhere
in the ICP. Annexes are not meant to
duplicate information that is already
contained in the core plan, but to
augment core plan information. The
annexes should relate to the basic
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Federal Register / Vol 61, No 109 I Wednesday, June 5, 1996 / Notices
28645
headings of the core plan To
accomplish this, the annexes should
contain sections on facility information,
notification, and a detailed description
of response procedures under the
response management system (i e,
conimand, operations, planning,
logistics, and finance). The annexes
should also address issues related to
post accident investigation, incident
histoiy, written follow-up reports,
training and exercises, plan cri Lique and
modification process, prevention, and
regulatory compliance, as appropriate.
The IC? format contained in this
guidance is based on the NEIMS ICS. If
facility owners or operators choose to
follow fundamental principles of the
NIIMS ICS, then they may adopt NIIMS
ICS by reference rather than having to
describe the system in detail in the plan
The owner or operator should identify
where NIIMS fCS documentation is kept
at the facility and how it wilt be
accessed if needed by the facility or
requested by the reviewing agency.
Regardless of the response management
system used, the plan should include an
ergaiiization chart. specific job
descriptions, 3 a description of
information flow ensuring liaison with
the on-scene coordinator (OSC), and a
description of how the selected
response management system integrates
with a Unified Command 4Jf system
her than NLJMS ICS is used, the plan
aould also identify how it differs from
NILMSor provide a detailed description
of the system used.
The NRT anticipates that the use of
linkages (i.e., references to other plans)
when developing annexes will serve
several purposes. Linkages will facilitate
integration with ether emergency plans
within a facility (until such plans can be
fully iricorpthated into the 142) and
‘OPAao p lanning requirements lormarirte
transfer facil Ities 133 R 154 teis] reçuire lob
desaiptioaa br esch apttt management team
nieinber regardless of the response management
system employed by the frclllty.
tundar NUMS 1CS, the command modu le baa
iredlilonetly been represented by a single Incident
rnrnmander (supported by a command stall) wbo
darçcts efforts of end receives Input from the Lint
supporting fuacttoeat areas (planning, lc tstlcs,.
eperetlena, and finance) Mo 1 e re ntl ’ . e Unified
Command System as desolbed t tnthe National CII
and itnardous Sebeiances Pettutioii Conilagency.
Plan (HG’) found staG CFR pert 30e has been used
(or larger spilt responses where the command
module ii comprised of repsesenteilvea from the
tedeoai government (I e , tederat on-scene
coordinator), slate government Islets on-scene
coordrnaic4. end the responsIb le party working in
a vooperaiive manner Unified Command attowa e%t,
part lea who hove uriidicttonat or functional
responsibility for the Incident to joinily develop a
common set 0 t incident objectives and stoateglea
‘-ech coordination should be guided by procedures
d in the ‘ IC ? (see figure Ia at 40 GIlt
ies(e)til) arid the applicable Area Contingency
with external planc. such as LEPC plans
and Area Contingency Plans (l CPs )
Linkages will also help ensure that the
annexes dci not become too
cumbersome The use of references to
information contained in external plans
does not relieve litcibties from
regulatory requirements In address
certain elements in a facility-specific
manner and to have information readily
accessible to responders When -
delermining whet information nay he
linked by reference and what needs to
bo contained in the IC?, response
planners shnuld carefully consider the
time critical nature of the information
If instnittions ot procedures will be
needed immediately during an incident
response, they should be presented for
ready access in the ICY. The following
information would not normally be
well-suited for reference to documents
external to the 142: core plan elements,
facility and locality information (to
allow for quick reference by responders
on the layout of the facility and the
surrounding environment and
mitigating actions for the specific
hazard(s) present), riotilicatiori
procedures. detai Is of response
management personnel’s duties, and
procedures for establishing the response
management system. Although linkages
provide the opportunity to utilize
information developed by other
organizations, fad lities should note that
many LEPC plans and ACPs may not
currently possess sufficient detail to be
of use in facility plans or the ICP. This
information may need to be developed
by the facility until detailed applicable
information from broader plans is
available.
In all cases, refer’anced materials must
be readily available to anticipated plan
users. Copies of documents that have
been incorporated by reference need not
be submitted unless it is required by
regulation, The appropriate sections of
referenced documents that are unique to
the facility, those that are not nationally
recognized, those that are required by
regulation, and those that could not
reasonably be expected tq be. in Pie
possession of the reviewing agency.
should $,provided when hô p1 ills
submitted br r vlew and/or approval.,
Discretion ihould be used when
submitting documents containing
proprietary data. It is, however,
necessary to identify in the IC? the
specific section of the document being
incorporated by reference, where the
document is kept, and how it will be
accessed if needed by the facility or
requested by the reviewing agency. In
addition, facility owners or operators
are reminded to take note of submission
reqiti cements of specific regulit ions
when determining what materials to
provide an agency for review as it may
not be necessary to submit all parts of
an ICP to a particular agency
As discussed previously, this
guidance contains a series of matrices
designed to assist owners and operators
in the plan consolidat ion process and in
the process of ensuring and
documenting compliance with
regulatory reqiairenierii s The natrix in
Attachment 2 to this guidance displays
areas of current regulations that align
with the suggested elements contained
in this guidance document When
addressing each element of the 1CP
outline, plan drafters can refer to this
matrix to identify specific regulatory
requirements related to that element
The matrices in Attachment 3 to this
guidance display regulatory
requirements as contained in each of the
regulations listed in the NRT policy
statement above (which em applicable
to many facilities) along with an
indication of where in the suggested IC ?
outline these requirements should be
addressed. If a facility chooses to fol3ow
the ICP outline, these matrices can be
included as Annex S to a facility’s IC?
to provide the necessary cross-reference
for plan reviewers to document
compliance with various regulatory
requirements To the extent that a plan
deviates from the suggested IC? outline,
plan drafters will have to alter the
matrices to ensure that the location of
regulatory requirements within the IC?
is clearly identified for plan reviewers
Integrated Contingency Plan Elements
Presented below is a list of elements
to be addressed in the IC? and a brief
explanation, displayed in italicized text,
of the nature of the information to be
contained in that section of the ICF
Attachment I presents the complete
outline of the ICY without the
explanatory text. As discussed
previously, the elements are organized
into three main sectlons plan
introduction, core plan, and response
annexes. -
Section !rP 1 Qfl Introduction Elements
I. Purpdsè and’Scepe of Plan Coverage
This section should provide a brief
over /Jew of facility operations and
describe in generol the physicol area,
end nature of hazards or events to
winch the plan is applicable This brief
description will kelp plan users quickly
assess the relevancy of the plan to a
particular :ypea of emergency in a given
/ocation. This section should o/so
include o Jist of which regu io tionIs) are
being addressed in the ICP
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Federal Register / Vol. 61, No. 109 I Wednesday, Juiie 5, 199b / Notices
2 Table of Contents
This section should clearly identify
the structure of the plan and include a
list of annexes This willfacthtate rapid
use of the plan during an emergency
3. Current Revision Date
This section should indicate the date
that the plan was last revised to provide
plan users with information on the
cui rency of the plan. More detailed
information on plan update h:story(i e,
a record of amendments) maybe
maintained in Annex 6 (Response
Critique and P/on Review and
Modification Process).
4. General Facility Identification
Information
a. Facility name
b Owner/operator/agent (include
physical and mailing address and
phone number)
c Physical address of the facility
(include county/parish/borough.
latitude/longitude, and directions)
d. Mailing address of the facility
(correspondence contact)
e Other identifying information (e.g.. ID
numbers, SIC Code, oil storage start-
up date)
f. Key contact(s) for plan development
and maintenance
g. Phone number(s) for key contact(s)
h. Facility phone number
i. Facility fax number
This section should contain a brief
profile of the facility and its key
personnel to facilitate rapid
identification of key administrative
information
Section Ii- Core Pian Elements
I Discovery
This section should address the initial
action the person(s) discovering an
incident will take to assess the problem
at hand and access the response system
Recognition, basic assessment, source
control (as appropriate), and initial
notification of proper personnel should
be addressed in a manner that can be
easily understood by everybody in the
facility. The use of checklists or
flowcharts is highly recommended.
2. Initial Response
a. Procedures for internaL and external
notifications (i.e., contact,
organization name, and phone
number of facility emergency
response coordinator. facility
response team personnel, federal,
state, end local officials)
b Establishment of a response
management system
c Procedures [ or preliminary
assessment of the situation.
iricludingan identifIcatioii of
incident type, hazards involved,
magnitude of the problem, and
resources threatened
d Procedures for establishment of
objectives and priorities for
response to the specific incident,
including
(I) Immediate goals/tactical planning
(e g.. protection of workers and
pubLic as priorities)
(2) Mitigating actions (e.g , discharge!
release control, containment, au d
recovery, as appropriate)
(3) Identification of resources required
for response
e. Procedures for implementation of
tactical plan
f. Procedures for mobilization of
resources
This section should provide for
activation of the response system
following discovery of the incident. It
should include an established 24-hour
contact point (i.e, that person and
alternate who is called to set the
response in motion) and instructions for
that person on who to call and what
critical information to pass. Plan
drafters should also consider the need
for bilingual notification. It is important
to note that different incident types
require that different parties be notified
Appropriate federal, State, and local
notification requirements should be
reflected in this section of the ICP
Detailed notification lists may be
included here or in Annex 2, depending
upon the variety of notification schemes
that a facility may need to implement.
For example, the release of an extremely
hazardous substance will require more
extensive notifications (i.e.. to State
Emergency Response Commissions
(SERCs) and LEPCs) than a discharge of
oil Even though no impacts or
awareness ore anticipated outside the
site, immediate external notifications
are required for releases of CERCLA and
EPCRA substances. Again, the use of
forms, such as flowcharts, checklists,
call-down lists, is recommended
This section should instruct personnel
in the implementation of a response
management system for coordinating
the response effort. More detailed
information on specific components and
functions of the response management
system (e.g. detailed hazard
assessment, resource protection
strategies) may be provided in annexes
to the ICP
This part of the plan should then
provide information on problem
assessment, establishment of objectives
and priorities, implementation of a
tactical plan, and mobil,zotann of
resources In establishing objectivos and
priorities for response, facilities should
perform a hazard assessment using
resources such as Material Safety Data
Sheets (MSDSs) or the Chemical Hazard
Response information System (CHRIS)
manual Hozardoiis Materials
Emergency Planning Guide (NRT—1),
developed by the NRT to assist
community personnel with emergency
response planning, provides guidance
on developing hazard analyses If a
facility elects to provide detailed hazard
analysis information in a response
annex, then a reference to that annex
should be provided in this part of the
core plan
Mitigating actions must be - : ed to
the type of hazard present For example,
containment might be applicable to an
oil spill (i.e, USC of booming strategies)
but would not be relevant to a gas
release The plan holder is encouraged
to develop checklists, flowcharts, and
brief descriptions of actions to be taken
to control different types of incidents
Relevant questions to ask in developing
such materials include-
• What type of emergency is
occumng 7
• What areas/resources have been or
will be affected?
• Do we need an exclusion zone?
• Is the source,under control?
• What type of response resources
are needed 7
3 Sustained Actions
This section should address the
transition of a response from the initial
emergency stage to the sustained action
stage where more prolonged mitigation
and recovery actions progress under a
response management structure. The
NRT recognizes that most incidents are
able to be handled by a few individuals
without implementing an extensive
response management system. This
section of the core plan should be brief
and rely heavily on references to
specific annexes to the ICP
4. Termination and Follow-Up Actions
This section should briefly address
the development of a mechanism to
ensure that the person in charge of
mitigating the incident can, in
coordination with the federal or state
OSC as necessary, terminate the
response in the case of spills, certain
regulations may become effoctive once
the “emergency” is declared over The
section should describe how the orderly
demobilization of response resources
will occur In ocith!ion, follow-up
actions associated with termination of a
response (e g , accident investigation,
response critique, plan review writter
follow-up reports) should also be
outlined in this section Plan drofterc
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28647
may reference appropriai& nnne.es to
the ICP in this s cUon of the core plan
Section Ill—Annexes
Annex I Facility and Locality
Information
a Facility maps
b Facility drawings
c Facility description/layout, including
identification of facility hazards
and vulnerable resources and
populations on and off the facility
which may be impacted by an
incident
This annex should provide detailed
information to responders on the layout
of the facility and the surrounding
environment. The use of maps and
drawings to allow for quick reference is
preferable to detailed written
descriptions These should contain
information critical to the response such
as the location of discharge sources.
emergency shut-off valves and response
equipment, and nearby environmentally
and economically sensitive resources
and human populations (e.g , nursing
homes, hospitals, schools) The ACP
and LEPC plan may provide specific
information on sensitive environments
and populations in the area EPA
Regional Offices, Coast Guard Marine
Safety Offices, and LEPCs can provide
information on the status of efforts to
identify such resources. Plan holders
may need to provide additional detail
on sensitive areas near the facility. in
addition, this annex should contain
other facility information that is critical
to response and should complement but
not duplicate information contained in
port 4 of the plan introduction section
containing administrative information
on the facility
Annex 2. Notification
a. Internal notifications
b. Community notifications
c. Federal and state agency notifications
This annex should detail the process
of making people aware of an incident
(i.e., who to call, when the call must be
made, and what information/data to
provide on the incident). The incident
coniniander is vsponsible for ensuring
that notifications ore carried out in a
timely manner but is not necessarily
responsible for making the notifications.
ACPs, Regional Contingency Plans
(RCPsL and LEPC plans should be
consulted and referenced as a source of
information on the roles and
responsibilities of external parties that
are to be contacted. This information is
important to help company responders
understand how external response
officials fit into the picture. Coil-down
lists must be readily accessible to ensure
rapid response Notification lists
provided in the core plan need not be
duplicated here but need to be
ref erenced
Annex 3 Response Management System
This annex should contain a general
description of the facility’s response
management system as well as contain
specific information necessary to guide
or support the actions of each response
management function (i e, command,
operations, planning, logistics, and
finance) during a response
a. General
If facility owners or operators choose
to follow the fundamental principles of
NIIMS JCS (see discussion of annexes
above), then they may adopt MXMS ICS
by reference rather than having to
describe the response management
system in detail in the plan. In this
section of Annex 3, planners should
briefly address either 1) basic areas
where their response management
system is at variance with NJJMS ICS or
2) how the facility’s organization fits
into the NIIMS ICS structure This may
be accomplished through a simple
organizational diagram.
If facility owners or operators choose
not to adopt the fundamental principles
of NIIMS ICS, this section should
describe in detail the structure of the
facility response management system
Regardless of the response management
. ystem used, this section of the annex
should include the following
information.
• Organizational chart;
• Specific job description for each
position; 5
• A detailed description of
information flow, and
• Description of the formation of a
unified command within the response
management system.
b. Command
(1) List facility Incident Commander
and Qualified individual (if applicable)
by name endior title and provide
Information on their authorities and
duties.
This section of Annex 3 should
describe the command aspects of the
response management system that will
be used (i.e., reference NIIMS ICS or
detail the facility’s response
management system). The location(s) of
predesignated command posts should
also be identified.
OPA 90 planning iequiremenls for marine
transfer lacllities (33 C3 ’R 154 1035) requIre ob
descriptions Ear each spill management learn
member regardlesi of the response management
system employed by the Facility
12) Information ( I e , internal and
external coniniunications)
This section of Annex 3 should
address how the facility wili
disseminate information internolly(i e.
to facility/response employees) and
externally (i e , to the public) For
example, this section might address how
the facility would interact with local
officials to assist with public evacuation
and other needs Items to consider in
developing this section include press
release statement forms. plans for
coordination with the news media,
community relations plan, needs of
special populations, and plans for
families of employees
(3) Safety
This section of Annex 3 should
include a process for ensbring the safety
of responders Facilities should
reference responsibilities of the safety
officer, federal/state requirements (e g.
HAZWOPER), and safety provisions of
the ACP. Procedures for protecting
facility personnel should be addressed
(i.e. evacuation signals and routes,
sheltering in place)
(4) Liaison—Staff Mobilization.
This section of Annex 3 should
address the process by which the
internal and external emergency
response teams will interact. Given that
parallel mobilization may be occurring
by various response groups, the process
of integration (i.e., unified command)
should be addressed. This includes a
process for communicating with local
emergency management especially
where safety of the genera! public is
concerned
c. Operations
(1) Operational response objectives
(2) Discharge or release control
(3) Assessmentimonitoring
(4) Containment
(5) Recovery
(6) Decontamination
(7) Non-responder medical needs,
mclu.ding information on
ambulances and hospitals
(8) Salvage plans
This section of Annex 3 should.
contain a discussion c/specific
operational procedures to 1 respond to an
incident, it is important to note that
response operations are driven by the
type of incident. That is, a response to
an oil spill will differ markedly from a
response to a release of a toxic gas to
the air. Plan drafters should tailor
response procedures to the particular
hazards in place at the facility. A
facility with limited hazards may have
relatively few procedures A larger more
complex facility with numerous hazards
is likely to have a series of procedures
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28648
Federal Register / Vol. 61, No. 109 / Wednesday, June 5, 1996 / Notices
designed to address the nuances
associated with each typo of incident
d Planning
(1) Hazard assessment, including
facility hazards identification,
vulnerability analysis. prioritizatlon of
potential risks
This section of Annex 3 should
present a detailed assessment of all
potential hazards present at the facility,
on analysis of vulnerable receptors (e.g.
human populations, both workers and
the general public, environmentally
sensitive areas, and other faciht y-
specific concerns) and a discussion of
which risks deseive primary
consideration during an incident. NET-
1 contains guidance on conducting a
hazard analysis. Also. ACPs and LEPC
jilans may provide information on
environmentally sensitive and
economically important areas, human
populations, and protection priorities
Plan drafters should address the full
range of risks present at the facility. By
covering actions necessary to respond to
a range of incident types, plan holders
can be prepared for small, opervtionol
discharges and large catastrophic
releases. One approach that is required
by certain regulations, such as the Clean
Air Act (CAA) and OPA is to develop
planning scenarios for certain types and
sizes of releases (i e., worst case
discharge) Facilities may address such
planning scenarios and associated
calculations in this section of Annex 3
or as part of a separate annex
depending on the size and complexity of
the facility
(2) Protection
This section of Annex 3 should
present a discussion of strategies for
protecting the vulnerable receptors
identified through the hazard analysis
Primary consideration should be given
to minimizing those risks identified as a
high priority Activities to be considered
in developing this section includeS
population protection: protective
booming; dispersant use, in-situ
burn i.ng , bioremediotion; water intake
protection; wildlife recoveryl
rehabilitation; natural remediation,
vapor suppression; and monitoring,
sampling, and modeling ACPS and
LEPC plans may contain much of this
information.
(3) Coordination with natural resource
trustees
This section should address
coordination with government natural
resource trustees In their role as
managers of and experts in natural
resources, trustees assist the federal
OSC in developing or selecting removal
actions to protect these resources in
this role, they seive as part of the
response organization working for the
federal OSC A key area to address is
interaction with facility response
personnel in protection of natural
resources.
Natural resource trustees are also
responsible to act on behalf of the
public to present a claim for and recover
damages to natural resources injured by
an oil spill or hazardous substance
release The process followed by we
natural resource trustees, natural
resource damage assessment (NPtDAJ,
generally involves some data collection
during emergency response NRDA
regulations provide that the process
may be carried out in cooperation with
the responsible party. Thus, the facility
may wish to plan for how that
cooperation will occur, including
designation of personnel to work with
trustees in NRDA
(4) Waste management.
This section should address
procedures for the disposal of
contaminated matenals in accordance
with federal, state, and local
requirements.
e. Logistics
(1) Medical needs of responde ’rs
(2) Site security
(3) Communications (internal and
external resources)
(4) Transportation (air, land, water)
(5) Personnel support (e.g., meals,
housing. equipment)
(6) Equipment maintenance and
support
This section 0/the Annex 3 should
address how the facility will provide for
the operational needs of response
operations in each of the areas listed
above. For example, the discussion of
personnel support should address issues
such as volunteer training;
management, overnight
accommodations; meals; operationall
adm,rustrat,ve spaces, and emergency
pmcedures The NET recognizes that
certain logistical considerations may not
be applicable to small facilities with
limited hazards.
1. Finance/procurement/administration
(1) Resource list
(2) Personnel management
(3) Response equipment
(4) Support equipment
(5) Contracting
(6) Claims procedures
(7) Cost documentation
This section a/Annex 3 should
address the acquisition of resources
(i.e . personnel and equipment) for the
response and monitoring of incident-
related costs. Lists of available
equipment in the local and regional
area and how to procure such
equipment as necessary should be
included information on previously
established ogreements (e g, contracts)
with organizations supplying personne
and equipment (e g , oils pill removal
organizations) also should be included
This section should also address
methods to account for resources
expended and to process claims
resulting from the incident
Annex 4. Incident Documentation
a Post accident investigation
b Incident history
This annex should describe the
company’s pioceduros for conducting a
follow.up investigation of the cause of
the accident, including coordination
with federal, State. and local officials
This annex should also contain an
accounting of incidents that have
occurred at the facility, including
information on cause, amount released,
resources impacted, injuries, response
actions, etc This annex should also
include information that may be
required to prove that the facility met its
legal notification requirements with
respect to a given incident, such as a
signed record of initial notifications and
certified copies of written follow-up
reports submitted after a response
Annex 5. Training and Exercises/Drills
This annex should contain a
description of the training and exercise
program conducted at the facility as
well as evidence (i e., lags) that required
training and exercises have been
conducted on a regular basis Facilities
may follow appropriate training or
exercise guidelines (e.g., National
Preparedness for Response Exercise
Program Guidelines) as allowed under
the various regulatory requirements
Annex 6 Response Critique and Plan
Review and Modification Process
This annex should describe
procedures for modifying the plan based
on periodic plan review or lessons
learned through an exercise or a
tesponse to an actual incident.
Procedures to critique an actual or
simulated response should be a part of
this discussion. A list of plan
amendments (i.e, history of updates)
should also be contained in this annex.
Plan modification should be viewed as
a part ofafacility .s continuous
improvement process.
Annex 7. Prevention
Some federal regulations that
primarily address prevention of
accidents include elements that relate to
contingency planning (e.g., EPA s EM!’
and SPCC regulations and OSHA ‘s
Process Safety Standard) This annex is
designed to allow facilities to include
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Federal Register / Vol 61, No 109 / Wednesday, Juno 5, 1996 / Notices
26649
pn”vent:oii-ho ed rcquiiements leg.
maintenance, testrng, sii - iouse
inspections, release detection, site
security. containment, fail safe
engineering) i/tat ore required in
contingency planning regulations or
that have the potential to impuct
response activities covered in a
contingency p/on The modular nature
o [ lhe suggested plan outline providus
planners with necessary flexibility to
include prevention requirements in the
ICP This annex may not need to be
submitted to regulatory agencies for
review
Annex 8. Regulatory Compliance and
Cross-Reference Matrices
This annex should include
information necessary for plan
reviewers to determine compliance with
specific regulatory requirements To the
extent that plan drafters did not include
regulatory required elements in the
balance of the ICP. they should be
addressed in this annex. This annex
should also include signatory pages to
convey management approval and
certifications required by the
regulations, such as certification of
adequate response resources and/or
statements of regulatory applicability as
required by regulations under OPA
authority Finally, this annex should
contain cross-references that indicate
where specific regulator,’ requirements
are addressed in the ICP for each
regulation covered under the plan. As
discussed previously, Attachment 3
contains a series of matrices designed to
fulfill this need in those instances where
plan drafters adhere to the outhne
contained in this guidance
Attachment 1—ICP Outline
Section l—Plon Introduction Elements
I Purpose and Scope of Plan Coverage
2 Table of Contents
3 Current Revision Date
4 General Facility kientification Information
a Facility name
b Owner/operator/agent (include physical
and mailing address and phone number)
c Physical address of the facility (include
counly/parish/borough, latitude!
longitude, and directions)
d Mailing address of the facility
(correspondence contact)
e Other identifying information (e g . ID
numbers. SIC Code, Oil storage start-up
dare)
I Key contact(s) for plan development and
maintenance
g Phone number for key contact(s)
h Facility phone number
i Facility fax numL,er
Section 1I — ore Plan Elements
I Discovery
2 Initial Response
a Procedures tar internal and external
notifications Ii e - contact, organization
name, and phone number of facility
emergency response coordinator, facility
response team persoiinel, federal, state.
and local officials)
b Establishment of a response management
system
c Procedures for preliminary assessment of
the situation, including an identification
of incident type. hazards involved.
magnitude of the problem, and resources
threatened
d Procedures for establishment of
objectives and priorities for response to
the specific incident, including
(1) Immediate goals/tactical planning (e.g.
protection of workers and public as
priorities)
(2) Mitigating actions (e.g ,discharge!
release control, containment, and
recovery, as appropriate)
(3) Identification of resources required for
response
e Procedures for implementation of
tactical plan
f Procedure for mobilization of resources
3 Sustained Actions
4 Termination and Follow-Up Actions
Section ill-Annexes
Annex 1 Facility and Locality Information
a Facility maps -
Ii Facility drawings
c Facility description/layout, including
identification of facility hazards and
vulnerable resources and populations on
and off the facility which may be impacted
by an incident
Annox 2 Notlilcatlois
a Internal notifications
b Community notifications
c Federal and state agency notifications
Annex 3. Response Management System
a General
b Command
(i) List lacility liicident Coinmdnder dud
Qualified lndividu.sl (if .ipplucable) by
name and/or tutli’ and provide
information on their authorities and
duties
(2) tnformation (t e , internal and external
communications)
(3) Safety
(4) Liaison—StaFf mobilization
c Operations
(I) Operational response objectives
(2) Discharge or release control
(3) Assessmentlmonitoring
(4) Containment
(5) Recovcr
(6) Decontamination
(7) Non-responder medical needs including
information on ambulances and
hospitals
(8) Salvage plans
d Planning
(1) Hazard assessment, including facility
hazards identification, vulnerability
analysis. prioritization of potential risks
(2) Protection
(3) Coordination with natural resource
trustees
(4) Waste management
e Logistics
(I) Medical needs of responders
(2) Site security
(3) Communications (internal arid external
resources)
(4) Transportation (air, land, water)
(5) Personnel support (e.g . meals, housing.
eqwpment)
(6) Equipment mainteoance and support
I Finance/procurementiadministration
(1) Resource list
(2) Personnel management
(3) Response equipment
(4) Support equipment
(5) Contracting
(61 Claims procedures
(7) Cost documentation
Annex 4 Incident Documentation
a Post accident investigation
b Incident history
Annex S Training and Exercises/Drills
Annex 6. Response Critique and Plan Review
and Modification Process
Annex 7. Prevention
Annex B. Regulatory Compliance and Cross-
Reference Matrices
eiu.utG COVE 660-60-P
-------
All citations refer (3 part 1910 unless otherwise noted
All Citations refer to 29 CFR 1910 120 unless otherwise noted
All citalions refer to pail 154 unless othciwisc noted
Attachment 2: ICP Development Matrix
Cs
Cs
O s
C D
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ICP Elements
RCRA (40 CYR part
264, Subpart D, 40
(PR part 265,
Subpart D, .nd 40
CFR 219.32)
EPA ’s Oil Pollution
PreventIon
RegulatIon
(40 CFR part I12)
USCC.FRP
(33 CFR part 154)
DOT/RSPA.FRP
(49 CFR part 194)
OSRA Emergency
Action Plans
(29 CFR 1910.38(a))
and Process Safety
(29 CFR 1910.119)
OSHA HAZWOPER
(29 CFR 1910 120)
CAA RMP
(40 CFR part 68)
Section I - Plan Introduction Elements
1. Purpose and scope of plan
coverage
-
264 Si
26551
279 52(bXl)
264 52(a)
265 52(a)
279 52(bX2Xi)
38(a)(l)t
1 19(n)
272(d)
(l)
(pX8)
(qXl)
2. Table of contents
112 20(h)
Appendix F
1035(u)(4?
1030(b)
Appendix A
3. Current revlalon date
F1.2
1035(aX6)
4. General fielIlly
ldentlftcallon Information
P1.2
P1.9
194 107(d)(lXi)
194 113
194 I i3(bXL)
a. Facility name
11.2
1035(aXl)
b. Ownerlopcratoil agent
112 20(hX2)
*1.2
1’2.0
1035( 5K3)
194 I l3(aXl)
A-i
c. Physical address and
directions
112 20(hX2)
11.2
yb
1035(nXl)
1035(aX2)
1035(e)
194 I l3(a)(2)
194 113(b)(3).(4)
A- I
d. Mailing address
e. Other Identifying
1l220(hX2)
103 5(aXI)
194 1 13(aXl)
information
-------
IC? Elementa
RCRA (40 CPR part
264. Subpart 0,40
CER part 265,
Subpart 0, snd 40
CFR 279.52)
EPA’. 0 (1 PollutIon
PreventIon
RegulatIon
(40 CFR part 112)
VSCC.FPP
(33 C1rK part 154)
DOT/RSPA.FRP
(49 CVR part 194)
OSHA Emergency
.4cflou P12n3
(29 CFR 19l0.35(a))
and Proceas Safety
(29 CFP. 1910.119)
OSIIA HAZWOPER
(29 CFR 1910 120)
CAA RMV
(40 CFR part 6S)
—
1. Key contact(s) for plait
development and
maintenance
38(aX2)( ’i)
(fl (2X 1).(u)
(pXS)(ul(A) (B)
(qX2)(t) (ii)
g. Phone number for key
c ont act( t) -
.
Ii. Fictflty phone number
112
i
1035(a) (I)
L Facility fix number
1035(a)(I)
SectIon 11. Core Plan Elementt
1. DIscovery
112 20(h)(6)
fl.6.1. 11.6.2
1035(bM3X.)
194 t07(d)(%)(iii)
A .3
119(n)
(I) 12)(ii i)
(pX8 X m i)(C)
qX2Xiiu)
689S( I)(”)
•
I In itial response
112 20(h)(7)(t)
11.3.6
117
1035(bX2Ru)
1035(bX3X1)
1035(bX3)(si)
*-2
38(o)(2)(i)
38(a)(2XiI)
I 19(n)
(I)(2 XixI
(p X8X. i)(I)
(qX2)(mx)
68 95(a)( I Xi ”)
a Procedurea for Intern.I
and external ootlf lcat lon*
i
264 52(d)
26 5 52(d)
219 52(bX2Xiv)
26455
26535
219 52(bXS)
264 56{a)( I
265 56(sX I ((2)
279 52(bX6)(XA) (K)
264 56(JX I ).(2)
265 56(d)( I ).(2)
219 52(bX6X.vXA).(B)
112 20(h)( l)(ii ,)
112 20 (h X3)( i ,i)
1 1220(h)(3)(,i ,)
112 20(h)(3)(iv)
112
Fl 3.8
1026
1035(aX3)
(035(bXIX ,,
I033(e)(2)
194 107(dXI )(,i)
194 1 13(b)(2)
A.l ,A. l(b)(2)
Al
A .5
38(a)(2)(v)
38(aX2)(vi)
38(aX3) (L)
38 (a)(3 X ’m)
165
(l)(2)( ,n)
(pX8)(”X I)
(qX2XIx)
68 95(a)( I)(u)
b, Ettabllstintent of 1
response management
struCtUre
264 37
26537
279 52c1X6)
264 52(c)
265 52(c)
279 52(b)(2)(iii)
II? 20(h}(l)(v)
112 20th)(3)(v)
11 3.4
1035(b)(3)(.ii)
•
194 I07(dXI)(v)
*4
A .9
(I)(2)(15 (ii)
(p (8)(ml)(A) (B)
(q)(2 X .).(ii)
q)(3X’)
e Preliminary aese ttnt
264 56(b).(c)
265 36(b).(c)
279 524bX6)(it).(ni)
112 20(h)(3XiX)
112 20(hX4)
11.4.11.4 2
1035(b)(3)
I035(b)(4)(i)
94 107(d)(IXii)
38(a)(2)(i)
38(s)(2)(i.)
(l)(2)(i)
(i)(3J(’ .u i)
(p)(8)( IP XA)
(q)(2X’)
(g) (3 i ,)_ (Hi)
0
cc
cc
-i
cc
‘ 1
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0
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0
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(C
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0
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-------
1CP Elements
RCRA (40 dR part
264, Subpart 0,40
CFR part 265,
Subpart 0, and 40
CFR279.52)
EPA ’. 011 PoUotIon
PreventIon
keguLitIo
(4 OCFRp.rtll2)
USCG .VRP
(33 C?R pail 154)
DOTIRSPA-FRP
(49 CFR part 194)
OSKA £mergency
Action Plans
(29 CFR 1910 38(i))
•nd Process Safely
(29CPR 19 10119)
OSHA HAZWOPER
(29 CFR 1910 120)
(IXZ)(v1),(v i i i) —
(p)(8)(tt)(F).(H)
(qX2)(vi)(viii)
(p)(RXiv) F)
(qX3)(”).(s’i) (iv).
(vu).(vII)
CAA RMP
(40 CFR pail 68)
4 Establisbinentof
objectives and prioridet for
response, includIng:
(1) ImmedIate goatzl
tactical planning
(2) Mitigating actions
(3) Response resources
264 52 (e)
265 52(e)
279 52(bX2)(v)
112 20(hXl)(iv)
112 20(h)(lXvui)
112 20(hX3)(vm)
112 20(h)t3)(ix}
112 2OthX7)
P1.3.2
p1.7.1,
1035(bX2)
1035(bX3Xtv)(v)
194 l07(d)(l)(iii)
194 iO7(dXIXv)
)8(a)(4)
1i9 (n)
a. lmplenses itatlonof
tactical plan
264 52(e)
26 .552 (e)
279 52(bX2)(v)
I 1220(ltX3)(ia)
iI2200tWl)
1035(bR2)(iii)
IO35(b) 3)
1035(bJ(4X 1u)
i94 107(d){IXv)
A3
38(a)(2Kii)
(iX3Xvii)
(p)(8XUvXF)
(q)(3)(ut i
I. Mobilization of resoorcea
26452 (e)
265 52 (e)
279.52(bX2Xv}
1 1220(hXl)
Fl 7.1
1035(bX2)(sii)
1035(bX3)
1035(b)(4)(tii)
194 115
194 IO7(dXIXv)
A.I
A.3
(1X2)(ix)
(J’)(SK.iMI)
(q)(2)(.x)
3 Sustained actions
112 2(tX7)
I035(b)(3)
194 IO )(dXI)(v)
A.9
38(a)(2)(iii)
( X2)(x)
(p)(8)(”XJ)
(q)(2 x)
6891(a) ( i)(umi
4 TerminatIon and follow.up
actions
264 56(i)
2b5 6 ’)
112 20(hX7)
1035(bX3)
(l)(2)( ie)
(p ){SX I I)(1)
(q )(2)(ie)
68 95(a}t I 1(111) —
Section 111 . Annexes
1 FncIlIty and localIty
Information
112 20(hX2)
P1.2
p lo
103 5(s)
1035(c) (I)
194 IO7(d,(I)(i)
194 113
1941 13(bXl}
a Facility maps
112 20(h)(l)( iui)
P1.9
194 I 13(b) (2)
A .9
b Facility drawIngs
112 20(h)(l)(vm)
112 20(hX9)
P1.9
1035 (e)
4.9
c. Facility descrlptw&
layout
Fl 9
1035 (b)(4)
A-9
( 1R3)(i)(A)
lp)(SXiv)(AX I)
- ii
(0
0
t O
C D
o n
in
C D
-I
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0
0
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0
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Cr.
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(CF Elerntnta
RCRA (40 CER part
264 Subpart D, 40
CPR part 265,
Subpart D, ssad4O
CFR 21942)
EPAa OH Pollullon
Prsvent lon
ReguletSon
(40 dIR part L I I)
USCG ..FRP
(33 CFR part 154)
DOTIRSPA.FRP
(49 CFR part 194)
OSR& Em rgeney
ActIon Plans
(29 CFR 1910.38(a))
and Pmceis Saf t
( t CPR 1910 119)
OSRA BAZ1’ OPER
(29 dR 1910 120)
CAA RMP
(40 CFR part 69)
2. NotIfl t1on
264 52(d)
265 52(d)
279 52(bX2Xiv)
264 $6(IXI) .(2)
26$ S6( X1 ).(2)
27942(bX6)( i)(A).(B)
264 56(dXI).(2)
265 56(d)(I).(2)
279 52(bX6XIYXA).(B)
112 20th}( lXij)
194 I0l(d)(IK1IJ
A.2
( (9(n)
165(bXl)
I65IbX4)
272(d)
(I) (3Xi)(B)
(I)(2Xi ,.)
(p)( 8 )(ii)(J)
p)(8RsvXA)(2)
(qX2) (is)
689MaI( I X i)
a. Intarmal
112 20(h)(3Xiii)
£1.3 I
1035(bXI Xi)
103$(bX1X,i)
1035 (c )(2)
194 IONd)(i)(iv)
1 19(n)
165(bXI)
(I)(2Xi s)
(q)(2)(is)
(p)(8)(ttXI)
b. COmmunity
112 20(h)(3Xiii)
112 2OffiX3X IX)
FL.3.1
I 035(b)(1 Xi)
035(b)(I X i i)
103 $(c)(2)
119(n)
(l)(2X.),( i i).(:x)
(p)(S)CiiXA}.(B). (I)
(qXZXi) .(ii)(ix)
c. Pedtral iti6 gtatt *gIflCy
112 20(hX3Xii.)
112 20(hK3Xut)
1J.l
103 $(bXIXi)
1035(b)( I)(i,)
1035(e)(2)
194 107(d)(l)(vi)
(1X2)(t) (ii) (i’)
(pX8)( IIXA).(B).( 1
3. R ponseruinig mrnt
atructurt
112 20(hXI)(v)
1I220(h)(3)(v)
P1.3.4
1035(bX3)(ii,)
194 107(dXI)(v)
A .9
(q) (3)(I)
a General
264 52(c)
265.52(c)
27932(bX2)( i il)
1035(bX3)(iii)
(qX3X’)
b. Co,mn.nd
112 20(hX3Xiv)
(qK3X i (
(1) FacIlity luddeal
c tmn det.nd qualIfied
IudMdu al
26445
265 55
279 52(bXS)
((2 20(hXlXi)
Ft 2.5
1026
A-4
(qXlXi)
(2) Inf , ,nEluu
.
264 $6(aXl).(2)
265 56(aXl).(2)
27932(bX6X iXA),(B)
112 20(h)(3Xiii)
1035(bX3)(iii)
1035(e)(4)
194 107(dXI)(v)
A.2
38(OX2XvI)
35(s)(SXu ii
(qX3X i)
(3) Satdy
264 52 ( f)
265 52( 1)
279 42(bX2Xv i)
( (2 20(bXlXv i)
112 20(h)(3Xvti)
112 20(h)(3Xviiu)
P1.34
1035(bX3Xiii)
I0354eX5)
384aX2)(u)
38(a)(2Xut i)
38(a)(2Xiv)
38j a)(4)
(I) ( 2 )(i t( i (
(p)(LX’iMID) (F)
(qX2)(i ).( i)
(g)(3 vri) ( iiu)
(4) Ualion
.
103 5(bX3) (aii)
38(aX2Xv i)
(l)(2 X i),( i i)
(p)(8Xit)(A) (8)
(qX2Xt) (ii)
Cu
C O
a,
Cu
-t
0
z
C
0
C
0
C
C
0.
C
C
11
- ,
z
0
0
C
Cr
N
C,
v i
-------
ICP Elementa
RCRA (40 CYR part
264, Subpart D, 40
cEll part 265,
Subpart D, and 40
C1’R279.52)
EPAc Oil Poflutlon
PreventIon
RegulatIon
(4OCFRpart ll2)
USCG-ERP
(33 CFR part 154)
DOT/RSPA.FRP
(49 CPR part 194)
OSHA Emergency
Act1o Plans
(29 CYR 19 10. 3 8(a))
and Procrss Safety
(29CFR19l0119)
OSHA HAZWOPER
(29 CFR 1910 120)
CAA RMP
(40 CFR part 68)
C. Operations
1035(bX3)(iii)
194 107(dXI )(v)
38(a)(2)(i)(tv)
(qX3)(iii)(v)
(1) Response objectIves
1035(bX2)(iit)
1 035(bX4)(iii)
38(0K !)
(qK3)(iiI)
(2) Dtscbarge or YSISIU
control
264 56(e)
265 56(e)
279 52 4(6)(w)
112i0(hX3Xi)
112 20(hX7)(iv)
112 20(h)(1)(vh)
I035(b)(2)
L035(bX2)(i i i)
1035(bX4)(ii ,)
194 107(dXI)(v)
A.3
(3) ,mentl
monitoring
264 56(b).(c).(d).(f)
265 56(b).(c).(d).(l)
27932(b}(6Xn).(Hi).
( lv).(v i)
U 20(hX3Xu)
Fl 7.1
1035(b) (2)(iii)
1035(bX3)
103$(b)(4Xlii)
38(o)(3Xii)
38(n)(4)
(qX3)(’.)
(4) Contalnjneut
264 56(e)
265 56(r)
279 52(bX6)(v)
112 20Q Xl Xvii)
112 20(h)(3Xi)
Ill 2OthX7Xiv)
P1.7.3
1035(bX2)(iii)
1035(b)C3Xiv)
103 5(bX4)(iii)
194 IO7(dXl Xv)
(5) Recovery
112 2 hX3Xi)
1 1220(hX7Xiu)
P1.7.2
1035(bX2Xuii)
1035{b)(3Xiv)
I 035(bX4Xtii)
194 I(fl(dXI)(v)
(6) DecontaminatIon
264i6(hX2)
265 56OtX2)
279 52(b)(6)(vuiXB)
112 2 hX7)(tu)
FL7.2
194 107(dXIXv)
(k)
(I) (2X%’ii)
(p)(8Xiu)(O)
(q)(2Xvii)
( X3Jftx)
(7) Non.respondrr
medical oced
I035(c)(5)
,
38(aX2Xtv)
(IX2XbtII)
(pXSXti)(H)
(qx2xviii)
68 95( i)(l)(ii)
(9) Salvage puns
194 107(d)(I)(v)
d. Planning
•
194 107(a)
194 115
38(aXI)
38(a){4)
(I)(2X 1).(ia )
(pX8)( ’iXA)( l)
(q)l I)
(g) (lXi) (i*)
(1) Harirdassamnent
112 20(h)(3X 1x)
1 1220(hX4)
11220(l XS)
112 20(h)(7X 1 1)
FIA.1 .FIA.3
P1.5.1 P1.5.3
1029
1035(bX4)(ii)
194 105
194 I 13(bX6)
38(a) (4)
.
(IX I)(Iu)(C)(D)
(pX&Xiv)(AXI)( )
(qX3Xiit)
68 20-36
6850
6867
(2) Prot ctlon
112 2 h)(7)(i)
112 20(hXb(tv)
P1.7.1, P17.3
1035(bX4)
.
( IX2XIV)(v).( vI)
-------
ICP thmtntz
RCRA 140 CFR part
284. Subpart D 40
CFR part 265,
SubpsrI f l .nd 40
CFR 219.52)
EPA’i Oil Pollution
Pr evanUen
Regulation
(4OCFR part Ill)
USCG .FRP
(33 CFR part 154)
DO’FI lSPA.FBP
(49 CFR part 194)
OSHA Emer rncy
Action Plans
(29 CFI 1 1910 .38 (a))
and Process Safety
(29CFR 1910.119)
OSHA HAZWOPER
(29 CFR 1910 12.0)
CAA RMP
(40 CFR part 68)
(3) CoordinatIon With
natural resource troltecs
112 20(g)
1030 (f )
194 107(c)
(4) West. manageroelit
-
264 36(hXI)
265 56(hxi)
2)9 52(bXd)(vil.XA)
264 56(g)
265 56(g)
279 2(b)(4Xvn)
112 20(hX7)( tv)
P1.7.2
1035(b)(5)
194 107(d)(lXv)
—
.. Logistics
lQ35( 1)(3flhii)
(IX3Xui)
(p) (8)(i XB)
(q)(2)(xit)
(1) Medlcaluced,
I035(c) (5)
38(a)(2Xiv)
(1X2)(vuit)
(p)(8Xs1XH)
(q)(2Xvii.)
68 95(s)( I )(ti)
(2) SIte Secuulty -
112 20(hXIO)
P1.10
.
(i) (2Xv)
(p ((8)( i)(E )
(q)(2Xv)
(3) CommunIcations
i12 20(hXiXiv)
Iii 20(hX3Xvi)
P13.2
l035(cX3)
194 107(dXl)(v)
A.2
38(a)(3)
I l9 e) 3 m)
165(b)
(q)( )(t)
4) Tr nap it don
(5) ?ersonricl support
112 20(hXI)(v}
112 20(hXIXvi)
112 20(hX3)(i ui)
112 20(bX3)(v)
112 20(hX3Xvtt)
P1 33
.
38(s)(5)(u)
( 1X2)(iu)
(p (6Xit)(B)
(q)(2X 1 1)
(qX3Xv).( ’.)
(6) EquIpment,
m.Irttenance and SupPort
.
112 20(hXIXiv)
112 20(tl)(3) (v )
112 20(hke)
F1.3 3
P1. 8.1
1035(b)(3Xiv)
1035(e) (3)
1057
194 107(d)(l)(viiu)
1 IO(j)(4)
I 1 9 (j)(5)
1 65 ( 4)
(l)(2)(xi)
(p)(8)(ii)(K)
(q)(2)( i)
68 95(a)(2)
f. ElnancelprocwemenU
admInIstratIon
Ill 20thX3)(is)
102.8
I035(bX3)(iut)
(1) Resource list
264 52(e)
265 52 (e)
279 52(b)(2)(v)
Ill 20(hXl)(tv)
112 20(hX3)(vu)
Fl 3.2
Fl 7.1
1035(b)(3)(iv)
103 2 (c)(3)
(2) Personnel
112 20(hXI)(v}
112 20(hX3)(v)
P1.3.4
1035(bX3Xiv)
C l
Cu
-l
at
en
en
0
Cl
-e
2
0
-a
0
CO
C l
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Cu
cn
0
0
CD
C - f l
-4
CO
CO
C.,
z
0
C.,
C D
C l
(I’
-------
ICP Elements
RCRA (40 CFR part
264, Subpart I), 40
CYR pert 265.
Sabpart D, and 40
CER 279.52)
EPA ’i Oil Pollution
Prevention
RegulatIon
(40 CFR part 112)
USCG.FRP
(33 CFR part 154)
DOTFRSPA.FRP
(49 CPR part 194)
OSHA Emergency
ActIon Plans
(29 CFIt 1910.38(a))
and Process Safety
(29 CFR 1910.119)
OSHA HAZWOPER
(29 CER 1910 120)
CAA L iP
(40 CFR part 68)
(3) Response equipment
264 32(t)
265 52(c)
279 52(bX2)(v)
112 20(hXl)(.v)
112 2(XhX3)(vi)
P1.3.2
P1.7.1
1015(bX2)(it)
103 5(bX4Xtti)
1035(eX3)
Appendlt C
(l)(2)( u)
(p)(BX IIXK)
(qX2Xx l)
(4) Support equipment
264 52(e)
265 52 ( e)
279 52(bR2)(v)
P1.3.2
Fl.? I
1035(e)(3)
(5) Contesetfng
112 20(hX3Xiu)
1028(nXl)
I0 5(eX3)
(94 115
(6) ClaIms procedures
(7) Cost ducumentallon
.
4 IncIdent documentation
38(aX2Xi;i)
I i9(eX3hn)
(I)(2Xx)
(p) (8)(it)(J)
(qX2Xe)
a Post.accldent
investigatIon
264 56 (j)
26556(j)
279 52(b)(6)Oz)
I 19(m)
(I)(2)(x)
(pXSX”)(J
(q}(2)( s)
68 60
6811
b £nddent hIstory
112 20(bX4)
P1.44
I i9(eX ))(ii)
6842
5. TraIning and cxercls&drtlla
112 20(hXS)
11221
Fl 8.2, P1.8.3
1035(c)
1050
1055
AppendlxD
194 l07(dXI)(viu)
194 107(d)(IXiv)
194 117
A4
A .1
36(a)(5)
I 19(gl(I)(iI
( (3X’v)
(p)(SXmiu)
(qX6)
68 95(a)(3)
6. Response critique and plan
review and modLt lcation process
26454
265 54
279 32(bX4)
112 20(g)
l035(a)(6)
1035(d)
1063
194 I07(d) (IXx)
194 III
194 1I9
194 121
A4
119(1)
I 19(o)( I)
( 1X2)(s) —
(p)(8)(it)(J)
(q)(2Xs)
68 95(a)(4)
7 Prevention
(1)(2)(iu)
(p)(8)(u)(CJ
(q)(2Xii.)
1.11
•01
to
0
to
9 5
to
-I
0
C,
z
0
0
to
CD
0
CD
C d ,
0
0,
CD
to
to
0,
z
0
CD
-------
ATTACHMENT 3
REGuI.xroRv CROSS-COMPARISON
MATR CES
ICP Citation(s)
RCRA (40 CPA Part 264 Sub
part D’ 40 CPA Part 265 Subpart Di, 4
0 CPA Part 27
9.52(b) 3 )
264 52 Content of contingency plan
(a) Emergency response actions’
(b) Amendments to SPCC plan
(c) Coordination with State and local response parties 5
(d) Emergency coordinator(s)
(e) Detailed description of emergency equipment on-site
(I) Evacuation ptan it applicabte
264 53 Copies of contingency ptan
264 54 Amendment ot contingency plan
264 55 Emergency coordinator
4 56 Emergency procedures
(a) Notification
(b) Emergency identification/characterization .
(c) I’lealtti/environmentat assessment .
(d) Reporting
(e) Containment . - - - . .. . . -
(I) Monitoring - . .
(g) Treatment, storage, or disposal of wastes .. ..
(ti) Cleanup procedures
(1) Disposal .
(2) Decontamination
(i) Follow-up procedures
0) Follow-up report .. . . .
265.52 Content of contingency plan
(a) Emergency response actions
(b) Amendments to SPCC plan
(c) Coordination with State and local response parties ’
(d) Emergency coordinator(s) .. ..
(e) Detailed descnption ol emergency equipment on-site
(t) Evacuation plan if applicable
‘S 53 Copies of contingency plan
54 Amendment of contingency plan .
.,5 55 Emergency coordinator
265.56 Emergency procedures
(a) Notification -
(b) Emergency identif’icatiortlcharactenzation
(c) Health/environmental assessment
(d) Reporting
(e) Containment .
( I) Monitoring . . -
(g) Treatment, storage. or disposal of wastes ..
(h) Cleanup procedures’
(1) Disposal ....
(2) Decontarmnation
(i) Follow-up procedures ..
i)) Follow-up report
279 52(b)(2) Content ol contingency plan
(i) Emergency response actions’
(u) Amendments to SPCC plan
(iii) Coordination with State and local response parties 9
(iv) Emergency coordInator(s) .. ..
(v) Detailed description of emergency equipment on-site
(vi) Evacuation plan ii applicable .._.. ..
(3) Copies of contqtgency plan
(4) Amendment of contingency plan .. ..
(5) Emergency coordinator ..... .. .,
(6) Emergency proced es:
(9 Notification ..
(ii) Emergency ideritification/charactonzation ..
(iii) Health/environmental assessment
(iv) Reporting
(v) Containment
(vi) Monitoring
(vii) Treatment, storage, or disposal 01 wastes
(viii) Cleanup procedures
(A) Disposal ..
(B) Decontamination .
Federal Register I Vol 61. No 109 / Wednesday, June 5. 1996 / Noticec 28657
112 b,lll 3 a
I I 2 a, 1112
112d(3j, 112e, lt2f, 11131(t), 11131(3),
I II 3 t (4)
ltl3b(3)
1116
11.2 a, 1113 b(1)
II 2 a, Ill 2, II I 3 ti (2)
112 c, III 3 c (3)
112 c,tII Sc(3)
11.2 a, II I 2. 1113 c (3
III 3c(2), 1113c(4)
III Sb( S), 1113 c(S)
Ill 3d (4)
Ill 3d(4)
III 3 c (6)
114
I I I 4 a
11.2 b, lIt 3 a
I I 2 a. I II 2
1L2.d(3), It 2 e, 112 I, 1113 f (1), Itt St (3).
ltI. St .(4)
111.3 b (3)
I II 6
1 12.a, lllSb(1)
1t2 a, 1112, III Sb (2)
112 c; 1113 c (3)
11.2 c,1113c(3)
112 a, 1112. 1113 c (3)
III 3 cJ2), III Sc (4)
III 3 b (3), I II 3.c.(3)
111.3 d (4)
III Sd(4)
III Sc(6)
114
I I I 4 a
112.b, II I &a.
I I 2s, 111.2
11.2 d (3), II,2.e, 112J, 11L3i (1), III 3.1(3),
IIt.3.f(4).
III .3,b ,(3)
(11.6
Il.2s, Ill 3.b (1)
112 a; 1112, 111.3 b (2)
Il l c, Ill.3.c.(3)
112,c, 111.3 c (3).
tl l.a, 11 12; II I S.c (3)
lll.3t(2); II I 3c(4)
1113 b (3), III S.c (3)
Ill 3.d (4)
III S.d (4)
1 1 13c(6)
-------
28658
Federal Register / Vol 61, No 109 / Wednesday. June 5. 1996 / Notices
1121(d)(1) Strong spill contingency plan and written commitment of manpower, equipment,
and materials lull
112.20(g) General respcnse planning requirements
112 20(1 ’) Response plan elements
(1) Emergency response action plan (Appendix Fl 1)
(i) Identity and telephone number of qualified individual (F 1.2 5)
(ii) Identity of individuals/organizations to contact il there is a discharge (Fl .3 1)
(iii) Desciiption of inlonnation to pass to response personnel in event of a reportable
spill (F1.3)
(iv) Description of facility’s response equipment and its location (F1.32)
(v) Descnption of response personnel capabilities (F1.3.4)
(vi) Plans for evacuation of the taciuity and a reference to community evacuation plans
(F1.3.5).
(vii) Descnption of immediate measures to secure the source (Fl 7.1)
(viii) Diagram of the Facility (F1.9)
(2) Facility information (Fl .2. F2.0)
(3) Information about emergency responses
(i) Identity of private personnel and equipment to remove to the maAimurn extent prac-
ticable a WOD or other discharges (Fl .3.2. Fl .3 4).
(ii ) Evidence ol contracts or ether approved means for ensunng personnel and equip-
ment availability
4iii) Identity and telephone of individuals/organ lzations to be contactad in event of a
discharge (Fl.3.t)
(rv) Description of information to pass to response personnel in event of a reportable
spill (F1.3 1)
(v) Description of response personnel capabilities (Fl.3 4)
(vi) Desonplion of a facility’s response equipment, location of the equipment, and
equipment lesting (F1.3 2, F1.3 3)
(vii) Plans for evacuation of the lacility and a reference to community evacuation plans
as appropriate (Fl 35)
(viii) Diagram of evacuation routes (Fl.9)
(ix) Duties of the qualified individual (Fl .3 6) ..
(4) Hazard evaluation (F 1.4) ,
(5) Response planning levels (Fl 5, Fl 5 t, F1.5 2)
(6) Discharge detection systems (Fl 6. F1.6 1, Fl 6.2)
(7) Plan irriplementation (Fl 7)
(i) Response actions to be carned out (Ft.T 11)
(ii) Descnption of response equipment to be used for each scenario (Fl.7.l I)
(iii) Plans to dispose cl contaminated cleanup materials (Fl 7.2)
(lv) Measures to provide adequate containment and drainage of spilled oil (Ft .7.3).
(8) SetI-inspection, drills/exercises, and response training (Fl .8.1 —F 1.83.2)
(9) Diagrams (Fl 9)
(10) Security systems (Fl.l0)
(11) Response plan cover sheet (12.0).
11221 Facility response training and dnlls/exeroises (Fl 82, Fl.8 ,3)
Appendix F Facility-Specific Response Plan i i
1.0 Model Facility-Specific Response Plan
1.1 Emergency Response Action Plan.
12 Facility Information
1.3 Emergency Response Information
1.3.1 Notification
1.3.2 Response Equipment List ..
1.3.3 Response Equrpmenl Testing/Deployment
1.34 Personnel -, —S - ’ --
1.3.5 Evacuation Plans
1.3.6 Qualified Individual’s Duties
1 4 Hazard Evaluation
1.4.1 Hazard Identification
1.42 Vufnerability Analysis
1.4.3 Analysis of the Polential for an Oil Spit
1.4.4 Facility Reportable Oil Spill History
1.5 Discharge Scenanos:
1.51 Small and Medium Discharges
1.5.2 Worst Case Discharge -
1 6 Discharge Detection Systems
1.6 1 Discharge Detection By Personnel
ATTACHMENT 3 REGULATORY CROSS-COMPARISON MATRIcEs—ContInued
(ix) Fellow-up report . . . . . . JIll 4 S
EPA ’s OIl PollutIon Preventlen Regulation (40 CFR 112)
ICP Citation(s)
Ill S.d (3), 111.6
L2, III 8
Ill 3 _b (1
l It2
11.2 a.
ll l.d (3), III 3 e.(3), II I 3 e.(6). Iti 3.f (1),
Ill 3 t.(3)
ll.2.b, 111.3, 111.3 e (5), 111.3 f(2),
lfl 3.b.(3); 111.3 e (5)
11.2 d (2); 111.3_c (2), lll.3.c.(4).
Ill l.a—b
14.b—d, 1111.
Ill 3 c.(2), III 3 c.(4)—(5), llt.3.e.(5)
III 3.e.(5), 111.31(5)
1120; lll.2.b—d, Ill.3.b.(2).
1 12A
112.b; III 3, 11 13 e.(5), Ill 3.f (2)
112 d.(3), III 3 e (3), tll.3 e (6). III 3.f.(l),
III 3f.(3)
lI1.3.b (3), 111.3 e (5).
Ill 3.b.(3)
112.c, II 2 d.(l), l.2.e, 1112.0—c. Ill 3.c.(3),
111.3_ a f’t); 111.31.
ll.2.c, Ill 3.d.(1), lll.4.b
If.3.d (1).
11.1
l12.d—f, 113, I I 4
112, Ill 3.d.(2)
1113 d (1)
Ill 3.o.(5)—(6)
111.3 c.(2), 111.3 c (4); 1113 d (2), 111.3 d.(4)
111.3 e (6), ttt 5
Ill l.b.
Ill 3.e.(2)
Ill ’s
1.2
13; 1.4 a, l.4.b—c, 14 h, 112.a, tilt.
112.a, IIl.2.a—c
I1.2.d.(3); I lt.3e.(3), 111.3 fjl), lIl.3.f.(3)-’(4).
Ilt.3 e (6).
ll.2.b, 111.3, Ill Sf (2)
Ill.3.b.(3), Ill 3.e (5)
11.2
1120
Itt 1.0, 111.3 d (I)
11 2 -c, IIl.3.d.(l)
lll.3d(l).
I II 4 b
Ill 3d(l).
1113 d(l)
Ill
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Federal Register I Vol. 61, No. 109 / Wednesday. )une 5, 1996 / Notices
28659
ATTACI-IMENT 3: REGULATORY CROSS-COMPARISON MATRIcES—Con hInued
ICP Citation(s)
1 62 Automated Discharge Detection . l i i
17 Plan Implementation 112
1 7 1 Response Resources for Small, Medium, and Worst Case Spills .. 112 d (3). 1121, III 3 c (3). II I 3d (2). I II 31(1) .
11131 (3)—(4)
1 7 2 Disposal Plans . - . . I I I 3 c (5)—(6), Ill 3d (4)
1 7 3 Containment and Drainage Planning II 2 d, I II 3 c (4), III 3 d (2)
1 8 Self-Inspection, DnllslExercises, and Response Training
1 8 1 Facility Sell-Inspection - - . .. - . I I I 3 C (6)
1 82 Facility Dntls/Exercises - . - . - III 5
1 83 Respcnse Training . . . . III 5
19 Diagrams . . . . 14, 1111 a—c
ItO Secunty . ...... - . . . . II I Se (2)
20 Response Plan CoverSheet . . ,,, 14b,t4c,l4h, 1111
USCG FRP (33 CFR part 154)
154 1026 Qualified individual and attemate qualified individual
154.1028 Availability o( response resources by soniract or other approved means
1541029 Worstcasedischarge
154 1030 General response plan contents
(a) The plan must be wntten in English
(b) Organization of the plan ‘3
(c) Required contents
(d) Sections submitted to COTP
(e) Cross-references .. - .. . . . - . -
(1) Consistency with NCP and ACPs
154 1035 Significant and substantial harm lacilities
(a) Introduction and plan content ...............
(1) Facility’s name, physical and mailing address, county, telephone, and tax
(2) Description of a facility’s location in a manner that could aid in locating the facility
(3) Name, address, and proceduies for contacting the owner/operator on 24-hour
basis. -
(4) Table of contents —
(5) Cross index, if appropriate
(6) Record of change(s) to record information on plan updates
(ti) Emergency Response Action Plan
(1) Notitication procedures
(i) Pnonlized list identifying person(s), including name, ielephone number, and
role in plan, to be notified in event of threat or actual discharge
(ii) Information to be provided in initial and follow-up notilicalions to federal, state,
and local agencies
(2) Facility’s spill mitigation procedures ‘4
(i) Volume(s) of persistent and non-persistent oil groups
(ii) Prioritized procedures/task delegation to mitigate or prevent a potential or ac-
tual discharge or emergencies involving certain equipment/scenarios
(iii) List ot equipment and responsibilities of facility personnel to mitigate an aver-
age most probable discharge
(3) Facility response activities”
(i) Description of facibty personnel’s responsibilities to initiate/supervise response
until amvel of qualitied individual
(ii) Qualified individual’s responsibilities/authonty
(iii) Facility or corporate organizational structure used to manage response actions
(iv) Oit spill response organization(s)ispill management team available by contract
or other approved means
(v) For mobile facilities that operate in more than one COTP, the oil spill response
organhzation(s)!spill management team in the applicable geographic-specific ap-
—x.
(4) Fish and wildlife sensitive environments
(i) Areas of economic irrportance and environmental sensrtivify as identified in the
ACP that are potentially impacted by a WCD
(ii) List areas and provide maps/charts and desenbe response actions
(iii) Equipment and personnel necessary to protect identilied areas
(5) Disposal plan
(c) Training and exercises -
(0) Plan review and update procedures
(e) Appendices
(1) Facility specific information
(2) List of contacts . .. - ..
(3) Equipment lists and records -
(4) Communications plan - . .. . - - - -
(5) Site-specific safety and health plan . -
11.2 a, 1113 b (1)
I II 3.1 or 1118, Ill 3 I(S)
Ill 3d (1)
12
I I I 8
lll3d(3)
Ill 1.
I 4.a; I 4 c—d, I 4 h—i
14c
I 4.b; 11.2 a
12
Ill 8
1.3, 111.6
112 a; III 2 a—c
llt.3.b, Ill 2 a—c
II 2.d (2), 1113 c.(2)
112
112 e—f, I II 3 1(3). Ill 3 c.(t)—(5)
11.2 c, 11.2 e—f, II 3; fl 4, III 3 c (3)
111,11.2
112
lI.2.b; 11.3, III 3 a, III 3b,(2)—(4), III 3 c,
Ill.3.d.(1); llI.3.e—f_
1 12.d.(3), Ill 3.c.(4)—(5); fll.3.e.(6), 111.3 f (1)—(2),
1 1 1 .3 1( 5).
ll.2.d.(3)
llI.1.c lll.3.d (1)—(2).
1 12.c.
112 e—f; Ill 3 t (3); 111.3 c (1)—(5)
Ill 3d (4)
111.5
1116
14.c, lll.Lb
I II 1.
ll2a; Ill 2a—c, 1113 b (1)
Ill 3.e.(3), 111.3 e (6). Ill 3 V (1). 111.3 1 (3)—(5)
111.3 b (2).
1113 b(3). 1113 c 17), Ill Se (1)
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28660
Federal Register / Vol 61, No 109 / Wednesday, June 5, 1996 / Notices
AUACHMENT 3: REGULAToRY CROSS-COMPARISON MATRICES—Continued
ICP Citalion(s l
(6) List of acronyms and definitions
(7) A geographic.speciflc appendix.
154 1040 Specific requirements for substantial harm facilities
154 1041 Specific response information to be maintained on moble MTR facilities
154.1045 Groups l—IV petroleum oils.
154 1047 Group V petroleum oiLs
154 1050 Training . -
154 1055 On us
154 1057 Inspection and maintenance of response resources
154.1060 Submission and approval procedures
154 1065 Plan revision and amendment procedures
154 1070 Deficiencies
154.1075 Appeal Process
Appendix C—Guidelines for determining and evaluating required response resources for facility
response plans
Appendix D—Training elements for oil spill response plans
DOT/ASPA PAP (49 CPA Part 194)
194 101 Operators required to submit plans.
194.103 Significant and substantial harm: operators statement
194105 Worstcasedscharge ..
194.107 General response plan requirements.
(a) Resource planning requirements
(b) Language requirements.
(c) Consistency with NCP and ACP(s)
(d) Each response plan rmist indude
(1) Core Plan Contents.
fi) An information sun-nary as required in 194.113
194.113(a) Core plan information surrvnary
(1) Name and address of operator -
(2) Descnption of each response zone
(ti) Response zone appendix information summary
(1) Core plan inlorrnation summary
(2) Name O SAAAAAO Submission and approval procedures
194.121 Response plan review and update procedures
aApendlxasaAaAecommended guidelines for the preparation of response plans
Section 1—Information surrwnary
Section 2—Notification procedures .
Section 3—Spill detection and on-scene spill mitigation procedures
Section 4—Response activities
Section 5—LisI of contacts
Section 6—Training procedures
Section 7—OnlI procedures -
Section 8—Response plan review and update procedures
Section 9—Response zone appendices .
1.4, 111.1.
11 1.6.
III 6
12.
I.4b-c, 1 12.a, 112.t, 111.8
ll.2.a, 111.2; 111.3 b.(2), lll.3.e (3)
Ill, ll.2e—t Ill.3.c.(2).
Il l -b; lll.3b (1).
1 12.a ,
111.5
111.5
111.6.
11.2 b, 11.3: III.1.a—c, 111.3
OSIIA Emergency Action Plana (29 CPA 1910.36 (a)) and Precess Safety (29 CFR 1910.119)
1910 36(a) Emergency action plan
(1) Scope andapplicablity
(2) Elementr
(i) Emergency escape procedures and emergency escape route assignments
(ii) Procedures to be folk red by employees who remain to operate critical plant oper-
ations before they evacuate.
(iii) Procedures to account for all employees after emergency evacuation has been
corrçleted.
(iv) Rescue and medical duties for those employees who ace to perform them
(ii) The preferred m6aris of reporting fires and other emergencies
(vi) Names or regular fob titles of persons or departments who can be contacted for
further information or explanation of duties under the plan
(3) Alarm system’ 8
44) Evacuation
(5) Training
1910 119 Process safety management of highly hazardous chemicals
(e)(3)(ii) Investigation of previous incidents
(e)(3)(iii) Process hazard analysis requirements
(g)(1)(i) Employee training in process/operating procedures
O)( ) Inspection/testing of process equipment
(j)(S) Equipment repair
(I) Management of change(s)
(i n) tnodent investigation
IlI.3.c.(1), l 1L3.d
11.2. 1 1.2 _c; II I 3 b (3): IlI.3c
11.2: ll.2c, 11.2 e: Ill.3.c.
ll.2.a. lIl.3.b ,(2); Ill.3b (3); 111.3 c, I I I 4
Ill 3.b.(3); III 3 _c: 111.3_c (7); 111 3.e (1)
1 12.a. Ill 3.b.
I 4 f. 112.a, I II 3b.(2), lll.3.b (4)
112 a, lII.3c (3), 111.3 e (3).
Il.2.d, III 3 b (3); III 3.c (3), 111.3 d. Ill 3d (1)
Ill 3.e.(5), I I I 5.
1114. II I 4b.
Ill 3.e.(3)
11 1.5
Ill 3.e (6)
III 3 e (6)
Ill S
Ill 4.a
Ill S
IllS
Ill 3 e (6)
111.6
Ill 3.L(3)
IlLS
111.8
111.3 d(1)
Ill.3d
11L3.d (3), 111.8
14,111.1.
I 4.b; 1.44
I 4c
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Federal Resister / Vol 61, No 109 / Wednesday. June 5, 1996 / Notices
28661
ATTACHMENT 3 REGUL..ATORY C ROSS-COMPARISON MATRICES—Continued
lop Citation(s)
(n) Emergency planning and response 11. Ill, II 2. II 2 d, III 2, III 2 a, III 2 b
(o)(1) Certification of compliance III 5
1910 165 Employee alarm systems
(b) General requirements - III Se (3)
(b)(1) Purpose of alarm system . . . 1112. 1112 a
(b)(4) Preferred means of reporting emergencies . II I 2
(d) Maintenance and testing . . . I II 3 e (6)
1910 272 Grain handling facilities
(d) Developipent/imp’e’nentation of emergency action plan . I 1, III 2
OSHA HAZWOPER (29 CFR 191 0.120) —
141. 112b, 1 12c. llI.2b. Ill2c, lll3b(4),
Ill 3.d
14 f, 112 b, 1112 a, III 2 C, 1113 b (4), III Se (4)
1 11, I II 7
lll3b(3), II I 3d (2)
111.3 d42), Ill 3.e.(2).
Il.2d, I II Sb(3)
lIt c(6)
1l2d, III 3c(7), lIlSe(l)
1 12, 112 a, 112 f, 114, 1112, 11(2 a, 1112 b, 1112 c,
Ill 3d
II 3, 1114, III 43. 1116
111.3 e_(6), 111.3 1(3), Iii 3 d (2). I I I 3 e (6),
lIt 31(3)
(3) Procedures for handling emergency incidents
(i) Additional elements of emergency response plans
(A) Site topography, layout, and prevailing weather conditions
(B) Procedures for reporting incidents to local, state, and federal government
agenaes.
(ii) The emergency response plan shall be a separate section of the Site Salety and
Health Plan
(iii) The emergency response plan shall be compatible with the disaster, fire, andlor
emergency response plans of local, state, and federal agencies
(iv) The emergency response plan shall be rehearsed regularly as part of the overall
training program for site operations
(v) The site emergency response plan shalt be reviewed penodically end, as nec-
essary, be amended to keep it current with new or changing site conditions or infor-
mation
(vi) An employee alarm system shalt be installed in accordance with 29 CAR 1910.165
to notify employees of an emergency situation, to stop work activities it necessary,
to lower-background noise In order to speed communications: end to begin emer-
genoy procedures.
(v ii) Based upon the information available at time of the emergency, the employer
- shall eva luate ihe Incident and the ate response capabilities and proceed with the
awoprtate steps to lmptement the site emergency response plan.
19l0.1204pfl8) Emergency response program:
(I) Emergency response plait
(ii) Elements of an emergency response plan:
(A) Pre-emorgencyplannlng end ooorc nation with outside parties ..
(B) Personnel roles, tines of authortty, and communication
(C) Emergency recognition and prevention ..
(0) Sale distances and places of refu e ..
(E) Site secunty and control -
(F) Evacuation routes end procedures .. .
(G) Decontamination procedures .
(H) Emergency medical treatment and response procedures
(I) Emergency alerting and response procedures
Itt Sc (6)
I i
1910 120(k) Decontamination . . .
1910 120(l) Emergency response program ..
(1) Emergency response plan
(i) An emergency response plan shall be developed and implemented by all employers
within the scope of this section to handle anticipated emergencies prior to the corn-
mencemertt 01 hazardous waste operations
(ii) Employers who will evacuate their employees from the workplace when an emer-
gency occurs, and who do not permit any of their employees to assist in handling
the emergency, are exempt from the requirements of this paragraph it they provide
an emergency action plan complying with section 1910 38(a) of this part
(2) Elements of an emergency response plan
(i) Pre-emergency planning and coordination with outside parties
(ii) Personnel roles, tines of authority, and communication
(iii) Emergency recognition and prevention
(iv) Safe distances and places of refuge
(v) Site security and control
(vi) Evacuation routes and procedures
(vii) Decontamination procedures
(viii) Emergency medical treatment and response procedures
(ix) Emergency alerting and response procedures
(x) Critique of response and follow-up
(xi) PPE and emergency equipment
Ill 1
ll2a, 1112
III 3 a
1115
112.c, l12.th
1 .1
1.4.f, ll.2.b, 1f2.b; lll2.b, 1t 12.c, lll.3.b.(4),
lll.3.d.
I 4.f, ll.2.b, tll2c, 111.2 c, 1113 b.(4); Ill 3.e.(4)
11.1,1117
Ill.3.b (3), 111.3 d (2)
IlL S d (2), 111.3 e(2)
112.d, 111.3 b(3)
Ill S.c (5)
ll2.d, Ill 3.c (7): 111.3 e (1)
1 12. 112 a. II 2 I, 114, III 2. 1112 a, ltl.2.b, 1112 c,
III 3d
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28662
Federal Register / Vol 61, No. 109 / Wednesday , June 5, 1996 I Notices
AflACHMEi T 3: REGuLATORY CROSS-COMPARISON MATRICES—Continued
iCP Citation(s)
(J) Critique of response and follow-Up
(K) PPE and emergency equipment
(iii) Training
(iv) Procedures for harding emergency incidents
(A) Additional elements of emergency response plans
(1) Site topography, layout, and prevailing weather conditions
(2) Procedures for reporting incidents to local, state, and federal government
agencies.
(B) The emergency response plan shall be compatible and integrated with the disas-
ter, fire and/or emergency response plans of local, state, and federal agencies.
(C) The emergency response plan shall be rehearsed regularly as part of the overall
training program for site operations.
(D) The site emergency response plan shall be reviewed penodically and, as nec-
essary, be amended to keep it current with new or changing site conditions or lnlor-
niaboa
(E) An employee alarm system shall be installed in accordance with 29 CFR
tSlO.165.
(F) Based upon the information available at the time of the emergency, the employer
shall evaluate the Incident and the site response capabilities and proceed with the
appropriate steps to implement the site emergency response plan
1910.120(q) Emergency response to hazardous substance releases
(1) Emergency response plan -.
(2) Elements of an emergency response plan:
(1) Pre-emergency planning and coordination with outside pasties ..
(ii) Personnel roles, hnes of authority, training, and communIcation ,.
(iii) Emergency recognition end prevention .. ..
(iv) Safe distances and places of reftige -
(v) Site security and control ... ...... - -
(vi) Evacuation routes and procedures ......
(vii) Decontamination procedures .
(viii) Emergency medical teatment and response procedures
fix) Emergency alerting and response procedures ..
(x) Critique of response and follow-up .. . .
(xi) PPE and emergency equipment - -
(xii) Emergency response plan coordination and IntegratIon
(3) Procedures for handling emergency response
fi) The senior emergency response official responding to an emergency shall become
the individual in charge of a site-specific Incident Cemrnand System (ICS).
(ii) The individual in charge of the ICS shall Identify, to the extent possible. all hazard-
ous sttstenoes or conditions present and ehall address as appropriate site analysis,
use et engineenrig controls, maximum exposure limits, hazardous substance han-
ding procedures, arid use of any new technologies.
(iii) Implementation of appropriate emergency operations and use of PPE
(iv) Employees engaged In emergency response and exposed to hazardous sub-
stances presentmg an Inhalation hazard or potential Inhalation hazard shall wear
positive pressure self-contained breathIng apparatus while engaged in emergency
response.
(v) The lndividuai in charge of the ICS shall limit the number of emergency response
personnel at the emergency site, In those areas of potential or actual exposure to
incident or site hazards, to those who are actively performIng emergency operations.
(vi) Backup personnel shall stand by with equipment ready to provide assistance or
rescue.
(vii) The individual in charge of the 1CS shall designate a safety official, who is knowl-
edgeable In the operations being Implemented at the emergency response site
(viii) When activities are judged by the safety official to be an IDLH condition and/or to
involve an imminent danger condition, the safety official shall have authority to alter,
suspend, or tem linate those activities
(lx) After emergency eperations have terminated, the individual in charge of the ICS
shall iri Aernent appropriate decontarni nation procedures
11.3. lI t 4. Ill 4.a, 1116.
Ill 3.e.(6); 11131(3), Ill 3 d (2), Ill 3 e.(6),
I II 3 1(3)
Ill 5
lilt c, 1113d(1)
ll.2.a, III 2
llI .3.e
Il.2d, lI.2.e, lll.3.d.(l)
111.3.1.
1.4.1; ll.2.b, Il.2.c; lIl.2.b, 1l12.c, 111.3 b (4);
IlI.3.d.
1.4. 1, tl l.b; lI12.b; l 112.c; lll.3.b.(4); lll.3.e.(4).
11.1, 111.7.
lll.3.b.(3), lll.3.d.(2).
llI.3.d.(2); III.3.e.(2).
1124 Ill.3.b.(3).
lll.3.c.(6).
1124 II I 3.c.(7), lll.3.e (1)
112; 112.a, 11.2 1; 11.4; 1112, 11 12.a, 1112.b, 1112.c,
I 1L3.d.
11.3; 111.4; lII.4.a, 111.6
lll.3.e.(6); llI.3.f.(3), lll.3.d.(2); llI.3.e (6),
Ill.3.f (3).
IIi.3.e; 111.8
1I2.b; 111.3, 111.3_a; 111.3 _b; lll.3.b.(1); lll.3.b.(2),
lIi .3.e.(3).
i12.c; 1L2.d; 111.3 c43)
112.c; ll2.d; 112.e, lIl.3.c; lll.3.c.(1); 111.3 d (1),
1lL3.d.(2).
1124.
lli.3.c; Ill.3.e.(5)
Il.2.d; 111.3 e (5)
11.24; 111.3 ti (3)
111.3 b.(3).
1 1 13c(6)
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Federal Register I Vol. 61, No. 109 f Wednesday, June 5, 1996 1 Notices
28663
ATTACHMENT 3’ REGULATORY CROSS-COMPARISON MATRICES—Continued
ICP Citation(s)
(4 When deemed necessary for meeting the tasks at hand, approved self-contained
compressed air breathing apparatus may be used with approved cylinders from
other approved self-contained compressed air breathing apparatus provided that
such cylinders are of the same capacity and pressure rating
(4) Skilled support personnel
(5) Speciahst employees
(6) Training
(7) Trainers
(8) Refresher training
(9) Medicai surveillance and consultation
(10) Chemical protective clothing
(11) Post-emergency response operations
l ii 5
EPA ’s Risk Management Program (40 CFR Part 68)
68 20—36 Offsite consequence analysis
6842 Five-year accident history
6850 Hazardreview . ..
6860 Incident investigation ... .
6867 Process hazards analysis .
68 81 Incident investigation
6895(a) Elements of an emergency response program
(1) Elements of an emergency response plan
(i) Procedures for informing the public and emergency response agencies about acci-
dental releases
(ii) Documentation of proç er first-aid and emergency medical treatment necessary to
treat accidental human exposures
(iii) Procedures and measures for emergency response after an accidental release of
a regulated substance
(2) Procedures for the use of emergency response equipment and for its inspection, test-
irig, and maintenance.
(3) Training for all employees in relevant procedures
(4) Procedures to review and update the emergency response plan . ...
cq 95(b) Compliance with other federal contingency plan regulations
5(c) Coordination with the community emergency response plan
I II 3d (1)
Ill 4 b
llt3d(1)
III 4 a
Ill 3d (1)
l lf 4 a
I I 2 a, II I 2
lll.3,c (7), lll.3e (1)
II I, 11.2, 11.2, 114, III 3 a—c
111.3 e (6)
I II 5
I II 6
•‘fetes to Attachment 3
1 Facilities should be aware that most states have been authorized by EPA to implement RCRA contingency planning requirements in place of
the federal requirements listed Thus, in many cases state requirements may not track this matnx Facilities must coordinate with their respective
states to ensure an ICP complies with state RCRA requirements
2 Facilities should be aware that most states have been authonzed by EPA to implement RCRA contingency planning requirements in place of
the federal requirements listed. Thus, in many cases state requirements may not track this matrix Facilities must coordinate with fheir respective
states to ensure an ICP complies with state RCRA requirements.
3 Facilities should be aware that most states have been authorized by EPA to implement RCRA contingency planning requirements in place of
the federal requirements listed Thus, in many cases state requirements may not track this matrix Facilities must coordinate with their respective
states to ensure an ICP corr ffies with state RCRA requirements
‘Section 264 56 is incorporated by reference at §264.52(a)
5 lncorporates by reference §264 37.
°Seciion 265 56 is incorporated by reterence at § 265.52(a)
7 lncorporates by reference §26&37
Section 279 52(b)(6) is incorporated by reference at §279 52 )(2)(i)
B Incorporates by reference § 279 52(a)(6) -
iONon..respon.se planning parts of this regulation e g ,prevention provisions) require a specified format
“If a facility is required to develop a strong oil spill contingency plan under this section. the requirement can be met through the ICP
‘ 2 The appendix further describes the required elements in 12020(h) It contains regulatory requirements as well as recommendations
‘ 3 Specitic plan requirements for sections listed under 154.t030(b) are contained in 154.1035(a).—(g).
“Note Sections 154 1045 and 154,1047 contain requirements specific to facilities that handle, store, or transport Group f—IV oils and Group V
oils, respectively
1 lbid
Section 191 0i8(a)(3) incorporales 29 CFR 1910.165 by reference
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28664 Federal Resister / Vol 61, No. 109 / Wednesday, June 5, 1996 I Notices
Dated April 18, 1996
Elliott P. Laws,
Assistant /tdmmist rotor. Office of Solid Waste
and Emergency f lesponse, U S
Environnental Prvtection Agency
Dated. April 22, 1996
Rear Admiral Ja mes C Card,
Chief. Marine Sofetyand Environmental
Protection Threctorote. US Coast Guard
Dated April 18, 1996
Richard B. Felder,
Associate Adnnnist rotor for Pipeline Sofct 1 .
Research and Special Programs
Adnunistrotion, U S Department of
T r ansportation
Dated April 18, 1996
John B. Moran,
Director of Policy, Occupational Safety and
Health Administration, Deportment of Labor
Dated April 16, 1996
Thomas Cerihofer ,
Associate Director. Offshore Minerals
Management, Minerals Management Service,
Department oftheIn enor
J i l l Doc 96—13712 Filed 6—4—96. 6 45 ain i
BiLLING CODE 6560-SOP
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a —
Monday
October 20, 1997
Part II
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— a
-
- - —
S — - —
E. E E
Environmental
Protection Agency
40 CFR Part 112
Oil Pollution Prevention; Non-
Transportation Related Onshore
Rule
O s)
Facilities;
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54508 Federal Register / Vol 62, No 202 / Monday, October 20, 1997 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[ FRL—5909—5]
Oil Pollution Prevention; Non .
Transportation Related Onshore
Facilities
AGENCY: Environmental Protection
Agency (EPA)
ACTION: Denial of petition requesting
amendment of the Facility Response
Plan rule
SUMMARY: EPA is denying the request
submitted by various trade associations
to amend the Facility Response Plan
(FRP) rule that the Agency promulgated
under section 311(j) of the Clean Water
Act (CWA), as amended by the Oil
Pollution Act (OPA) of 1990 These
organizations had requested that EPA
modify the FRP rule in a number of
ways to treat facilities that handle, store.
or transport animal fats and vegetable
oils in a manner differently from those
facilities that store petroleum-based oils
EPA believes that the petition did not
substantiate the claimed differences
between animal fats and vegetable oils
and petroleum oils so as to support a
further differentiation between these
groups of oils under the FRP rule
Instead. EPA continues to find that a
worst case discharge or substantial
threat of discharge of animal fats and/
or vegetable oils to navigable waters.
adjoining shorelines, or the exclusive
economic zone could reasonably be
expected to cause substantial harm to
the environment, including wildlife that
may be killed by the discharge of fats or
vegetable oils Moreover, EPA believes
that in setting different response
strategies for petroleum and non.
petroleum oils. (with animal fat and
vegetable oils in the latter category). the
FRP rule already provides for adequate
differentiation in response planning
requirements for all covered facilities
ADDRESSES: The official record for this
decision is located in the Superfund
Docket, at the U S Environmental
Protection Agency. tDocket Number
SPCC—3) The docket is available for
inspection between 9 a m and 4 p m,
Monday through Friday. excluding
Federal holidays, at US EPA Crystal
Gateway I (CCI). 1235 Jefferson Davis
Highway. Arlington, VA 22202
Appointments to review the docket can
be made by calling 703—603—8917 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
Center. Office of Emergency and
Remedial Response (5203C). U S
Environmental Protection Agency. 401
M Street. SW . Washington. DC 20460 at
703—356—8774
(lively barbara@epamail epa gay), or the
RCRA/Superfund Hotline at 800—424—
9346 (u-i the Washington. DC
metropolitan area. 703—4 12—98 10) 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 Denial of Petition are
listed in the following outline
I Background
A The Organizations’ Petition
B Background on the Processing and Storage
of Vegetable Oils and Animal Fats
II Technical Evaluation of Petitioners’
Claims
A General
B Petitioners Claim Animal Fats and
Vegetable Oils Are Non-Toxic
I How Animal Fats and Vegetable Oils
Produce Adverse Environmental Effects
2 Physical Properties
3 Chemical Composition
4 Environmental Effects
a Physical Effects of Spilled Oil
b Effects of Oil on Metabolic Requirements
c Effects of Oil on Food and the Food Web
Communities, and Ecosystems
d Indirect Effects
5 Toxicity
a Principles of Toxicology
b Exposure From Oil Spills
c Toxicity of Petroleum Oils
d Toxicity of Vegetable Oils and Animal
Fats
Figure 1 Toxicity and Adverse Effects of
Components and Transformation
- Products of Vegetable Oils and Animal
Fat
6 Epidemiological Studies
a Human Health
b Comparison of Effects From Oil Spills
With Human Consumption of Vegetable
Oils and Animal Fats
7 Other Adverse Effects from Oil Spills
a Aesthetic Effects Fouling and Rancidity
b Fire Hazards
c Efferts on Water Treatment
8 FWS Comments
C Petitioners Claim Animal Fats and
Vegetable Oils Are Essential Components
of Human and Wildlife Diets
I Nutritional Requirements for Dietary Fat
2 Essential Fatty Acids (EFA)
3 Adverse Effects of High Levels of EFAs
4 Adverse Effects of High Levels of Fats and
Oils
5 Relevance of EFA Pnnciples to Spills
6 FWS Comments on Essential Fatty Acids
D Petitioners Claim Animal Fats and
Vegetable Oils Are Readily
Biodegradable and Do Not Persist in the
Environment
I Chemical and Biological Processes
Affecting Vegetable Oils and Animal Fats
in the Environment
a Chemical Processes
b Biological Processes
c Rancidity
2 Environmental Fate and Effects of Spilled
Vegetable Oils and Animal Fats Real.
World Examples
3 FWS Comments on Degradation
E Petitioners’ Claim Vegetable Oils and
Animal Fats Have a High BOD. Which
Could Result in Oxygen Deprivation
Where There Is a Large Spill in a
Confined Body of Water
F Petitioners’ Claim Vegetable Oils and
Animal Fats Can Coat Aquatic Biota and
Foul Wildlife
III Petitioners’ Suggested Language to
Amend the july 1. 1994. Facility Response
Plan Rule
A Background
B Regulatory Language Changes Proposed by
the Peutioners
IV Conclusions
Acronym LI C
Bibliography
Appendix I Supporting Tables
Table I Companson of Physical Properties of
Vegetable Oils and Animal Fats with
Petroleum Oils
Table 2 Companson of Vegetable Oils and
Animal Fats with Petroleum Oils
Table 3 Comparison of Aqua Methods and
Standard Acute Aquatic Testing Methods
Table 4 Effects of Real-World Oil Spills
Appendix II Edible Oil Regulatory Reform
Act Differentiation
I Background
The OPA (Pub L 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.
Section 4 202(a) of the OPA amends
CWA section 311(j) to require
regulations for owners or operators of
facilities to prepare and submit “a plan
for responding. to the maximum extent
practicable. to a worst case discharge.
and to a substantial threat of such a
discharge. of oil or a hazardous
substance “ This requirement applies to
all offshore facilities and any onshore
facility that. - ‘because of its location.
could reasonably be expected to cause
substantial harm to the environment by
discharging into or on the navigable
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Federal Register / Vol 62. No 202 / Monday, October 20. 1997 / Rules and Regulations 54509
waters, adjoining shorelines, or the
exclusive economic zone’ (“substantial
harm facilities”)
On July 1, 1994.EPA published its
Final Rule amending the Oil Pollution
Prevention regulation (40 CFR part 112)
to incorporate new requirements to
implement amended section 3l1(j)(5) of
the CWA (Oil Pollution Prevention,
Non-Transportation-Related Onshore
Facilities, Final Rule, 59 FR 34070. July
1. 1994) Under authority of section
311(j)(l)(C) of the CWA, the Final Rule
also requires planning for a small and
medium discharge of oil, as appropriate
In the final rule. EPA determined that
for the purposes of section 3 ll(j)
planning, the OPA includes non•
pet roleum oils The Agency noted 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 Animal
fats arid vegetable oils fall within the
CWA definition of “oil”
Only a small number, no more than
I /4 percent of the total SPCC
community regulated (approximately
5.400 of a total of 435.000 facilities)
under 40 CFR part 112 1—112 7 meet the
criteria for substantial harm under 40
CFR 11220 Only a small number of the
5.400 substantial harm facilities (an
estimated 50 to 100) store or use
vegetable oil and animal fat and have
prepared and submitted FRPs
A The Organizations’ Petition
Bya letter dated August 12. 1994,
EPA received a “Petition for
Reconsideration and Stay of Effective
Date” of the OPA-mandated FRP final
rule as that rule applies to facilities that
handle, store, or transport animal fats or
vegetable oils The petition was
submitted on behalf of seven
agricultural organizations (“the
Organizations’ or “Petitioners”) the
American Soybean Association, the
Corn Refiners Association, the National
Corn Growers Association, the Institute
of Shortening & Edible Oils, the
National Cotton Council. the National
Cottonseed Products Association, and
the National Otlseed Processors
Association
To support the Petition, the
Organizations referenced an industry-
sponsored report titled “Environmental
Effects of Release of Animal Fats arid
Vegetable Oils to Waterways” (prepared
by ENVIRON Corporation. June 28.
1993), and an associated study titled
“Diesel Fuel, Beef Tallow. RBD Soybean
Oil and Crude Soybean Oil Acute
Effects on the Fathead Minnow.
Pimephales Promelas” (prepared by
Aqua Survey. Inc . May21. 1993) Both
the report and the study had been
submitted to EPA during the facility
response plan rulemaking as enclosures
to a comment filed over nine months
after the close of the comment period
Based, in part, on these studies (the
ENVIRON report and Aqua Survey
study), the Petitioners asked EPA to
create a regulatory regime for response
planning for non-petroleum. “non-
toxic” oils separate from the regime
established for petroleum oils and
“toxic.” non.petroleum oils
The report and the study provided
information on certain physical.
toxicological, and chemical properties
of animal fats and vegetable oils
compared with other types of oil The
petitioners argued that according to the
ENVIRON report, the presence of animal
fats and vegetable oils in the
environment does not cause significant
harm Six specific conclusions of the
ENVIRON report regarding vegetable
oils and animal fats were that these
substances are not toxic to the
environment, are essential components
to human and wildlife diets, readily
biodegrade. are not persistent in the
environment like petroleum oils, do
have a high Biochemical Oxygen
Demand (BOD), which could result in
oxygen deprivation where there is a
large spill in a confined body of water
that has low flow and dilution, and can
coat aQuatic biota and foul wildlife
The Petitioners also submitted an
Appendix to their Petition that included
specific suggested language to amend
the July I. 1994. FRP rule The
submitted language would have resulted
in the following changes regarding
facilities that handle, store, or transport
animal fats and vegetable oils Further
clarified the definition of animal fats
and vegetable oil (set out in Appendix
E. 1 2 of the FRP). allowed mechanical
dispersal and “no action” options to be
considered in lieu of the oil
containment and recovery devices
otherwise specified for response for a
worst case discharge. required the use of
a..containmern boom only for the
protection of fish and wildlife and
sensitive environments, and increased
required on-scene arrival time for
response resources from 12 hours
(including travel time) to 24 hours plus
travel time for medium discharges and
worst case Tier I response resources
The Federal natural resource trustee
agencies. including the Fish and
Wildlife Service (FWS). had reviewed
the ENVIRON study In an April 11.
1994. letter to the Department of
Transportation’s (DOT) Research and
Special Projects Administration (RSPA).
the FWS stated that the Report did not
provide an accurate assessment of the
dangers that non-petroleum oils pose to
fish and wildlife and environmentally
sensitive areas The letter stated that the
key facts were misrepresented.
incomplete, or omitted in the Report
FWS also observed that the ENVIRON
report failed to give appropriate
significance to the fouling potential of
edible oils (USDOI/FWS. 1994)
The National Oceanic and
Atmospheric AdministratThn (NOAA)
also had evaluated the effects on the
environment of spilled non-petroleum
oils, including coconut, corn.
cottonseed, fish, and palm oils
(Memorandum of Record, dated June 3,
1993. from the Department of Commerce
(DOC)/NOAA Hazardous Materials
Response and Assessment Division)
The NOAA assessment, based on
literature research, addresses physical
and chemical properties and toxicity of
these and other oils, arid indicates that
some edible oils, when spilled. may
have adverse environmental effects
(The views of the FWS and NOAA on
the adverse effects of animal fats and
vegetables are discussed In detail in the
preamble to the U S Coast Guard’s final
rule setting forth response plan
requirements for marine transportation.
related facilities, (61 FR 7890, 7907—
7908. Feb 29. 19961 and are included in
the docket that supports this decision
These views also are discussed in EPA’s
Request for Data and Comment on
Response Strategies for Facilities That
Handle. Store, or Transport Certain
Non-Petroleum Oils, 59 FR 53742—
53743. October26. 1994)
On October 26, 1994. in view of the
differing scientific conclusions reached
by the Petitioners, the FWS, and other
groups and agencies, EPA requested
broader public comment on issues
raised by the Petitioners in a notice and
request for data (Request for Data and
Comment on Response Strategies for
Facilities That Handle. Store, or
Transport Certain Non-Petroleum Oils,
59 FR 53742, October 26. 1994) These
issues included whether to have
different specific response approaches
for releases of animal fats and vegetable
oils (rather than increased flexibility).
and the effects on the environment of
releases of these oi1 EPA also asked
commenters to recommend specific data
that relate to the comparison of
petroleum and non-petroleum oils EPA
received fourteen comments in response
to its October 26. 1994. notice and
reti uest for data
Of these fourteen commeriters. mcis
agreed with the trade associations’
request that EPA should modify the FRP
rule Most of the commenters asserted
that, based upon the ENViRON report.
animal fats and vegetable oils are
readily biodegradable and not persistent
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54510 Federal Register / Vol 62 , No. 202 / Monday. October 20, 1997 / Rules and Regulations
in the enioronment Certain commenters
also argued that vegetable otis and
animal fats are less toxic than other
types of oil Other commenters argued
that edibleoils pose less risk to the
environment because they are typically
stored in smaller tanks at food
processing facilities, whereas
petroleum-based oils are stored In larger
tanks at petroleum facilities One
commenter. citing the unnecessary and
burdensome regulations and the
excellent spilL record of the animal fat
arid vegetable oil industry, stated that
EPA should differentiate animal fats and
vegetable oils from other types of oils
One commenter questioned the
accuracy of the ENViRON report and
stated that non-petroleum oils can
adversely affect fish and wildlife and
environmentally sensitive areas
B Background on the Processing and
Storage of Vegetable Oils and A nima /
Fats
In 1992, approximately 20 8 billion
pounds of vegetable oils and animal fats
were consumed in the United States.
including over 14 8 billion pounds for
edible uses, and more than 5 9 bih.on
pounds for inedible uses, such as soap,
paint or varnish, feed, resins and
plastics. lubricants, fatty acids. and
other products (Hui. l996a) The extent
of processing of vegetable oils and
animal fats depends on the ultimate use
of the product Chemical composition.
which determines the toxicity and fate
of oils in the environment, changes at
each step in processing. as impurities or
specific components are removed or
chemicals formed, chemical
composition can also be changed by
storage, heating, or reactions in the
environment (Hui. l996d, Brekke.
1980)
Processing steps in vegetable oil
facilities are generally independent
operations that are not connected by
continuous flow, and between each
processing step there may be one or
more storage tanks (Hui. 1996d) Many
crude vegetable oil storage tanks, which
are usually constructed of welded
carbon steel, have a capacity of I
million pounds (approximately 140,000
gallons) (Hui. 1996d) They may be
located in the open or enclosed in a
structure Storage tanks for finished fats
and oils are generally made of iron,
stainless steel, or aluminum and
typically hold between 75 and 200 tons
(about 21.00010 56,000 gallons) of
product
In a typical integrated vegetable oil
processing facility, steps may include
crude oil storage. preparation, extraction
and meal finishing, removal of gums
and lecithin processing. caustic refining.
bleaching and dry removal of gums and
waxes, hydrogenation.
interesterification. fractionation.
deodorizing, and shortening or
margarine production (Hut, l996d,
Brekke, 1930) DurIng these steps.
several classes of materials may be
removed, such as gums. phospholipids.
pigments. free fatty acids, color bodies.
pigments. metallic prooxidants. and
residual soaps New compounds.
includIng oxidation products, polymers
and their decomposition products. may
be formed and contamInants Introduced
during processing (Hui, 1996d)
Impurities are also removed and
chemical structure modified during
processing of animal fats (Hui. l996d)
The major animal fats are lard and
tallow Steps in the processing of animal
fats may include rendering, bleaching.
hydrogenation. deodorizing.
interesterification, arid fractionation
Rendering, the removal of fat from
aninial tissues using heat or mechanical
means, is often a continuous process
that results in products that require no
further treatment Further refining
removes materials, such as free fatty
acids or collagen or protein, or changes
the characteristics of the fat for
specialized use
Spills of crude vegetable oils
containing gums. phospholipids. free
fatty acids, and a host of other chemical
components can differ greatly from
spills of processed oils in their
persistence in the environment, the
environmental compartments in which
they are distributed, the breakdown
pioducts that they form, their rate of
degradation. and the exposure and
environmental effects that they produce
Some minor components of oils can
affect their properties or cause adverse
health and environmental effects
Spilled oils and fats can be transformed
by physical. chemical, or biological
processes to form products that are more
or less toxic than the original oil.
depending on the specific oil and the
products that are formed
The EPA has considered the
Petitioners’ claims in detail EPA’s
technical evaluation on the Petitioners’
claims is set forth in section II EPA ’s
responses to suggested changes in the
FRP regulation are provided in section
Ill Detailed studies and information to
support this document are provided in
a Technical Document, which is located
in the Docket
II. Technical Evaluation of Petitioners’
Clai ms
A General
The Petitioners claim that unlike most
if not all other oils, animal fats and
vegetable oils are non-toxic, readily
biodegradable. not persistent in the
environment, and in fact are essential
components of human and wildlife
diets Most of the Petitioners’ arguments
focus on toxicity. although toxicity is
only one of several mechanisms by
which oil spills cause environmental
damage
In making its claims, the Petitioners
have disregarded fundamental scientific
principles and ignored a large body of
scientific evidence that was considered
by EPA in its promulgation of rules
implementing the requirements of the
CWA The ENVIRON report submitted
by the Petitioners acknowledges that
animal fats and vegetable oils can cause
oxygen deprivation and coating of
animals, but the Petitioners Incorrectly
minimize the importance of these
mechanisms in causing environmental
damage and rely instead on limited
studies in narrow areas of toxicity.
which are then improperly generalized
to support the PetitJoners’ claims
Petitioners’ submtsston emphasizes
that animal fats and vegetable oils are
used by all organisms for food The
ingestion of small quantities of edible
oils by humans, however, is a
completely d iffetent situation from
spills of oil into the environment These
situations differ markedly in the extent
and duratIon of exposure. the route of
exposure, the species exposed. the -
composition of the chemicals involved.
the circumstances surrounding the
exposure, and the types of effects
produced—factors that determine the
toxicity and severity of the adverse
effects of chemicals Thus, even if the
human consumption of small quantities
ofoils in food were judged completely
safe, no inferences could be drawn
about the toxicity and other effects of
vegetable oils and animal fats on
environmental organisms exposed in the
very different circumstances of oil
spills
The Petitioners’ arguments about
toxicity do not address the central issue
Spills of animal fats and vegetable oils
kill or injure fish, birds, mammals, and
other species and produce a host of
other undesirable effects Whether this
death and destruction results from
toxicity or from other processes. spills
of animal fats arid vegetable oils should
be prevented and if spills occur, quickly
removed to reduce the environmental
harm and other adverse effects they
produce.
B Petitioners’ Claim Animal Fats and
Vegetable Oils Are Non-Toxic
The Petitioners claim that EPA’s
implementation of the response plan
provisions and other regulatory changes
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Federal Register / Vol 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54511
under the CWA are inconsistent with
established regulatory principles and
with the available scientific data related
to animal fats and vegetable oils, which.
unlike other oils, are non-toxic
EPA Response For a number of
reasons that are detailed in this
document and the Technical Document,
EPA disagrees with the Petitioners’
contention that animal fats and
vegetable oils are non-toxic when
spilled into the environment First.
while the Petitioners rely on laboratory
tests that measure only the acute lethal
effects of some vegetable oils and
animal fats in one species of fish, these
tests say nothing about other acute toxic
effects or long-term toxic effects, or
toxic effects on other species or
ecosystems. or toxic effects of oil spilled
in the environment under conditions
that differ from those in the laboratory
Second, the tests submitted by the
Peiitioners cannot demonstrate “non-
toxicity” of vegetable oils and animal
fats, indeed the tests described in the
study only measure the lethality of the
oils tested under a given set of
experimental conditions Third. other
information and data indicate that
animal fats and vegetable oils, their
components. and degradation products
are not as ‘non-toxic’ as the Petitioners
assert Fourth, while low levels of
certain animal fats and vegetable oils or
their components may be essential
constituents of the diet of humans and
wildlife, adverse effects occur from
exposure to high levels of these
chemicals Numerous examples in the
scientific literature demonstrate that
essentiality does not confer safety and
essential elements can produce toxic
effects (Klaassen et al, 1986, NAS,
1977a, Rand and Petrocelli, 1985, Hui,
1996b)
Furthermore, EPA emphasizes that
toxicity LS only one of several
mechanisms by which oil spills cause
environmental damage As discussed
below, the physical effects of spilled
oil—such as coating animals and plants
with oil and suffocation of aquatic
organisms from oxygen depletion—and
the destruction of the food supply kill
birds and mammals, destroy fish and
other aquatic species. and damage their
habitats
By contaminating food sources,
reducing breeding animals and plants
that provide future food, contaminating
nesting habitats, and reducing
reproductive success through
contamination and reduced hatchability
of eggs. even oils that remain in the
environment for relatively short periods
of time can cause long-term deleterious
effects years after the oil was spilled
I How Animal Fats and Vegetable Oils
Produce Adverse Environmental Effects
The deleterious environmental effects
of spills of petroleum oils and non-
petroleum oils, including animal fats
and vegetable oils, are produced
through physical contact and
destruction of food sources as well as
toxic contamination (IJSDOC/NOAA.
1996, NAS. l985e, Crump-Wiesner and
Jennings. 1975. Frank, 1994. Frink and
Miller. 1995. Hartung. 1995, USD011
FWS, 1994) Nearly all of the most
immediate and devastating
environmental effects from oil spills—
such as smothering of fish or coating of
birds and mammals and their food with
oil—are physical effects related to the
physical properties of oils and their
physical interactions with living
systems (Hartung. 1995)
While these immediate physical
effects and effects on food sources may
not be considered the result of
“toxicity” in the classic sense—i e.
effects that are produced when a
chemical reacts with a specific receptor
sue of an organism at a high enough
concentration for a sufficient length of
tame (Rand and Petrocelli. 1985)—
severe debilitation and death of fish and
wildlife are caused by spills of animal
fats and vegetable oils, other non-
petroleum oils, and petroleum oils and
their products Adverse environmental
effects can occur long after the initial
exppsure to animal fats and vegetable
oils because of toxicity, persistence of
products in the environment, or
destruction of food sources and habitat
and diminished reproduction resulting
from physical effects or toxicity
2 Physical Properties
Petroleum oils and non-petroleum
oils, including vegetable oils and animal
fats, share common physical properties
and produce similar environmental
effects (Crunip-Wiesner and Jennings.
1975, USD01. 1994, Frink, 1994) When
spilled in the aquatic environment,
petroleum oils, animal fats and
vegetable oils and their fatty acid
constituents may float on the water’s
surface, become solubihzed or
emulsified in the water column, or seitle
on the bottom as a sludge. depending on
their physical and chemical properties
(Crump-Wiesner and Jennings. 1975.
DOCINOAA, 1992. 1996) Vegetable oils
and animal fats that are solid at room
temperature still serve as potent
physical contaminants and are much
more difficult to remove from affected
animals than petroleum oil (Frink,
1994)
While the physical properties of
vegetable oils and animal fats are highly
variable, most fall within in a range that
is similar to the physical parameters for
petroleum oils (See Appendix 1. Table
I Comparison of Physical Properties of
Vegetable Oils and Animal Fats With
Petroleum Oils and Table 2 Comparison
of Vegetable Oils and Animal Fats with
Petroleum Oils) Common properties—
such as solubility. specific gravity, and
viscosity—are responsible for the
similar environmental effects of
petroleum and vegetable oils and animal
fats Petroleum and vegetable oils and
animal fats can enter all parts of an
aquatic system and adjacent shoreline,
and similar methods of containment,
removal and cleanup are used to reduce
the harm created by spills of petroleum
and vegetable oils and animal fats
3 Chemical Composition
The chemical composition and
physical properties of petroleum and
non-petroleum oils, including vegetable
oils and animal fats, determine their fate
in the environment (where they go.
reactions, rate of disappearance) and the
exposure and adverse effects that they
produce The chemical composition
changes at each step in processing. as
impurities or specific components are
removed or chemicals formed (Hui.
1996d, Brekke, 1980) Chemical
composition can also change with
storage, heating, or reactions in the
environment.
The main constituents of vegetable
oils and animal fats are esters of glycerol
and fatty acids (I-liiu. 1996b) The ester
linkages can be hydrolyzed to yield free
fatty acids and glycerol While
triglycerides (triacylglycerols)
predominate, fats and oils also contain
mono- and diglycerides (mono-and
duacylglycerols) and other lipids. e g.
phosphatides and cholesterol, free fatty
acids, and small amounts of other
compounds Fats and oils also contain
other minor components. such as
polynuclear aromatic hydrocarbons
(PAl-Is) Like vegetable oils and animal
fats, petroleum crude oils are
hydrocarbon mixtures that can be
further processed to make specific
products, but the hydrocarbon
constituents of petroleum oils are
primarily alkanes (paraffins).
cycloalk nes. and aromatic
hydrocarbons (IARC, 1989)
Fatty acids largely determine the
chemical and physical properties of
triglycerides (Hui. 1996a) and influence
their fate and effects in the
environment The structure of the fatty
acids can change as they are processed.
stored, heated, or transformed by
physical. chemical, and biological
processes in the environment The fatty
acid composition of vegetable oils and
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54512 Federal Register / Vol 62, Nd 202 / Monday, October 20, 1997 / Rules and Regulations
animal fats varies with plant or animal
species, season, geographical location.
feed, and other factors
The physical and chemical properties
of petroleum and non-petroleum oils
can change after they have spilled into
the environment Spilled oil can be
transformed through a wide variet ,’ of
physical. chemical, and biological
processes (USDOC/NOAA. 1992a,
1996) These processes are affected by
many factors, among them temperature.
oxygen. light, ionizing radiation, and
the presence of metals (Klritsakis, 1990.
Hui, 1996a. 1996d)
As the composition of the oil changes.
so does its fate in the environment and
its toxicity The products that are
formed can be more or less toxic than
the original oil, depending on the
specific oil and the products that are
formed Oxidation of vegetable oils and
animal fats, which may contribute
rancid off-flavors and odors, can create
products. such as cyclic monomers and
oxycholesterols that are toxic at
relatively low concentrations (Ku I.
l996a) Polymers of soybean oil and
sunflower oil can form concrete-like
aggregates with soil or sand that cannot
be readily degraded by bacteria and
remain in the environment for many
years after they are spilled (Minnesota.
1963. Mudge, 1995. 1997a, 1997b)
Petroleum oils also undergo oxidation
and polymerization reactions and can
form tars that persist in the environment
for years (NAS. 1 985d)
4 Environmental Effects -
Spills of petroleum and vegetable oils
and animal fats can harm aquatic
organisms and wildlife “i many ways
(Crump-Wiesrier and Jennings. 1975)
• Oil can coat the feathers and fur of
birds and mammals and cause drowning
and hypothermia and increased
vulnerability to starvation and predators
from lack of mobility.
• Oils can act on the epithelial
surfaces of fish, accumulate on gills, and
prevent respiration The oil coating of
surface waters can interfere with natural
processes of reaeration and
photosynthesis Organisms and algae
coated with oil may settle to the bottom
with suspended solids along with other
oily substances that can destroy benthic
organisms and interfere with spawning
areas
• Oils can increase BOD and deplete
water of oxygen sufficiently to kill fish
• Oils can cause starvation of fish and
wildlife by coating food and removing
the food supply Animals that ingest
large amounts of oil through
contaminated food or preening
themselves may die as the result of the
oil ingested Animals can also starve
because of increased energy demands
needed to maintain body temperature
when they are coated with oil
a Oils can exert a direct toxic action
on fish, wildlife, or their food supply
• Oils can taint the flavor and cause
intestinal lesions from laxative
properties in fish
• Oils can foul shorelines and
beaches Oil spills can also create rancid
odors
The environmental effects of
vegetable oils and animal fats and
petroleum oils, their chemical and
physical properties, and their
environmental fate are compared in
Appendix I. Table 2
a Physical Effects of Spilled Oil
Physical effects produce nearly all of the
most immediate and devastating
environmental effects from oil spills
Even oils that remain in the
environment for relatively short periods
of time can cause long-term deleterious
effects years after the oil was spilled
Coating with Oil. Among the
immediate effects of oil spills is the
coating of the feathers of birds and fur
of maim ials (Hartung. 1995) Coating of
animals and their food supply is
produced by spills of petroleum and
non-petroleum oils alike Birds and
some mammals, such as sea otters and
river otters that depend upon entrained
air for buoyancy and insulation, are
particularly vulnerable to harm from
spills of non-petroleum and petroleum
oils (NAS, 1985e. Hartung. 1967. 1995)
In freshwater or tidal brackish waters.
oiled birds are usually waterfowl and
wading birds, such as herons
(Alexander. 1983)
Birds and mammals become coated
with oil when they land in an oil sbck
or surface from underneath (Hartung.
1995) Oil alters the structure and
function of the feathers and fur by
disrupting their orderly arrangement.
thereby reducing entrainment of air and
caUsing loss of buoyancy and thermal
insulation (Rozemeijer. 1992. Leighton.
1995. Frink and Miller. 1995, NAS.
l985e. Alexander. 1983. Hartung. 1967,
1995. Crump.Wiesner and Jennings.
1975) As the plumage absorbs water.
the weight and body mass of the birds
increases, and the birds sink and may
drown Birds and mammals, with
feathers or fur matted down by
petroleum or non-petroleum oils, can
also die from hypothermia and/or
dehydration and diarrhea or fall victim
to predators
Birds that are able to endure excess
chilling while avoiding their predators
may reach shore and sit or stand in a
state of shock (NAS. 1985e. Alexander.
1983) To maintain body temperature.
such birds would have to eat twice the
normal amount of food, yet they are
often isolated from their food supply
(l-lartung. 1967. 1995. Alexander. 1983)
Fat and muscular energy reserves of
these birds are rapidly exhausted and
their body temperature drops (Hartung,
1967, Croxall. 1977. Alexander, 1983.
Rozemeijer et al. 1992) As their
appetite declines, death from starvation
ensues Similarly, sea otters with fur
coated with oil require increased
metabolism to compensate for major
changes in conductance and heat flow
across the body surface (Hartung. 1967.
1995. Kooyman. 1977. Williams etal.
1990. NAS. 1985e)
Oiled birds tend to preen their
feathers and may ingest large amounts
of oil from attempting to clean
themselves and from consuming oil-
contaminated food arid oil particles
(Frink. 1994. Frink and Miller. 1995.
Alexander. 1983. NAS. 1985e, Hartung.
1965. 1967, 1995). Bird rescuers have
described dead birds with organs filled
with oil from eating oiled food (Lyall.
1996. Frink and Miller. 1995) Oil can
also be transferred to birds through
consumption of fouled prey or direct
contact with the oiled shoreline or
surface water (Frmk and Miller. 1995,
Smith and Herunier. 1989) The coated
birds that are observed after oil spills
are probably a small proportion of the
total affected, as weakened birds are
likely victims of predators (Harturig.
1995. Alexander. 1983. NAS. 1985e.
Lyall. 1996. Frink and Miller, 1995.
McKelvey et al . 1980. Smith and
Herunter. 1989. Minnesota. 1963)
Small spills of vegetable oil, animal
fat and petroleum oils can cause great
ecological damage. depending upon the
location of the spill and other factors
Evena small spill of vegetable oil can
be far more damaging to aquatic birds
than certain petroleum oils (McKelvey
et al. 1980. Smith and Herunter, 1989)
Suffocation Suffocation and death of
fish and other biota are often the
consequence of oxygen depletion of the
water Oxygen depletion can result from
reduced oxygen exchange across the air-
water surface below the spilled oil or
from the high SOD produced by microor
ganisms degrading oil (Crump-Wiesner
and JennIngs. 1975, Mudge. 1995)
While a higher BOD is associated with
greater biodegradability, it also reflects
the increased likelihood of oxygen
depletion and potential suffocation of
aquatic organisms under certain
environmental conditions (Crump-
Wiesner and Jennings, 1975) Oxygen
depletion and suffocation are produced
by petroleum and non-petroleum oils.
including animal fats and vegetable oils
Under certain conditions, however,
some vegetable oils and animal fats
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Federal Register / Vol 62, No 202 / Monday, October 20, 1997 / Rules and Regulations 54513
present a far greater risk to aquatic
organisms than other oils spilled in the
environment, as indicated by their
greater BUD
• According to studies designed to
measure the degradation of fats in
wastewater, some food oils exhibit
nearly twice the BUD of fuel oil and
several times the BOD of other
petroleum-based oils (Groenewold,
1982. Institute. 1985, Crump-Wiesner
and Jennings. 1975) While the higher
BOD of food oils is associated with
greater biodegradability by
microorganisms using oxygen, it also
reflects the increased likelihood of
oxygen depletion and suffocation of
aquatic organisms under certain
environmental conditions (Groenewold.
1982, Institute. 1985. Crump-Wiesner
and Jennings. 1975) Oil creates the
greatest demand on the dissolved
oxygen concentration in smaller water
bodies. depending on the extent of
mixing (Crump-Wiesner and Jennings,
1975)
Contamination of Eggs After spills of
non-petroleum and petroleum oils, oil
can be transferred from birds’ plumage
to the eggs they are hatching Petroleum
and non-petroleum oils, including
vegetable oils and animal fats, can
smother an avian embryo by disrupting
the egg/air interface, sealing pores, and
preventing gas exchange (Albers. 1977.
Szaro and Albers, 1977. Leighton. 1995,
USD01. 1994)
in addition to the severe physical
effects produced by non-petroleum and
petroleum oils, some petroleum oils can
also damage embryos apparently
through mechanisms of toxicity (Aibers.
1977. Szaro and Albers. 1977. Leighton.
1995. Szaro. 1977, NAS. l985e) Very
small quantities of petroleum or crude
oil cause mortality arid developmental
effects in avian embryos from a wide
variety of species (Leighton. 1995. NAS.
1985c) Whether vegetable oils and
animal fats can harm embryos through
toxicity as well as physical effects is
unknown, for no studies of the toxicity
of vegetable oils and animal fats to avian
embryos and developing birds were
located
b Effects of Oil on Metabolic
Requirements To survive spilis of
petroleum and non-petroleum oils.
animals require increased energy (NAS.
l985e, Hartung. 1967. 1995) Birds
coated with oil must eat twice their food
ration to maintain body temperature
(Hartung 1967. 1995) Yet birds are often
isolated from their food sources
following an oil spill or find their food
coated with oil (Hartung 1967. 1995)
Sublethal effects can increase
vulnerability to disease or decrease
growth and reproductive success.
although the individual may continue to
live for some time (NAS. l985e, Frink
and Miller, 1995. Smith and Herunter,
1989).
Studies of polluted animals show that
physiological stress is manifested in
higher energy demand (Sanders et al.
1980) When increasing environmental
stress greatly elevates metabolism and
reduces assimilation, little energy
remains for growth and reproduction. so
that most species disappear arid only a
few tolerant species survive in
chronically polluted environments Oil
pollution also forces animals to turn
from the most economical biochemical
pathways to other more costly
physiological pathways
c Effects of Oil on Food and the Food
Web. Communities, and Ecosystems
The effects of oil on the food web and
community structures depend on the
type and amount of oil spilled, the
physical nature of the area, nutritional
status. oxygen concentration, and
previous exposure of the impacted area
(NAS. 1985e) Geographic location
appears far more important in
determining the impacts of oil spills
than spill size (Frink and Miller. 1995.
McKelvey et al, 1980) The community
structure and activities of microbes that
degrade petroleum oil are affec1ed by
both catastrophic and chronic spills
The risks from oil spills can be shifted
from those associated with toxicity to
those associated with habitat. e g.
predator-prey interaction (NAS. l985e)
The vulnerability of species and
individuals to oil spills varies greatly
(WAS, l985e), and the extent and rate of
recovery depends on many factors In
enclosed waiers where recruitment of
organisms from outside becomes less
important, intrinsic factors may limit
the recovery of the zooplankton
community Plant communities too can
be affected long after an oil spill, with
imbalances persisting for a decade or
more, even after the floral community is
reestablished (Sanders et al. 1980)
When diversity and density have
increased and stabilized many years
after a spill, behavioral responses may
continue to be distorted or biochemical
pathways may be shifted from efficient
to more costly pathways
d Indirect Effects While not
generally regarded as classic “toxicity.”
high levels of fatty acids and
triglycerides from vegetable oils and
animal fats can upset the fermentation
and digestion of ruminants, such as
cattle, goats. 8eer. antelope, sheep.
moose. buffalos. and bighorn sheep (Van
Soest, 1994) Although intake of normal
levels of lipids does not affect
fermentation in ruminants, excess
unsaturated fatty acids and triglycerides
can profoundly suppress essential
fermentation bacteria and alter
fermentation balance, lipid metabolism,
and milk fat production Methane
suppression is likely with a single large
dose of unsaturated oil that exceeds the
threshold of tolerance by fermentation
bacteria A practical limit for fat of
about 8—10% of dietary dry matter is
expected (personal communication. IJ
Ullrey. 1996)
Indirect effects also occur when
petroleum oil is spilled in the
environment (NAS. 1985e) After a spill
of number 5 fuel oil. the herring
population was reduced because of
increased fungal damage to fish eggs.
which in turn resulted from a decreased
population of amphipods which graze
fungi growing on fish eggs
5 Toxicity
Adverse effects occur through both
non-toxic and toxic mechanisms
Whether an adverse effect occurs
through toxicity or other mechanisms is
often unknown (Yannai. 1980) For
example. birds exposed to spilled oil
may die from non-toxic mechanisms
—starvation, hypothermia. drowning,
shock, susceptibility to predators
because of a food supply that is
inadequate to support increased energy
requirements. and consumption of oiled
food or oil from preening that clogs their
organs— or from the toxicity of
chemicals or biotransformation products
in the oil The deaths of the birds occur.
regardless of the mechanisms involved
or knowledge about these mechanisms
Toxicology is the study of the adverse
effects of chemicals on living organisms.
including lethality, reproductive effects.
effects on development, cancer, effects
on the nervous system. kidney. liver,
immune system, or other organs. and
biochemical effects, such as enzyme
inhibition (Klaassenet al. 1986. Rand
and Petrocelli, 1985) To examine the
nature of toxic effects and evaluate the
probability of their occurrence, factors
that affect toxicity must be known A
brief discussion of toxicity is presented
below The supporting Technical
Document discusses toxicology in
greater depth
a Pnnciples of Toxicology The
toxicity of chemicals depends on factors
that are related to the organism itself,
chemical composition, external
environmental factors, and the exposure
situation The necessity of considering
many factors in the evaluation of
toxicity is underscored in basic
textbooks about toxicology, such as
Casarett and Doull’s Toxicology that
state
Whether or not a toxic response
occurs Is dependent on the chemical
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54514 Federal Register / Vol 62. No 202 / Monday. October 20. 1997 / Rules and Regulations
arid physical properties of the agent. the
exposure situation, and the susceptibility of
the biologic system or subject Thus to
d’iaracterize fully the potential hazard of a
specific chemical agent. we need to know not
only what type of effect it produces and the
dose required to produce the effect but also
information about the agent. the exposure.
and the subject -. (Amdur et al. 1991)
The hazards and risks from
environmental exposures to chemicals
are assessed with toxicological studies
in the laboratory and with
epidemiological studies, while field
studies may be used to assess the
ecological effects of chemicals on
multiple species or ecosystems (NAS.
1985c: NAS. l977a, OSTP. 1985. Rand
and Petrocelli. 1985) Toxic chemicals
enter the body primarily by ingestion.
inhalation, and skin contact (Klaassen et
al.. 1986) The toxic effects from acute
exposure to a chemical (e g . a single
dose during a short period of time such
as 24 hours) may differ greatly from
those produced by long-term (chronic)
exposures Toxic effects can be
immediate or they can be delayed
A substance that is harmless at low
concentrations in food may be
hazardous if it comprises a large portion
of the diet Because there is little margin
of safety for many of the elements to
which people are exposed daily, the
daily intake of many elements in the
diet, such as iron, could not be
increased 5 or 10 times without adverse
effects (Klaassen et al. 1986)
b Exposure Fmm Oil Spills Spills of
petroleum and vegetable oils and animal
fats during processing. storage. and
transportation can result in acute or
chronic exposures to fish and wildlife
Not onij massive spills but small
quantities that are spilled repeatedly
may result in environmental harm
(Alexander. 1983. McKelvey et a!. 1980.
Smith and Herunter. 1989) Small
volume spills can produce severe
environmental damage because of the
behavior of oils in the environment.
their physical effects, and the toxicity of
some oil constituents and
transformation products Many of the
immediate, devastating effects of spilled
petroleum and vegetable oils and animal
fats, such as coating. suffocation, and
other physical effects, occur during
acute exposures Long-term effects have
also been reported from spills of
petroleum oil, vegetable oils and animal
fat
During an oil spill, the potential for
significant exposures is very high
(Hartung. 1995) Unlike laboratory
experiments using controlled amounts
of oil. large amounts of oil maybe
released during spills While the initial
mortalities of birds and mammals
exposed to spilled oil are usually from
drowning or hypothermia resulting from
coating. the ingestion of oil begins to
contribute to effects later as birds
consume large amounts of oil through
preening or ingestion of oil-
contaminated food and oil particles
(Hartung, 1967. 1995) Fish and other
aquatic organisms may die from
suffocation soon after an oil spill or
exhibit toxic effects, including cancer
and adverse effects on growth and
reproduction. following acute or chronic
exposures to spilled oils and fats or
their breakdown products
Spilled oil can be transformed
through a wide variety of physical.
chemical, and biological weathering
processes that change oil composition.
behavior, exposure routes, and toxicity
(USDOC/NOAA 1992, 1996) Whether
the environmental fate and toxicity of
the transformation products differs from
that of the parent depends upon the
specific oil and products that are
formed
c Toxicity of Petroleurr Oils The
toxic effects of petroleum ails are
summarized in Appendix I. Table 2 The
effects of petroleum oils have been
investigated extensively in many
species (NAS, l985e. IARC. 1984.
Albers, 1995) Commonly reported
individual effects of petroleum oils
include impaired reproduction and
reduced growth as well as death in
plants. fish, birds, invertebrates, reptiles
and amphibians. blood, liver. and
kidney disorders in fish, birds, and
mammals, malformations in fish and
birds, altered respiration or heart rate in
invertebrates, fish, reptiles. and
amphibians. altered endocrine function
in fish and birds, altered behavior in
many animal species. hypothermia in
birds and mammals, impaired salt gland
function in birds, reptiles. and
amphibians. altered photosynthesis in
plants. and increased cells in gills and
fin erosion in fish. Among the group
effects of petroleum are changes in local
population and community structure in
plants. invertebrates and birds and
changes in biomass of plants and
invertebrates
Petroleum oils affect nearly all aspects
of physiology and metabolism and
produce impacts on numerous organ
systems of plants and animals as well as
altering local populations. community
structure. and biomass (Albers. 1995.
NAS. l985e) Impaired reproduction.
reduced growth and development.
malformations, behavioral effects, blood
and liver and kidney disorders, altered
endocrine function, and a host of other
effects of petroleum oils on organisms
have been reported
Certain petroleum products and crude
oil fractions are associated with
increased cancer in refinery workers
and laboratory animals (IARC. 1989)
Many of these petroleum oils contain
benzene and polynuclear aromatic
hydrocarbons (PAHs). toxic constituents
that are carcinogenic in humans and
animals Untreated and mildly treated
mineral oils are carcinog’ hic to humans
In experimental animals, some
distillates and cracked residues derived
from the refining of crude oil and
residual (heavy) fuel oils are
carcinogenic There is limited evidence
in experimental animals for the
carcinogenicity of unleaded automotive
gasoline, fuel oil number 2. crude oil.
and naphtha and kerosene produced by
certain processes
d Toxicity of Vegetable Oils and
Animal Fats The toxicity of vegetable
oils and animal fats and the toxic effects
on many systems and organs in the body
are summarized in Appendix I, Table 2
and described briefly below. A detailed
discussion of these effects is included in
the supporting Technical Document
The acute and chronic toxicity of
vegetable oils and animal fats, types of
fats, and their components and
degradation products have been
evaluated in toxicology and
epidemiological studies. Chemical and
physical properties of the particular
animal fat or vegetable oil, the exposure
situation, the biologic systems exposed.
and the environmental conditions that
are present are factors that influence the
toxicity of a chemical
Acute lethality tests are among several
measures used to evaluate acute
toxicity. They can be employed to rank
chemicals or to screen doses that may be
selected for longer term toxicity testing.
or they can be an early step in tiered
hazard assessment approaches The use
of different protocols and test species in
acute lethality tests makes comparisons
between tests difficult For example.
although the Petitioners claim that the
tests conducted by Aqua indicate that
smaller amounts of petroleum oils than
certain vegetable oils and animal fats
kill half the population of some aquatic
species. other acute lethality studies
suggest that by one measure, vegetable
oils are more toxic than petroleum-
derived mineral oil In studies
comparing the acute lethality of corn
oil. cottonseed oil, and petroleum-
derived mineral oil in albino rats, no
rats receiving mineral oil died. while
smaller doses of the vegetable oils
administered for a shorter time period
killed rats (Boyd. 1973)
Vegetable oils and animal fats
produce other types of acute toxicity as
well. Like petroleum oils, vegetable oils
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Federal Register / Vol 62 , No. 202 I Monday. October 20. 1997 / Rules and Regulations 54515
and animal fats are laxatives that can
produce diarrhea or cause lipid
pneumonia in animals These effects
can compromise the ability of animals
in the wild to escape their predators
(USD01. 1994, Frink. 1994) Clinical
signs of toxicity in rats fed large
amounts of corn oil or cottonseed oil for
4 or 5 days include decreased appetite.
loss of body weight. abnormal lack of
thirst, diarrhea, fur soiling, listlessness.
pale skin. incoordination. cyanosis
(dark blue skin color from deficient
oxygenation of the blood), and
prostration, followed by respiratory
failure and central nervous system
depression. hypothermic coma, and
death Autopsies of the rats showed
violent local irritation of the
gastrointestinal tract, which allowed the
absorption of oil droplets into the
bloodstream and deposition of oil in
tissues, resulting in inflammation.
congestion in the blood vessels.
dehydration. degenerative changes in
the kidney, loss of organ weights. and
stress reaction (Boyd. 1973)
nimals exposed to vegetable oils and
animal fats can manifest a range of
chronic toxic effects High levels of
some types of fats increase growth and
obesity but cause early death in several
species of animals and may decrease
their reproductive ability or the survival
of offspring (NASINRC. 1995) On the
other hand, the growth of some fish
decreases with elevated levels of
vegetable oils (Salgado. 1995, Mudge
1995, 1997a) Mortality of mussels
exposed to one of four vegetable oils
began after 2 or 3 weeks of exposure
Growth inhibition, effects on shells and
shell lining, and decreases in foot
extension activity that are essential to
survival were observed in mussels
exposed to low levels of sunflower oil
Dietary fat consumption has been
associated with the incidence of some
types of cancer, including mammary
and colon cancer, in laboratory animals
and humans (Hui. 1996a. USDHHS.
1990, FAO/WHO. 1994) The intake of
dietary fat or certain types of fat has also
been correlated with the incidence of
coronary artery disease, diabetes, and
obesity in epidemiological studies (Hui.
1996a, FAOIWHO. 1994. Nelson, 1990,
Katin at al. 1995) High dietary fat intake
has also been linked to reduced
longevity and altered reproduction in
laboratory animals and altered
immunity, altered steroid excretion, and
effects on bone modeling and
remodeling in humans
Some vegetable oils and animal fats
contain toxic constituents, including
specific fatty acids and oxidation
products formed by processing, heating.
storage. or reactions in the environment
(Hul, l996a, Berardi and Goldblatt,
1980, Yannai, 1980. Mattson, 1973)
Toxic effects on the heart, red blood
cells, and immune system. effects on
metabolism, and impairment of
reproduction and growth can be caused
by constituents or transformation
products of vegetable oils and animal
fats In addition, some constituents of
vegetable oils and animal fats cause
cancer in rainbow trout, while lipid
oxidation products may play a role in
the development of cancer and
atherosclerosis (Hendricks at al 1980a
and l980b)
Acute Toxicity. Acute Lethality Test
(LC 50 Test) Submitted by Petitioners
The tests by Aqua that were submitted
by the Petitioners are acute lethality
tests that measure only the death of
organisms These tests provide no data
on nonlethal acute toxicity. including
irreversible damage. or long-term effects
experienced by organisms and
ecosystems The LC 50 (lethal
concentration 50) value or LD 50 (lethal
dose 50) value does not describe a
“safe” level but rather a level at which
50% of test organisms are killed under
the experimental conditions of the test
(Rand and Petrocelli. 1985, Klaassen et
a). 1986) (A high LC 50 value indicates
low acute lethal toxicity, for a large
concentration of chemical Is needed to
cause 50% mortality) If the Aqua test
results were accurate, they would
indicate that diesel fuel kills half the
population of fathead minnows at lower
concentrations than aerated crude
soybean oil. RBD soybean oil, and beef
tallow Spills of petroleum oils.
vegetable oils and animal fats that result
in LC 0 concentrations in the
environment could kill half the
organisms with sensluvity similar to
fathead minnows when conditions are
identical to those in the Aqua tests
Although the manner in which the
Aqua tests were conducted precludes
accurate determination of the LC 50
values, the tests nevertheless
demonstrate that petroleum oils and
vegetable oils and animal fats can injure
and kill fish by toxicity or oxygen
depletion and suffocation In the first set
of the Aqua tests, all of the minnows
exposed to diesel fuel and unaerated
crude soybean oil died The fish
surfaced and gulped for air or swam
spasmodically before dying, just as they
do in the environment when suffocating
from oxygen depletion following spills
of petroleum and non-petroleum oils,
including vegetable oils and animal fats
Results Questionable However, the
test procedures used by Aqua render
questionable the results suggesting that
diesel fuel is more deadly at lower
concentrations than soybean oil The
procedures deviate in important ways
from standardized methodology,
although the Aqua report states that test
procedures are based on accepted
methodologies Appendix I. Table 3
Comparison of Aqua Methods and
Standard Acute Aquatic Testing
Methods lists key differences between
the methods used by Aqua and the
standard methods referenced in the
Aqua report as well as more recent
methods published by these same
organizations that were omitted from
the Aqua report The accuracy of the
LC 5 estimates provided by Aqua is
highly doubtful because of the following
deficiencies
• Oxygen depletion In the first set of
Aqua tests, dissolved oxygen was below
acceptable levels in the vessels with
crude soybean oil It is impossible to
determine whether oxygen depletion or
toxicity killed fish
• Short exposure period The Aqua
tests were conducted for only 48 hours.
instead of the 96 hours used in most
methods Fish that are alive at 48 hours
may not survive for 96 hours
• Unknown concentrations of test
material encountered by fish during the
test (1) Oil sheens floated on test
solutions and cloudiness was so severe
that fish could not be observed for 24
hours, (2) the Aqua report contained no
data on actual chemical concentrations
of parent chemical or breakdown
product. a critical determination In
static tests where concentrations change
over time (Rand and Petrocelll. 1985.
NAS. 1985c) Aqua relied instead on the
original nominally designated
concentrations that are highly dubious.
especially given the turbidity of the test
solutions that cleared up over the course
of the test, the likely degradation of test
material in the aerated test system. and
the use of vessels that were not stainless
steel or glass and may have adsorbed
test material. (3) the Aqua test did not
aerate all test solutions and controls. did
not maintain dissolved oxygen
concentration at 80% or more of the
nominal concentration, and did not test
non-aerated and aerated oils together—
requirements of standardized methods
that allow gentle aeration If vegetable
oils degrade rapidly. as Petitioners
claim elsewhere, aeration will increase
the degradation of the oils in the test
system. (4) the Aqua report provided no
data on oil particle size, even when
visual inspection showed that solutions
of test material were cloudy and the
NAS study referenced in the report
cautioned against relying on visual
Inspections of clarity (NAS. l985c), and
(5) improper data reporting and
evaluation. Results from two dissimilar
tests were combined, although the tests
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54516 Federal Register / Vol 62, No 202 / Monday, October 20, 1997 / Rules and Regulations
lacked a common test substance, used
different teit condiuoris. failed to
measure actual concentrations, and
included no estimates of variability
between the two sets of tests Aqua also
failed to provide data on confidence
intervals and slopes, as required by all
of the standardized methods referenced
by Aqua and by the Aqua protocol
Relevance of Acute Lethality Tests to
Spills in the Environment Challenged
Serious questions remain about the
relevance of the LC 30 laboratory results
to spills In the environment (NAS.
1985c, l985e) The many test variables
that influence estimates of LC 10 —
includmg the nature of the chemicals or
mixtures tested, test parameters Ce g
route and method of administration.
frequency and duration of exposure.
mixing energy. temperature. salinity.
static vs flow-through systems. duration
of observations) and biological lactors
(e g . species selected for testing. sex.
age or life-stage. weight. contamination
history of the organisni)—rarely reflect
the conditions that occur following a
spill (Rand and Petrocelli. 1985. NAS,
1985c, Wolfe, 1986. Abel. 1996) The
water-soluble fraction used iii static
tests does not simulate the dynamic
process of the change in stages between
aqueous and oil phases that depends on
parameters unique to each spill (NAS.
1985c) Once oil is spilled in the
environment, the composition.
concentration, and toxicity of oil and its
components can be profoundly altered
by chemical and biological processes.
such as evaporation and biological
oxidation
Further, acute lethality tests by their
very nature usually provide no data on
toxic effects other than death (NAS.
l985c. Rand and Petrocelli. 1985.
Klaassen et aJ, 1986) Indeed, a widely-
used toxicology text warns that
“defining acute toxicity based only on
the numeric value of an LD 30 is
dangerous” (Hayes, 1982) Animals that
survive a toxic response nevertheless
may suffer irreversible damage (NAS.
1985e) These nonlethal, adverse effects
must be considered in assessing the
risks of chemical exposure Nor dd acute
lethality tests measure long-term effects
or effects on ecological communities or
changes in predator-prey relationships
which occur, for example. when
animals coated with spilled oil are
weakened and become more susceptible
to predators
Acute Toxicity Other Acute Lethality
Tests (Aquatic Tests) (See Appendix 1.
Table 2. for other aquatic lethality
ir formatiori) Free fatty acids are among
the products formed from vegetable oils
and animal fats by processing, storage,
heating, or reactions iii the
environment Static tests with juvenile
fathead minnows indicate that oleic
acid, which is found in Canola.
safflower, and sunflower oils, is more
acutely lethal at 96 hours than at 24
hours and is intermediate in lethality in
tests of a series of 26 organic
compounds (USEPA. 1976, Hui, 1996a)
Acute Toxicity Other Acute Lethality
Tests (Tests with Laboratory Animals)
(See Appendix 1. Table 2) Studies
comparing the acute lethality of corn
oil, cottonseed oil, and mineral oil in
albino rats show that by one measure
cottonseed oil and corn oil are more
toxic than petroleum-derived mineral
oil, although interpretation of the
studies is complicated by differences in
the experimental protocol (Boyd. 1973)
No albino rats receiving mineral oil by
gavage (tube into stomach) for 15 days
died, while smaller doses of cottonseed
oil and corn oil administered for a
shorter time period killed rats
The toxic effects differed significantly
in rats receiving corn oil or cottonseed
oil and those administered mineral oil
(Boyd. 1973) Clinical signs of toxicity
in rats receiving corn oil or cottonseed
oil included anorexia (decreased
appetite), loss of body w ight. abnormal
lack of thirst, decreased urination.
diarrhea, fur soiling, listlessness, pallor
(pale skin). incoordination. cyanosis
(dark blue skin color from deficient
oxygenation of the blood), and
prostration (Boyd, ‘1973) Rats
administered corn oil died after
respiratory failure and hypothermic
coma, while death followed central
nervous system depression and coma in
rats ingesting cottonseed oil Autopsies
showed violent local irritation of the
gastrointestinal tract that allowed the
absorption of oil droplets into the
bloodstream Oil droplets were
deposited in many body organs with
resultant inflammation, vascular
congestion, degenerative changes in the
kidney. and other effects In contrast, no
deaths occurred among rats
administered mineral oil for 15 days
and clinical signs differed in many
respects from those observed in rats
treated with corn or cottonseed oil
Chronic Toxicity Appendix I. Table 2
summarizes the chronic toxicity of
vegetable oils and animal fats and
petroleum oils Cancer and adverse
effects ott growth. reproduction.
development, and longevity as well as
other toxic effects have been observed in
several species following chronic or
subchronic exposures to vegetable oils
and animal fats or their constituents
(Subchronic exposures are longer than
acute exposures. generally 1—3 months
for rodents arid longer than 4 days for
aquatic species)
Dietary fat and some classes of fats
that are found ui vegetable oils and
animal fats have been associated with
the increased incidence of some types of
cancer, including mammary arid colon
cancer, an laboratory animals and
humans (Hui, 1996a, USDHHS, 1990,
FAO/WHO, 1994) The intake of dietary
fat or of certain types of fat has also
been correlated with the incidence of
coronary artery disease, diabetes, and
obesity in epideimological studies High
dietary fat intake has also been linked
to reduced longevity and altered
reproduction in laboratory animals arid
altered Immunity, altered steroid
excretion, and effects on bone modeling
and remodeling in humans
In addition, some vegetable oils and
animal fats contain toxic constituents or
form toxic degradation products,
including specific fatty acids and
oxidation products, when they undergo
processing. heating. storage, or reactions
in the environment The toxic effects of
these chemicals are summarized briefly
in Appendix 1. Table 2 and described
‘urther in section 11 5 d Toxicity of
Specific Fatty Acids and Other
Constituents of Vegetable Oils and
Animal Fats Among the toxic effects
observed after exposure to these
chemicals are cardiac toxicity. rupture
of red blood cells, growth suppression.
anemia, impaired reproduction. and
adverse effects on the Immune system
and metabolism In addition, the
cyclopropene fatty acid Constituents of
cottonseed oil and some other vegetable
oils cause liver cancer in rainbow trout
and increase carcinogenesis of other
chemicals, and some oxidation products
may play a role in the deve.opment of
colon cancer and atherosclerosis
Cancer Unlike petroleum oils that
contain a large proportion of PAHs.
including some PAHs that are animal
and/or human carcinogens, vegetable
oils and animal fats contain only small
amounts of PAHs (Kiratsakis, 1991,
IARC, 1984) Dietary fat intake and
consumption of some classes of fats that
are found in vegetable oils and animal
fats have been miplicated in the
development of certain types of
cancer—including cancer of the breast
and colon and probably cancer of the
prostate and pancreas—in studies of
laboratory animals and ira
epidemiological studies (NASINRC.
1985c, Hui, 1996a, USDHHS. 1990.
FAD/WHO. 1994). An expert panel
organized by two United Nations
organizations concluded that abundant
data show that animals fed high.fat diets
develop tumors of the mammary gland.
intestine, skin, and pancreas more
readily than animals fed low-fat diets.
although caloric restriction can override
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Federal Register / Vol 62, No 202 / Monday, October 20. 1997 / Rules and Regulations 54517
the effect (WHOIFAO. 1994) Animal
studies also indicate correlations
between total fat intake and liver cancer
and between high-fat diets and certain
types of chemically-induced or light-
induced skin tumors Studies describing
the relationships between fat
consumption and cancer in animals and
humans have been summarized recently
(Hur, 1996a)
Development of some types of cancer
is influenced by the type of fat
consumed Breast cancer increased
(shortened latency period for tumor
appearance, promotion of growth, and
increased mammaiy tumor incidence) in
rodents receiving diets rich in the
essential fatty acid hnoleic acid
(polyunsaturated fatty acid or PUFA of
the n-6 family) compared to rodents
consuming diets high in saturated fatty
acids (Hui. 1996a) In contrast, fish oil
containing different fatty acids (n-3
PUFA) inhibited mammary tumor
development, probably by inhibiting the
effects of linoleic acid The incidence of
colon cancer is stroi’gly associated with
diet, especially diets high in total fat
and low in fiber content in laboratory
animals and epidemiological studies
(I-lui 1996a, USDHHS, 1990) Some
types of fat, such as dietary cholesterol
and certain long-chain fatty acids, have
been proposed as colon cancer
promoters, while other types of fat (n-
3 PUFA) may inhibit development of
colon cancer (Hui. l996a)
Non-Carcinogenic Toxic Effects The
non-carcinogenic toxic effects of
vegetable oils and animal fats on aquatic
organisms and laboratory animals are
summarized in Appendix I, Table 2.
briefly described below and are
discussed in greater detail in the
Technical Document
Non-Carcinogenic Toxic Effects on
Mussels The detrimental environmental
effects of sunflower oil have been
investigated extensively in laboratory
studies and in the field at the site of the
1991 wreck of the cargo tanker M V
Kimyà. where much of its 1 500-tonne
cargo of crude sunflower oil was spilled
over a 6—9 month period (Mudge et a!.
1993. 1994. 1995, Mudge. 1995, 1997b,
Salgado. 1992. 1995) Mussels died in
the intertidal shores at sites near the
wreck, in other areas where mussels
survived, their lipid profiles revealed an
altered fatty acid composition reflecting
the fatty acids in sunflower oil (Mudge
et al . 1995, Mudge, 1995, 1997a, 1997b,
Salgado. 1992. 1995) Mobile species
that left the spill area were replaced
with other species, affecting diversity
Sunflower oil, olive oil, rapeseed oil,
and linseed oil produced several types
of adverse effects in mussels at low
exposure rates in the laboratory
(Salgado. 1995, Mudge. 1995, Mudge.
1997a) These four vegetable oils killed
mussels or reduced their growth rate as
much as fivefold within 4 weeks, even
at low exposure rates (1 part of oil in
1000 in a flow-through sea water
system) Mussels exposed to sunflower
oil were more likely to die Exposure to
sunflower oil created behavioral
differences in the mussels, such as
decreased foot extension activity and
altered gaping patterns Interference
with foot extension activity that allows
the mussels to form threads for
attachment to the substratum can
dislodge mussels and endanger their
survival, removal of the oil reversed the
effect (Salgado. 1995)
All four oils killed mussels in
mortality studies m the laboratory. 10%
mortality was observed In mussels
exposed to sunflower oil. rapeseed oil.
or olive oil for up to 4 weeks, while
70% or 80% mortality was reported
when mussels were exposed to linseed
oil (Salgado. 1995. Mudge. 1997b) No
control mussels died Mussels began
dying the second week after exposure to
linseed or sunflower oil, and later when
exposed to rapeseed or olive oil Death
may have been caused by suffocation in
mussels that refused to gape in the
presence of the oil or by formation of a
toxic metabolite The death of mussels
in aerated growth tanks where anoxia
(lack of oxygen) was not the cause of
death suggests that vegetable oils kill
mussels through mechanisms of
toxicity
The shells of mussels exposed to the
vegetable oils in the laboratory lacked
the typical nacre lining, perhaps
because of altered behavior in the
presence of oil stressors (Salgado, l.Q95.
Mudge. 1997a) The internal shell
surfaces of mussels treated with
vegetable oils were chalky in contrast to
controls that exhibited an iridescent
luster Prolonged closure of the mussels
in response to oil can cause anoxia and
increase the acidity of the internal water
with dissolution of the inner shell
Sunflower oil from the wreck of the
M V Kimya polymerized in water and
on sediments and formed hard
“chewing-gum balls” that washed
ashore over a wide area or sank,
contaminating the sediments inhabited
by benthic and intertidal communities
near the spill (Mudge. 1995) Concrete-
like aggregates of sand bound together
with sunflower oil remain on the shore
near the site of the M V Kimya spill
almost six years later (Mudge. 1995,
1 997a. 1 997b. Mudge eta!. 1995) In
laboratory experiments with salt.marsh
sediments simulating a spill over a 35-
day period, linseed oil percolated
rapidly through the sediments but
sunflower oil polymerized and formed
an impermeable cap. reducing oxygen
and water permeability (Mudge et a).
1995, Mudge. l997a) In the
environment, oxygen reduction would
eventually produce anoxia in sediments
with the death and removal of benthic
organisms, changes in species from a
community that is aerobic to an
anaerobic community. and erosion of
the saltmarsh sediments (Mudge et a!.
1994. 1995)
Non.Carcinogenic Toxic Effects on
Fish Other studies have also shown that
exposure to an excess of fat or fatty
acids can be detrimental to fish, even
though fish and other aquatic organisms
require certain essential fatty acids for
growth and survival Poor growth and
low feed efficiency were observed in
rainbow trout fed 4% or more of certain
polyunsaturated acids (Takeuchi and
Watanabe. 1979) High levels of dietary
fatty acids reduced growth in channel
catfish, while saturated.
monounsaturated, or PUFA from fish oil
enhanced channel catfish growth
(Stickney and Andrews. 1972. 1972).
Some dietary fatty acids mhibited the
growth of common carp. but saturated
and monounsaturated acids and other
classes of polyunsaturated fatty acids
from fish oil enhanced carp growth
(Murray et a!. 1977) More recent
papers show the relatively efficient use
of high levels of dietary lipid by
warmwater and coldwater fishes.
provided essential fatty acid
requirements are met (NASINRC, 1981a.
1983) Increased lipid intake, however.
has been associated with increased
deposition of body fat
Non-Carcinogenic Toxic Effects on
Laboratory Animals, The chronic toxic
effects of petroleum oils and vegetable
oils and animal fats on laboratory
animals are summarized in Appendix 1,
Table 2 and detailed in the
accompanying Technical Document
High levels of dietary fat have been
associated with shortened lifespan and
altered reproduction in laboratory
animals (NAS/NRC. 1995) While 5%
dietary fat is recommended for most
laboratory animals. growth usually
increases significantly when animals are
fed higher levels of fat Apparently. this
increased growth comes at a high cost.
however, for longevity is often reduced
and reproduction may be affected
adversely in animals consuming high
levels of fat
The relationship between dietary fat
intake and kidney diseases has been
demonstrated in laboratory animals
(Hui. 1996a) Rats, rabbits, and guinea
pigs fed high cholesterol diets
developed kidney damage Diets
containing 2% cholesterol increased the
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54518 Federal Register / Vol 62. No 202 / Monday. October 20, 1997 / Rules and Regulations
incidence or severity of coronaiy
atherosclerosis in rats exposed
chronically to the cold (Sellers and
Baker. 1960) Histological aberrations in
the small intestine and nearby lymph
nodes have also been reported in rats
consuming high doses of fish oil
concentrate in a subchronic toxicology
study (Rabbani et al, 1997)
Increasing the consumption of some
dietary lipid components, such as oleic
acid and cholesterol, also increases the
need for other fatty acids in rats (NAS/
NRC. 1995). The ratios of PUFA and
polyunsaturated to saturated fatty acids
greatly influence tissue lipids and the
formation of important compounds.
such as prostagiaridins. The type of fat
can influence bone formation rates and
fatty acid composition of cartilage in
chicks (Hui, 1996a)
Toxicity of Specific Fatty Acids and
Other Constituents of Vegetable Oils
and Animal Fats In addition to the
adverse effects produced in humans and
other animals by high fat diets or by
consumption of certain classes of fats
and oils, toxic effects can be produced
by constituents of some animal fats and
vegetable oils, including specific fatty
acids and gossypol. and their
transformation products (Hui. 1996a,
Berardi. 1980. Yannai. 1980. Mattson.
1973) While plant breeding and
processing can reduce the levels of some
constituents in the final product, the
constituents are present during the early
stages of processing and storage of some
vegetable oils and may enter the
environment Although the
development of varieties of glandless.
gossypol-free cottonseed and new
varieties of rape seed with little erucic
acid have reduced these two
constituents in some oils. gossypol is
found in crude oils and in oils derived
from older cottonseed varieties with
greater resistance to disease and insects
and high amounts of erucic acid are
contained in rapeseed oil used for the
manufacture of lubricants and fatty acid
derivatives (Hui, 1996a. l996b) Toxic
materials can be formed during normal
processing procedures, heating. and
storage or by reactions that occur when
such materials are released in the
environment Spills of crude vegetable
oils may differ greatly in their toxicity
and other effects from spills of
processed vegetable oils and animal fats
Figure 1 Toxicity and Adverse Effects
of Components and Transformation
Products of Vegetable Oils and Animal
Fats illustrates the variety of toxic
effects that may be caused by
constituents and breakdown products of
vegetable oils and animal fats Fpr
example. small amounts of gossypol are
lethal when they are ingested for
prolonged periods despite the relatively
high LD 50 values obtained in acute
toxicity tests, fat accumulated in heart
muscle of weanling rats after a single
day of consuming diets containing
erucic acid, and cyclopropene acids.
such as sterculic acid, are liver
car mogens in rainbow trout (Berardi,
1980, Mattson, 1973. Hendricks et al.
1984) Phytoestrogens. which occur
naturally in some legumes and oils,
including soybean, fennel, coffee, and
anise oils, exhibit estrogen-like activity
in reproductive organs of laboratory
animals (Hui, 1996a, Sheehan. 1995,
Levy et al . 1995)
When vegetable oils are spilled, air.
moisture and heat in the environment
can cause these oils to form various
harmful oxidation products, which rhay
be more toxic than the original product
Releases of used oil from restaurants or
releases of oil during refining may
already contain toxic oxidation products
that may be further oxidized in the
environment Cholesterol oxidation
products or COPs that are formed by
autooxidation of cholesterol when it is
exposed to air, heat. photooxidation.
and oxidative agents have numerous
biological activitie. and may play a role
in the development of atherosclerosis
(Hui. 1996a) Lipid oxidation products
(LOPs) that can be formed when
unsaturated fatty acids are oxidized
upon exposure to oxygen. light, and
inorganic and organic catalysts have
been associated with colon cancer (I-lw.
1996a, Hoffmann, 1989. Lawson, 1995)
Gossypol I 2
FIGURE 1. TOXICITy AND ADVERSE EFFECTS OF COMPONENTS AND TRANSFORMATION PRODUCTS OF VEGETABLE OILS
AND ANIMAL FATS
Cottonseed oil
Component or transformation
products
Type of oil
Effects
Cardiac irregulanty in several species of animals, death from circulatory failure or
rupture of red blood cells and decreased oxygen.carrying capacity in blood
Discolors egg yolks in laying hens by interacting with yolk iron, effect decreased by
ferrous sulfate, increased by cydopropene fatty acids in cottonseed Oil
Crosslinks proteins in several species, reduces protein quality, uncouples res-
piratory-linked energy processes, reouces activity of respiratory enzymes and
protein kinases and proteins involved in sterol. steroid, and fatty acid metabo-
lism.
Nigh LD 50 in acute tests for mice and swine, but small amounts are lethal when in-
gested for prolonged penod
Death from pulmonary edema in subacute poisoning, wasting and lack of assimila-
tion of food with chronic poisoning
Depressed appetite, loss of body weight, diarrhea, effects on red blood cells, heart
and lung congestion, degenerative changes in liver and spleen, vanous patholog-
ical effects depending on species
Body weight depression, reduced sperm production and motility in male rats, loss
of appetite, diarrhea, hair loss, anemia, hemorrhages in stomach and intestines,
congestion in stomach, intestines, lungs, and kidneys of rats
Spastic paralysis of hind legs, degeneration of sciatic nerve, rapid pulse, cardiac
effects in cats
Postenor incoordination, stupor, lethargy, weight loss, diarrhea, vomiting, loss of
appetite, lung and heart congestion, hemorrhaging of liver, fibrosis of spleen and
gallbladder in dogs
Stupor. lethargy, loss of appetite, spastic paralysis, decreased litter weights, con-
gestion of large intestine, hemorrhaging in small intestines, lungs, brain, and legs
in rabbits
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Federal Register / Vol 62 , No 202 f Monday. October 20. 1997 / Rules and Regulations 54519
FIGURE 1 TOXlCflY AND ADVERSE EFFECTS OF COMPONENTS AND TRANSFORMATION PRODUCTS OF VEGETABLE OILS
AND ANIMAL FATS—Continued
Component or transformation
products
Type of oil
Effects
Weight loss. deaeased appetite, leg weakness, reduced red blood cells, conges-
tion, vacuoles in liver, enlarged gallbladder and pancitas, dec-eased egg size,
dec-eased egg hatchability, discolored yolk in poultry
Thumps or labored breathing, weakness, emaciation, diarrhea, enzyme effects, hair
discoloration, dilated heart, reduced hemoglobin, lipid in kidneys, widespread
congestion of organs in swine
Erratic appetite, breathing difficulties, fatty degeneration of liver, dec-eased blood
dotting, and death in young calves but no toxicity in older ruminants
No human toxicity in China, where gossypol used as male contraceptive, antifertility
reversible.
Erucic Acid’ Rapeseed oil, mustardseed Adverse effects on heart in laboratory animals, inflammation of heal in rat , fat
oil deposition until fat content of heart 3 to 4 times normal, fat droplets visible in
heal followed by mononudear cell infiltration and replacement of fat and drop-
lets with fibrous tissue in muscle, weanling rats accumulated fat in heal muscle
after only one day. fatly infiltration of heart absent with fully hydrogenated
rapeseed oil, indicating effects from erucic acid. erucic acid in heart muscle in
rats exposed long-term. changes in skeletal muscle in rats
Lipid accumulation in heals of rats, hamsters, minipigs, squirrel monkeys and
ducklings. fluid accumulation around heart and tiver cirrhosis in ducklings
Enlarged spleen, inc-eased cell permeability and destruction of red blood cells in
guinea pigs (erucic and nervonic acids in rapeseed oil)
Growth suppression in rats, pigs, chickens, turkeys, guinea pigs, hamsters, and
ducklings fed rapeseed oil, suppressed body weight gain in rats fed fats plus eru-
cc acid
Degenerative changes in liver and kidney, fewer and smaller offspnng in rats fed
high levels of rapeseed oil
Cyciopropene Fatty Cottonseed oil, kapok seed Discolors egg whites, can be removed by hydrogenation, growth suppression in
Acids’ 346719 ii ) oil, cocoa butter rats, reduced comb development in roosters
lmpaired female reproduction in laboratory animals and hens, depressed egg pro-
duction, reversible in hens, embryomoilality in hers and rats, developmental ab-
normalities in rats, increased molatity in rat pups
Liver carcinogen in rainbow trout, increases carcinogenic effects of other chemi-
cals, adverse effects on cholesterol and fatty acid metabolism in several species.
aortic atherosclerosis in rabbits, liver damage in rabbits and rainbow trout
Oxidation Prod- Many vegetable oils and Cholesterol Oxidation Products (COPs) Numerous biological activities include ad-
ucts iii l i i i ii 5 animal fats verse effects on blood vessels, destruction of cells. mutagenicity, suppression of
immune re ponse, inhibition of certain metabolic mechanisms. may contnbute to
development of atherosclerosis
Lipid Oxidation Products (LOPs) Associated with colon cancer lipid peroxides act
as cancer promoters or cocarcinogens and form ci’osslinks between DNA and
proteins, lipid peroxidation correlated with seventy of atherosclerosis
Oxidative fatty acid fraction of products or thermal and oxidative changes from pro-
longed heating of fats and oils in laboratory studies (may not simulate commer-
cial heat treatment), severe heart lesions, distended stomach, kidney damage.
hemorrhage ol liver and other tissues, reduced liver enzyme activity in laboratory
animals, reduced body weight gain and feed consumption, enlarged liver and kid-
ney, damage to thymus and sperm reservoir, diarrhea, skin inflammation, and fur
loss in weanling rats fed heated com and peanut oil, reduced antioxidant toceph-
erol in gastrointestinal tract of chicks fed thermally oxidized PUFA. reports of for-
mation of cocarcinogens dunng heating of com oil and promotion of the mically-
induced mammary tumors
Branched Chain Fatty, Ruminant fats, dairy prod- Individuals with genetic disorder Refsum’s syndrome neurological abnormalities re-
Acids’ 16 ucts suIting from inabitity to metabolize branched chain fatty acids
Berardi and Gctdblatt, 1980
‘I-tui, 1996a
‘Hayes, 1982
Mattson, 1973
‘Rome et al, 1960
Phelps et at, 1965
Lee et at, 1968
i Miter et al. 1969
Hendncics et at, 1980a
“Hendricks et at, 1980b
“Yannai. 1980
“Boyd. 1973
“Frankel, 193.4
‘ 4 Artrnan, 1969
“Andrews etal. 1960
‘ 6 Steinberg el al, 1971
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54520 Federal Register / Vol 62, No 202 / Monday. October 20, 1997 / Rules and Regulations
6 Epidemiological Studies
Although the focus of this document
is the environmental effects of spilled
vegetable oils arid animal fats, a brief
discussion of the effects of these oils on
human health is included for several
reasons First, the ENVIRON report
submitted by the Petitioners incorrectly
states that there are no accumulating or
otherwise harmful components in
animal fats and vegetable oils that are
irritating, toxic, or carcinogenic, and
that animal fats and vegetable oils are
consumed safely by wildlife and
humans The large number of human
health studies, many with a substantial
population size, provide a significant
data base for examining the effects of
long-term oral exposure to fats and
certain classes of fats or their
components or degradation products
Second. humans may be exposed to
spilled non-petroleum and petroleum
oils through several routes Inhalation of
harmful vapors and dusts or mists and
aerosols is often a significant route of
human exposure to spilled petroleum
oils, though it is rarely an Important
exposure route of less volatile vegetable
oils and animal fats
Third. humans and many animals
often handle chemicals by similar
mechanisms in the body and exhibit
similar toxic effects, a tenet underlying
the frequent use of animal tests in
evaluations of human health risk For
example. certain PAHs that are human
carcinogens also cause cancer in
laboratory animals and in fish and other
aquatic organisms in the environment
Thus, the findings of epidemiology
studies are relevant to the evaluation of
mechanisms of toxicity in animals.
particularly when the epidemiology
studies are large enough to overcome
statistical limitations that are found
with smaller data sets
a Human Health Although fat is a
major component of the human diet, the
consumption of high amounts of fat or
certain types of dietary fats and oils has
been associated with several chronic
diseases (Hui, 1996a. FAO/WHO. 1994.
Nelson. 1990, Katan eta!. 1995) In a
number of epidemiology studies, the
intake of dietary fat and some fat types
(e g. saturated fats, unsaturated fats.
polyunsaturated fatty acids, trans-fatty
acids, cholesterol) has been correlated
with the incidence of coronary artery
disease Dietary fat consumption has
been associated with the incidence of
certain types of cancer, including
mammary and colon cancer, presumably
because dietary fat is acting as a cancer
promoter Dietary fat intake has also
been linked to hypertension. diabetes.
and obesity (Hui. 1996a) Other studies
report that high dietary fat intake is
related to altered immunity and altered
steroid excretion and may affect bone
modeling and remodeling
In many animal and human studies.
dietary fat intake has been linked to
cardiovascular disease and
atherosclerosis through its effects on the
levels of cholesterol and triglycerides in
plasma and the lipid composition of
lipoproteins (Hul. 1996a) A 2% rise in
risk of coronary heart disease has been
predicted for every 1% increase in
serum cholesterol The American Heart
Association, American Cancer Society.
and National Cancer Institute have
recommended lowering fat intake to
30% of total consumed calories in
adults, the American Heart Association
also recommends limiting the intake of
polyunsaturated fatty acids to less than
10% of calories and replacing saturated
acids with monounsaturated acids
(USDHHS. 1990, FAOIWHO. 1994. Hur
1996a)
b Comparison of Effects From Oil
Spills With Human Consumption of
Vegetable Oils and Animal Fats The
ENVIRON report. which was submitted
by the Petitioners, draws incorrect
comparisons between the human
consumption of vegetable oils and
animal fats and the environmental
effects of oil spills The effects on
humans who consume small quantities
of vegetable oils and animal fats in their
foods cannot be easily translated to
environmental effects produced by oil
spills These situations differ in many
respects A few of the differences are
highlighted below
Differences in factors relating to the
host organism Sensitivity, humans may
not be the most sensitive species
Species differences, while similarities in
metabolism and biokinetic parameters
exist between some species. it is often
unclear how effects on humans can be
translated to effects on fish Differences
in susceptibility, there are no controls
for differences in genetics. age. life-
stage. strain, gender. health, nutritional
status, presence of other chemicals. or
other factors inherent to the exposed
organisms
• Differences in dose-response
relationships It is unclear how dose-
response relationship can be
extrapolated from humans to other
species. even if such information had
been provided
• Exposure Exposure differs in route.
frequency, and duration. Animals are
exposed to large quantities of oil during
an oil spill, and the exposure may be
short-term or long-term The animals
may ingest the oil, or they may be
exposed through their gills or skin
Humans consuming foods, however, are
exposed to small quantities of oils for
intermittent periods of time, and their
exposure is via ingestion only
Differences in chemical
composition The composition of oils
used in small quantities in processed
foods may differ from the composition
of the oils spilled in the environment.
particularly when the oils are acted
upon by chemical and biological
processes in the environment
• Environmental factors The effects
of oil in the environment depend on a
wide variety of factors, including pH
and temperature These factors are
different from those that affect humans
consuming food oils
• Effects Effects, such as reduced egg
hatchability or effects on molting.
cannot be measured in humans
• Ecosystems Ecosystems, food webs.
and predator-prey relationships can be
affected by oil spills, these are not
factors in determining human health
effects
• Statistical power of studies Those
epidemiologic studies with large
numbers of people have demons rated
possible adverse effects from
consumption of high levels of dietary fat
or types of fat Negative studies may
indicate that too few subjects were
included in the study or that
confounding factors obscured the effect
because of statistical limitations of the
methodology
7 Other Adverse Effects of Oil Spills
a Aesthetic Effects Fouling and
Rancidity Fouling of beaches and
shoreline and rancid odors have been
reported after spills of vegetable oils and
animal fats, some real-world examples
are provided in section II D 2 Rancidity
is the deterioration of fats arid oils in the
presence of oxygen (oxidative rancidity)
or water (hydrolytic rancidity) with
formation of off-flavors and odors (Hui,
1996b, l996d. Kiritsakis. 1990) The
hydrolysis and oxidation of spilled
vegetable oils and animal fats and
decomposition of hydroperoxides leads
to formation of aldehydes. ketones. fatty
acids. hydroperoxides. and other
compounds that produce off-flavors and
rancid odors Rancidity occurs
especially with oils that contain PUFA,
such as linoleic acid (Hui, 1996a) Fish
oils, which contain high levels of PUFA,
are especially susceptible to oxidative
rancidity and production of toxic
byproducts and are often supplemented
with antioxidants to reduce their
oxidation
Unlike vegetable oils and animal fats.
rancid odors have not been reported
following petroleum oil spills, although
off-flavors and tainting of fish have
occurred (Crump-Wiesner, 1975.
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Federal Register / Vol 62, No 202 / Monday. October 20. 1997 / Rules and Regulations 54521
Hartung. 1995) Fish collected near
petroleum refineries or in petroleum.
polluted areas can be tainted (Lee.
1977). and commercial species have
been contaminated with petroleum oils
(Michael. 1977) Thousands of
observations of floating tar balls and
beach tar have been tabulated over a 4.
year period in a petroleum monitoring
project for marine pollution (NAS,
1985d)
b Fire Hazards While some
petroleum oils and products present fire
and explosion hazards, most vegetable
oils and animal fats do not, unless
flammable chemicals, such as hexane
used during processing, are present or
temperatures are elevated A few
vegetable oils, such as coconut oil
(copra oil) are spontaneously
combustible (Lewis, 1996) Because of
their low vapor pressures, some
petroleum products are highly volatile
and flammable In addition, most
vegetable oils arid animal fats have a
high flash point (temperature at which
decomposition products can be ignited).
while the flash point for many
petroleum products is below or near
room temperature
Although most vegetable oils and
animal fats do not easily catch fire by
themselves, once fires begin they are
difficult to extinguish and may cause
considerable environmental damage
For example, a butter and lard fire in
Wisconsin that was apparently started
by an electric forklift resulted in the
release of some 15 million pounds of
melted butter that threatened nearby
aquatic resources (Wisconsin. l99la,
1991 b, I 991c. Wisconsin State Journal.
199la, 199lb, l99lc. l991d. 1991e)
c Effects on Water Treatment Oils
and greases of animal and vegetable
origin and those associated with
petroleum sources have long been a
concern in wastewacer control (USEPA.
1979. Metcalf and Eddy. 1972) Too
much oil, i e spills or discharges of oil
and grease to a municipal wastewater
treatment system in quantities that
exceed the levels the treatment plant
was designed to handle, can overwhelm
the water treatment plant that maintains
sanitary conditions and removes water
pollutants that are harmful to aquatic
organisms or interfere with the
recreational value of waters (Institute,
1985. Metcalf and Eddy. 1972) Certain
fatty acid products, such as quatemary
amities. may inhibit biological treatment
and affect in-plant facilities and
downstream municipal sanitary sewage
treatment facilities (Hui. 1996d)
Under normal operations, floating oil
can be removed before wastewater is
discharged to water treatment plants.
and highly variable discharges of flow
and organics can be minimized
(Institute 1985) With large quantities of
spilled oil and high organic loads.
however, these conditions may not be
controlled adequately and water
treatment systems can be damaged To
prevent potential damage to water
treatment plants from oil spills, officials
may halt water treatment and interrupt
water supplies, as occurred when 15
municipal drinking water intakes were
shut down following a spill of one
million gallons of diesel fuel from a
collapsed storage tank at the Ashland
Oil facility in Floreffe. Pennsylvania in
1988 (USEPA. 1988)
8 FWS Comments
The FWS submitted a memorandum
with the following position to the EPA
in 1994 The potential for harm from
petroleum and noirpetroleum oils is
equivalent, the path to injury is
different Edible non-petroleum oils
cause chronic effects with the potential
of mortality Both petroleum and non-
petroleum ‘ il impact natural resources
through the fouling of coats and
plumage of wildlife Secondary effects
from fouling include drowning.
mortality by predation, starvation, and
suffocation The removal of edible oil is
more difficult and strenuous for wildlife
due to the low viscosity of vegetable oil.
which allows deeper penetration into
body plumage or fur and thorough
contamination of the wildlife
Edible oils ingested in large quantities
can cause lipid pneumonia Edible oil
consumed by wildlife during preening
or cleaning of their coats also acts as a
laxative resulting in diarrhea and
dehydration Small amounts of edible
oil on plumage can cause thermal
circulation troubles and embryo death
in eggs exposed to oil through
disruption of egg/air interface (USD011
FWS. 1994)
C Petitioners’ Claim Animal Fats and
Vegetable Oils Are Essential
Components of Human and Wildlife
Diets
Petitioners claim that animal fats and
vegetable oils are essential components
of human and wildlife diets
EPA Response While EPA agrees that
some components of animal fats and
vegetable oils are essential components
of human and wildlife diets. EPA
disagrees with the Petitioners that all
animal fats and vegetable oils are
essential components of human and
wildlife diets Most species require only
one or two essential fatty acids Most
animals need some level of fat to supply
energy and fat-soluble vitamins Intake
of high levels of dietary fat, some types
of fat, and essential fatty acids, however.
can cause adverse effects
While low levels of certain chemicals
are essential for health, exposure to high
levels of these chemicals produces
toxicity Numerous examples in the
scientific literature demonstrate that
essentiality does not confer safety and
essential elements can produce toxic
effects Among these chemicals are
vitamin A: the fatty acid a-linolenic
acid, an essential fatty acid in humans
and coldwater fish, and trace metals
such as iron, manganese. selenium, and
copper (Klaassen et at 1986. NAS.
1977a, USEPA. 1980, Rand and
Petrocelli, 1985, Abernathy, 1992. Hui.
1996a, NAS/NRC 198 Ia)
Further, high levels of fats and oils
alter the requirements for essential fatty
acids and change the balance between
certain types of lipids and fatty acids
For many species of fish and laboratory
animals, levels of essential fatty acids
must be increased for the animals to
tolerate high lipid levels (NAS/NRC.
1983. 1995) High levelsof some fatty
acids (n-6 PUFA. including the essential
fatty acid iinoleic acid) deplete other
fatty acids (n-3 PUFA. including the
essential fatty acid a-linoienic acid).
thereby creating nutritional deficiency
In addition, constituents of vegetable
oils and animal fats also affect
requirements for essential fatty acids
Erucic acid, a constituent of rapeseed
oil, adversely affects reproduction in
rats by interfering with the metabolism
of essential fatty acids (Rome et aJ.
1960)
Animals often die from starvation
after oil spills destroy their food supply
by oiling food or making it unavailable
In addition to a reduction itt food
supply and a need to consume twice
their normal amount of food to maintain
body temperature (1-lartung. 1965, 1995),
oiled birds that are unable to float or fly
cannot retrieve food from the water that
usually provides their food Bird
rescuers have described dead birds with
organs were filled with oil after eating
oiled food or consuming oil while
preening their feathers to remove oil
(Croxall. 1975. Lyall. 1991. Frink and
Miller. 1995) Thus. EPA finds that
Petitioners’ arguments are non-
persuasive and have little relevance to
the large quantities of oil released into
the environment from oil spills
1 Nutritional Requirements for Dietary
Fat
in addition to their roles in cellular
structure, membrane integrity, and
microsomal enzyme function, fats play
an important nutritional role by
supplying energy and essential nutrients
(Rechigl, 1981, Hui, l996b, Van Soest.
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54522 Federal Register I Vol 62, No 202,/ Monday. October 20, 1997 / Rules and Regulations
1982) The caloric value of fat.s is more
than twice that of carbohydrates or
proteins (Hui. 1996a) Fats are a source
of the fat-soluble vitamins A. D. E, and
K and are rich in antioxidants,
including tocopherols. such as vitamin
E. and caroteries such as provitamin A
They also facilitate the digestion and
absorption of vitamins
The nutritional requirements for
dietary fat vary greatly among species A
diet containing about 5% dietary fat is
recommended for most laboratory
animals (NASINRC. 1995) Growth
usually increases greatly in animals fed
a diet containing higher levels of fat. but
lifespans are shortened and lactation
performance and reproduction
adversely affected in rats fed diets with
30% lipid (French et al. 1953) In
minks, diets with 35—40% fat have been
satisfactory for meeting energy
requirements. but higher levels (44—
53%) are recommended for fur
development, pregnancy and lactation
(NAS/NRC. 1992) Up to 44% fresh fat
was used in fox diets without
detrimental effects (NAS/NRC, 1992)
For coldwater fish. 10% to 20% lipid is
needed in diets, and higher levels of
lipid alter carcass composition by
deposition of excess lipid and reduction
of the percentage of body protein (N AS!
NRC. 198la)
Nutritional requirements for fats are
affected by environmental influences
and the health status of the organisms
Birds must consume twice as much food
after a spii 1 for thermal regulation
(Hartung. 1967) In laboratory animals.
the requirement for certain fatty acids
(ri-6 PUPA) is increased during lactation
(NAS/NRC. 1995)
For many animals (cattle, goats, and
sheep). vitamin and energy
requirements rather than specific
dietary requirements for fat are
enumerated (NAS/NRC 198 lb. NAS/
NRC, 1985. NASINRC. 1984) Certain
types of fat are necessary for other
animals For example. sterols and
perhaps lecithin are necessary for
crustaceans (NAS/NRC, 1983)
Dietary Requirements of Wild
Animals Unlike domestic animals that
are fed under regimens to maximize
their productivity, wild animals and
free-ranging domestic animals may have
different nutritional requirements for
their survival. growth. and reproduction
(Van Soest. 1982) Diets that promote
growth and obesity may also shorten life
and are undesirable for wild animals
2 Essential Fatty Acids (EFA)
Certain unsaturated fatty acids that
must be supplied in the diet are called
essential, because humans or other
animals lack the enzymes to synthesize
them (Hui, l996a, Rechigl. 1983) Two
fatty acids are considered essential in
humans—linoleic acid and a-liriolenic
acid (Hui 1996a) These essential fatty
acids are required for fetal development
and growth Long-chain n-3
polyunsaturated fatty acids, such as a-
linolenic acid, are needed by the brain
and retina, learning disabilities and loss
of visual acuity have been observed in
animals with low levels of these fatty
acids A balance of PUFA from both the
n-6 and n-3 families is needed to
maintain health (Hul. 1996a)
EFA requirements differ according to
species In chickens, 1% of the EFA
linoleic acid is required. the essentiality
of a-linolenic acid has not yet been
proven for poultry (NAS/NRC. 1994)
Linoleic acid is an EFA for pigs.
arachidortic, which is generally added
to swine diets, can be synthesized from
linoleic acid (NAS/NRC. 1988) Minks
require linoleic acid, and rabbits can
develop EFA deficiency (NAS/NRC.
1992. l977b) Silver foxes need 2 to 3
grams of EFA linoleic and linolenic
acids daily to prevent skin problems
and dandruff (NASINRC. 1992) The
dietary EFA requirements of ruminants
are about an order of magnitude lower
than those of non-ruminants (Van Soest.
1982)
Studies of fish and crustaceans
demonstrate that EFA requirements of
aquatic animals vary with species and
are apparently related to the ability of
the animals to convert linoleruc acid
(18 3w3) to highly unsaturated fatty
acids (Kanazawa et al , 1979) While
some animals can synthesize necessary
fatty acids, others require them in their
diets The n ’3 fatt) acids are essential
for good health and growth in rainbow
trout, red sea bream, and turbot (NAS/
NRC. 1981a) For chum salmon, the
requirement for linoleic and linolenic
acids is 1%. or 05—1% for n-3 PUFA in
the diet For coho salmon, the optimal
lec’el of n-3 fatty acids is 1—2 5%. and
the optimal level of n-3 plus n-6 fatty
acids appears to be approximately 2 5%
EFA requirements can be affected by
many factors, including fat content of
the diet and temperature In fish. EFA
requirem’ents change with tempera’ure
and culture conditions (NAS/NRC.
1983. 1981a)
3 Adverse Effects of High Levels of
EFAs
While certain levels of fat and
essential fatty acids are necessary.
higher levels can produce adverse
effects Although requirements for
linolenic acid, a n-3 polyunsaturated
fatty acid, are as high as 0 5% of total
caloric intake in humans, consumption
of a diet high in the same family of fatty
acids (n-3 PUFA) may cause oxidative
stress to cell membranes through lipid
oxidation reactions, thereby increasing
requirements for aritioxidants (Hut.
1996a)
A balance of types of lipid and
various fatty acids is needed For
example, many species of fish and
laboratory animals tolerate high levels
of lipid if the essential fatty acid levels
are increased (NASJNRC. 1983. 1995)
Similarly, a high level of other dietary
components can increase the need for
certain PUFAs (n-6 PUFA) in rats. and
alter the fatty acid balance (between n—
6 PUFA and n-3 PUFA) (NASINRC.
1995). High levels of some fatty acids
(ri—6 PUFA) deplete other fatty acids (n—
3 PUFA). thereby creating adverse
effects associated with nutritional
deficiency
Compared to rodents consuming diets
high in saturated fatty acids, rodents
receiving diets rich in linoleic acid—
one of the two essential fatty acids for
humans—exhibited increased
development of breast tumors, including
a shortened latency period for tumor
appearance. promotion of tumor growth.
and increased incidence of mammary
tumors (Hui. 1996a) Once the dietary
linoleic acid exceeded 4—5% of total
calories, saturated or unsaturated fats
linearly increased tumor incidence
Dietary lirioleic acid enhanced the
spread of mammary tumors to lungs in
rats, apparently by acting as a cancer
promoter Fish oil, which contains n—3
PUFAs. inhibited mammary tumor
development, apparently inhibiting the
effects of linoleic acid
The importance of balance in
essential fatty acids is clearly seen in
studies of coldwater fish An optimum
level of unsaturated fatty acids is
required for maximum growth of
coldwater fish, and the requirement for
n—3 fatty acids may be species-specific
(NASINRC. 1981a) EFA deficiency is
characterized by poor growth as well as
numerous other symptoms. and the
deficiency of most symptoms can be
reversed with certain fatty acids (n—3
PUFA). the addition of other fatty acids
(n—6 PUPA) to the diet reverses some
symptoms. while others are aggravated.
In coho salmon, extremely low and
high levels of n—3 fatty acids inhibit
growth. concentrations of n—6 fatty
acids above 1% also depressed growth
(NASINRC. l9Sla) hi studies of
rainbow trout fed different levels of
triglycerides containing n—3 and n—6
fatty acids in diets containing 10%
lipid, growth was reduced when diets
were deficient in n—3 fatty acids, high
in n—6 and low in n—3 fatty acids, or
high in both n—3 and n-6 fatty acids
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Federal Register / Vol 62, No 202 / Monday , October 20, 1997 / Rules and Regulations 54523
4 Adverse Effects of High Levels of Fats
and Oils
Although fat intake is necessary to
provide energy. vitamins, and EFA,
ingestion of high levels of dietary fat can
cause adverse effects ui fish and aquatic
species, other animals, and humans
The adverse effects of consumption of
high levels of dietary fat and certain
classes of fat by humans and animals
have been discussed extensively in
section II C 3
5 Relevance of EFA Principles to Spills
For most animals, on]y one or two
Fatty acids are essential, and these are
not necessarily the fatty acids present in
an oil spill Animals require only small
quantities of these EFAs that are’
provided in a normal diet, and these
quantities must be in balance While
low levels of one or two fatty acids are
needed by some species, in several
species tested, high levels of these fatty
acids produce adverse effects by toxicity
or by creating nutrient imbalances that
deplete other essential nutrients
After a spill, high levels of animal fats
and vegetable oils other than the EFA
are present in the environment High
levels of total dietary fat, certain classes
of fats, imbalances of types of fat, and
some components and breakdown
products produce adverse effects in
laboratory animals and in some animals
that have been examined in the field
arid are associated with adverse effects
in humans Further, some constituents
of vegetable oils, such as erucic acid in
cottonseed oil, actually interfere with
EFA metabolism, thereby causing
adverse effects (Rome et al . 1960)
When food is coated with oil from a
spill of vegetable oils or animal fats.
animals are unable to forage or consume
the food or suffer the consequences of
Ingesting large quantities of oil as they
consume food Oil-coated birds die of
hypothermia or starvation when they
are unable to obtain or consume twice
their normal amount of food to provide
the increased metabolic requirements
needed to survive oil spills
Some oils, their constituents, or
transformation products remain in the
environment for years By
contaminating the food source biomass.
reducing breeding animals and plants
that provide future food sources.
contaminating nesting habitats, and
reducing reproductive success through
contamination arid reduced hatchability
of eggs, oil spills can cause long-term
effects for years even if the oil remains
in the environment for relatively short
periods of time.
6 FWS Comments on Essential Fatty
Acids
The FWS commented that although
fats and oils are used by cells of living
organisms in small amounts, too much
will cause harm to organisms through
means other than toxicity Ingestion of
concentrated vegetable oil or animal fat
could cause indigestion, nausea, and
diarrhea This could incapacitate a bird
or mammal (USDOIIFWS, 1994)
D Petitioners’ Claim Animal Fats and
Vegetable Oils Are Readily
Biodegradable and Do Nor Persist in the
Environment
EPA disagrees with Petitioners’ claim
that all animal fats and vegetable oils
are readily biodegradable and notes that
when biodegradation does occur in the
environment, it can lead to oxygen
depletion and death of fish and other
aquatic organisms Some products
formed by biodegradation and other
transformation processes are more toxic
than the original oils and fats While
some animal fats and vegeti ‘le oils are
degraded rapidly under certain
conditions, others persist in the
environment years after the oil was
spilled (Mudge eta!. 1995, Mudge.
1995, 1997a, 1997b) Further, spilled
animal fats and vegetable oils can cause
long-terni deleterious environmental
effects even if they remain in the
environment for relatively short periods
of time, because they destroy existing
and future food sources, reduce
breeding animals and plants, and
contaminate eggs and nesting habitats
Every spill is different How long the
vegetable oil or animal fat remains in
the environment after it is spilled, what
proportion of the oil is degraded and at
what rate. what products are formed.
and where the oil and its products are
transported and distributed are
determined by the properties of the oil
itself and those of the environment
where the oils is spilled Factors such as
pH (acidity). temperature. oxygen
concentration, dispersal of oil, the
presence of other chemicals, soil
characteristics, nutrient quantities, and
populations of various microorganisms
at the location of the spill profoundly
influence the degradation of oil
Like petroleum oils, vegetable oils
and animal fats can float on water, settle
on sediments or shorelines, and form
emulsions when there is agitation or
prolonged exposure to heat or light
(Crump-Wiesner and Jennings. 1975.
DOCINOAA, 1992, 1996),
Environmental processes can alter the
chemical composition and
environmental behavior of the spilled
oils and influence their proximity to
environmentally sensitive areas and the
environmental damage they cause
The detrimental environmental effects
of several spills of vegetable oils and
animal fats are described below and in
Appendix I. Table 4 Effects of Real-
World Oil Spills These reports provide
examples of the effects of some specific
spills where death, injuries, and damage
were observed No structured survey on
the effects and numbers of victims of
spills of vegetable oils and animal fats
has been conducted (Rozemeijer et a!.
1992) Because birds and other animals
show only a “wet look” when they are
coated with vegetable oils and animal
fats, they are difficult to identify and
may never be found if they sink when
they die or are consumed by predators
(NAS. 1985e)
I Chemical and Biological Processes
Affecting Vegetable Oils and Animal
Fats in the Environment
Vegetable oils and animal fats that are
spilled in the environment can be
transported and transformed by a wide
variety of physical. chemical, and
biological processes that alter the
composition of the oil, its fate in the
environment, and its toxicity Oil that is
spilled in inland waters, such as small
rivers and streams. may be especially
harmful if there are limited oxygen
resources in the water body and little
dispersal of the oil (NOAAIFWS. 1996)
Whether the toxicity of these
transformation products formed by
chemical and biological processes
increases compared to that of the
original oil depends on the specific oil
and the products that are formed For
example. lipid oxidation products that
are formed following exposure of fats to
oxygen, light, and inorganic and organic
catalysts have been associated with
colon cancer, and cholesterol oxidation
products that are formed by
autoxidation of cholesterol exposed to
air, heat. photooxidation, and oxidation
agents have numerous biological
activities (I-Iui, 1996a) (See section
II B 5 d for a discussion of the toxicity
of transformation products)
a Chemical Processes The fate of
petroleum and non-petroleum oils can
be altered by environmental processes
Primary weathering processes include
spreading, evaporation, dissolution,
dispersion, emulsification, and
sedimentation (DOC/NOAA. l992a.
1994, 1996) The rate and relative
importance of each of these processes
depends on the specific oil that is
spilled and environmental conditions
that are present and that may change
over time Wind transport.
photochemical degradation, and
microbial degradation may also play
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54524 Federal Register / Vol. 62, No 202 / Monday, October 20. 1997 I Rules and Regulations
important roles in the transformation of
petroleum oils, vegetable oils arid
animal fats
Different parts of the ecosystem are
affected as the composition of the
spilled oil changes For example.
weathered petroleum oils penetrate into
marsh vegetation less than fresh oil, for
weathered oil is composed of relatively
insoluble compounds and often forms
mats or tarballs (DOC/’NOAA. 1994.
Hartung. 1995. NAS. 1985e). Thus.
weathering decreases the potential
exposure to fish through the water
column while increasing the potential
exposure of species that ingest tarballs
As the lighter fractions dissolve or
evaporate, oil sinks, thereby
contaminating sediments and
contributing to water column toxicity
Spilled sunflower oil is hydrolyzed and
polymerized to chewing gum balls that
can be washed ashore or can sink and
cover sediments, thereby exposing
benthic and intertidal marine
communities (Mudge. 1993)
Vegetable oils and animal fats can
undergo several types of chemical
react ions They can be hydrolyzed to
yield free fatty acids and diglycerides.
morioglycerides. or glycerol, this
hydrolysis can be catalyzed by acids.
bases, enzymes. arid other substances
(Hui, 1996a. Lawson, 1995, Kiritsakis,
1990, Hoffmann. 1989) Vegetable oils
and animal fats can be oxidized to form
hydroperoxides and free radicals which
perpetuate the oxidation reaction until
they are destroyed by reacting with
other chemicals, such as natural or
added antioxidants The free radicals
that initiate an autoxidation reaction are
formed by decomposition of
hydroperoxides. exposure to heat or
light, or other means COPs are formed
by autoxidation of cholesterol that is
exposed to air, heat. photooxidation.
and oxidative agents derived from
dietaiy sources and metabolism (Hui.
1996a)
Several types of reactions can occur
during processing. cooking. or storage of
fats and oils, including hydrogenation of
unsaturated fatty acids in oils
(hardening). esterification.
iriteresterification. including
transesterification, and halogenation
(lawson. 1995, Hui. 1996a, Hoffmann,
1989. Yannai. 1980) Thermal oxidation
and polymerization during cooking.
frying. or processing operations at high
temperatures, generally between 180°C
to 250 0 C. can lead to conjugation (act of
being joined) of polyunsaturated fatty
acids and cylization and the formation
of volatile decomposition products
b Biological Processes Petroleum oils
and vegetable oils and animal fats that
are spilled in the environment can be
transformed by bacteria, yeast. fungi.
and other microorganisms Although
microbial degradation rarely occurs
when there are controlled conditions
during normal storage of animal fats and
vegetable oils. microorganisms can grow
on vegetable oils and animal fats and
degrade them when environmental
conditions are favorable (Ratledge.
1994)
Investigations of biological
approaches to remediating sites
contaminated with petroleum oils have
shown that numerous environmental
factors must be carefully controlled for
biodegradation to be effective in
reducing contaimnauon from oily
materials in soil (Venosa et al . 1996.
Salanirro era). 1997) While
bioremediatlon has been used for soil
cleanup at some petroleum-
contaminated sites (e g. in tests at
refineries, iii treatment of oily sludges in
oil and gas operations, and at pipeline
sites for spills of crude oil), successful
cleanup requires management of
appropriate levels of applied waste to
soil, aeration and mixing. nutrient
fertilizer addition according to the ratios
of carbon nitrogen phosphorus present.
pH amendment, and moisture control to
optimize degradation by soil
micoorganisms (Salanitro et a], 1997)
The extent of biodegradation apparently
depends upon the type of soil and crude
oil involved
The promise and the limitations of
microbial degradation have been
highlighted in numerous studies of
factors influencing the microbial
utilization of animal fats and vegetable
oils (Ratledge. 1994) These studies were
ck nducted in experimental cultures and
cannot be applied readily to cleanups of
oil spills, where control of pH. oil
dispersal. and nutrient supplementation
are difficult to achieve They are
described briefly, primarily to illustrate
the complexity of biotransformation
processes. the many factors that can
affect biodegradation. and the difficulty
in accurately reflecting conditions and
determining rates of biodegradation or
other transforrriation processes at
specific spill locations A more detailed
discussion of the microbial degradation
of vegetable oils and animal fats is
provided in the accompanying
Technical Document (See Technical
Document. Claims V and VI, Biological
Processes. Section A)
Factors that affect the biodegradation
of oils include pH. dispersal of oil.
dissolved oxygen. presence of nutrients
in the proper proportions. soil type.
type of oil, and the concentration of
undissociated fatty acids in water. In
addition to microorganisms. other biota
can also alter the chemical composition
of vegetable oils and animal fats The
reactions may depend on the species.
for organisms such as invertebrates, lack
enzymes that participate in certain
metabolic pathways found in other
organisms
c Rancidity Biological and chemical
processes can lead to the formation of
rancid products that cause off-flavors
and unpleasant odors Rancidity results
from the oxidation of unsaturated fatty
acids that are acted upon by peroxide
radicals or enzymes to form a variety of
products. some of which are toxic (1-lut.
1996a. Yannai. 1980) Rancidity can also
be produced by hydrolysis of
tnglycerides and lipolysis by
microorganisms or natural enzymes
(Kiritsakis, 1990) The hydrolysis and
oxidation of spilled vegetable oils and
animal fats Leads to formation of
aldehydes. ketones. fatty acids, and
other compounds responsible for off-
flavors and rancid odors The rate of
rancidity increases with thermal
decomposition of fats (Hui. 1996a),
although enzymatic peroxidation and
oxidation of unsaturated fatty acids by
lipoxygenases can also occur in plant
food stuffs even during storage at low
temperature and in the dark (Yanriat.
1980)
2 Environmental Fate and Effects of
Spilled Vegetable Oils and Animal Fats.
Real-World Examples
The reports in this section describe
the spread of vegetable oils and anunal
fats after spills into the environment
anti detail the deleterious effects
produced by these spills While some
aspects of specific spills have been
discussed earlier, the examples
presented below demonstrate that
factors such as the nature of the oil, its
environmental fate, arid proxirifity of the
spill to environmentally sensitive areas
determine the adverse effects of spills of
vegetable oils and animal fats in the
environment Many spills are never
reported. Animals injured or killed by
oils may never be found, for they are
highly vulnerable to predators or may
drown and sink (USD01. 1994. Frink.
1994. NAS. l985e). Thus, the reports
that are summarized in Appendix I.
Table 4 and below are not a
comprehensive study of the adverse
environmental effects of spills of
vegetable oils and animal fats, but rather
a snapshot revealing some of the
deleterious effects caused by spills of oil
into the environment
Minnesota Soybean Oil and
Petroleum Oil Spills Oil from two spills
in Minnesota killed thousands of ducks
and other waterfowl and wildlife or
injured them through coating with oil
The peak of waterfowl damage occurred
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Federal Register / Vol 62, No 202 1 Monday. October 20. 1997 / Rules and Regulations 54525
within two days of the breakup of ice on
the Minnesota and Mississippi rivers in
the spring of 1963 (Minnesota. 1963.
USDHHS, 1963) There were two
sources of oil—an estimated I million to
1 5 million gallons of soybean oil that
entered the Minnesota River via the
Blue Earth River when storage facilities
failed at a plant in Mankato, Minnesota,
and an estimated I million gallons of
low viscosity cutting oil that escaped to
the Minnesota River near Savage.
Minnesota. from a marsh that was
flooded with oil when storage facilities
failed Oil spilled during the winter
months from mechanical failure of
storage tanks or pipelines, moved little
until the breakup of ice in the spring
The varnish-like covering of willows on
the river banks showed that the soybean
oil had escaped into the river during the
spring run-off
While the petroleum oil and soybean
oil slicks could not be distinguished by
field observation, laboratory analysis of
samples of oil and oil scraped from
ducks revealed that soybean oil caused
much of the waterfowl loss (Minnesota,
1963) Approximately 5.300 birds were
affected or killed by oil, including 1369
live oil-soaked ducks rescued and 1842
dead birds collected They included
lesser scaup ducks. ringnecked ducks.
coots and grebes. several other types of
ducks, gulls, and mergansers. and a
cormorant While some birds may have
been counted more than once, the
numbers probably underestimate the
impact of the oil spills, because ducks
covered with oil crawl into dense cover
and are hard to find
Mammals and other dead animals
were reported. including about 26
beaver. 177 muskrats, and 50 others.
among them turtles, herons, kingfisher,
songbirds. other birds, skunk, squirrel.
dog and cows (Minnesota. 1963) The
death of 7,000 fish was attributed to
causes other than oil pollution. because
winterkill is common in shallow
backwater areas of the river and a BOD
study indicated that the sample
analyzed would not have sufficient
oxygen demand to significantly affect
oxygen resources in the river Bottom
fauna used as fish food may have been
affected temporarily in localized areas
The character of the soybean oil on
and in the water changed with time, as
thick orange-colored slicks that were
first observed changed to pliable greyish
and somewhat rubbery floating masses
that were stringy or somewhat rounded
and were sometimes surrounded by a
light oil slick (Minnesota, 1963)
Limited areas of the bottom were
covered
Oil that normally floated on the
surface of the river tended to sink to the
lake bottom or settled into low areas of
the river bottom near the shoreline,
apparently because of entrapment of
heavy materials in the oily mass A
sample of soybean oil collected from the
bottom of the lake contained sand, dirt.
twigs, and leaves when it was analyzed
in the laboratory
Soybean oil also mi,xed with sand on
the beach, creating a hard crust 3 feet
above water level White balls.
apparently from soybean oil that was
once near the surface of a lake, moved
toward shore and broke up into long.
white stringy material thai collected on
shore Pools of tough, milky material
covered with brown scum were found in
low areas of the beach along with a hard
varnish-like crust on the beach
Spill of Coconut Oil Palm Oil, and
Edible Materials In 1975, a cargo ship
that was carrying primarily vegetable
oils and edible raw materials (copra or
dried coconut meat, palm oil, coconut
oil, and cocoa beans) went aground on
Fanning Atoll. Line Island and dumped
its cargo onto a pristine coral reef
(Russell and Carlson, 1978) The effects
of the oily substances were similar to
those following a petroleum oil spill
Fish. crustaceans, and mollusks were
killed Shifts in the algal community
were observed, with excessive growth of
some types of green algae and the
elimination of other alga’ competitors.
The effects on the algal community
continued for about II months
Sunflower Oil Spill in North Wales
When a cargo of unrefined sunflower oil
was spilled into the environment off the
coast of Anglesey. North Wales in
January 1991. surface slicks of the oil
were formed for many miles around the
ship (Mudge eta). 1993. Saigado. 1992,
1995) Some oil was hydrolyzed and
polymerized to form “chewing gum
balls” that were washed ashore over a
wide area The denser balls sank.
allowing the sunflower oil to contact a
wide range of benthic and intertidal
communities near the spill Sunflower
oil polyrnerized itt seawater and formed
lumps that could not be degraded by
bacteria
Mussels that were near the spill died
Polymerized sunflower oil formed a cap
that reduced the permeability of
sediments to water and oxygen and
killed organisms living on the sediments
(Mudge et al . 1993, 1995, Mudge. 1995)
Polymerization of sunflower oil that
washed ashore produced concrete-like
aggregates that still persist nearly 6
years after the spill (Mudge, 1997a.
1997b)
Rapeseed Oil Spills in Vancouver
Harbor Three small spills of rapeseed
oil caused greater losses of birds than
176 spills of petroleum oils over a 5-
year period in Vancouver harbor from
1974 to 1978 (McKelveyetal. 1980) An
estimated 35 barrels of rapeseed oil
killed an estimated 500 birds, while all
of the petroleum oil spills combined
oiled less than 50 birds, perhaps
because the vegetable oils lacked the
strong. irritating odor of petroleum or its
eye-catching iridescence Both
petroleum and non-petroleum oils coat
the feathers of birds, destroying their
waterproofing qualities and allowing
water to penetrate to the skin with loss
of insulation arid buoyancy, which
results ui exposure. and death (Mudge.
1995. Hartung. 1967. NAS. 1985e. Smith
and Herunter. 1989. Rozemeijer. 1992)
Another spill of rapeseed oil (Canola)
occurred in Vancouver Harbor on
February 26, 1989 (Smith and Heruriter,
1989) During product transfer, an
estimated 400 gallons of rapeseed oil
spilled into the harbor A thin film
covered large portions of the harbor, and
a patchy slick of yellow oil from the
spill site to the center of the haroor was
v’sible from above. It was estimated that
at least 700 birds were in the harbor at
the time of the spill, including 500
diving ducks. 100 gulls, and 100 other
divers
Initially, booms were not used to
contain the spill, and an attempt to
disperse the oil with multiple passes of
a small tug through the thick oil were
ineffective (Smith and Herunter 1989)
EPA notes that the trade association
requested that this ineffective
mechanical dispersal be allowed as a
response to spills of vegetable oil and
animal fat under the FRP rule After
several hours, booms were set up to
contain the oil and skimmer boats
recovered the oil
Cleanup was concluded 15 hours after
the spill was discovered (Smith and
Herunter. 1989) Nevertheless. 88 oiled
birds of 14 species were recovered after
the spill, and half of them were dead
Oiled birds usually are not recovered for
3 days after a spill. when they become
weakened enough to be captured Of the
survivors, half died during treatment
The authors caution that because
vegetable oils are edible, they may not
be considered as threatening to aquatic
birds as petroleum oils However, the
end result is the same Birds die (Smith
and Herunter, 1989) The number of
casualties from the rapeseed oil spills
was probably higher than the number of
birds recovered, because heavily oiled
birds sink and dying or dead birds are
captured quickly by raptors and
scavengers
Smith and Herunter emphasize that
containing and recovering the spilled oil
as soon as possible is critical to
minimizing environmental damage
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54526 Federal Register / Vol 62, No 202 / Monday. October 20. 19971 Rules and Regulations
(1989) Using booms, testing transfer
lines, having spill detection equipment
in place, training on-site personnel. and
reporting spills immediately are
essential to reducing environmental
harm.
Fat and Oil Pollution in New York
State Waters Pollution of surface waters
by oils and fats from a wide variety of
sources killed waterfowl, coated boats
and beaches, tainted fish, and created
taste and odor problems in water
treatment plants in New York State
(Crump-Wiesner and Jennings. 1975)
Sources of the fats and oils Included
spills, food and soap manufacturing,
refinery wasLe5. construction activities.
industrial waste discharges, and
sanitary sewage Grease-like substances
were seen along the shore or floating in
Lake Ontario Crease-balls that
contaminated the shoreline near
Rochester and smelled like fat or lard
were analyzed arid characterized as
mixtures of animal and vegetable fats
with similar fatty acid contents
Spills of Fish Oil Mixtures in South
Africa Oil that was discharged from a
fish factory effluent pipe near Bird
Island, Lamberts Bay, South Africa, the
breeding ground for 5.000 pairs of Cape
Gannets arid home to tens of thousands
of Cape Cormorants and 500 Jackass
Penguins, killed at least 709 Cape
Gannets. 5.000 Cape Cortnorants. and
108 Jackass Penguins (Percy Fitzpatrick
Institute. 1974) A few days after the
oiling incident, researchers found
penguins covered with a sticky. white.
foul-smelling coat of oil They were
shivering on the shore and gannet
chicks, who were observed walking
straight into the oil, were &ad or dying
They observed a milky white sea on one
side of the island and a frothy mixture
and clots of oil thrown up on the island
The oil smelled strongly of fish
Damage from fish-oil pollution was
detailed at two other fish factories in
South Africa (Newman and Pollock.
1973) In the rock lobster sanctuary at
St Helena Bay. 10.000 rock lobsters and
thousands of sea urchins were killed.
probably from oxygen depletion caused
by the release of organic material from
the fish factory At least 100.000 clams
died near a fish factory at SaId anha Bay
along with large numbers of black
mussels and prawns and some
polychetes and anemones Other effects
were also described by the authors the
sea was discolored and smelled, water
quality was poor. and the aesthetic
appeal of the beaches located near a
town and popular camping site was
adversely affected
Spill of Nonyiphenol and Vegetable
Oils in the Netherlands Thousands of
seabirds. mostly Guillemots and
Razorbills. washed ashore in the
Netherlands during a four-month period
from December 1988 to March 1989
(Zoun, 1991) They were covered with
art oil-like substance Nearly all of the
1.500 sick birds that were taken to bird
hospitals died, many exhibIted
emaciation, aggressive behavior, bloody
stools, and leaky plumage Autopsies
arid pathological examination of 30
birds revealed hepatic degeneration and
necrosis as well as aspergilliosis in the
air sacs and lungs Chemical analysis of
the feathers and organs showed the
presence of high levels of nonyiphenol
and vegetable oils, such as palm oil. No
source of the contaminants was
established, but they may have been
discharged from a ship
Soybean Oil Spills in Georgia From a
Tanker Truck and a Vegetable Oil
Refinery Aesthetic effects were a major
concern to property owners on an oiled
cove at Lake Lamer, Georgia (Rigger.
1997) The strong. unpleasant odor of
soybean oil spilled from a tanker truck
became more rancid as the oil
weathered Rapid response action
minimized the damage and costs.
although the oil adhered to boat dock
floats and boats and produced several
thousand dollars in claims for cleaning
boats and docks and replacing dock
floats
In a vegetable oil refinery in Macon,
Georgia. soybean oil was released from
an aboveground storage tank that was
accidentally overfilled (Rigger, 1997)
Rapid response prevented significant
damage from the spilled oil, which had
flowed through a storm water system
and entered a stream Investigation of
the spill incident revealed that previous
spills from the facility had entered the
sanitary sewer system and damaged the
sewage treatment plant
Wisconsin Butter Fire and Spill In
1991. a major butter and grease fire
apparently triggered by an electric
forklift destroyed two large refrigerated
warehouses at Central Storage facility in
Madison. Wisconsin and resulted in the
release of large volumes of butter, lard.
cheese, meat, and other food products
(Wisconsin. 199la, l991b. 199 Ic.
Wisconsin State Journal. 1991 a. 1991 b.
1991c, 1991d, 199le) The warehouses
contained 15 million pounds of butter—
much of it part of the USDA surplus
program Thick, black smoke filled the
air, and melted butter and lard streamed
from the burning building and
threatened to pollute a nearby creek and
lake
The quick action of firefighters, city
engineers. and other responders was
credited by the company and state
environmental officials with saving a
nearby creek and lake from
environmental disaster and limiting the
losses and injuries from the fire
(Wisconsin. 1991, Wisconsin State
Journal. 1991a, 1991b, 199lc, l9gld.
199le) If the buttery material had
flowed through storm sewers into the
creek and lake, it could have depleted
the available oxygen required by
walleyed pike. bass, and other aquatic
organisms living in the creek and
connecting lake and wined a recent one
million dollar cleanup effort in the
watershed
After the cleanup was largely
completed, the Wisconsin Department
of Natural Resources declared as
hazardous substances the thousands of
gallons of melted butter that ran offsite
and the mountain of damaged and
charred meat products spoiling in the
hot sun and creanng objectionable
odors The Wisconsin DNR stated that
these products posed an imminent
threat to human health and the
environment
3 FWS Comments on Degradation
Vegetable oils and animal fats may
biodegrade quicker than petroleum.
however, in the short term, this
advantage is neutralized by the ability of
many petroleum compounds to
evaporate quickly ln addition the
higher BOO of vegetable oils arid animal
fats pose an increased risk of oxygen
depletion in shallow waters and
wetlands Both kinds of oil will degrade
more slowly in low-energy waters and
can become submerged in an anoxic
aquatic habitat, settle to the bottom and
into sediments, or form thick layers
because the vegetable oil is rio longer
being exposed to oxygenated waters or
surroundings In such instances, the
edible oil or fat will remain in the
environment for a long period of time
and continue to create a risk to the
natural environment The variability of
circumstances surrounding each spill
(location, spill volume, weather, tides.
water currents. effectiveness of spill
response) will have a greater influence
in the short term on environmental
effects than will biodegradability
(USDO!/FWS. 1994)
E Petitioners’ Claim Vegetable Oils and
Animal Fats Have a High BOD. Which
Could Result in Oxygen Deprivation
Where There Is a Large Spill in a
ConfIned Body of Water
Petitioners claim that vegetable oils
and animal fats have a high BOD, which
could result in oxygen deprivation
where there is a large spill in a confined
body of water with low flow and
dilution
EPA Response EPA agrees with the
Petitioners’ claim that vegetable oils and
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Federal Register / Vol 62. No 202 / Monday, October 20. 1997 / Rules and Regulations 54527
animal fats have a high BOD. which
could lead to oxygen depletion and
severe environmental consequences
(For a detailed discussion of this topic.
see section II B 4 a Suffocation) EPA
disagrees. however, that oxygen
depletion would occur only with large
oil spills Small spills are sufficient to
cause oxygen depletion and suffocation
and death of fish and other biota.
depending on the conditions that apply
at the location of the spill Oxygen
depletion can result from reduced
oxygen exchange across the air-water
surface below the spilled oil or from the
high BOD by microorganisms degrading
oil (Crump.Wiesner and Jennings, 1975,
Mudge. 1995) Examples of
environmental damage produced by
small spills of vegetable oils and animal
fats are provided above
While a higher BOD is associated with
greater biodegradability, it also reflects
the increased likelihood of oxygen
depletion and potential suffocation of
aquatic organisms under certain
environmental conditions (Crump.
Wiesner and Jennings. 1975) Oxygen
depletion and suffocation are produced
by petroleum and vegetable oils and
animal fats Under certain conditions.
however, some vegetable oils and
animal fats present a far greater risk to
aquatic organisms than other oils spilled
in the environment, as indicated by
their greater BOD
According to studies designed to
measure the degradation of fats in
wastewater, some food oils exhibit
nearly twice the BOD of fuel oil and
several times the BOD of other
petroleum-based oils (Groenewold.
1982. Institute. 1985. Crump-Wiesner
and Jennings 1975) While the higher
BOD of food oils is associated with
greater biodegradability by
microorganisms using oxygen. it also
reflects the increased likelihood of
oxygen depletion and suffocation of
aquatic organisms under certain-
environmental conditions (Groenewold,
1982. Institute. 1985. Crump-Wiesner.
1975) Oil creates the greatest demand
on the dissolved oxygen concentration
in smaller water bodies, depending on
the extent of mixing (Crump-Wiesner
and Jennings. 1975)
FWS Comments on BOD
Decomposition of vegetable oils and
animal fats causes oxygen depletion
problems for aquatic species (USD011
FWS. 1994)
F Petitioners Claim Vegetable Oils and
Animal Fats Can Coat Aquatic Biota
and Foul Wildlife
EPA Response EPA agrees with the
Petitioners’ claim that vegetable oils and
animal fats can coat aquatic biota and
foul wildlife but disagrees with the lack
of signifIcance accorded this potentially
devastating effect in Petitioners
ENVIRON report Many animals arid
plants die when they are coated with
spilled petroleum oils or vegethble oils
and animal fats (See section II B 4 a
Coating with Oil for a discussion of
these effects) Coating with oil can
contaminate existing and future food
sources, destroy habitat, and damage
eggs and nesting areas, thereby inflicting
environmental damage years after an oil
spill occurs (Frink and Miller, 1995)
Trustees Comments on Fouling The
biggest over ight of the ENVIRON
report, which was never subject to peer
review as are journal publications, is the
insignificance given to the fouling
potential of vegetable oils and animal
fats (USDOIIFWS, 1994) Wildlife
rehabilitators consider edible oils and
fats to be some of the most difficult of
substances to remove from wildlife
because of their low viscosity These
less viscous oils are good wetting
agents, allowing deeper penetration into
plumage or fur and creating a
thoroughly contaminated animal, as
opposed to surface and intermediate
penetration In many instances,
complete removal can only be
accomplished with extremely hot water,
which is detrimental because of
scalding. and excessive washing
The FWS takes issue with statements
in the ENVIRON report that observed
birds clean themselves and return to
feeding areas (USDOI/FWS, 1994) Such
observations are difficult to confirm
without banding or radio tagging the
birds and closely observing them It is
highly doubtful that the birds were able
to clean themselves, for only minuscule
amounts of oil can be completely
preened from plumage Even birds
fouled with petroleum oils will preen
and fly back to their nests Small
amounts of oil on the birds’ plumage
can cause thermal circulation trouble
md smother embryos in eggs exposed to
the oil Birds may appear to act
normally. but it is not the immediate
effects of the oils but those that appear
later that cause problems Secondary
effects from fouling include drowning.
mortality by predation. starvation, and
suffocation
Both petrole’um and non-petroleum
oils foul the coats and plumage of
wildlife (USDOI/FWS. 1994). The risks
from vegetable oils and animal fats are
magnified by their lack of repugnant
smell or iridescence to frighten wildlife
away, making it more likely that
wildlife will come in contact with these
oils
UI. Petitioners’ Suggested Language To
Amend the July 1. 1994, Facility
Response Plan Rule
This section begins with a short
discussion about EPA’s inland area of
jurisdiction and also provides some
characterization of the amounts of
vegetable oil and animal fats produced
or consumed, and reported spills These
discussions are followed by EPA’s
response to the Petitioners’ specific
regulatory language to amend the July 1.
1994. facility response plan rule
A Background
Examples of water systems that occur
in the inland area within EPAs zone of
authority are major freshwater rivers.
smaller streams, creeks, lakes and
wetlands or mixed freshwater—
saltwater estuary and wetlands areas
subject to tides (See a Memorandum of
Understanding IMOU I between the
Secretary of Transportation and the EPA
Administrator dated November 24. 1971
(36 FR 240801 ) Many of these areas.
including wetland., and estuary areas.
are often very sensitive, highly
productive areas where a large number
of organisms such as shrimp, crabs, fish.
and water fowl nest, breed and feed
Lakes and larger rivers may be used as
water supplies and have drinking water
and industrial intakes that must be
protected Inland spills have a much
higher potential to contaminate both
ground and surface water supplies
Some lakes, estuaries and bays are often
highly developed with industry.
recreational beaches, marinas and other
highly visible areas that need protection
from oil spills
Vegetable oil and animal fat were
among the most frequently spilled
organic materials, ranking sixth and -
seventh respectively, and were
responsible for over 6% of all spills (384
of 6076 spills) of organic materials
reported along the coasts and major
waterways in the United States in 1973—
1979 (Wolfe, 1986) Other authors
estimate that at least 5% of all spill
notifications are for yegetable oils and
animal fats (Crump-Wiesner. 1975) Of
the 18.000 to 24.000 spills in the United
States reported annually to the National
Response Center and EPA Regions. 2—
12% are from non-petroleum oils.
including vegetable oils and animal fats
(USEPA/ERNS. 1995. 1996) These
figures represent the minimum number
of spills, it is likely that they greatly
underestimate the actual number of
spills because of significant
underreporting A comparison was
made of reports of spills in Ohio of
vegetable oil and soybean oil from
January. 1984 to June. 1993 to the State
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54528 Federal Register IVol 62. No 202 / Monday. October 20, 1997 / Rules and Regulations
of Ohio Environmental Protection
Agency (Ohio EPA) and to the National
Response Center (NRC) Only 7 of 27
reports (26%) to the Ohio EPA were also
reported to the NRC (LJSEPA, 1994 a).
There were a number of reports of
vegetable and soybean oil spiiis to the
NRC that were not on the State list
(USEPA. 1994a)
8. Regulatory Language Changes
Proposed by the Petitioners
Language to further clarify the
definition of vegetable oil and an imal
fats EPA Response EPA has decided
not to incorporate Petitioners’ proposed
definItions of ‘animal fat and vegetable
oils” in the regulatory provisions of
section 112 2 In issuing the final FRP
rule, EPA Included a definition of “non-
petroleum oil man Appendix to the
rule (See 40 CFR pan 112, Appendix E.
section 1.2 3) “Non-petroleum oil” is
defined to mean “oil of any kind that is
not petroleum-based It includes, but is
not limited to. animal and vegetable
oils ’ Id
EPA included t Ins definition of “non-
petroleum oil” In the rule because the
Agency established different and more
flexible response planning requirements
for facilities that handle, store, or
transport non-petroleum oil, including
animal fats and vegetable oils For
example. in calculating required
response resources for non-petroleum
facilities, the owner/operator of such a
facility, including those facilities which
handle, store, or transport animal fats or
vegetable oils, is not required to use
emulsification or evaporation factors in
Appendix E of the rule Rather, these
facilities t ed only (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
area, and respond within the required
times, and (4) ensure the availability of
required resources by contract or other
approved means 40 CFR Part 112.
Appendix E, section 7 7 Importantly.
EPA does not prescribe the type or
amount of equipment that preparers of
response plans for non-petroleum oil
discharges must identify Id
Moreover, at the time of issuing the
final rule, EPA also set forth definitions
for both “animal fat” and “vegetable
oil” i tt the preamble to the FR? rule (59
FR 34070, 34088 (July 1, 1994)) To
assist owners and operators in
distinguishing between oil types. EPA
defined “animal fat” to mean “a non-
petroleum oil, fat, or grease derived
from animal oils not specifically
identified elsewhere” Id The Agency
defined “vegetable oil” to mean “a non-
petroleum oil or fat derived from plant
seed, nuts, kernels or fruits not
specifically identified elsewhere,” Id
The Agency stands behind these
definitions, and because EPA is not
modifying the FRP rule as requested by
Petitioners (see below), the Agency sees
no need to include these definitions in
the rule provisions
Petitioners express a concern that
animal fats and vegetable oils have been
included with other types of “non-
petroleum oils,” although the planning
requirements for owners and operators
of all facilities storing “non-petroleum”
oils are more flexible than those
requirements for facilities storing,
handling, or transporting petroleum oil
Petitioners’ main concern appears to be
premised upon the claim that vegetable
oils and animal fats are “non-toxic”
compared to other non-petroleum oils
EPA believes that Petitioners have failed
to make a demonstration that animal
fats and vegetable oils should be subject
to less stringent planning requirements
than other types of non-petroleum oils
This is so for all of the reasons set forth
elsewhere in this notice
Allow mechanical dispersal and “no
action” options to be considered in lieu
of oil containment and recovery devices
specified for response to a worst case
discharge of vegetable oil and animal
fats EPA Response The Agency
declines this proposed language
Although the “no action” and
mechanical dispersal options proposed
by the Petitioners may be considered in
response to an actual spill under certain
conditions, i e , river currents too high
for the effective use of a boom, neither
option would meet the intent of CPA for
planning purposes The intent of CPA
was for industry to plan for and secure
the equipment and resources needed to
respond to a worst case discharge.
which may be a discharge of 1 million
gallons or greater for a large vegetable
oil facility
A “no action” plan would allow a
large amount of oil to remain in the
environment, which would in turn
cause immedtate physical effects to
resources that could extend for
considerable distances as the oil
spreads This oil would have the
potential to remain in the environment
for long periods of time
One issue raised by the Petitioners is
that the response to a spill of vegetable
oil or animal fat may do more harm to
the environment than a “no action”
alternative A consideration in the
response to any type of oil, including
petroleum or vegetable oil or animal fat.
is whether the measures used in
response to the spill will cause
unacceptable dan’iage to a specific type
of environment This determination is
based on the conditions existing at the
time of the spill Specific spill
conditions will often dictate the need
for different techniques for the same
water environment or shoreline habitat
A study, which evaluated the relative
impact of various generic characteristics
of response techniques In the absence of
oil, rated booming and skimming as
having a “Low” impact in open water,
small lakes/ponds, large rivers and
small rivers and streams (DOC/NOAA,
1992) and therefore, causing little
environmental harm
Mechanical dispersal of the vegetable
oil or animal fat into the water column
could shut down or negatively impact
drinking intakes due to flavor changes
and odors, reduce cooling efficiency in
cooling waters of power plants.
contaminate food from receiving waters,
increase BOO levels, violate water
quality standards, cause sludges, and
adversely impact benthic organisms and
the resulting food chain in inland areas
Oil dispersed by mechanical means may
resurface and cause further
environmental damage in the same area
or a different area depending on the
characteristics of the water body (See
section II D 2. Rapeseed Oil Spills in
Vancouver Harbor on the ineffective use
of mechanical dispersal ) This Notice
references studies that document spills
of vegetable oils that have remained in
the water environment for several years
and that continued to kill shellfish and
other organisms
Limit the use of containment boom to
the protection of fish and wildlife and
sensitive environments EPA ’s
Response Based on tests and studies
summarized in the data in ibis Decision
Document and the Technical Document,
vegetable oils and animal fats clearly
have adverse Impacts on the aquatic and
terrestrial environment and Its
Inhabitants EPA declines to modify the
FRP rule as suggested by the Petitioners
EPA continues to believe that an OPA
required FR? must limit the Impacts of
the oil through response techniques that
include containment and removal in
addition to protection of priority fLsh
and wildlife and environmentally
sensitive areas
The Area Contingency Plan (ACP)
identifies and prioritizes the fish and
wildlife and environmentally sensitive
areas to be protected and also
determines the type of protection to be
used when a spill occurs UWA section
311 U)(5)(C)(l) requires that a FRP must
be consistent with the applicable ACP,
which usually requires that a
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Federal Register / Vol 62. No 202 / Monday. October 20. 1997 / Rules and Regulations 54529
containment boom be positioned to
protect drinking water intakes and
environmentally sensitive areas
In addition, facility response planning
must also include the use of measures
appropriate to the body of water to
contain and limit and concentrate the
spread of oil for removal The spreading
rate of oil is a function of its viscosity
Low viscosity materials spread easily
over the surface of water At lower
temperature, the oil spreads less
rapidly Generally, vegetable oils and
petroleum oils are of’ low viscosity. The
spread of spilled oil over a large area
will hamper recovery of the oil The
thicker the concentration of animal fat
or vegetable and petroleum oil in an
area, the greater the efficiency for oil
removal As the oil spreads over time
into thinner slicks, its removal becomes
less efficient and more costly In tidally
influenced areas, oil may move back
and forth with each tide and be
redeposited on the shore line, tidal flats.
and marshes and cause adverse effects
Since vegetable oils and animal fats
usually have few volatile fractions and
therefore usually do not decrease in
volume through evaporation as do many
of the lighter factions of petroleum oils.
most of the quantity of vegetable oil and
animal fats spilled into water remain in
the environment When this happens.
there is the potential for adverse
impacts to environmentally sensitive
areas and water intakes. Although most
vegetable oils and animal fats break
down more quickly than some
petroleum oils, under certain conditions
and times of the year. these oils may
remain in the aquatic environment for
long periods of Lime, polarize and form
toxic degradation products and kill
shellfish and other organisms
If a facility storing animal fat and/or
vegetable oil does not provide for the
use of containment booms in its plan to
respond to a worst case discharge. it
will not have the equipment and trained
personnel available for an actual spill
and many miles of shoreline and aquatic
resources over a large area of water may
be impacted Rapid and immediate
response and removal, including the use
of containment booms, offer the most
effective means of minimizing the
immediate and long term effects of
spills of petroleum and non-petroleum
oils, including vegetable oils and animal
fats EPA does not believe that the
Petitioners have shown why the use of
containment booms should be limited to
only protecting fish and wildlife and
environmental sensitive areas Without
the use of containment booms, a worst
case discharge of vegetable oil or animal
fats could cause harm not only to fish
and wildlife and environmentally
sensitive areas, but also damage the
aquatic and terrestrial environment
Such a discharge could also present
risks to humans if the vegetable oil and
animal fats adversely affect drinking
water intakes
Increase the time for the arrival of on-
scene response resources for medium
discharges and worst case Tier 1
response resources to 24 hours plus
travel time from the currently required
12 hours including travel arrival time
EPA’s Response A rapid response to an
oil spill is important in the recovery of
as much oil product as possible Any oil
that remains in the environment will
continue to adversely impact the aquatic
and shoreline environment and cause
lasting damage (This document
contains discussions of environmental,
physical and other impacts that occur
when vegetable oil and animal fats are
spilled) A 24 hour plus travel time
delay in the arrival of response
resources would result in an
unacceptable increase in impacts to
drinking water intakes, fish and wildlife
and sensitive environments, greater
response costs, less product recovered.
and increased water and other types of
pollution
A delay in the arrival of response
resources will increase the difficulty of
the removal of the spilled oil and will
also result in an increase in the cost to
recover this oil If effective containment
and cleanup procedures are initiated
within an hour of a spill occurrence,
estimated removal costs are $250 per
barrel (42 gallons) If two or more hours
elapse before the oil is removed, the cost
can be four or more times that amount
and continue to increase with the time
to respond to the release (USEPA, 1995)
The “window of opportunity” for the
most effective and efficient response to
oil spills occurs within the early hours
after the spill
Immediate action is required when oil
spills occur on water to prevent the oil
from becoming so widely spread that
containment and cleanup become
extremely expensive and a larger area of
fish and wildlife and environmentally
sensitive areas are adversely affected
- There are immediate physical effects to
the environment from releases of
vegetable oil and animal fat There is the
potential for additional sensitive areas
to be contaminated within the 24 hours
plus travel time proposed by the
Petitioners for the arrival of response
resources This is 12 hours plus travel
time longer than the FRP requirement
for rivers. canals, inland, and near shore
areas Sensitive areas within many
additional miles would be affected with
the delay in the arrival of response
resources proposed by the Petitioners
since booms would not be made
available for their protection until much
later Rapid response is imperative to
limit adverse effects, protect resources.
and contain oil for removal
Extending the time for arrival of
response resources would increase the
FRP distance calculation for a facility
and could result in additional vegetable
oil and animal fat facilities meeting the
criteria for substantial harm and having
to prepare and submit a facility
response plan to EPA The requirements
for determination of substantial harm in
the FRP rule for facilities with I million
gallons or above capacity includes a
calculation in Appendix C-Ill of 40 CFR
Part 112 of the distance an oil discharge
from the facility would travel within the
time it would take for the appropriate
tier of response resources to arrive
Once the distance is calculated. the
facility must determine whether fish
and wildlife and environmentally
sensitive areas or drinking water intakes
are located within this distance If so.
the facility is considered a substantial
harm facility and must prepare and
submit a response plan An additional
twelve hours plus travel response time
would more than double the distance a
spill could travel on water before the
arrival of response resources and
therefore potentially increase impacts to
drinking water intakes and
environmentally sensitive areas and
increase the number of vegetable oil and
animal fat facilities that have to prepare
and submit FRPs For the above reasons,
EPA declines to modify the FRP rule in
this manner
IV Conclusions
The environmental effects of
petroleum and non-petroleum oils.
including vegetable oils and animal fats.
are similar because of physical and
chemical properties common to both
Many of the most devastating effects of
spills of petroleum oils and vegetable
oils and animal fats are physical effects.
such as coating of animals. suffocation,
or starvation Some tests measuring
BOD suggest that certain vegetable oils
and animal fats may present a greater
environmental risk of suffocation to
organisms than spilled petroleum oils
under certain conditions Petroleum oils
and vegetable oils and animal fats can
be transferred to the eggs of nesting
birds from the parents’ feathers and
smother the embryos inside Embryos in
eggs are also killed by petroleum oils
through mechanisms of toxicity,
whether non-petroleum oils also cause
direct embryotoxicity has not been
evaluated in tests
Petroleum oils and vegetable oils and
animal fats, can enter all parts of the
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54530 Federal Register / Vol 62, No 202 / Monday, October 20. 1997 / Rules and Regulations
aquatic environment and adjacent
shoreline They can form a layer on
water, settle on the bottom in sediments.
foul shorelines, and be transported and
distributed to other areas
Some vegetable oils and animal fats.
their components. or breakdown
products remain in the environment for
years Whether or not the oil persists in
the environment, spilled oil can have
long-lasting deleterious environmental
effects By contamInating food sources,
reducing breeding animals and plants
that provide future food, contaminating
nesting habitats, and reducing
reproductive success through
contamination and reduced hatchability
of eggs. oil spills can cause long-term
effects years later even if the oil remains
in the environment for relatively short
periods of time
In addition to physical effects and the
destruction of food and habitat.
petroleum oils and vegetable oils and
animal fats, their constituents, or
degradation products can cause short-
term an I long-term toxic effects in some
animals Petroleum oils contain PAHs
and benzene which are animal and
human carcinogens While vegetable
oils and animal fats contain only small
quantities of PAHs. high dietary intake
of fats and certain types of fats have
been associated with increased cancer
incidence in laboratory animals and
humans as well as coronary artery
disease, diabetes. obesity, and altered
immunity and other effects Lethality, -
impaired growth. reproductive effects.
and behavioral effects are among the
subchronic and chronic toxic effects
observed in other studies of vegetable
oils and animal fats
Spills of petroleum and vegetable oils
and animal fats can affect drinking
water supplies, and they have forced the
closing of water treatment systems
Rancid smells, fouling of beaches, and
destruction of recreational areas have
been reported after spills of vegetable
oils and animal fats
Small spills of petroleum and
vegetable oils and animal fats can cause
significant environmental damage Real-
world examples of oil spills
demonstrate that spills of petroleum oils
and vegetable oils and animal fats do
occur and produce deleterious
environmental effects In some cases.
small spills of vegetable oils can
produce more environmental harm than
numerous larger spills of petroleum oils
Because petroleum oils and vegetable
oils and animal fats exhibit similar
behavior in the environment, similar
methods are used to contain them and
attempt to clean them up after a spill
Because every spill is different.
decisions on what cleanup methods are
most effective and least harmful to the
environment must be made case-by-
case, considering the nature of the oil,
the characteristics of the contammated
area, and the proximity of the spill to
environmentally sensitive areas
Once oil is spilled in the
environment, however, the
opportunities br reducing
environmental damage and other
adverse effects are limited Although
methods for rescuing and cleaning oil-
contaminated birds, otters, and other
wildlife have improved, only a small
proportion of affected animals are
recovered, and even fewer of the
rescued animals survive. Further, by
affecting current and future food
sources, nesting habitats, and
reproduction. oil spills can damage the
environment long after the spilled oil
has been removed from the
environment Prevention measures and
rapid response offer the only effective
means of minimizing the immediate.
devastating effects and long-term
environmental effects of spills of
petroleum and non-petroleum oils,
including vegetable oils arid animal fats
In summary. EPA finds that
Petitioners’ arguments about the manner
in which environmental species die or
become injured following spills of
vegetable oils and animal fats, their
claims about degradation of oil in the
environment, and their assertion that
fats are essential to humans and wildlife
in no way dbviate the need to prevent
spills of vegetable oils and animal fats
that can cause lasting environmental
damage Nor do the Petitioners’ claims
obviate the need to reduce
environmental damage from these spills
by planning in advance for effective
response resources and actions EPA
hereby declines to modify the July 1.
1994. Final Rule
Dated October 1. 1997
Timothy Fields. Jr.,
Acting Assistant Administrator. Office of
Solid Waste and Emergency Response
Acronym List
ACP—Area Contingency Plan
BOD—Biological Oxygen Demand
C FR—Code of Federal Regulations
COPs—Cholesterol Oxidation Products
CWA—Clean Water Act
DNA—Deoxyribonucleic Acid
DNR—Departznent of Natural Resources
DOT—Department of Transportation
EFA—Essentlal Fatty Acids
EPA—Environmental Protection Agency
ERNS—Emergency Response Notification
System
FAQ/WHO—Food and Agnculture
OrganizationAVorid Health Organization
FR—Federal Register
FRP—Federal Response Plan
FWS—Fish and Wildlife Service
IARC—Intemauonal Agency for Research on
Cancer
Institute—Institute of Shortening and Edible
Oils Inc
LC —Lethal Concentration 50
LD 30 —Lethal Dose 50
LOPs—Lipid Oxidation Products
MOU—Memorandum of Understanding
NAS—National Academy of Sciences
NOAA—National Oceanic and Atmospheric
Administration
NRC—Nuclear Regulatory Commission
NRC—National Response Center
OPA—Oll Pollution Act
PAI-Is—Polynuclear Aromatic Hydrocarbons
PCBs—Polychlorlnated Biphenyls
PUFA—Polyunsaturated Fatty Acid (n-6
PUFA. including essential fatty acid
linoleic acid, n-3 PUFA. including the
essential fatty acid. a-linolenic acid)
RCRA—Resource Conservation and Recovery
Act
RSPA—Research and Special Projects
Administration
SPCC—Spill Prevention Countermeasure and
Control
USDA—United States Department of
Agriculture
USDHHS—United States Department of
Health and Human Services
USDOC—United States Department of
Commerce
USD01—United States Department of Intenor
USEPA—United States Environmental
Protection Agency
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Federal Register / Vol 62, No 202 / Monday, October 20, 1997 / Rules and Regu )ations 54535
Appendix I—Supporting Tables Table 2 Comparison of Vegetable Oils and Table 4 Effects of Real-World Oil Spills
Animal Fats wIth Petroleum Oil
Table I Comparison of Physical Properties Table 3 Comparison of Aqua Methods and
of Vegetable Oils and Ammat Fats with
Petroleum Oils Standard Acute Aquatic Testing Methods
TABLE 1 —COMPARISON OF PHYSICAL PROPERTIES OF VEGETABLE OILS AND ANIMAL FATS WITH PETROLEUM OILS
Oil type
Solidification point
Solubility
Specific Gravity at 25°C
unless otherwise
specified
Vapor pressure (mmHg)
Edible Oils
Tallow .,. . .
Corn oil
Coconut oil
Rapeseed/Canoia oil .
Fish oil - .. -
Soybean oil . .
Cottonseed oil . . .
Palm oil
Lard - -
40 to 45°C’ . . . .
14 to 20°C 4
Solid to liquid at 15°C, 1
atm’
—2 to — 10°C, liquid at
15°C
—2 to 4°C. liquid at 15°C’
—10 to — 16°C. liquid at
15°C 5
0 to —5°C, liquid at 15°C
Solid to liquid at 15°C, 1
atm’
—2 to 4°C’
Insoluble in water’
Insoluble in water, soluble
in acetone I I
Insoluble in water very
soluble in ether’.
Insoluble in water, soluble
in chloroform and ether’
Insoluble in water’
Insoluble in water and ace-
tone’.
Insoluble in water, slightly
soluble in alcohol’
Insoluble in water .
Insoluble in water or cold
alcohol, soluble in ether
and benzene’
087 at 80°C’
C 915—0 921 , 091 875
0 922
0913—0 917’
093 at 20°C’
0916—0 922’, 09175’
0 915—0 921’, 0 917’
0 920—0 927 (fruit). 0 952
(seed)’
C 917’ Cl’
.
Negligible’
250°C. 0 535mmHg ’
250°C. 0 35lmmHg
250°C. 0 3l7mmHg ’
Petroleum Oils
Diesel
Fuel Oil #1 (kerosene)
Fuel Oil 2—D .
Crude
Fuel Oil #6 Residual .,
Jet Fuel JP #7 ‘
T 1 , . ,
T6 -. ,,
Liquid at 15°C, 1 atm’
Liquid at 15°C. 1 atm’ -
Liquid at 15°C. 1 atm 7
Liquid at 15°C. 1 atm’
Liquid at 15°C. 1 atm 7
. .
, . .,.
,, ,, .,.
Insoluble in waler’
Insoluble in water, miscible
with other petroleum sol-
vents
Insoluble in water’
Insoluble in water 7
Insoluble in water 7
. .
, , .
. -
0841 at 16°C’ .
080’ - -.
087—09 at 20°C 7 .
0 89’
095 approx at 20°C’
. ... ..
38°C. 0201 mmHg
21°C. 2 12—26 4mmHg 11
21°C, 2 12—26 4mmHg “
37 8°C. 3 27mmHg 10
378°C, 0 O92mmHg 1
260°C. 2.480 mmHg I l
180—380°C,
6.907mm 1-lg 17
170—450°C,
7,l2OmmHg 13
Oil type Viscosity dynamic icenlipoises) Vscosity kinematic (cenlistokes)
EdIble Oils
Tallow
Corn oil .
Coconut oil . ,,,.
Rapeseed/Canota oil .
Fish oil . , ,
Soybean oil . .
Cottonseed il ,
Palm oil
Lard .
165 at 100°C’
308 at 40°C’
326 at 32°C’
. . .. .
.
. .. . .
28 at 40°C ‘
34 at 40°C” .
45 at 40°C” . .
2979 at 378°C”
5064 at 37 8°C 14, 62 6 at 25°C, 367 at 40°C
for RBD Soybean Oil
327 at 378°C (cod liver 12)”
2849 al 378°C ”, 501 at 25°C, 289 at
40°C’
3888 at 378°C”
4441 at 378°C”
Petroleum Oils
Diesel
Fuel Oil #1 (kerosene) .. . . ..
FuelOiI2—D ,
Crude .. . .
Fuel Oil 6 Residual
119at378°C ’ - .
115 at 21°C’ - , ,
1 97at21°C’ . -
5 5 at 21°C’ . ... -, . ..
123 to 233 at 20°C’° ,
68at20°C ’°
1 7 at 15°C”
20to36at38°C’°
596 at 20°C 0
>130 at 40°C 10
‘HSDB Hazardous Substances Data Base National Library of Medicine, 1997
2 USDOC/NOAa , 1994
‘Chemical Hazards Response Information System (CHRIS). DOT, LJSCG. January, 1991
‘Merck Index, 1989
5 Hui, 1996a. 1996b
‘Matenal Safety Data Sheet (MSDS). 1997. Corn Oil. Fisher Scientific
‘Chemical Hazards Response Information System (CHRIS), Department of Transportation. U S Coast Guard, 1995
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Chemical Properties
Chemical Structure
Environmental Fate
Environmental Distribution
Chemical, Physical, and Biological Reac-
lions
Toxic Components. Degradation Products
Triglycendes (tnacylgtycerols). cholesterol,
phospho tipids. fatty acids, other compo-
nents in crude oils 113
Some liquids, some solids 13 769
Most 0 908—0 927 at 20 C, most float on
water, some sink I 36794
Most insoluble in water, soluble in organic sol-
vents 61
tMde range, depends on tempera-
ture I 371 U 6
Generafly small proportion volatile, most not
volatile ii ijil
Oil found in water, soil/sediment, biota, usually
little in air 3 iS S It 2213
May persist in environment for many years or
degrade rapidly, depends on oil, media, en-
vironmental conditions where
spilled 31133637
Oxidation, hydrolysis, polymerization. photoly-
sis, other chemical reactions. degraded by
microorganisms. metabolized by plants and
animals i 2.1 l Oll
Same oils contain toxic components or may
be degraded to form toxic products 121744 47
Yes, suffocation when oil blocks aeration at
water surface or depletes oxygen through
biodegradation 20234930 Ii 3253
Yes, can cause hypothermia, increased need
for food, loss of buoyancy, decreased ability
to escape predators 22293637 3433 7(. 373539
Yes, can be transferred from coated parents
and kill embryos by blocking air exchange at
egg surface 231931552657 I I
Yes, can cause starvation or ingestion of oiled
food, destruction of future food sources, de-
struction of habitat, community ef-
fects 2329273637
Results vary by test, organism. condi-
tjonsG546,47,66,67 Tests submitted by Peti-
tioners Other tests Corn oil and cottonseed
more lethal than mineral oil in albino rats—
55 g/kg was LD5O for 5 days for corn oil
and for 4 days for cottonseed oil, no fatali-
ties at 130 g!kg with mineral Oil for 15
days 6 Other tests Several free fatty acids
intermediate in lethatity in series of cttemi-
cals in fathead minnows Other tests Mus-
sels died after two weeks or more of expo-
sure to low levels of oils (0 3 mI/mm flowrate
for oils. 300 mI/mm flowrate seawaler) I 2l
Laxative, diarrhea, lipid pneumonia, decreased
ability to escape predators. some vegetable
oils, such as safflower oil, are mmtaling to
human skin and eyes 39 3637 71 73
Most 0 80—095 at 20 C, most float on water,
some sink $9 ii
Most insoluble in water, soluble in organic sol-
vents 61 12
Wide range, depends on temperature 1 10
Some fractions (e g, gasoline) volatile, some
not volatile, 11-.-90°h volatile, depending on
type of oil iOu 121
Oil found in water, air, soil/sediment.
bmota I I I 14 11 262713393051 3133
May persist in environment for many years,
depends on oil, media, environmental condi-
tions where spilled 6 3035 39 -
Oxidation, photolysis. weathering processes,
degraded by microorganisms. petroleum
components taken up by plants and ani-
mals, metabolized by macroinverlebrates
and some other animals 1 7033
Many contain benzene. PAt-Is, and other toxic
components, may be degraded to form .toxmc
products 444711
Yes, suffocation from oxygen depletion 017
Yes, can cause hypothermia, increased need
for food, toss of buoyancy, decreased ability
to escape predators I I 29 17 31 32 56 57 ii
Yes, can be transferred from coated parents
and kill embryos by blocking air exchange at
egg surface and by
toxicitytion 2947469760616261
Yes, can cause starvation or ingestion of oiled
food that clogs organs, destruction of future
food sources, destruction of habitat, commu-
nity effects ’ 9173133 36375 16i6165 -
Results vary by test, organism, condi-
tions 1017666764 Tests submitted by peti-
tioner Other tests 0 5—28 ppm 96-hour
LC5O static tests for some aromatic hydro-
carbons for selected manne
macromnveilebrates and fish 16476$
54536 Federal Register / Vol. 62, No 202 / Monddy. October 20, 1997 / Rules and Regulations
6 Allen and Nelson. 1983
9 Murata et al,1993
‘°Wl uticar et al, 1993
US Department of Health and Human Services, Agency for Toxic Substances arid Disease Registry, 1995b
12 U S Department of Health and Human Services. Agency for Toxic Substances arid Disease Registry. 1995c
3 Dubovktn et al .1981 Translated - -
‘ Rescorta and Camahan, 1945
‘ 5 Wemss. 1983
TABLE 2.—COMPARISON OF VEGETABLE OILS AND ANIMAL FATS WITH PETROLEUM OILS
Vegetable oil/animal fals Petroleum oils
Chemical Form
Physical Properties
Density .. -
Solubility
Viscosity
Volatility
Alkanes. cycloatkanes, aromatic hydrocarbons.
polynuclear aromatic hydrocarbons (PM-Is),
other components in crude Oils
Some liquids, some solids to ii ii ii
Persistence
Physical Effects
Smothenng
Coaling
Egg Contamination
Food and Habitat Destruction --
Lethality (LD 34 , LC 30 )
Acute Toxicity
Laxative, decreased ability to escape preda-
tors, pneumonia, affects lung, liver, kidney,
blood. gastrointestinal and nervous sys-
tems 26 20 47 ST
Chronic Toxicity
-------
Federal Register / Vol 62, No. 202 / Monday. October 20, 1997 / Rules and Regulations
TABLE 2.—COMPARISON OF VEGETABLE OILS AND ANIMAL FATS WITH PETROLEUM OILS—Continued
54537
Toxicity of Components or Degradation
Products
Vegetable oil/animal fats
High-fat diets and diets containing certain
types of fals increase cancer incidence in
studies of laboratory animals and epidemio-
logical studies I 7374 75 767771
High levels of some types of fats increase
growth and obesity but early death and de-
creased reproductive ability in several spe-
aes of animals, elevated levels of some oils
or components decrease growth in some
fish, growth inhibition in mussels exposed to
low levels of sunflower
oil I 2i 35717*10*1*2*3*1 13 16
Decreased reproduction or growth and survival
of offspnng in some animals Ingesting high
levels of oils, kills embryos in eggs by phys-
ical effects, unknown whether toxicity also
occurs 22 33 5637 71
Effects on shells of mussels exposed to low
levels of oils, decreased foot extension ac-
tivity, human and some animal studies show
correlation of high levels of dietary fats with
coronary artery disease, some types of can-
cer, hypertension, diabetes, obesity, altered
immunity, altered steroid excretion, effects
on bone modeling, increased atherosclero-
sis in rats fed high cholesterol levels, de-
creased lifespan in some animals consum-
ing high levels of certain types of oils that
increased growth and obe-
sity I Ii 3377 7171*617
Most common chronic toxic effects of
gossypol. a cottonseed oil component, in
animals are cardiac irregulanty, circulatory
failure or rupture of red blood cells, and
death, erucic acid in rapeseed oil and
mustardseed Oil causes cardiac effects, fat
deposition in hearts of animals, growth sup-
pression, anemia, and other effects, affects
essential fatty acids, cydopropene fatty
acids in cottonseed and other oils suppress
growth and impair female reproduction in
laboratory animals, produce embryomortality
in hens and rats, increase liver toxicity of
other chemicals, and cause liver cancer in
- rainbow trout, oxidation products of animal
fats and vegetable oils—cholesterol oxida-
tion products can adversely affect the heart,
immune system, and metabolism, and some
lipid oxidation products may act in cancer
development and affect atherosclero-
sis i 121711 1* 19 911 9i 9293
High levels of oils upset fermentation and di-
gestLon in ruminants
Rancid odors of breakdown products, fouling
of beaches, polymers formed in water and
on sediments and concrete-like aggregates
of oil and sand foul beaches
i 23$ i9 Ii 12343596
Usually not a hazard, unless hexane or other
chemicals present I 2 3 i7
Petroleum oils
Benzene and some PAHs are human carcino-
gens. certain crude oil fractions and petro-
leum products sufficient evidence of carcino-
genicity in laboratory animals and associ-
ated with increased cancer in refinery work-
ers 17117 ’
Petroleum hydrocarbons affect nearly all as-
pects of physiology and metabolism, re-
duced feeding rates in most animal species
studied at concentrations similar to those in
spills, benthic organisms especially sen-
sitive, varying responses in manne
plants 2*293*17
Affect broad range of reproductive and devel-
opmental processes, sensitivities to hydro-
carbons vary widely between species and
life stages, significant reproductive impair-
ment rarely seen in field although coral,
mussels, fiddler crabs,fish, birds, crusta-
ceans, teleosts can be affected, some for
years, decreased reproductive capacity and
malformations in fish, birds, reduced egg
production and toxicity in several bird spe-
cies 2139303*173960 6i 62
Affect broad range of organ systems and func-
tions, increased vulnerability to disease and
decreased growth a d reproductive suc-
cess, adverse skin effects in workers, com-
ponents affect immune and hematopoeitic
systems ii 39 17 41
Single exposures to benzene. a component of
petroleum Oils, at very high concentrations
fatal in man, can cause central nervous sys-
tem stimulation followed by depression and
respiratory failure, can produce nausea, gid-
diness. headache, unconsciousness, convul-
sions, and paralysis, chronic exposure of
humans to benzene can produce anemia
and other blood effects and decrease im-
mune defense mechanisms, some PAHs,
components of petroleum oils, have repro-
ductive effects and cause birth ‘defects in
animals and can affect skin, body fluids, and
the immune system after short and long-
term exposures in animals, and cause some
respiratory effects in workers, some break-
down products are mutagenic or linked to
carcinogenicity 122*2931474*667991
Fuel Oil no 5 reduced hemng population by
decreasing amphipod grazers that control
fungal damage to fish eggs ‘
Fouling of beaches with tar balls and weath-
ered 011.31 333347
Many petroleum products contain volatile
chemicals that are flammable or explosive
under certain conditions ii Ii *3139
Cancer
Effects on Growth
Reproductive and Developmental Effects
Other Toxic Effects
Indirect Effects
Aesthetics (Fouling, Rancidity)
Fire/Explosion Hazard
-------
54538 Federal Register / Vol 62. No 202 / Monday. October 20. 1997 / Rules and Regulations
TABLE 2—COMPARISON OF VEGETABLE OILS AND ANIMAL FATS WffH PETROLEUM OILS—Continued
Vegetable oil/animal fats
Petroleum oils
Interference With Water Treatment
-
Large amounts can oveiwhelm microorga-
nisms used in water treatment plants, treat-
ment plants must be shut down and alter-
native water supply provided to prevent dis-
ruplion from spills 96979591100
Spills can interfere with water treatment proc-
esses. requinng shutdown of plants and pro-
vision of alternate water supply, can con-
taminate groundwater 12979$ 99
Hui, 1996a
2 Hotfrnann, 1989
3 Lawson. 1995a
NAS. 1985a
Hui. 1996b
6 Hazardous Substances Data Base. National Library of MediQne, 1997
7 CHRIS (Chemical Hazards Response Information System). DOT. 1991
• CHRIS (Chemical Hazards Response Information System). DOT. 1995
• Merck Index. 1989
‘°Whiticaretal 1993
Dubovkin et al, 1995
I2USDHHS/ATSDR 1995b
“ Matenal Safety Data Sheet on Corn Oil. 1997
‘ ftdIen and Nelson. 1983
Rescorta and Camahan. 1936
‘ t weiss 1983
11 Murata et al. 1993
‘ USDHHSIATSDR1995a
‘ Salgado. 1992
20 Mudgeetal, 1993
21 Mudge, 1995
72 Crump-Wiesner and Jennings. 1975
23Rus ll and Carlson, 1978
24 Sanders et al . 1980
25 Shaw. 1977
26 1977
27 Teal. 1977
28 Alexander 1983
20 Hartung. 1995
3C USDOCINO A. 1996
USDOCINOAA. 1992b
2 Cla,j( 1993
“NAS, 1985d
34 Mudge, 1997a
35 Mudge, 1997b
“Minnesota. 1963
7 USDHHS. 1963
“ Entnx. 1992
39 USDOC/NOAA, 1992a
40 Hui. 1996d
“Ratledge, 1994
42 Hayes, 1982
‘ Mattson. 1973
“Berardi and Goldblatt, 1980
Rechcigl. 1983
“NAS. 1985c
47 NAS. 1985e
‘ IARC. 1989
“Mudgeetal, 1995
5° Mudge et al 1997b
51 Straughan. 1977
52 Groenewold et al . 1982
° Institute. 1985
Michael. 1977
“ USDOI(FWS, 1994
° 5 Fnnk, 1994
‘ Fnnk and Miller. 1995
°° Rozemeijer et al. 1992
° 9 Smith and Herunter, 1989
•°Albers, 1995
61 Leighton, 1995
• 2 Albers. 1977
• Szaro and Albers. 1977
•4 Croxall, 1975
° Lyall. 1996
66 P(laassen et al. 1986
67 Rand. 1985
• Mecklenburg et al. 1977
“Boyd. 1973
T0 USEPA, 1976
‘ Gilman et al. 1985
72 Lewis. 1996
73 L)SDHHS. 1990
‘ 4 NASINRC, 1995
-------
Federal Register / Vol 62, No 202 / Monday, October 20 , 1997 / Rules and Regulations 54539
75 Tannenbaum, 1942
“Carrot, 1990
“Freedman, 1990
7 °FAOAWHO 1994
“IARC 198.1
°NASThIRC 1983
“NASfNRC, 1981a
‘ 2 Takeuclii and Watanabe, 1979
“ Stickney and Andrews, 1971
84 Stickney and Andrews, 1972
85 Murray et at, 1977
“ Salgado, 1995
67 Sellers and Baker, 1960
• Frankel, 1984
88 Hendncks et al, 1980a
“ Phelps et al. 1965
‘ Miller et al, 1969
82 Rome et at, 1960
° 3 Yannai, 1980
84 USDHHS/ATSDR. 1 995d
“Van Soest, 1994
86 Riaqer, 1997
87 USEPA, 1978, Identification of Conventional Pollutants. 43 FR 32857—32859, July 28. 1978
“USEPA, 1979, Final Rule. Identification of Conventional Pollutants, 44 FR 44501—44503, July 30. 1979
88 Metcalf and Eddy. 1972
‘°°Goodnch, 1980
TABLE 3 COMPARISON or AQUA METHODS AND STANDARD ACUTE AQUATIC TESTiNG METHODS
48 hours
96 hours (96 hours)
96 hours, except 48 hours for daphnids and midge
larvae, record mortality at 24. 48. 96 hours for
LC
96 hours preferred, mortality at 24, 48, 72, 96
hours. LC 5 ,, 95% confidence limits (96 hours)
24—48 hours. 96 hours, some stales (24—96
hours, depends on requirements)
96 hours for LC 3 ,, 24 hours, range-finding
96 hours preferred, modality recorded at 24. 48.
72. and 96 hours and LC ,
No—Set 1
Yes—Crude soybean oil and diesel fuel, set 2 aer-
ated for 48 hours, others not aerated
(No, except aerate reconstituted water pnor to
use)
May gently aerate all chambers and controls, use
simultaneous test withbut aeration. toxicant con-
centration in aerated chamber not more than
20% lower than unaerated
Dilution water aerated until oxygen saturation.
stored 2 days without further aeration
May alter results, only as last resort, none, unless
dissolved oxygen <4mgll, at which time gentle
single-bubble aeration (Aeration rate not over
100 bubbles /mm in all test solutions)
Avoid aerating, because aeration may alter re-
sults
May be used if no significant loss of test sub-
stance, must show test substance concentration
al least 80% nominal concentration over test
penod
Method
Number of species
Fish size
Acclimation
AQUA Report 1993 .
1—Fathead minnow
0066±0041 g, 204±3 7 mm, approximately
4 weeks old
5 days
USEPA/OPP 1982 (up-
2—1 warmwater, 1
0 5-5 g. very young not used, longest no
(At least 2 weeks)
date 1985)’
cotdwater (2—1
warinwater, 1
co ldwater)
more than twice shortest (0 5-5g)
ASTM 1986
List of recommended
species
05-5 usually, not very young, similar size
and age. length of longest no more than
twice shortest
2 days or more with 100% dilution water and
maximum temperature, change no more
than 3 °C over 72 hours
USEPAJOTS 1985 (up-
Fathead minnow or
2±1 cm recommended length
Held 12 to 15 days before testing, maintained
date 1987)
other listed species
in water of quality to be used in test at
least 7 days
USEPNORD 1985 (up-
Species depends on
Age 1—90 days (Age 1—14 days) .
At least 24 hours in 100% dilution water at
date 1991) (update
regulatory require-
temperature range of test
1993b)2
ments
APt -IA 1989 .,
List, sensitive to ef llu-
ent, matenal. emmi
conditions
Most sensitive life stage, depending on test
purpose, longest no more than 1 5 times
length of shortest
Acclimate fish to lab conditions at least 14
days, 100% dilution water for at least 2
days
OECD 1984. . .
I or more .
Recommended total length for several spe-
aes, 2±1 cm for fathead minnow, rationale
if others
12 days or more, fish exposed to water of
test quality and temperature at least 7
days
EEC 1984 -
1 or more ..
Recommended length 5±2 cm for fathead
minnow
12 days or more, fish exposed to water of
test quality and temperature at least 7
days
Method
Static test duration
Aeration
AQUA Report 1993
USEPNOPP 1982 (update 1985)
ASTM 1986
USEPSA/OTS 1985 (update 1987)
USEPAIORD 1985 (update 1991)
(update 1993b)
APHA 1989
OECD 1984
-------
54540 Federal Register / Vol 62, No 202 / Monday. October 20. 1997 / Rules and Regulations
Method
Static test duration
Aeration
EEC 1984
96 hours preferred, 48 hours minimum, morality
recorded each 24 hours and LC , ,
Method
Test Vessels
Dissolved oxygen
AQUA Report 1993 ,
LJSEPAIOPP 1982 (update 1985)
ASTM 1986
LJSEPNOTS 1985 (update 1987) . .
LJSEPNORD 1985 (update 1991)
(update 1993b)
APHA 1989
OECD 1984
EEC 1984
I
Polyethylene buckets
(Glass or welded stainless steel, polyethylene ab-
sorbs test matenals, for other rnatenals, analyze
toxicant concentration)
Welded stainless steet or glass, size and shape of
chamber may affect results if toxicant volatilizes
or sorbs onto chamber.
Not contain substances that leached or dissolved
into aqueous solutions or chemical sorption,
glass, stainless steel, perttuorocarbon plastic
Usually soft glass (Borosilicate glass or non-toxic
disposable plastic. covered),
No matenal with teachable substances or adsorbs
substances from water stainless steel probably
best, glass adsorbs organics. do not use rubber
or plastics with fillers, additives, stabilizers.
Chemicaily inert matenals . suitable capacity .
, ,,
Protocol says not below 4 5 mg/i (but was below
4 5 in 100% beef tallow and all concentrations
of crude soybean oil. Set 1)
Measure concentration at start and every 48 hours
to end, first 48 hrs, 60—100% saturation, then
40—100% (Measure in control, high, medium.
low concentration)
60—100% saturation for first 48 hours. 40—100%
saturation after 48 hours
Maintain above 4 5 mg/I or at least 60% air satu-
ration value
4 mg/I minimum warmwater species. 6 mg/I mini-
mum coldwater species
At or near saturation, never below 4 mg/I or 60%
saturation
At least 60% of air saturation value throughout
At least 60% of air saturation value at selected
temperature throughout
Method
Dilution Water
Chemical Analysis of Concentration
AQUA Report 1993
U$EPNOPP 1982 (update 1985) ..,.
ASTM 1936 , . .
USEPAfOTS 1985 (update 1987) .
.
USEPNORD 1985 (update 1991)
(update 1993b)
APHA 1989 , . . .. .
OECD 1984
EEC 1984 . ...
72 mg/I CaCO 3 (moderately hard, lab fresh water
deionized)
Descnbe source, charadenstics. pretreatment
(Reconstituted water, soft, aged 1—2 weeks,
aerated before use or natural water, hardness
40—48 mg/I as CaCO, animals not stressed)
Test organisms survive without stress or grow and
reproduce, reconstituted, surface, or natural
water, requirements descnbed
Dnnking, natural, or reconstituted water, 50—250
mg/I as CaCO . pM6—8 5 preferred
.
Receiving water, other surface water, ground
water, soft synthetic water (Same water, cultur-
ing and dilution)
Reconstituted or natural water standard water
conditions for comparative toxicity, sensitivity
tests
Dnnking, natural or reconstituted water, prefer
hardnesS 50—250 mg CaCO 3 per liter, pH 6—8 5
Dnnking water, natural water, reconstituted waler
preter 50—250 mg/I as CaCOj. p 1 46—85
None reported, nominal concentrations listed in re-
port
Describe methods, concentration, validation and
blanks if done (Chemical analysis of test solu-
tens preferred, especially if aerated, matenal in-
soluble, containers not stainless steel or glass,
or chemical adsorbs to container)
Measure concentration at beginning and end in all
chambers if possible, desirable to measure deg-
radation products and report methods of analy-
sis, standard deviation and validation studies
Measure concentration in each at beginning and
end, validate analytical methods, degradation
products not interfere, replicates within 20%
(Concentration in each chamber not vary >30%
from measured at start)
Use methods in CWA Sec 304(h) for analysis
(Measure in each test concentration at start.
daily, and end).
Measure concentration In each container at start
and once dunng test, measured concentration
within 15% Of calculated
Must show concentration maintained and meas-
ured concentration at least 80% of nominal
Evidence from analysis, chemical properties, or
test system used that concentration maintained
and within 80% of initial concentration
Method
Results reported
AQUA Report 1993 48-hour LCw, no confidence limits reported, but protocol says intervals computed
USEPAIOPP 1982 (update 1985) . Effect cntena, percent with effects, 96-hour LC,, 95% confidence limits, slope or show LC , 0 >100 mg/I (at
least 30 organisms exposed) or >100,000 times maximum expected environmental concentration oresti-
mated environmental concentration (Methods, matenals, organisms, LC 30 , 95% confidence limits, slope,
calculations, chemicat analysis)
ASTM 1986 24, 48, and 96-hour LCw, 95% confidence timits, percentage died at each concentration and controls, cal-
culation methods, and detailed information on test and organisms and findings, validation studies for an-
alytical methods and accuracy
USEPNOTS 1985 (update 1987) , Test procedures and conditions, preparation of test solutions, maximum concentration with 0% mortality.
minimum concentration with 100% mortality, cumulative mortality each concentration and time, LC , 0
based on nominal concentration at each time, 95% confidence limits, concentration-mortality curve at
end, procedures for determining IC 1 0 . mortality of controls, test according to guidelines
-------
Federal Register / Vol 62. No 202 / Monday. October 20, 1997 I Rules and Regulations
54541
Method
Results reported
USEPA/ORD 1985 (update 1991)
(update 1993b)
AP I-IA 1989 - .
OECD 1984 ....
EEC 1984 - ,.....,
Chemical analysis, organisms died or effect in each chamber, observations, LC, 0 . 95% confidence inter.
vals and methods to calculate, deviation from methods (Raw toxicily data, relationship between LC ,
and NOAEL if NOAEL, pass/fail} - -
LC,,’s for exposure times, 95% confidence limits, mortality in controls, describe test conditions and meth-
ods, observations, test matenat, response critena
Cumulative percent mortality vs concentration, LCw, confidence limits, p0 95, where data inadequate,
geometric mean of highest concentration with 0% mortality and lowest concentration with 100%
Methodology, highest concentration with 0% mortality, lowest concentration with 100% mortality, cumu-
lative mortality, control, LCw, 95% confidence limits, LC 5 . calculations, dose-response at end, slope, dis-
solved oxygen and pH and temperature every 24 hours
Method
Special considerations
AQUA Report 1993
USEPAJOPP 1982 - .. -
(update 1985) ... .. ..
ASTM 1986 ....,.....
‘
USEPA/OTS, 1985 . - .
(update, 1987) . -
USEPA/ORD 1985 ..
(update 1991) .....
(update 1993b) ......
API-IA 1989 . ..,.....
OECD 1984 .. ..
EEC 1984
Required to register end-use pesticide product introduced directly into aquatic environment. LC 5 , below qr
equal to maximum expected environmental concentration, or ingredient enhances toxicity
(Required if insoluble, flow-through if high 600, 17—22 °C, at least 10 organisms/concentration, loading
limits, reviews statistical analysis. invalid if aerated or not glass or solubility problems)
Use flow-through if chemical has high BOD. loading limits specified so dissolved oxygen acceptable, meta-
bolic products not above acceptable level, ant no crowding, temperature not vary’ 1°C, 10 organisms
per concentration group
Guidelines for development of test rules standards, test data under Toxic Substances Control Act, loading
limits, 23° ± 2°C
For National Pollutant Discharge Elimination System effluents, definitive vs screening tests, loading, limits,
20° C, 2 replicates. 10 organisms/concentration
(If pH outside 6—9, two parallel tests, one adjusted, or static renewal or flow-through)
5 concentrations and control, 10 fish/tank, 20 fish/concentration, species in receiving water or similar,
available for tests, healthy in lab, important trophic link or economic resource
21—25° C, cany out without pH adjustment, adjust pH of stock solution if necessary so concentration not
changed and no reaction or precipitation -
20—24 °C ± 1°C. carry out without pH adjustment. adjust if necessary, interpret results with care if stability
or homogeneity of tes l substance not maintained
‘In some instances, other test conditions were allowed (USEPA. 1996) Draft Amendment 10 Standard Evaluation Procedures, 1996 states
Individual fish should weigh 0 1—5 g Hardness of natural dilution water of less than 200 mg/t as CaCO3 can be used in lieu of reconstituled
water for organic chemicals Chemicals that are poorly soluble or with a water sotubility less than 100 ppm (<100 mg/i) should be tested up to
the maximum water solubilily if certain conditions apply
2 Final Report of Fourth Edition, August, 1993
TABLE 4 —EFFECTS OF REAL-WORLD OIL SPILLS
Name and location of spill
Oil spilled
Effects
Minnesota Soybean Oil and Petro-
leum Oil Spills (1962—1963) i 3
Fanning Atoll Spill (1975)’
Kimya Spill,
(1991)426 1 5
North Wales
Rapeseed Oil Spills (1974—1978)
(1989) ‘ 3
1 to 1 5 million gallons soybean oil
from storage facilities. I mition
gallons low viscosity cutting oil
Cargo ship with coconut oil, palm
oil, and edible matenats, ran
aground, dumped cargo onto
coral reef
Cargo of unrefined sunflower oil
3 small spills, total about 35 bar-
rels rapeseed oil
About 10 barrels (400 gallons) of
rapeseed oil
Killed thousands of ducks and other waterfowl and wildlife or injured
them through coating, 5.300 birds injured or died. 26 beavers. 177
muskrats
Formed stnngy, rubbery masses with slicks, sank to bottom, milky
matenal and hard crusts of soybean oil with sand on beaches
Soybean oil caused much of waterfowl loss, as shown by lab analysis
of oil scraped from ducks
Effects similar to petroleum oil spill
Killed fish, crustaceans, mollusks, shifts in algal community continued
for 11 months
Killed mussels, shifts in ecological communities around spilt
Potymerized, covered bottom, killed benthic organisms, formed imper-
meable cap, shut out oxygen, bactena cannot break down, poly-
mers remain nearly 6 years later.
Concrete-like aggregates of oil and sand on beach
Lab studies of mussels show small amounts of sunflower and other
vegetable oils kill mussets after 2 weeks, affect mussel lining
Greater losses of birds from 3 small spills of rapeseed oil than 176
spills of petroleum oils over 5 years in Vancouver Harbor
Killed 500 birds, petroleum spills killed less than 50 birds
Perhaps vegetable oils lack strong. imtating odor of petroleum oils, so
birds do not avoid
88 oiled birds of 14 species, half of them dead, half of rescued birds
died, casualties probably higher
About 300 oiled Ban’ow s Goldeneyes spotted 2 days after spill
crowded onto islands where they remained for 2 days—fate un-
known, but weakened birds often die
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54542 Federal Register_/ Vol 62. No 202 / Monday. October 20. 1997 / Rules and Regulations
TABLE 4 —EFFECTS OF REAL-WORLD OIL SPILLS—Continued
Name and location of spill
Oil spilled
Effects
Fat and Oil Pollution in New York
Wide vanety of sources
Killed waterfowl, coated boats and beaches, tainted fish. aeated taste
State Waters (1967)11
and odor problems in water treatment plants.
Grease like substances on shore or floating on Lake Ontano, shore-
line grease bats smelled like lard, analyzed as mixtures of animal
and vegetable fats
Spills of Fish Oil Mixtures near
Fish factory effluent pipe near
Killed at least 709 Cape Gannets. 5,000 Cape Cormorants. and 108
Bird Island. Lamberts Bay. South
breeding ground for Cape Gan-
Jackas Penguins —
Africa (1974)12
nets
Penguins with sticky, white, foul-smelling coat of oil shivenng. gannet
chicks dead
Milky white sea and clots of oil on island smelling of fish
Releases at two other fish factones
Two other fish factories, storage
Two other fish factories, at one. kthed 10,000 rock lobsters and thou-
at St Helena Bay and Saldanha
pits and processing effluents
sands of sea urchins probably from oxygen depletion, at second.
Bay. South Africa (1973)13
and off loading water from yes-
sels
killed 100,000 clams and black mussels, prawns, polychetes, and
anemones, and smelled bad and adversely affected aesthetics of
beaches and camping sde
Soybean Oil Spills in Georgia
Soybean oil from tanker truck and
Aesthetic effects at Lake Lanier- rancid oil as weathered, adhered to
(1996)14
soybean vegetable oil refinery
with overfihled aboveground stor-
age tank
boats and docks
At Macon, rapid response prevented significant damage from oil,
which flowed through storm water system and entered stream, pre-
vious spills from facality had entered sanitary sewer system and
damaged sewage treatment plant
Spill of Nonylphenol and Vegetable
Unknown source
Thousands of seabirds, mostly Guillemots and Razorbills. washed
Oils in Netherlands (Decem-
ashore
ber,1988 to March. 1989)15
1,500 sick birds died, covered with oil, emaciation, aggressive behav-
ior, bloody stools, leaky plumage, liver damage, lung infections
High levels of nonyiphenol and vegetable oils, such as palm oil
Wisconsin Butter Fire and Spill
Butter, lard, cheese as well as
Released 15 million pounds of butter and 125,000 pounds of cheese
(1991)16 17.11 iP 20212223
meat and other food products
into the environment and damaged at least 4 5 million pounds of
meat, thousands of pounds of butter ran offsite. rapid response pre-
vented flow of buttery material through storm sewers to nearby
ca’eek and lake, where fish and other aquatic organisms could have
suffocated from oxygen depletion
Destroyed two large refrigerated warehouses with $10 million to $15
million in property damage
Cost tax payers $13 million for butter and cheese stored under USDA
surplus program
Damage to fire equipment from grease, loss of business, overtime
pay for 300 firefighters and responders, costs for cleaning equip-
ment and drains, rodent control
Environmental deanup costs, thousands of gallons of melted butter,
butter and spoiled meat declared hazardous waste
i Minnesota, 1963
2USDHNS, 1963
Russell and Carlson, 1978
Salgado. 1992
S Mudge et al. 1993
‘Mudge et al, 1995
‘Mudge. 1997a
‘Mudge, 1997b
O McKelvey et al, 1980
10 Smith and Herunter, 1989
iiCpJmp. jesner and Jennings, 1975
Percy-Fitzpatrick Institute. 1974
“Newman and PollocIc. 1973
Rigger. 1997
ilZounetaI 1991
ioWsconsin 1991a
i 7 tfIisconsin 1991b
“Wisconsin, 1991c
State Journal, 1991a
‘°Wtsconsin State Journal, 1991b
Wisconsin Stale ,Journal, 1991c
22 Wisconsin Stale Journal. 1991d
23 Wisconsin State Journal. 1991
Appendix IT—Edible Oil Regulatory
Reform Act Differentia(ion
Edible Oil Regulatory Reform Act
Congress enacted the Edible Oil
Regulatory Reform Act on November 20,
1995 The Act requires all Federal
agencies (with the exception of the Food
and Drug Administration) to (1)
differentiate between and establish
separate classes for animal fats and oils
and greases. fish and marine mammal
oils, oils of vegetable origin, including
oils from certain seeds, nuts, and
kernels, from other oils and greases.
including petroleum, and (2) apply
standards to different classes of fats and
oils based on certain considerations in
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Federal Register / Vol 62. No 02 / Monday. October 20. 1997 / Rules and Regulations 54543
differentiating between the classes of
fats, oils, and greases, each Federal
agency shall consider differences rn the
physical. chemical, biological, and other
properties, and in the environmental
effects, of the classes These
requirements apply when Federal
agencies are issuing 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
EPA s Final Rule amending the Oil
Pollution Prevention regulation (Oil
Pollution Prevention. Non-
Transportation-Related Onshore
Facilities. Final Rule. 59 FR 34070. July
1. 1994) was promulgated before the
Edible Oil Regulatoiy Reform Act was
enacted, Congress did not make the
requirements of the Act retroactive EPA
Is. therefore, not obligated to evaluate
the statutory criteria to determine if a
further differentiation between edible
oils and other oils should be made in its
Final Rule EPA does, however, present
the following information in support of
its conclusion that spills of vegetable
oils and animal fats can indeed pose a
serious risk to fish. wildlife, and
sensitive environments
A summary of the properties and
effects of vegetable oil and animal fats
are presented in Appendix I. Tables 1
and 2 Additional detailed discussion
and studies of these properties and
effects are contained in the Technical
Document in support of this document
Physical Properties Vegetable oils
and animal fats are generally solids in
water at ambient temperatures They
both have limited water solubility but
high solubility in organic solvents They
generally are of low viscosity, have a
low evaporation potential, and their
specific gravity can range from 0 87 to
0 92 Petroleum oils also have limited
water solubility and high solubility in
organic solvents They form an
emulsion in turbulent water, and they
evaporate faster than edible oils Their
specific gravity can range from 0 78 to
0 97. Data regarding petroleum oil’s
solidity and viscosity vary (See
Appendix I. Table 1 Comparison of
Physical Properties of Vegetable Oils
and Animal Fats with Petroleum Oils
and Table 2 Comparison of Vegetable
Oils and Animal Fats with Petroleum
Oils
Vegetable oils and animal fats and
petroleum oils all have similar physical
properties One difference is the low
volatility of most vegetable oils and
animal fats, which results in less
product removed from a spill by
evaporation and reduces the combustion
and explosive potential of these oils
Chemical Properties Animal fats and
vegetable oils are water-insoluble
substances that consist predominantly
of glyceiyl esters of fatty acids or
triglycerides Petroleum oils are
extremely complex mixtures of
chemical compounds Many classes of
compounds are present in petroleum.
and each class is represented by many
components For example.
hydrocarbons are a major class of
t’ristituents of petroleum Similar
behavior of fatty acids and petroleum oil
in the aquatic environment is largely a
result of their predominantly
hydrocarbon character
Biological Properties Some vegetable
oils and animal fats do biodegrade more
readily than petroleum oils, however.
because their evaporation potential is
low, vegetable oils and animal fats may
tend to stay in the water in larger
quantities and for longer periods of time
than petroleum oils Under certain
circumstances, vegetable oils and
animal fats can remain in the
environment for periods of time greatly
exceeding their potential degradation
time Environmental circumstances play
an important part with regard to the
comparative degradation rates of
petroleum and non-petroleum oils
including vegetable oil and animal fats
Both kinds of oil degrade more slowly
in low-energy and poorly oxygenated
waters, and both tend to disappear
quickly in high-energy, well
oxygenated. open water areas Both
petroleum and non-petroleum oils can
remain in the environment for extended
periods of time if buried under sediment
or spilled in large enough quantities to
form thick layers The high BOD of
vegetable oils and animal fats increases
the rate of biodegradation but also
quickly depletes the available oxygen of
the surrounding environment This
could result in significant harm to
shallow near-shore areas or wetlands
Oxygen depletion could be as serious as
toxicity with regard to its impact on
aquatic wildlife
Environmental Effects Certain effects
of non-petroleum oils are similar to the
effects of petroleum oils because of the
physical properties common to both
Significant environmental harm from
petroleum oils, animal fats and
vegetable oils, and other non-petroleum
oils can occur as a result of the
following physical effects such as
coating with oil, suffocation.
contamination of eggs and destruction
of food and habitat, short and long term
toxic effects, pollution and shut down of
drinking water supplies, rancid smells.
fouling of beaches and recreational
areas
Summary of Analysis after Reviewing
the Act s Criteria Based on the
significant degree of similarity between
animal fats and vegetable oils and other
jetroleum and non-petroleum oils,
especially with respect to negative
environmental effects associated with
the common physical properties of all
oils. EPA stands by its decision not to
make further changes to its July 1. 1994.
Final Rule The Final Rule already
provides a greater degree of flexibility
for owners or operators of facilities
storing only non-petroleum oils.
including vegetable oils and animal fats.
to devise different and more appropriate
response strategies than owners or
operators of petroleum oil facilities
IFR Doc 97—27261 Filed 10—17—97, 8 45 aml
BIWNG CODE 6560-60-P
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F:
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7
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24080
NOTICES
DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE
Offic. of Education
ENVIRONMENTAL EDUCATION
Notice o Postponement of Closing
Dot. for Submission of Proposals
for Fiscal Year 1972
In order to permit eLigible applicant.,
additional time to prepare and submit
proposals, notice Is hereby given that In
order to be assured of consideration for
funding from approprlatlcms for fIscal
year 1972, an application for assistance
under the Environmental Education Act
(20 U.S.C. 1531—1536) must be post-
marked at a U.S. Poet Omce by Janu-
ary 23, 1972. Application form.s may be
obtained from and are to be flied with
the Office of Env lronmentaj Educ&atlon.
Omce of Education, 400 Maryland Ave-
nue 8W., WashIngton, D.C. 30201.
The previous closing date of Decern-
ber 17. 1971, published In the PIDIRAL
Bxasarxa on November 17, 1911 (36 PP..
21900, 21901) L hereby superseded.
Dated: tlecember 10, 1971.
S. P. MARLAND, Jr..
U.S. Commissioner of EducaUon.
IP1 Doc. ’ll—18521 P ed 12—17—1l;O47 am]
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
iDc.aket No. D—71.-I31}
ASSISTANT COMMISSIONER - COMP..
TROUER. El AL., HOUSING PRO-
DUCTION AND MORTGAGE
CREDIT-FEDERAL HOUSING AD-
MINISTRATION
Rodolegaled Authority
All rcdciegatlons of authority and as-
signinente of functions by the AssLstant
Secretary for Housing Production and
Mortgage Credit to the Assistant Com-
missioner Comptroller, the Director Ac-
counting Dtv1 ion, the Director Insurance
Division. the Director Fiscal Division. and
their respective Deputies, issued on or
prior to the effective date o! this docu-
ment. ure aclopt.rd by the Assistant Secrc-
tary for housing Management inMotar as
the issuancee concern matters or Stint-
tions deiegui.ed or assigned to the Assist-
ant Secretary for housing Management
(Secretary’s delegation of authority pub-
Jiahed at. 36 P.R 5005, Mar. 16, 1971.)
Effecl(vc date. This redelegation of
authority I effective on publication In
the Procssr. Rrcuirrs (12—18—71).
Nosatsmc V. Wsrsor .
Assistant Secreiarg
for Iloualno Mana rnirrit.
1?1L Doe 71—1001 5 F1le 1 12-I7- 7 ,8 40 arn
DEPARTMENT OF
TRANSPORTATION
Coast Guard
MEMORANDUM OF UNDERSTANDING
BETWEEN THE ENVIRONMENTAL
PROTECTION AGENCY AND THE
DEPARTMENT OF TRAP4SPORTA-
TION
This memorandum establishes olIcLes
and guideline., relating to the uettnitlon
of transportation and non tr tnsportaUon
related onshore and offshore facillUes
and the responaibil1Uc of the Environ-
mental Protection ! gency and the U.S.
Coast Guard with respect to the preven-
Uon of oil discharge., from vessels and
onshore and off shore laclilties.
Szc’nox !—Ox, xpss.
I. Section 11( )f1)(C) of the Federal
Water PoUutlon Control Act, as amended
authorizes the President to issue regula-
Uonz consistent with maritime safety and
with marine and navigation laws estab-
hishlng procedures, methods, and require-
ments for equipment to prevent dis-
charges of oil from vessels and onshore
and offshore facilities.
2. Thl authority wan delegated by the
President in Executive Order 11548. Sec-
tIon 1 of that Executive order delegates
responsibility and authority to the Sec-
retary of the Interior to carry out the
provisions of subsection (j) (11(C) of eec-
tion 11 of the Act after consultation with
the Secretary of Transportation relating
to procedures, methods and requirements
for equipment to prevent discharges of
oil from nontransportntion related on-
shore and offshore facilities. The author-
ity delegated to the Secretary of the
Interior was eubsequenUy vested in tli
Administrator of the Environinent,a.l Pro-
tection Agency In ReorganIzation Plsn
No. 3 of 1970 and section 9 of Executive
Order 11548.
3. BecUon 2 of Executive Order 11540
delegates responsibility and authority to
the Secretary of Transportation In con-
sultatlon with the Secretory of the In-
terior, to carry out the provisions of
subaoctiofl (j) (1) (C I of section ii of the
Act relating to procedures, methods and
requirements for equipment to prevent
discharges of oil from vem sels and trims-
port.atton-i ciat t onshore and offshore
facilities. The Secretary of Transports.-
don in turn redciccntcd this authority
to the Commandant, U S Coast Guard.
4 Although Executive Order 11548 dI-
vided responsibility and authority into
transpol ta-Uon-relatcd o.nc( nontriuis-
portation-rolated faciiiUcs, no indication
of the extent of transportation relation
is given. Zn the broadest sense every
facility is transportation related Any
activity that can possibly discharge oil
must transport materials to some ox tent
and have materials transported either
to, from, or by the facility.
5 In distinguishing between truto-
porhttioii-relatctl and ontrmuuporta-
tion-relaled facilities, a syst.ew approach
was utilized. ft Is recognt ed that the
life-cycle of oil is charv ter1z.ed by var-
ious operations conducted at many dif-
ferent types of fs’cilltlea. Moot facilities
necessarily eng .ge in more than one type
of operation. These operation.s include
drilling, producing, refl.ning, storing,
trun.sforrlng, transporting, using and dis-
poting. To the extent possible and con-
aderirig agency resource capabilities arid
expertise, it Is considered moat practical
to assign one agency the responsibility
for regulating a complete operation at
any one facility. The Department of
Transportation will generally be respon-
sible for regulating the transferring of
oil to or from a vessel at any facility
Including terminal facilities: the traris-
porting of oil via highway, pipeline, rail-
road, or vessel: and certain storing oper-
ations The Enviroame tal Protection
Agency will generally be responsible for
regulating drilling, producing, refIning.
storing, disposing arid certain trans-
ferririg operations at various types of
facilities.
6. While the following definitions are
intended to be as specific and inclusive
as possible, it Is recognized that certain
problems concerning these definitions
will arise from time to time requiring
the cooperation arid agreement of the
Department of Transportation and the
Environmental Protection Agency for
resolution.
Szc’rzoic fl—Dxrnrrrross
The Environmental Protection Agen-
cy and the Department of Transporta-
tion agree that for the purposes 3f Ex-
ecutive Order 11548, the term—
(1) ‘Non-tra.naportation-related on-
shore and offshore facilities” means—
(A) Fixed onshore and offshore oil
well drilling facilities including all
equipment and appurtenances related
thereto used In drilling ..peraUons for
exploratory or development wells, but cx -
eluding any terminal facility, unit. or
process Integrally associated ith the
handlIng or transferring of oil In bulk
to or from a vessel.
(B) Mobile onshore and offshore oil
well driiltng platforms, barges, trucks, or
other mobile facilities including all
equipment and appurtenances related
thereto when such mobile facilities are
fixed in posItion for the purpose of drill-
ing operations for exploratory or devel-
opment wells, but ex. iuding any terminal
facility, unit or process Integrally as -so-
elated with the handling or transferring
of oil In bulk to or from a vessel.
- (C) Fixed onshore and offs rore oil
production structures, platforms, der-
ricks, and rigs Including all equipment
and appurtenances related thereto, as
wcll 11.5 completed wells and eilhcad
equipment, piping from wellhcad.s to oil
aeparatoro, oil separators, and aI,or-asce f a-
duties used in the production of 1l, but
excluding any terinln.a.1 facility, writ or
process Integrally associated with the
handling or transferring of oil In bulk
to or froni a vessel.
P 50 51*1 5 1 0 ) 1 1 5 5. VOL 36, 540 244—SAIL)RDAY, OEC(MSER Ii, 197%
-------
fD Mobfle onthore and o ihoye cC
production facllitL Including all e utp-
m ont and appurtona es related thereto
U well as cosOploted wells aM welihead
ulpmmt. piping from weilkeads to eLI
separator .. oil separtlore. and st o rage ft.
cUlUm ased in the produc oo of oil
when mcli mobUe tscUl .ie fixed In
poaltion for the p irp e of oil produethm
operuUons , but excluding any terminal
facility. unit or procms inlegrp.lly a&socl-
s.ted wft.h the baMling or tranaf ’Tg
of oil in bulk to or from a
(E Oil refining faclilUm including all
ulpment end appurtenances related
thereto as well as In-plant proceutng
unit.e. storage unite. piping. drainage
ayat.ems and wa.ste t aimen; unit. used
I the refIning of oil, but excluding an3
terminal facility, unit or pTor tote-
greily associated WIU ’i the handling or
tranMerrtrig of oil In bulk to or from a
vtr.sse l.
F) 011 etorige tacWtle .s including all
e u1pment and eppurtonanece related
thereto as re1i es fixed bulk piont ito ?.
age. terminal oil storage fadUlUm, con.
ewner storage. pumps and drainage
systems USed In the storage of oil, but
e:eludi.ng in-line or breatout storage
tc. k nerdc r the con lnuoua opera-
ton of a pipeline system md en ter-
minal facult y 1 1 iIt o ççss 1flIe r y
v th the ha!1dli or traaiier-
or hu1 ‘ or from s Vesse I .
(01 adustrtn1, co cls1 a9T1CU3
or pubic facWUca which use and
etere o , but eacludiag an terminal ta-
clJ ty, unIt or process Integrally escort-
will the handling or tIIInsZrTIng
o oil to bulk to or from a r e1.
( !} Vaste tre tnient facilities in-
c u . ng In .plent pipelines. e ueet die-
C arge lil . ax storage tanks, but c i-
c u .L ’ig raste treotent XccUlUe located
or. veuex an terminal storage tanks and
purteIrnnce1 for the feception of oily
ba Ic. t water or tank washings from yes-
eeL an associated systems used for ofl-
In3 ing vessels.
( Xi Loading rocks. transfer hoses.
loading arms end øther e ulpz eat which
rre a,pur. nnnt to a eonu%nsportatlon
related XacJlty or ter inttl jacwty and
v:h!cb crc used to tranetei oil in bulk
to or from highway vehiciM or railroad
cars
(.7) Ttlghwoy vehicles and railroad
c.rs whieb are used for the transport of
o Il exclusively within the conMss of a
aontrozupoetntlon related IccWty end
which are ot Intended to transport oil
I n lntcratate or I .ra&4t e commerce.
(K) Pipellnc ailtems which sie used
for the transport of uU exclusively within
the confines 01. a nonlransportatlon re-
Inteti furiluty or terminal facility and
v,hteh arc no. intended to transport oil
rn Interstate or Intrastate commerce, but
r ’ccIu lIn( pipeline systems wed to troris-
Inbuloortromovcssel.
I Lansportatlcsi.y .Iatcd onshore
and ollohprx LadUIUcs ’ mesas—
(A) Onshore end oIT hore terminnl fit-
r 1 ilUva lrtCiudlng transfer hoses. loading
r nn nnU othi r equizimant and appur-
tt!uaiflcc i ueed for Ilic purpose of lirui—
dIin or Irensferrin oil in bulk to or
NOT1C!S
from a ressel is we!] as storage tanks
and appurtenances for the reseption of
oily ballast Water tank washings fT
wasel.. but exdindlog tes ’mlnsi waste
vextinent facilities sr.1 terminal 01)010?-
age facilities.
I D) Tranofer hosos, leading arms
arid other equlpmeot appurtenant to a
‘eontmnaportatIoa related faculty which
is used to transfer oil In bulk to or from
a hse1
(C) Interstate sod intrastate onshore
iM olyihore pipeline systems Including
umpo end appurtenances related thereto
u well as in-line or breakout atarage
azk.s needed for the eootinuoua opera-
inn of a pipeline system. and pipelines
• rcm onshore and offshore oil production
:‘aciVUes, but excluding onshore and off-
ithme piping from w ’U n4i to e l I sep.
airators and pipeLines which are used far
the transport atoll mlualvelp within the
confines of a nantremsportatioo related
Isellity OP terminal facility and w deh
ire not Intended to transport oil Lu Inter-
state or I .ntrastate commerce or to trans.
ler oil 1st bulk to or from aveesel.
( D l }ligbway vehicles and railroad
ears which axe used for the bwuort
Cf oil In Interstate or Intrastate can-
rierce and the egulpmmt and appwlm-
ences related thereto, and e4uipmmt
used for the fueling of locomotive unfic,
es well as the rIghts-of-way which
tiey operate. cluded axe blataway
vehicles end railroad care sod esot.lye
prwer used exclusively within tho -
lipes of a ucctransportalim ieiznd
titcUlty or terminal facility and winch
a e not Intended i cr use In Interstate or
Intrastate e ” ’ce.
8ccnorr I —COoenmtTiON Lila
The above definitions bay. bom devel-
oped to lacintete the devslopmont &o4
esiloreatnent of regulations for prevan-
ties c i oil discharges and to correspcn
is much as possible In the ezlat,ing ge-
.sonslbllities of 1 -the , Deportment of
Tinspcrtatioa and l .be- v, ’• tuJ
Piotection Agency. It I. recognized. bow.
ever, that In some situations the Depart-
m nt of Transportation may have
e,perthe that could be helpful to the
Th v1ronmerttal Protection Agency In tIe
developroenl or enlareemmt c i these
re.rulotlons and vice versa. Gucb a s ltua-
Ucn might arise to connection with the
te ruJaticn of the nontransportailon re-
leled facilities included within deflol-
Ucas 1 (J) and ) In section above.
‘ t is agreed that In auth Utuations t hc
of TranspoitsUon and the
orunenisi ProtectIon Agency wi.
to end coordinate with
cody other In the development arid en-
to,cement of the regilloutess to the cx-
tort that existing reso nees permit,
l)ono this 34th day of November 1071
at hc city of Waehhigton.
]‘or the Department of TransportaUon.
Jornr A. VoUx.
1or the Environmental Protedllcn
Aginey. —
WILLLAM D. flge t.snsus.
IPI 1 Pue,7i—iO&l3 PU ’d 2a-I1—?i O:4O am
ATOWC ENERGY CCMM t fl
no. 00.47 5)
N02Th AMUICAN ROCKWEU. CO
Proposed Issuance of Fodflfy Ucs
The Atomic Ccvaml len I
Ct ) La conildes-Ing the IlguS
of a ISetUrJ’ to the North Acol
can flockatil Corp. (NARC) of C
Park. Calif. The 1 evse would asghoi
NAJ’IC to amires and operate a
geneou!, oluUon -type nuclear ruon
reactor designated as the “1.-aS NucI
Examination Reactor” lomfed at
Atomi Lnt.crnatiocal Division Nucli
Development Pieto Ii boratoi1m ie
the Bimi XIjlj, Vennirs Coonty. Col
at s1 dy 8tete powi r levels im to
maximum of 3 kllowatI.s (thermal)
accordance with the provtm ia of I
proposed licenee and’ Lbe Te±ol
Sp osUcns appended thcroio.
‘The reactor (formerly desIgnated 1
AE .4 Reactor”) has been operotl
s ince 1950 at power levels up to a. m
lmwn of 23 biowatis (thermal) Un:
contract between the Con mi-odon s.
ALo .ies Xoterus nn.i (a division
NAP i. The ati.ng eontia is b
terminated and ownership at the ye:
for is being nneferred to X ABC. NA1
to use the reactor as a r
of ceuwons for neutron r ingra Sy, I
training, and rmeerch and el r
activIties for its own “ irt ’ .. Such u
reqi rm a Iic.roee guc na to
l04 of the At ’nlo erv A01 of
as amended (the Act) • end 10 C1 ’R?:
50.
‘31 e Co tLssion ho.s fount t
r. ll Uoo, as a cnde . for t o
ltoc e complim ‘with the y Ir au
the A and ef the mins) regiik
tions published La 10 CPR CbaLner
The I ser e will not be I ted ucill
CA .v - .I #m makes the Cnd.L5. 5 r U1rc
br the Act and the C Issloch regiflc
Uons, which are set forth in ties proporo
license, and concl ’.idas that the Lssuaes
of the llot ’ree ‘will cot be thimiosi te th
common defe e and security or to in
hesith and misty of the puliuic. Prior
£asunaoe of the Uoeroo. a prellceoaing In
epoct.lon of the L.-85 roncter will be po ’
formed by a er taI2ve of the
mission. In addition, NAI 1C ‘will be re
ulred to execute en Indemnity agree
merit as required by secilon 270 oX (.1
Act and 10 CT ?. Part 140 of the Cois
elan’s regulidona
Within 15 &. ,yi born the date of publi
mUon of the notice in the r,ssaer. Ricic.
vex, the s lmsfl semi die a i”equeat fo
a bearing and anx person whose lrtteresl
ma. be adected br this pror,Ød.iztg mu,
file a petition for leave to Intervene. i
eiuests for a hearIng and petitior.c to
tervene shall be died In aoonrdence wtU
tJ tn iona rules o f practice in l
CFR Part 2. U a request for hearing ot
a peiJUon f ’ to Inter.’cr is fl1e’
within the tUne prc’i er1tr4 In Ui notice,
the C nm3asi y will Issue a notIce a!
hearing ur an appro wtittc order.
3”ur further doIni : ’ with re”.iwct to flil’
pu’opcee’d license L’mmnre. ceo rjj Ui
P10 5 1St ltOIflfl. VOL 36. HO 44—tAWiDAY. DICIMIII 10, II??
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Federal Register / VoL 44. No. 169 1 Wednesday. August 29, 1979 f Notices
NVIRoNMEN ’rAL PROTECTION
AGENCY
)EPARTMENT OF TRANSPORTATiON
Coast Guard
fFRL 1305-31
Memorandum of Understanding
Between the Environmental Protection
Agency and the U.S. Coast Guard
Concerning the Assessment of Civil
Penalties for DIscharges of Olt and
Designated Hazardous Substances
The United States Environmental
Protection Agency (EPA) and the United
Stales Coast Guard (USCG) have
determined that It is necessary to
estalilish procedures pursuant to which
decisions may be made:
(1) Whether a discharge of a
designated hazardous substance is
excluded from the application of the
civil penalty procedures prescnbed by
section 311(bJ(6) of the Clean Water Act
(CWA): and
(2) Whether action will be taken
under paragraph (A) or under paragraph
(B) of section 31 1(b)(6) CWA to impose a
penalty for the discharge of a designated
hazardous substance not so excluded.
The EPA and the IJSCG agree that
decisions as to whether a discharge of a
designated hazardous substance is
excluded frcm the application of section
311(b (6) CWA will be made initially by
the EPA In cases evidencing particular
potential violation gravity, i.e.. meeting
criteria set out in section ill of this
memorandum. In all other cases the
decision will be made initially by the.
agency providing the On Scene
Coordinator to the discharge Incident
When a decision is made that a
discharge is excluded, penalty action
under section 3n(b)(6) CWA will be
withheld.
The EPA and the USCG agree that
decisions as to whether action will be
initiated to impose civil penalties under
paragraph (El) of section 311(b)(6l CWA.
will be made by the EPA. Cases
Involving USCG responses. which
evidence particular potential violation
gravity. i.e.. meeting criteria set out in
section LIZ of this memorandum, will be
transmitted to the EPA for its
consideration. In all cases where EPA
determines that It is appropriate to
Initiate civil penalty action under
paragraph fEl) of section 3fl(bX6J CWA.
the USCG will withhold the initiation of
civil penalty action under paragraph (Al
Of section 312 (bi (6) CWA.
This memorandum establishes
policies. procedures. and guidelines
concerning the resportsibi .Lities of the
EPA and the USCG in carrying out the
foregoing agreement.
The respective responsibilities of each
agency specified In this memorandum.
may be delegated to their respective
subordinates consistcnt with
established procedures.
The EPA and the USCG will review
the implementation of this memorandum
at least one year from the effective date
of 40 CFR Part 117 or sooner if agreed to
by both agencies, and wiLl make any
changes to the policy, procedures, and -
guidelines set forth herein which are
agreed to by both agencies.
Section i—General
The amendment of 2 November 1978
lo section 311 CWA (Pub. L. 95—578)
excluded certain discharges of
hazardous substances from the
application of section 311(b)(6) CWA.
The discharges so excluded are: (a)
discharges in compliance with a section
402 CWA permit. (b) discharges
resulting from circumstances identified
and reviewed arid made a part of the
public record with respect to a permit
issued or modified wider section 402
CWA. and subject 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 CWA.
which are caused by events occurring
within the scope of relevant operating or
treatment systems.
In addition, this amendment created
two methods for penalizing discharges
of hazardous substances. The first.
which already existed as section
311(b)(6) CWA prior to the amendment.
authorizes th USCG to assess a civil
penalty not to exceed 55.000 for the
discharge of oil or a designated
hazardous substance (section
311(b)(6)(Afl. The second method.
created by the new amendment.
provides that the EPA. through the
Department of lustice. may initiate a
civil action in Federal distnct court far
penalties not to exceed 550.000 per spiii
of hazardous substance. unless such
discharge is the result of willful
negligence or willful misconduct. in
which case the penalty shall not exceed
$250,000 (section 311 jb)(6)IB)).
The legislative history accompanying
the amendment makes clear that
Congress intended to create a dual
option system for penalizing discharges
of hazardous substances under section
3 11fbfl6) CWA. A discharger of a
designated hazardous substance can be
penalized under paragraph (A) or
paragraph (BI. but not both. The EPA
and the USCG agree that paragraph (B)
does not apply to oil discharges. The
USCG will continue to assess oil
discharge penalties administratively
under paragraph (A).
Section fl—Coordination
When a spill of a desigr.ated
hazardous substance occurs. the On
Scene Coordinator (CSC) will prepare a
factual report of the incident At the
minimum, the report will address those
criteria set forth in section lii. of this
memorandum.
The OSC will submit this report
within 60 days of the spill Incident. The
OSC will submit the report to the
District Commander when he is a USCG
OSC, and to the Regional Administrator,
when he Is an EPA OSC.
When the District Commander
reviews the USCG OCS’s report and
determines that one or more of the
criteria sat forth in section III . below is
applicable to that case, the entire record.
of that case will be referred to the EPA
Regional Administrator for review. In
addition the District Commander will
refer the entire record of:
(a) Any other case involving a
discharge of a designated hazardous
substance from a point sou.rce subject to
a section 402 permit or permit
application, which, prior to or after the
commencemenl of penalty action, the
USCG determines is excluded from the
application of section 311(bfl6 CWA.
and
(b) Any other case which, the District
Commander considers appropriate for
possible application of section
311 (b) 6)(B) CWA.
When the Regional Administrator
receives a case, either from an EPA OSC
or upon referral from the District
Commander, he will determine:
(a) Whether the case Is excluded from
the application of section 311(b)(6)
CWA, and. if not,
(b) Whether a civil penalty action
wider section 3n(b){o)(B) CWA will be
Initiated.
The Regional Administrator will make
these determinations within 90 days of
his receipt of referral documents and
will notifty the District Commander
promptly of the determinatIons In cases
which have been referred. If the
Regional Administrator determines that
an action under section 3 11(bJ(6)(B)
CWA will be initiated, the case will be
prepared in the EPA Regional Office and
forwarded to the Department of Justice
(DOll in accordance with established
EPA case referral procedures.
If the Regional Administrator
determines that the discharge is not
excluded from the application ci section
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1 ’ederal Register / vol. 44. No. 169 / Wednesday. August 29. 1979 1 Notices .
7B6
(b)(6) CWA and that paragraph (B)
on is inappropriate. onE EPA
.eadquarters declines to refer a
Regional case. EPA will return the se
to the USCG for appropriate action
under paragraph (A).
Upon request. each Agency will make
available to the other any or all casce.
files, and records. including OSC reports
and official determinations, regarding
decisions concerning exclusions or the
Imposition of section 311(b)(6)(A) or (B)
penalties. Where there is dis Creement
as to the disposition ala particular case.
the District Commander and the
Regional Administrator will consult to
resolve the matter. If necessary. the
matter will submitted to the respective
Agency Headquarters for flnal
resolution-
Sedan 11 1—Criteria
The USCG and the EPA agree that If
one or more of the following cntetia
exists. the District Commander w,ill refer
the case to the Regional AdministratOr
In accordance with section U of this
memoranducu
a. Any indication of misconduct Or
lack of reasonable care on the part of
the owner, operator, or person in charge’
with respect to the discharge or with
respect to the failure on the part of the
owner, operator. or person in charge to
adhere to the guidance of the OSC
regarding clean-up or any policies.
procedures. guidelines, or regtajationi
applicable to clean.up;
b. Any discharge Incident other than a
threat for which payments are made or
to be made from the section 3111k) fund
pursuant to 33 CFR 153.407, except
where no & charge has been Identifledi.
c. Any indication of prior violations
by the discharger of any provision of the
CWA. or violations of provisions of the
CWA other then section 311(b)(6) CWA
occurring at the time of the discharge.
such U violations of sectIon 402
permit
d. Any discharge Incident (other than
a threat) as defined in 4c CFR 1510.5 (1)
which requires activation (by full or
limited assembly. or by telephone) of the
Regional Response Team as required by
40 CFR 15 10.34(d). as amene& and
e. Any discharge involving human
Injury or evacuation, damage to plant or
animal life. or contamination of water
supply or underground aquifers.
Other referrals to the EPA may be
made on a discretionary basis.
- Deied August 15. 1 79.
Mama
AssFslnntAd nifliStj ’0tOrfOtEflIul’eemenL
United Slates EnvzrenmentnIPjotectio
A ency-
Dated August i? i a
R. It S borough.
Acting Commandant. tfnitedSWces Coast
.C iaid -
(TR OLC. 7 5-Wa Flied &45 a l
coos ss
-------
INST U . T CF R TIC
1. Except as D;ovl ec In ar2graoh 2 telow, n accorcan:e wjth Se :ion ii(g)
of xecut ve Crcer l25 O of ar ary 23, i9 7, tne Secretary or tre De artment
in hich the Coast G a: .s coerating rtere y celegates tr e A .nistrazor,
Environmental Protection en:y (EPP ) . s ject to tne n .stratcr’s consent:
a. all fun:t ons sQecxfied n ctions 2(f), (c), anc 5(o) t that
xecutiv9 Orce;; anc
t , the f r .ctions s cif e’ n Sections 2(i), 2(J)(2). 2(k), anc (c) of
that Execjt ve Cr e: to the extent that those f nct ons relate to tne
functions speci ec in SectIon 2 ) of tnac Exe: tlve Croer.
2. The functions redelegated ur er this InstrurTent of P celegation o not
include;
a. functions related ç resoonses to releases or threats f :elease f:
vessels;
. functions related to e rgency action ecncernlnQ releases or threats
of releases at facUlties other than active or inactive “haza:dc 5
waste ara e en: f;:il ties” (as dined — C Z7 .Z), ano
C. fuflCtLOflS related to emergency action concerning releases 0r threats
of releases at active or Inactive “nazardQjs waste rna gement
facilities” wher the Coast Cuara Cn-Scene Cooroinator (OSC) oeterrn.i.fleS
that such action n jst be taken endin the arri,vaj on scene nf FP
O!.C. le tri :w 4 yi d uo n cy tne t. anu Coast GuarO , this
: tr crIty iil r t t unless : e. SC i s scr edule to
arrive on scene within £&8 hours of notification of the release or
threat of release.
ENCLOSUflE( )
-------
I_.
Ii
3. F : !eS ‘ t.E : st:u ! , ‘9 : r.cj acicn” nci es ar.y
r rnovai action wr .ch , i tr e vie. of ths as: G iar CSC, r s e :a er
i’ i.3te1y to :ever t Cr rn ti;a:e irn ac ate ar s r ’ can: ca ;e. : ne . ic
nea .th, weLfare or t ,e env1:C n ert. u tio’.s ir w 1c SuC.1 ãC fl5 m3y
t en, jncj j e, ti jt are not 1i ze tQ, f: e, ex !3s zr , otr.e: suc n
:e1ea es; human, an a1, Cr OO c in exposu:e t acutely tcxi s o3tance, ar
the Co an1na .ton of a
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19420
Federal Register I Vol. 58, No. 70 / Wednesday, April 14, 1993 / Notices
nonprofit organizations already engaged
in lead-based paint abatement worker
training and education activities. Only
nonprofit organizations with
demonstrated experience in the
implementation and operation of health
and safety training for lead-based paint
abatement workers will be considered
for funding.
For the purposes of this notice, lead-
based paint abatement activities mean
activities engaged in by workers that
include the removal, disposal, handling,
and transportation of lead-based paint
and materials containing lead-based
paint from public and private dwellings,
public and commercial buildings, and
bridges and other structures or
superstructures where lead-based paint
presents or may present an
unreasonable risk to health or the
environment.
I. Administrative Requirements
This program is subject to matching
share requirements. Awards shall be
given only to applicants who can fund
at least 30 percent of their programs
from non-Federal sources, excluding in-
kind contributions. (In-kind
contributions are defined as the value of
a non-cash contribution to meet a
recipient’s cost-sharing requirements.
An in-kind contribution may consist of
charges for real property and
equipment, or the value of goods and
services directly benefiting the EPA-
funded project.) The recipient’s
matching share may exceed 30 percent.
II. Evaluation Criteria
Preproposals submitted in response to
this notice will be evaluated on a
competitive basis by an EPA review
panel. The following factors, which are
weighted by percentage as to their
relative importance, will be considered
in evaluating the preproposals:
1. Pro gmm Experience (25 percent)
a. Experience in the development of
adult education courses, with emphasis
on training individuals with limited
education.
b. Experience In the delivery of health
and safety course materials to
individuals with limited or no English
language skills.
c. Demonstrated ability to target the
worker population.
2. Lead-liased Paint Abatement
Worker Course Experience (30 percent)
a. Experience in the delivery of
courses to lead-based paint abatement
workers.
b. Experience in providing hands-on
training to lead-based paint abatement
workers. -
c, Demonstrated experience in the
implementation and oper ion of health
and safety training for lead-based paint
abatement workers.
d. Qualifications of key personnel.
e. The number of students expected to
be trained during the project period.
3. Project Management (25 percent)
a. Applicant’s ability to provide
appropriate program staff to the project.
b. Applicant’s ability to provide
space, equipment, staff time, and other
resources required to carry out project
responsibilities.
c. Extent to which the applicant has
considered a management plan for the
project, including the designation of a
qualified program administrator.
4. Budget (20 percent)
Preproposals should include a
detailed budget that specifies the
amount of money to be used in all
aspects of the proposed worker training.
as well as the amount that is to be the
non-Federal share (at least 30 percent of
the total budget, excluding in-kind
contributions). The ability of the
applicant to derive a budget estimate
that is appropriate to the scope of the
project will be considered in the
evaluation process. The proposed
budget should be clearly justified and
consistent with the Intended use of the
Funds set forth in this notice.
Hi. Application Procedures
The following materials must be
provided by all applicants:
1. Documentation that proves the
nonprofit status of the applicant.
2. A summary of any lead-related
courses already being taught by the
applicant and a description of the
materials being used to teach those
courses. In addition, any applicants who
have received EPA funds for lead
worker training in any previous year’s
program must include in their
preproposal a description of how those
funds were used.
IV. Acceptable Expenditures
Funds awarded must be spent on
activities that directly result in
increased numbers of well trained lead-
based paint abatement workers. Since
EPA is funding the development of a
model course curriculum for workers,
the agency does not wish to fund the
development of new courses through
this program.
The following lists provide examples
of activities that will and will not be
considered for fupding. The list of
acceptable activities is for guidance
only; projects may be funded for
acceptable activities other than those on
the list.
Award recipients may use the monies
for the following:
a. Delivery of lead-based paint
abatement worker courses.
b. Delivery of train-the-trainer
courses. -
c. Enhancement of hands-on training
programs.
d. Monitoring and evaluating courses.
e. Limited purchasing of supplies.
f. Speakers’ fees (expenses and travel).
g. Slide duplication.
h. Rental of facilities.
i. Limited purchase of audio/visual
equipment.
j. Workers’ tuition.
k. Limited printing and reproduction
of materials and manuals.
I. Transporting workers to training
sites.
m. innovative training systems.
Monies may not be used for the
following:
a. Development of new training
coursecurncula for workers.
b. Stipends to students for room.
board, and salaries..
V. Notification of Selection
Preproposals are due no later than
May 14. 1993. Preproposals shall be n&
more than 10 pages in length. Each
applicant is requested to provide seven
copies of the preproposal to EPA.
EPA plans to award a total of
$500,000 through cooperative
agreements to eligible nonprofit
organizations. EPA will not allot all of
the available award money to any one
group or necessarily fund all of the
groups. EPA expects to award no fewer
than five grants.
Dated. Apnl 7, 1993.
John W. Melone,
Acting Director, Office of Pollu Lion Preventaon
and Toxics.
IFR Doc. 93—8732 Filed 4—13—93,8 45 am)
BIWNO CODE ease-so-F
[ FRL-4613—9)
Memorandum of Understanding
Between the U.S. Envlrpnmental
Protection Agency and the U.S. Coast
Guard Concerning the Enforcement of
§ 311 of the Clean Water Act, as
Amended by the Oil Pollution Act of
1990
The U.S. Environmental Protection
Agency is publishing the text of the
following interagency agreement in
order to inform the public of its
agreement with the U.S. Coast Guardjn
implementing Section 311 of the C?eafl’--
Water Act, 33 U.S.C. 132), as amenderi
by the Oil Pollution Act of 1990.
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Federal Register / Vol. 58, No. 70 / Wednesday, April 14, 1993 / Notices
19421
Dated. Apr11 2, 1993.
Scoff C. Fulton.
ActInX Assistant Adhiinistrvfor for
Enforcement. U.S. Environmental Protection
Agency
Section 1—Introduction
As a result of the amendment of
SectIon 311 of the Clean Water Act (Act)
by Section 4301 of the Oil Pollution Act
of 1990 (CPA) the United States Coast
Guard and the United States
Environmental Protection Agency (EPA)
hereby agree to establish means of
coordination and cooperation respecting
the enforcement ofSectlon 311 of the
Act, and procedures pursuant to which
decisions may be made to determine
which agency has primary
responsibility for
(1) A civil penalty enforcement action
fore violation of Section 311(b)(3) of the
Act. 33 U.S.C. 1321(b)(3), which
prohibits discharges of oil or designated
hazardous substances in quantities
which may be harmful;
(2) A civil penalty enforcement action
fore violation of Section 311(j) of the
Act. 33 U.S.C. 1321(j). and its
implementing regulations, which
concern, inter alia, requirements for
discharge prevention and response
plans;
(3) Referring to the Department of
Justice a civil penalty action for a failure
to properly carry out removal of a
discharge pursuant to an order issued
under Section 311(c). 33 U.S C. 1321(c).
or a failure to comply with an
administrative order issued pursuant to
Section 311(e)(1)(B) of the Act. 33
U.S.C. 1321(e)(1)(B):
(4) Referring to the Department of
Justice for prosecution a criminal
violation of Section 311(b)(3) of the Act.
or Section 311(b)(5) of the Act. 33 U.S.C.
1321(b)(5). which requires notification
of discharges regulated under Section
311 of the Act; and
(5) Consolidating referrals to the
Department of Justice for causes of
action against a person subject to
Section 311 of the Act or its
implementing regulations from both
agencies that may arise under Section
311 of the Act.
EPA and the Coast Guard agree that in
conformance with the terms of OPA this
Memoronduinof Understanding (MOU)
governs the inter-agency enforcement
relationship for violations of Section
311 of the Act. 33 U.S.C. 1321.
occurring after enactment of OPA on
August 18, 1990. The Memorandum of
Understanding between the agencies.
published at 44 FR 50785 (August 29.
1979). continues to apply to the inter-
agency enforcement relationship for
violations of Section 311(b)(3) of the Act
occurring before August 18. 1990.
This MOU establishes policies. -
procedures, and guidelines concerning
the responsibilities of the Coast Guard
and EPA in carrying out the following
agreement. The agencies agree that this
MOU may be modified or terminated as
provided below in Sectioq.IL
Section U—General Provisions
Notwithstanding any provision in this
MOU. EPA and the Coast Guard may
supersede this MOU by agreement in
any matter and at any time. By mutual
agreement, either agency may refer to
the other agency primary responsibility
for any matter addressed in this MOU
for which they share jurisdiction under
the Act.
The Coast Guard and EPA agree to
give full consideration to requests in
writing by the other agency to modify
this MOU. The agencies also agree that
this MOU may be terminated by joint
agreement, or unilaterally by either
party upon six months written notice.
EPA and the Coast Guard agree to
keep the other agency advised of the
names of their officials charged with
carrying out the provisions of this MOU.
EPA reserves all rights provided to it
under Section 506 of the Act, 33 U.S.C.
1366. which governs the attorney/client
relationship between EPA and the
Department of Justice in enforcement
cases under the Clean Water Act.
The policies and procedures set forth
in this MOU are intended exclusively
for the guidance of federal government
personnel. Since these policies and
procedures may be superseded.
modified, or terminated at any time
without public notice, they are not
intended, and may not be relied upon,
to create, modify in any way, or
terminate any rights, duties, or
obligations, whether substantive or
procedural, which may be enforced by
any person, judicially or otherwise. The
Coast Guard and EPA reserve the right
to change the terms of this MOU
without prior public notice.
EPA and the Coast Guard agree that
this MOU does not affect their existing
authorities under other laws, including
cost or damage recovery authorities
under Title I of CPA, Section 311(f) of
the Act, 33 U.S.C. 1321(1), or under the
Comprehensive Environmental
Response, Compensation, and Liability
Act, 42 U.S.C. 9601 et seq.
This MOU is effective upon the date
of execution by Its signatories.
Section rn—Interagency Coordination
The Coast Guard and EPA,
respectively, agree to cooperate on
requests by the other agency for
available inforingtion, documents or
testimony that may be useful in carrying
out its responsibilities under this MOU.
EPA and the Coast Guard agree that
each lead agency, in making the
determinations and taking the actions
referenced In Section IV of this MOU,
shall give full consideration to written
comments provided by the other agency
concerning specific events subject to
this MOU. The commenting agency
shall provide its comments to the other
agency’s official charged with making
the particular determination or referral,
and to any other agency official
specified to receive such written
comments.
The Coast Guard and EPA agree that
in the event that any disagreement
arises under this MOU. the agendes will
attempt to resolve their differences at
the level at which they have arisen.
Should that attempt fail, the agencies
agree to elevate the issue for resolution
by appropriate supervisory officials
within the respective agencies.
EPA and the Coast Guard agree to
cooperate in developing consistent
enforcement policies In order to
harmonize the agencies’ enforcement
policies for events arising under Section
311 of the Act.
The Coast Guard and EPA agree on
the importance of keeping each other
informed to the extent practicable of
enforcement actions subject to this
MOU. To this end, the agencies agree:
(1) To conduct quarterly meetings to
discuss enforcement activities and
actions;
(2) To conduct, as appropriate.
workshops involving enforcement and
administrative adjudication personnel;
and,
(3) To establish an Interagency
noiificatlon agreement for certain
classes or categories of incidents, as -
well as means by which such
notification shall be accomplished.
Section IV—Primary Enforcement
Authority
Each agency is authorized by Sections
311(b)(6) and (7) of the Act,33 U.S.C.
1321(b)(6) and (7), to bring an
administrative or judicial civil penalty
action for any violation of Section
311(b)(3) or Section 311(j) of the Act. 33
U.S.C. 1321(b)(3) or (j), as amended by
OPA. The agencies are each authorized
to refer to the Department of Justice a
criminal case pursuant to Section 309(c)
of the Act, 33 U.S.C. 1319(c) -
(respecting a violation of Section -
311(b)(3) of the Act), and Section
311(b)(5) of the Act, 33 U.S.C.
1321(b)(5). The authority of the agencies
to act under Section 311(c) and (e) of the
Act, 33 U.S.C. 1321(c) and (e).is
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19422
Federal Register! VoL 58, No 70 / Wednesday. Apr Il 14, 1993 / NotIces
determined by Sections 3 and 6(b) of
EveOrder urn (October 18,
1991). The authority of the agencies to
seek a judicially imposed penalty far
any violation of an order issued by.
either agency pursuant to Section 311(c)
or Section 311(e) (1)(B) of the Act is
determined by Section 31i(b) 7)(B ) of
the Act. 33 ILS.C. i3Z1(b)(7)tB , and the
authority of the Attorney General to
represent the agencies is described In
Section 10(a ) and (cI of E iwcutive Order
12777. The authority of the agencies to
seek judicial relief when there may be
en imminent and subatnntW threat to
the public health and welfare 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 Section 311(b) of
the Act is determined by Section 3i 1(e)
of the Act and SectIons 6(b). 10(a) and
10(c) of Executive Order 12777.
Bothagenciesagreethatit lain the
public interest for one g incy to take the
lead In making and in consolidating
referrals to the Department of Justice for
initiatinga civil or crirnins l udicia1
case In the event ofavlo lation of
Section 311(1 ,1(3) or 3u1(b)(5) of the Act 1
In the event ofaviolatlon of an order
issued by either agency pursuant to
Section 311(c) or Section 311(e} (1)(B) of
the Actor in theevent of the need for
a judicial referral to the Department of
Justice In the case elan Imminent and
substantial threat to the public health
and welfare olthe United States because
of an actual or threatened discharge of
oil or a hazardous substance in violation
of SectIon 311 (b) of the Act. Both
agencies agree that It is in the public
interest to exempt from consolidation
any referral to the Department of Justice
by either agency that seeks as judicial
relief a temporary restraining order, a
prelirniru%ry Injunction, or any dmilar
expedited judicial process.
L Determination of Lead Enforcement
Agency
(a) Except as otherwise mutually
agreed, In the case of any alleged
violation of Section 311(b)(3} or Section
311(b)(5) of theAct,the lead
enforcement agency shall be
(1) That federal agency which
provides an On-Scene Coordinator
respecting the event in question
pursuant to the National Contingency
Plan, and, with respect to the discharge
of hazardrma substances, the DOT/EPA
Instrument of Redulegation of May 27,
1988;or -
(2) That federal agency which, if no
federal On-Scene Coosdinator was
provided respecting the event in
question, Is charged with providing.
such a coordinator pursuant to the
National Contingency Plan, and, with
respect to the discharge of hazardous
substances, the DOTIEPA Instrument of
Radeleg$ion of May Z7, 1988. -
(b)Inthocase ofanyalleged failure
to carry out removal under an order’
Issued pursuant to SectIon 311(c) of the
Act. or in the case of any alleged failure
to comply with an administrative order
issued pursuant to Section 311(e)(1)(B)
of the Act, the lead enforcement agency
shall be the agency under whose
authority the order was Issued.
(c)In the case of any action taken
pursuant to Section 311(o) of the Act
that may be necessary to protect the
public health and welfare, the lead
enforcement agency shall be the agency
under whose authority the Section
311(e) action was undertaken,
(d l In the case of any alleged violation
of Section 311W of the Act and its
implementing regulations, the lead
enforcement agency shall be the agency
which issued the regulation alleged to
have been violated.
2. Responsibilities ofLead Enforcement
Agency -
(a) Taking into account the
coordination procedures set forth In this
MOU. EPA and the Coast Guard agree
that the lead enforcement agency will be
responsible fox
(1) Determining what enforcement
remedy under Section 311 of the Act to
seek for the alleged violation, in
accordance with applicable statutory
authority and any enforcement policy
which may be adopted by the agancy
(2) Determining the amount of any
administratively assessed civil penalty
fore vio)ationolSectioo3fl oftheAct
or its Implementing regulations, in
accordance with applicable statutory
authority;
(3) In accordance with the Clean
Water Act and Executive Order 12777,
referring to the Department of Justice
cases seeking judicial remedies
available under the provisions of law
cited in Sectionl;and
f4 )ln a civil judicial referral to the
Department of Justice, periodically
informing, consulting and, as needed,
coordinating with the other agency
regarding the referral.
(b) In all cases where a lead
enforcement agency refers a SectIon 311
enforcement at on to the Department of
Justice, that agency shall forward a copy
of the referral latter to the other agency.
The lead enforcement agency shall also
advise theDepaitmeni of Justice of any
known federal cost or damage recovery
delia arising out of the same Incident
against the same violator. -
3. Determination of Judicial Ref esrei
Agency
If the Coast Guard and EPA share
enforcement responsibilities within the
scope of this MOU for causes of action
against a person alleged to have violated
the law, and each agency has
determined to refer its cause of action to
the Department of JUstice for judicial
relief, the two agencies agree to
consolidate such judicial claims In one
referral to the Department of Justice,
subject to the following guidelines:
(a) Civil and criminal causes of action
shalt not be consolidated in one referral
to the Department of Justice;
(b} Any referral by either agency
seeking as judicial relief a lempormy
restraining order, a preliminary -
injunction, or any similar expedited
Judicial process, shall not be
consolidated in one referral to the
Department of Justice; and
Ic) The consolidating and referring
agency for a civil referral shall be
(1) in the event of a violation of
Section 311(b)(3) of the Act, that agency
with lead enforcement responsibility
pursuant to Section IV .t(a) of thig
MOU; or otherwise,
(2) That agency with lead enforcement
responsibility pursuant to Section
lV.i.(b) or (c) of this MOU. whichever
applies.
Dated: March 23, 1993.
Scott C. Fulton,
Acting Assistant /tdm,nist ret or for
Enforcement. U.S. Envi rimeniol Protection
Agency.
Dated: March lB. 1993.
Rear Admiral A.E. Henn , ,
ChieJ. Office of Marl no Safety. Secunty and
Envimrimentoi Protection, U.S. Coast Guard.
IFR Dcc. 93-8662 Filed 4—13—93,8:45 sail
es a coos esse p
(FRL—46t4--3]
National Drinking Water Advisory
Council; Open Meeting
Under section (1}(a)(2) of Public Law
92-423, “The Federal Advisory
Committee Act.” notice is hereby given
that a meeting of the National Drinking
WaterAdvisory Council established
under the Safe Drinking Water Act, as
amended (Pub. L 99—339J. wil} be held
at 9a.m. on May 6,1993 and at 8.30
a.m. on May 7,, 1993. at the El Paso
Convention and Tourist Center, One
Civic Center Plaza, El Paso, Texas
79901. COunCil Subcommittees will
hold their meetings on May3 ahd 4,
1993. at the Westin Paso Del Norte ibi.
South El Paso Street, El Paso, Texas’,,
79901.
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UNITED STATES ENVIRONMENTAL PROTEC11ON AGENCY
I J WASHINGTON, D.C. 20460
4tp a
APR 5 I OFFIcE OF ENFORCEMENT
MEMORANDUX
SUBJECT: Ne EPA/Corrt Guard Oil Pollution Act Enforcement MOU
FROM:
Acting Assistant Administrator f or Enforcement
TO: Deputy Regional Administrators
Regional Counsels
Attached you will find a copy of the recently executed
Memorandum of Understanding between EPA and the Coast Guard
governing our joint enforcement of penalty actions under Section
311 of the Clean Water Act, as amended by the Oil Pollut,ion Act
of 1990 (OPA). Also attached is a Fact Sheet which outlines the
basic features of this interagency agreement. I urge you to
distribute this NOT) widely among your staff, including On—Scene
Coordinators, Regional attorneys, and program personnel. EPA
will publish this agreement in the Federal Register in the near
future.
With the amendments to Section 311 by OPA, we find ourselves
in a new and close relationship with the Coast Guard in Section
311 penalty cases. HOT) Section IV provides guidelines to
determine which agency will make penalty enforcement decisions
for spill or reporting violations of Section 311. These
guidelines, however, can be overriden under NOT) Section IV.1 in
any case by the specific agreement of the two agencies.
By this memorandum, I am authorizing the Regional Counsels
and the Enforcement Counsel for Water to represent EPA in any
such agreement with the Coast Guard. Consistent with a 1991
guidance provided by the Enforcement Counsel for Water, the
Regional Counsels may unilaterally agree to let the Coast Guard
become the lead enforcement agency for any oil spills that:
• Are less than 100 barrels;
• Do not involve a repeat violator; and
• Do not occur in any critical or environmentally sensitive
habitat or water body.
Pnnted o i Rec-ycled Pape’
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—2—
For any other spills: in violation of Section 311(b) (3) of
the Act, including all hazardous substance spills, the Regional
Counsels may agree to let the Coast Guard become the lead
enforcement agency if the Enforcement Counsel for Water concurs.
I also recommend that Regional Counsels seek the concurrence of
the lead Regional program for such an agreement, and, in a
Headquarters lead case, that the Enforcement Counsel for Water
seek the concurrence of the Office of Waste Programs Enforcement
for such an agreement.
Conversely, for spills for which the Coast Guard seeks EPA
enforcement, authorized EPA representatives may accept the lead
OPA enforcement role (1) if, in the case of a Coast Guard OSC
primary response, the Coast Guard agrees to provide technical
support for the enforcement case and (2) after consultation with
the lead Regional program (in the case of a Regional agreement)
or the Office of Waste Programs Enforcement (in the case of a
Headquarters agreement).
At this time, the decision on any interagency agreement on
criminal enforcement matters under Section 311(b) (5) of the Act
shall remain with the Assistant Administrator for Enforcement.
I encourage all Agency staff to, as MOU Section III notes,
“cooperate on requests by the other agency for available
information, documents or testimony that may be useful in
carrying out its responsibilities under this !‘IOU” and to “give
full consideration to written comments provided by the other
agency concerning specific events subject to this MOU.” I
designate the Regional Counsels and the Enforcement Counsel for
Water as the Agency officials “specified to receive such written
comments” from the Coast Guard.
Agency Regional staff should also seek opportunities to meet
with Coast Guard on local enforcement coordination issues. EPA
Headquarters plans to meet with its Coast Guard counterparts,
however, to implement IIOU Section Ill’s references to quarterly
meetings, conducting workshops, and establishing interagency
notification agreements for incidents.
If you have any questions regarding the interpretation or
implementation of the attached Memorandum of Understanding,
please contact Frederick F. Stiehi, Acting Director of the Office
of Civil Enforcement (260—8180), or have your staff contact David
Drelich of OE—Water (260—2949).
Attachments
cc: Bruce Diamond, OWPE
John Cruden, DOJ
Rear Admiral A.E. Henn, USCG (w/out attachments)
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[ Federal Register: February 28, 19943
DEPARTMENT OF THE INTERIOR
Minerals Management Service
Memorandum of Understanding Establishing Jurisdictional
Responsibilities for Offshore Facilities
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Notice.
SUMMARY: The memorandum of understanding (MOW establishing Federal
jurisdictional boundaries for offshore facilities, including pipelines,
became effective on February 3, 1994. The MO ] ) divides the
responsibilities associated with oil-spill prevention and control,
response planning, and response equipment inspection for offshore
facilities. The MO ] ) is among the Department of the Interior (DOI),
Departnent of Transportation (DOT), and the Environmental Protection
Agency (EPA).
The coast line marks the boundary that determines which agency is
responsible for a facility. The 11115 of the DOI is responsible for
offshore facilities, including pipelines but not deepwater ports,
located seaward of the coast line. The EPA is responsible for non-
transportation-related offshore facilities located landward of the
coast line. The U.S. Coast Guard and the Research and Special Programs
Administration of the DOT will handle transportation—related offshore
facilities, including pipelines, located landward of the coast line.
Any exceptions to the MOU will be determined on a facility-specific
basis, and the affected parties will be notified.
FOR FURTHER INFORMATION CONTACT:
Sharon L. Buffington, Engineering and Technology Division; MS—4700;
Minerals Management Service; 381 Elden Street; Herndon, Virginia 22070-
4817, telephone (703) 787—1600.
SUPPLEMENTARY INFORMATION: Executive Order (E.G.) 12777 (56 FR 54757)
delegated to D CI, DOT, and EPA various responsibilities identified in
the Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990
(Public Law 101—38 0) . The E.O. 12777 assigned the responsibilities
associated with oil-spill prevention and control, contingency planning,
and response equipment inspection for offshore facilities to DO l.
However, section 311(a) (11) of the CWA defines “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
001 role of regulating facilities in the Outer Continental Shelf is
expanded by E.G. 12777 to include inland lakes, rivers, streams, and
any other inland waters. Without this MOU, as many as four Federal
agencies could have overlapping responsibilities for some coastal
facilities.
To avoid any confusion caused by the definition of ‘offshore
facility’’, MMS coordinated an effort to establish :urisdictional
boundaries f or oil-spill prevention and control, response planning, and
response equipment inspection activities. Pursuant to section 2(i) of
E.G. 12777, the Secretary of the Interior redelegated those functions
vested in DOI to give EPA non-transportation-related offshore
facilities located landward of the coast line and give DOT
1 o 13 07106/98 13 1707
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transportation—related offshore facilities landward of the coast line.
The divisions agreed to in the MOU (Appendix A) is more consistent with
traditional agency expertise and jurisdiction. This MOU does not
include jurisdictional boundaries for oil-spill financial
responsibility.
Dated: February 17, 1994.
Thomas Gernhofer,
Associate Director for Offshore Minerals Management.
Appendix A--Memorandum of Understanding Among the Secretary of the
Interior, Secretary of Transportation, and Administrator of the
Environmental Protection Agency
Purpose
This Memorandum of Understanding (MOU) establishes the
jurisdictional responsibilities for offshore facilities, including
pipelines, pursuant to section 311 (j) (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 (DOl), Secretary of Department of Transportation (DOT), and
Administrator of the Environmental Protection Agency (EPA) agree to
the division of responsibilities set forth below for spill
prevention and control, response planning, and equipment inspection
activities pursuant to those provisions.
Background
Executive Order (E.0.) 12777 (56 FR 54757) delegates to DOI,
DOT, and EPA various responsibilities identified in section 311(j)
of the CWA. Sections 2(b) (3), 2(d) (3), and 2(e) (3) of E.O. 12777
assigned to DCI spill prevention and control, contingency planning,
and equipment inspection activities associated with offshore
facilities. Section 311(a) (11) defines the term ‘‘offshore
facility’ ‘ to include facilities of any kind located in, on, or
under navigable waters of the United States. By using this
definition, the traditional DCI role of regulating facilities on the
Outer Continental Shelf is expanded by E.O. 12777 to include inland
lakes, rivers, streams, and any other inland waters.
Responsibilities
Pursuant to section 2(i) of E.O. 12777, 001 redelegates, and EPA
and DOT agree to assume, the functions vested in DOl by sections
2(b) (3), 2(d) (3), and 2(e) (3) of E.O. 12777 as set forth below.
For purposes of this MOU, the term ‘‘coast line’ ‘ shall be
defined as in the Submerged Lands Act (43 U.S.C. 1301(c)) to mean
‘‘the line of ordinary low water along that portion of the coast
which is in direct contact with the open sea and the line marking
the seaward limit of inland waters.’’
1. To EPA, 001 redelegates responsibility for non-
transportation—related 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 and
their associated seaward pipelines, as delegated by E.O. 12777.
3. The 001 retains jurisdiction over facilities, including
pipelines, located seaward of the coast line, except for deepwater
ports and associated seaward pipelines delegated by E.0. 12777 to
DOT.
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Effective Date
This MOU is effective on the date of final execution by the
indicated signatories.
Limitations
1. The DOl, DOT, and EPA may agree in writing to exceptions to
this MOU on a facility-specific basis. Affected parties will receive
notification of the exceptions.
2. Nothing in this MOU is intended to replace, supersede, or
modify and existing agreements between or among DCI, DOT, or EPA.
Modification and Termination
Any party to this agreement may propose modifications by
submitting them in writing to the heads of the other agency!
department. No modification may be adopted except with the consent
of all 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 or
modifications to this agreement. This MOU may be terminated only
with the mutual consent of all parties.
Bruce Babbitt,
Secretary of the Interior.
Carol H. Browner,
Administrator, Environmental Protection Agency.
Federico Pena,
Secretary of Transportation.
[ FR Doc. 94—4481 Filed 2—25—94; 8:45 am]
BILLING CODE 4310-MR-H
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MEMORANDUM OF UNDERSTANDING
BETWEEN
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
a d
THE UNITED STATES COAST GUARD
* * *
For use of the
Oil Spill Liability Trust Fund
Prmted 28 October 1996 Page 1
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TABLE OF CONTENTS
I.
II.
III.
Iv.
V.
VI.
WI.
VIII.
Lx.
x.
XI.
XII
XIII.
X i v.
xv.
XVI.
PURPOSE 4
AUTHORITY 4
DEFINITIONS 5
USES OF THE OSLTF 5
MiXED SPILLS 5
ACCESSING THE OSLF 6
REPORTING 6
COST DOCUMENTATION 6
PROPERTY & EQUIPMENT PURCHASES 6
DESIGNATION OF SOURCE AND CLAIMS 7
BILLING 7
CONTRACTING 7
COST RECOVERY & LITIGATION SUPPORT 7
MODIFICATION AND TERMINATION 7
PERIOD OF AGREEMENT 8
SIGNATURES 8
APPENDIX 1. - - NPFC USER REFERENCE GUIDE 9
A. Organizations Using Pollution funds 9
B. Introduction to NPFC 9
C. Removal Actions 9
D. Investigative Considerations 9
E. State Access 9
F. Natural Resource Damage / ccessments 9
G. Claims 9
APPENDIX 2. - - USES OF THE OSLTF 9
A. Extramural Costs 10
B. Intramural Costs 10
C. Mixed Spills 10
APPENDIX 3. -- FUND TRANSFERS, FPN AND CEILING 11
A. Multi-Incident lAG 11
B. FPN 11
C. Ceiling Categories 11
D. Incident Specific LAG 11
E. Long Term Removals 12
APPENDIX 4. - - REPORTING AND COORDINATION 13
Page 2
Prmted 28 October 1996
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APPENDIX 5. - - COST DOCUMENTATION - 13
A. Incident Specific Documentation 14
B. Other Government Agency Costs 15
C. Oil & Gas Well Site Specific Costs 16
D. Documentation Custodian & Point of Contact 17
E. Timely Submission of Documentation 17
F. Documentation Retention Period 17
G. USEPA Indirect Cost Model 17
H. Forensic Documentation 17
APPENDIX 6. - - PROPERTY & EQUIPMENT PURCHASES 18
A. Buy Vs. Lease 18
B. Disposal & Property Records 18
C. Defense Reutilization & Marketing Office (DRMO) - 18
D. DRMO & Properly Survey Records 18
E. Real Property 19
F. Additional Information 19
APPENDIX 7. - - DESIGNATION OF SOURCE & CLAIMS 19
APPENDIX 8. -- BILLING 19
A. The Billing Process 19
B. Billing Summary 20
C. Timetables 20
APPENDIX 9. -- CONTRACTING 20
A. Authorization For Use Of BOAs 20
Printed 28 October 1996 Page 3
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i I. PURPOSE
2 This Memorandum of Understanding (MOU) between the United States Environmental
3 Protection Agency (USEPA) and the United States Coast Guard (USCG) establishes the
4 agreement by which USEPA accesses the Oil Spill Liability Trust Fund (OSLTF or the
5 Fund), administered by the National Pollution Funds Center (NPFC), in order to carry out
6 oil removal under 33 USC 132 1(c) [ Clean Water Act (CWA) or Federal Water Pollution
7 control Act (FWPCA)}, with the concomitant USEPA responsibility to fully account for
8 OSLTF funds and support the NPFCs efforts to recover the Federal government’s costs
9 from responsible parties (RPs). This MOU also describes the NPFC’s responsibility to
10 fully support the USEPA by providing timely funding and other support to carry out oil
ii removals..
12 II. AUTHORITY
13 This MOU is entered into under the authority of the Oil Pollution Act of 1990 (OPA), 33
14 USC 2701 et seq., as implemented by E.O. 12777 (and subsequent delegations), to carry
15 out oil removal activities under the Clean Water Act and the National Oil and Hazardous
16 Substances Pollution Contingency Plan (NCP), 40 CFR 300. OPA 6002, 33 USC 2752,
17 makes available annually a portion of the OSLTF to carry out oil removals under CWA.
18 Subject to OPA 6002, OPA 1012(a) makes the OSLTF available for the payment of those
19 Federal costs, including the costs of monitoring removal actions, that are consistent with
20 the NCP.
21 Executive Order (EO) 12777 delegates the authority and responsibility for implementing
22 the provisions of Title I and various other sections of OPA, pertaining to management of
23 the OSLTF for use in removals, to the Secretary of the Department of Transportation
24 (DOT). DOT has redelegated these responsibilities to the Conin ‘.ndant of the USCG, who
25 has further redelegated those responsibilities to the Director of the NPFC.
26 The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR
27 300, contains details for implementing removals under OPA and the CWA, including the
28 role of the On-Scene Coordinator (OSC). Under the EO, the USEPA is responsible for
29 removal of oil spills in the Inland Zone of the US as defined in the NCP. The USCG is
30 responsible for removal of oil spills in the Coastal Zone. The USCG and the USEPA
31 assign OSCs to direct these removals.
32 The principal organizations within the two agencies with fiscal responsibilities for these
33 matters are the Office of Solid Waste and Emergency Response (OSWER) for the USEPA
34 and the National Pollution Funds Center for the USCG.
Printed 28 October 1996 Page 4
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i III. DEFINITIONS
2 “Oil”, is defined by section 1001 of OPA [ 33 Usc 270 1(23)] as oil of any kind or in any
3 form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed
4 wth wastes other than dredged spoil, but does not include petroleum, including crude oil
5 or any fraction thereof, which is specifically listed or designated as a hazardous substance
6 under subparagraphs (A) through (F) of section 101(14) of the Comprehensive
7 Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601) and which is
8 subject to the provisions of that Act.
9 “Remove” or “removal” is defined in OPA 1001 (30), 33 USC 2701 (30), to mean
10 “containment and removal of oil or a hazardous substance from water and shorelines or the
ii taking of other actions as may be necessary to minimize or mitigate damage to the public
12 health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and
13 private property, shorelines, and beaches.”
14 “Removal costs”, is defmed by OPA 1001 (31), 33 USC 2701 (31), OPA as “the costs of
15 removal that are incurred after a discharge of oil has occurred or, in any case in which there
16 is a substantial threat of a discharge of oil, the costs to prevent., minimize, or mitigate oil
17 pollution from such an incident.”
IV. USES OF THE OSLTF
19 Before the OSLTF can be made available for removal costs, there must be an OPA
20 incident. In Polrep-1 (or as soon as possible), the OSC shall document the following facts:
21 that oil was discharged into, or is a substantial threat to, the navigable waters of the U.S.,
22 the adjoining shorelines, or the EEZ.
23 If these prerequisites are met, the OSLTF is available to reimburse the EPA via
24 Interagency Agreements (lAGs) for removal costs resulting from their activities conducted
25 under 33 USC 1321(c) necessitated by the OPA incident. To be reimbursable from the
26 Fund, the removal activities which resulted in the costs being incurred must be consistent
27 with the NCP. See Appendix 2.
28 V. MIXED SPILLS
29 The term “mixed spills” is used in this agreement to describe discharges which involve oil
30 and other substances. This is different from “mixed events” or “mixed sites” which are
31 terms used to describe locations where discharges of OPA oil and releases of CERCLA
32 hazardous substances are co-located, but remain separate and distinct problems.
33 The substances involved in a mixed spill will dictate whether its removal may be funded by
34 either the OSLTF or Superflind. Both funds will not be used on the same mixed substance
Printed 28 October 1996 Page 5
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i For removal to be funded by the OSLTF, the composition of the mixture must be such that
2 it can be considered oil subject to OPA. Appendix 2 specifies criteria for selecting a
3 funding source for removal of a mixed spill
4 VI. ACCESSING THE OSLTF
5 To initiate funding for an oil removal, the USEPA OSC must obtain a Federal Project
6 Number (FPN) and an approved project ceiling from the USCG no later than the
conclusion of the preliminary assessment described in the NCP, Subpart D Section
8 300.305, “Phase II - Preliminary Assessment and Initiation of Action.” See Appendix 3.
9 VII. REPORTING
io The USEPA shall send pollution reports (Poireps) consistent with the NCP, Subpart B
Section 300.135(m), to the NPFC. The USEPA OSC shall document the OPA incident,
12 removal activities and their connection to the incident, and resulting costs. The USEPA
13 will also provide status reports in accordance with current NPFC reporting requirements, as
14 detailed in Appendix 4.
15 VIII . COST DOCUMENTATION
16 The USEPA shall provide full and timely documentation of all costs, both reimbursable
17 and non-reimbursable, in every case to support reimbursement of the USEPA and to
18 Support recovery of costs from the responsible parties and other liable persons. USEPA
19 OSCs shall also review all costs incurred dunng the removal operation and certify that they
20 are proper and consistent with the NCP. In lengthy or cost intensive cases, the USEPA
21 will provide interim documentation to enable the NPFC to bill the RP(s) and start the
22 interest clock for monies owed to the government. See Appendix 5.
23 IX. PROPERTY & EQUIPMENT PURCHASES
24 The OSC may use OSLTF funds for purposes deemed necessary for an oil removal. This
25 includes the purchase of non-consumable property and equipment when operational
26 necessity dictates it or when it is clearly cost effective for the government. If the total
27 acquisition is not exclusively for oil removal, other funding sources must be applied in
28 appropriate proportion, The OSC has custody of such property and equipment, and must
29 dispose of it in accordance with NPFC guidance Following the conclusion of a removal,
30 all property and equipment not consumed must be inventoried and reported in the case
31 documentation To avoid the need for disposal, equipment should be leased whenever
32 possible. See Appendix 6.
Printed 28 October 1996 Page 6
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1 X. DESIGNATION OF SOURCE & CLAIMS
2 USEPA OSCs will make reasonable efforts to promptly determine the source of the oil
3 pollution and, when it involves a vessel or facility, to identify any potential RPs, arid will
4 provide the information to the NPFC case officer. OPA 1014, 33 Usc 2714, requires
5 designation of source(s), where possible and appropriate, and requires notification of the
6 responsible parties (RPs) to initiate the claims process. USEPA OSCs have not been
7 delegated the authority to formally designate sources for purposes of claims advertising
8 OPA. See Appendix 7.
9 XI. BILLING
10 To obtain reimbursement for eligible costs, USEPA will present billing documentation
11 supported by case documentation to the NPFC. See Appendix 8.
12 XII. CONTRACTING.
13 The USEPA and the USCG will provide contracting support to OSCs to enable them to
14 obtain commercial services needed to conduct removals. The agencies will make these
15 resources available according to agreements and procedures in Appendix 9.
16 XIII. COST RECOVERY AND LITIGATION SUPPORT
17 USEPA shall fully support NPFC with respect to all USEPA uses of OSLTF funds
18 following removal activities when NPFC proceeds to recover the Federal Government’s
19 removal costs from the RP(s).
20 XIV. MODIFICATION AND TERMINATION
21 Either the USCG or the USEPA may propose changes to this MOU. Both agencies must
22 approve a change before it becomes effective. Either agency may terminate the MOU by
23 giving a thirty (30) day advance written notice to the other Agency. Adding or changing
24 appendices or attachments does not constitute modification of the overall MOU. Such
25 additions or changes may be made by agreement of officials responsible for the specific
26 subject area in the USEPA and USCG. The officials making any such change shall
27 immediately bring the change to the attention of the signers of this MOU, or their
28 successors, and then shall disseminate a notice of the change so as to inform all users of the
29 MOU.
Printed 28 October 1996 Page 7
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ii XV.
PERIOD OF AGREEMENT
This MOU shall continue in effect until terminated, modified or amended. This MOU
shall become effective on the date of the last signature below.
X IV. SIGNATURES
Date_____________
Daniel F. Sheehan
Director
National Pollution Funds Center
United States Coast Guard
Date_____________
\Villiam H. Campbell
Director of Finance and Procurement
United States Coast Guard
L
Elliott P. Laws
Assistant Administrator
Office of Solid Waste and
Emergency Response
U.S. Environmental Protection Agency
Date il _
Harvey B. Pippen, Jr.
DlrLctor
Office of Grants and Debarment
U.S. Environmental Protection Agency
Date_____________
Betty L. Bailey
Director
Office of Acquisition Management
U.S. Environmental Protection Agency
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Printed 28 October 1996
Page 8
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i APPENDIX 1. NPFC USER REFERENCE GUIDE
2 NPFC publishes the NPFC User Reference Guide . It addresses for OSCs the use of the
3 OSLTF and Superfund, along with applicable regulations and background information.
4 Due to its extensive nature, the material is published separately as a Supplement to the
5 Marine Safety Manual. It can be obtained by contacting the NPFC’s Customer Service
6 Division at (703) 235-4709. To assure that the Guide is available where needed, the
7 USEPA will annually provide NPFC a list of HQ and Regional organizations that employ
8 or support OSCs. The list shall include the address and NPFC will supply each with a
9 copy of the Reference guide and updates as necessary. The Reference Guide is divided
io into a series of topics briefly explained as follows.
ii A. Organizations Using Pollution Funds. This provides information on entities able
12 to access the Funds managed by NPFC and includes Federal Agencies, States and Trustees.
13 B. Introduction to NPFC. This descnbes the origins, roles, missions, case teams and
14 regions, functional contacts, and frequently used acronyms.
15 C. Removal Actions. This provides procedures for accessing the Funds for Clean
16 Water Act and CERCLA removals. It includes OSC financial management checklists,
17 guidance on mystery spills, ACP guidance, and reports. The Technical Operating
18 Procedures (TOPS) for Removal Costs and the TOPS for Resource and Cost
19 Documentation are included in this chapter.
20 D. Investigative Considerations. This addresses liability limits, proximate cause,
21 designation of source, notification and advertising, arid potential responsible parties.
22 E. State Access. This includes the State Access TOPS and the State Access
23 regulatons issued under OPA, Section 1012(d)(l). It also addresses procedures for
24 requesting funds, removal costs, pollution reports, payment, litigation, and cooperative
25 agreements
26 F. Natural Resource Damage Assessments. This includes the NRDAflnitiate TOPS
27 which contains initiation criteria, purchase of property, reporting, and requests for
28 reimbursement.
29 G. Claims. This includes the Claims regulations and the Claimant’s Information
30 Guide . which explain compensation available, filing a claim, notice of designation,
31 advertising, and the settlement process.
32 APPENDIX 2. USES OF THE OSLTF
33 The OSC may use the OSLTF for the payment of incident-specific removal costs, which
34 includes the cost of monitoring removal actions by responsible parties and others. This
Printed 28 October 1996 Page 9
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i includes all costs directly related to specific removals, including administrative,
2 operational, and personnel expenses. The costs are both extramural and intramural, as
3 defined below.
4 A. Extramural Costs. Extramural costs are those costs incurred external to the
5 USEPA: contractor/vendor, other government agencies, etc. See Appendix 8 for
6 contracting mechanisms to obtain extramural services. Examples of extramural costs
7 include, but are not limited to, the following:
8 1. Contractor and consulting costs, including lease or rental of equipment
9 supplied by a removal contractor or subcontractor.
10 2. Supplies, materials and equipment (including transportation costs) procured,
11 leased or rented for the specific removal activity.
12 3. Reimbursement of allowable costs incurred by other Federal agencies (e.g., U.
13 S. Army Corps of Engineers), or State or local governments. An Interagency
14 Agreement (lAG) between USEPA and another federal agency supporting a removal
15 action is an extramural cost.
16 4. Other incident-specific obligations or purchases of services used in conducting
17 removals.
18 B. Intramural Costs. Intramural costs include internal costs incurred by the USEPA
19 directly in support of removal activities. Intramural costs include:
20 1 Travel and per diem for USEPA personnel.
21 2. Salaries for USEPA personnel not normall) :vailable for oil spill removal, as
22 well as overtime hours for all personnel. USEPA determines who is not normally
23 available for oil spill removal.
24 3. Supplies used in support of a removal activity.
25 4. Charges for use of equipment and resources owned by the USEPA.
26 5. Replacement, repair, renovation or cleaning of USEPA equipment (including
27 consumables) due to unavoidable oiling normally inherent in conducting removal.
28 C. Mixed Spills. (To be developed)
Printed 28 October 1996 Page 10
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i APPENDIX 3. FUNDS TRANSFERS, FPN & CEILING
2 A. Multi-Incident lAG. Annually, the NPFC will execute an lAG with USEPA to
3 transfer funding from the OSLTF to USEPA to support the activities of USEPA in
4 conducting oil removals. The funding is for incident specific costs. The USEPA
accounting and financial data systems shall track expenditures and provide documentation
6 to support subsequent cost recovery actions by the NPFC. The signed JAG will be
7 delivered to EPA no later than October 1 of each year.
8 B. FPN. The OSC must contact the appropriate Coast Guard District Office and
9 obtain an FPN and a ceiling for each incident no later than the conclusion of the
10 pre-assessment phase (NCP Subpart D, Section 300.305, Phase II - Preliminary
ii Assessment and Initiation of Action”).
12 C. Ceiling Categories. The following are the categories of costs funded by the
13 OSLTF under an FPN and ceiling. The OSC is required to keep the costs in items (1), (2),
14 and (3) within the approved ceiling.
15 1. Incident specific obligations and other costs to date, such as purchases or
16 contracts for services.
17 2. Incident specific USEPA reimbursable costs recorded in the USEPA
18 accounting system (such as travel, per diem, overtime, plus salaries for personnel n I
19 normally available for oil spill response - USEPA determines who is not normally
20 available for oil spill response.)
21 3. Incident specific costs for all other Federal Agencies (e.g. NOAA, DOI-FWS,
22 etc.) including obligations and costs recorded in the Coast Guard accounting system
23 (Strike Team assistance costs, equipment, etc.).
24 4. Incident specific salary costs of personnel who are normally available for oil
25 spill response. These costs are recoverable from the Responsible Party (RP) but not
26 reimbursable from the OSLTF.
27 D. Incident Specific lAG. For certain removal actions, an Incident Specific lAG may
28 be the preferred funding mechanism. In that case, the OSC will still obtain an FPN and
29 ceiling from the appropriate Coast Guard District Office and start the removal. The
30 OSCIUSEPA Region and the NPFC will then negotiate the JAG.
31 An Incident Specific JAG can support better management when: removals are lengthy;
32 large ceilings are involved; multiple agencies are involved; a chosen contracting
33 mechanism introduces complexities, or some other condition requires extra management
34 attention. The OSC and the NPFC should both consider the use of an incident-specific lAG
35 under the following conditions:
Printed 28 October 1996 Page 11
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1. The OSC estimates that an additional $100,000 or more will be required after
2 the first anniversary of the opening of the removal (issuance of the FPN). (Case
3 ceiling would be at least $100,000 plus costs incurred in the first 12 months of
4 removal.)
2 The OSC estimates that the removal will continue past the second anniversary
6 of the FPN, i e., into the third year of removal.
7 3. Any case that involves improvements to real property. The case officer can
8 assist in determining what is considered an improvement.
9 E. Long Term Removals. If one or more of the conditions identified in Section D,
10 above, occurs, then the following requirements apply:
11 1. FfNANCIAL PLANNING. The OSC shall submit a Long Term Removal
12 Plan to NPFC containing all resource considerations relating to the removal project
13 from its inception to completion, including disposal of all real and personal property
14 procured for the removal. If improvements to real property are involved, the Plan
15 shall contain, at a minimum, a description of the removal system including
16 components and system operation, initial setup costs, annual recurring costs, annual
17 non-recurring costs, termination costs and other costs. The Plan shall list these cost
18 categones by federal fiscal year. The Fund may be used to purchase fixtures for real
19 property if this is the only cost-effective way to effect a removal; however, this does
20 not eliminate other requirements concerning real property acquisitions, particularly
21 usingltaking non-RP property without due process of law.
22 2 REAL PROPERTY -- ADVANCE PLANNiNG FOR DISPOSAL. If
23 improvements (long term facilities) are constructed on real property, the OSC must
24 document the improvements to support cost recovery and tential litigation and to
25 facilitate disposal upon closure. When the time for disposal arrives, records should be
26 available to show purchase costs, accurate descriptions of structures and installed
27 equipment, understandings or arrangements made in advance with any other parties,
28 title holder to the property involved at the time the improvements were installed, and
29 any other information needed to dispose of the specific type of improvement
30 involved.
31 3. SEPARATE lAG. A long term removal can not be charged to a
32 multi-incident JAG The OSC must immediately notify NPFC so that the removal
33 can be flmded under an incident-specific lAG. The initial amount provided in an lAG
34 will normally be the amount needed for the first 12 months. The NPFC will provide
35 continued fundmg, through annual amendments, for long term actions that are
36 consistent with the NC? and within the scope of the Long Term Removal Plan.
Printed 28 October 1996 Page 12
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1 4. ANNUAL ADMINISTRATIVE CYCLE. At every twelve month anniversary
2 of the removal project, the Long Term Removal Plan shall be reviewed and updated
3 to show all actual costs to date and current best estimates of future costs, as well as
4 changes in the nature of the spill or the technology being employed Based on this
5 information, the OSC should request additional ceiling in the amount needed for the
6 next 12 months and initiate an amendment to the JAG.
7 APPENI)LX 4. REPORTING AND COORDINATION
It is essential that the NPFC Case Officer be kept informed about the financial progress of
9 a removal. Poireps are a logical and effcctive way to accomplish this. Every Poirep should
10 show the financial status of the removal: current ceiling, obligations to date, an estimate of
ii all other costs to date (see Appendix 2-D, above), and any other facts or figures that
12 explain the current status or have value for planning subsequent activities. In the event that
13 the OSC has no reason to generate Poireps, the need to keep the Case Officer informed is
14 not diminished, and the OSC must convey the fmancial status information by some dther
15 kind of written communication.
16 The OSC is encouraged to contact the NPFC case officer if questions arise concerning the
17 fmancing or documenting of a case. This may include agreements to fund participation by
18 other government agencies, documentation of sources and identification of responsible
19 parties, and special considerations for billing responsible parties. The USC and the case
20 officer will work together to find solutions that are in the best interest of the government
21 At the conclusion of a removal, the USEPA USC shall submit a termination or closure
22 report to the NPFC Case Officer and shall also send a copy to the USEPA Cincinnati
23 Financial Management Center (CFMC). The report shall contain an estimate of the total
24 cost for the project, with reasonable allowances for uncer iinty, and a request to reduce the
25 project ceiling to that amount, thus releasing the balance for use elsewhere. There is no
26 need for the full identification of RP(s) and address(es) unless they were not provided
27 previously. This can be a Final Poirep or other written communication as above. If not a
28 Polrep, a copy of the report must be sent to the USCG District (m) Office from which the
29 FPN was obtained, in addition to the NPFC Case Officer.
30 APPENIIIX 5. COST DOCUMENTATION
31 To support cost recovery, documentation of all removal costs incurred as a result of an
32 incident is required These costs are recoverable from the responsible party. Some of
33 these costs are also reimbursable to USEPA from the OSLTF. These include costs for
34 personnel who are not normally available for oil spill response (whose USEPA fixed
35 account number is not for oil), premium pay (overtime, hazardous duty pay) for all
36 personnel working at an incident, travel vouchers, contractor invoices, contractor cost letter
37 reports, and any other charges related to an incident which have been charged to the
Printed 28 October 1996 Page 13
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i reimbursable account number. Costs that are recoverable, but not reimbursable, include
2 personnel normally available for oil spill response (under a USEPA fixed account number
3 for oil), contractor invoices and all other costs associated with an incident but not charged
4 to the reimbursable account.
5 A. Incident-Specific Documentation. The USEPA OSC shall produce a
6 comprehensive written record supporting all expenditures and costs incurred in each
7 removal. This documentation will support reimbursement of USEPA costs and NPFC’s
8 cost recoveiy on behalf of the OSLTF. Upon request of the OSC and contingent upon
9 availability, a case officer will go to the scene of a removal and assist the OSC with
10 documentation. USEPA may use: (1) the standard resource documentation procedures
ii available from the Case Officer; or (2) alternative documentation that provides the
12 following:
13 1. USEPA Personnel Costs . USEPA agrees to charge actual USEPA personnel
14 labor costs for all USEPA personnel participating in an incident specific removal.
15 Documentation must show each employees name, grade, hours, appropriate subtotals
16 and an overall total. Also included is the name and telephone number of the
17 appropriate USEPA official to contact for additional information, if not the USC.
18 USEPA must include a copy of the Payroll Distribution Timesheets (EPA Form
19 2560-28) for all pay periods identifying the sitefFPN and incident specific hours
20 chargeable for each participating employee and a document showing payroll hours by
21 pay period for all hours applicable to the incident. (NOTE: Timesheets and payroll
22 reports must be redacted to remove data protected by the Privacy Act such as social
23 security numbers, etc.)
24 2. USEPA Personnel Travel Costs . All incident specific travel costs must be
25 documented. This shall include a summary indicating the employee’s name, Travel
26 Authorization (TA) number, amount, employee subtotal and overall incident total.
27 Documentation must include copies of each TA, liquidated Travel Vouchers and
28 expense receipts as required of the traveler. (NOTE: TA’s, Vouchers and receipts
29 must be redacted to remove data protected by the Privacy Act such as social security
30 numbers, etc.)
31 3. Other USEPA Costs . Documentation for costs of USEPA vehicles and other
32 government owned equipment shall contain a description of the item, unit of use (i.e.
33 per hour or day, etc.), applicable rate and the total charge. Government owned
34 equipment utilization is recorded on a daily basis.
35 4. Contractor Costs : USEPA shall document contractor costs for all incident
36 specific contractor related response costs.
37 (a) A cover sheet shall contain site name and FPN, the applicable Tasking
38 Document Number(s), date(s) of contractor work performance, labor costs,
Printed 28 October 1996 Page 14
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1 travel costs, contractor purchases, G&A, overhead, base and award fee (if
2 appropriate), total invoice amount and a brief descnption of the contractor
3 activity performed under the Tasking Document(s);
4 (b) Copies of each Tasking Document and any amendments for contractor
5 related response activity for the site. For each Tasking Document Number,
6 the record shall contain daily line item detail by person for all contractor
7 personnel participating in response activity under that Tasking Document;
8 (c) Copies of all contractor billing statements which enumerate the final
9 cumulative direct costs by applicable Tasking Document Number with the
io applicable line items underlined. For contracts that are billed in summary
ii amounts, USEPA shall provide a report of the tasking documents and
12 associated costs to support the amount billed. (NOTE: If the cumulative cost
13 totals for any Tasking Document Numbers listed on the billing statement are
14 not the final costs, the contractor cover sheet must clearly state this with an
15 estimate of anticipated additional costs and the expected date of completion.
16 If there are any adjustments to the actual contractor payment, the cover sheet
17 must state the Tasking Document Number and the actual amount paid).
18 (d) For each person, the daily line item detail shall include the employee
19 name, job title, professional level or hourly rate and hours;
20 (e) Line item detail shall record any other applicable contractor costs, such
21 as equipment rentals and purchases of supplies. Equipment rented for a period
22 of time can be recorded once, provided the line item clearly indicates the time
23 period.
24 5. Documenting Contractor Costs for USCG Basic Ordering Agreements
25 ( BOAs ) When the USEPA contracting officer places orders against USCG BOAs,
26 contractor cost documentation requirements stipulated in the USCG BOA shall apply
27 The USEPA OSC, or the USEPA OSC’s authorized representative (who must be a
28 federal employee) signs each daily contractor cost report. BOA contractor invoices
29 are sent directly by the USEPA OSC to the servicing USEPA contracting officer. A
30 copy of each OSC-certified invoice must be retained in the required documentation.
31 See Appendix 8.
32 6. Status Reports . The NPFC wiLl assemble a complete set of the Polreps and
33 other status reports submitted by the IJSEPA OSC and incorporate them into the cost
34 documentation package
35 B. Other Government Agency Costs: USEPA may use a Pollution Removal
36 Funding Authorization (PRFA) or other agency agreement to employ another government
37 agency in a removal action.
Printed 28 October 1996 Page 15
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1 1. USEPA shall obtain cost documentation from other government agencies
2 (federal, state and local) participating in a removal under the auspices of a USEPA
3 OSC in accordance with the requirements specified in any applicable USEPAIOther
4 Agency agreement (i.e., JAG, Cooperative Agreement, letter contract, etc.). When
5 USEPA uses an Other Agency agreement, USEPA will obtain reimbursement from
6 the OSLTF and will reimburse the other agency.
7 2. A USEPA OSC may, at his or her discretion, use a Pollution Removal
8 Funding Authorization (PRFA), as described in NPFC Technical Operating
9 Procedures for Standard Cost Documentation (TOPS), in lieu of the agreement
i o mentioned above. In the absence of a USEPA/Other Agency agreement, a PRFA will
ii be executed.
12 3. If the OSC requests assistance from the NPFC in executing a PRFA, the
13 NPFC may authorize reimbursement directly to the other agencies from the OSLTF.
14 The USEPA OSC must assure that the correct USCG accounting data is entered on
15 the PRFA and that a copy is sent to the NPFC for this type of transaction to work
16 properly. PRFAs are intended to be issued by the OSC pursuant to instructions
17 contained in the NPFC Technical Operating Procedures (TOPS) for Resource
18 Documentation When USEPA issues a PRFA, other agency reimbursements will be
19 processed in accordance with the TOPS.. Assistance in the use of PRFAs may be
20 obtained from the NPFC Case Officer.
21 3. Cost documentation provided by other agencies shall include:
22 (a) Copies of tasking documents issued by the OSC which describe the
23 equipment or services provided by the other agency;
24 (b) Copies of records detailing work performed, travel, labor, equipment
25 and any additional items used, with unit costs and subtotals for each category,
26 and an overall reimbursable total.
27 C. Oil & Gas Well Site Specific Costs. Costs for each well in a field or cluster
28 treated in a removal project funded imder a single FPN must be documented separately
29 Direct costs not attributable to a specific well must be allocated on a consistent basis
30 against all wells subject to removal activity in any such project with combined funding.
31 The resource documentation for the project must include: all costs for each individual
32 well; the method of allocating each category of direct allocable costs; and the identity of
33 the prospective responsible party or parties associated with each well. Examples of direct
34 well site costs include, but are not limited to the followingS removal of production tubing,
35 casing, well head assemblies, or gathering lines; plugging; grading and restoration of
36 surface well site terrain (including treatment of contaminated soil); and construction and
37 removal of temporary access. Examples of direct costs not attributable to a specific well,
38 which must be allocated, include: treatment of contaminated soil or water not associated
Printed 28 October 1996 Page 16
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i with a particular welt; removal of central field storage tank batteries and heater treaters,
2 compressors, dryers, etc.; closure of waste oil pits; disposal; and OSC authorized
3 miscellaneous purchases, administrative, travel, and monitoring costs, including technical
4 assistance contractor costs, if any.
D. USEPA Documentation Custodian & Point of Contact. USEPA shall retain the
6 entire documentation package until such time as NPFC Case Officer requires it to support
7 negotiation or litigation following billing. The holder of the completed files shall be the
8 USEPA Regions. CFMC bills the USCG for reimbursement from the OSLTF and must
9 hold complete billing documentation inclusive of all adjustments to calculate the correct
10 reimbursement amount and support it.
ii In the event of a challenge to the removal cost documentation records following billing, the
12 NPFC Case Officer may request additional documentation from CFMC for resolution with
13 a copy of the request to the OSC.
14 E. Timcly Submission of Documentation. To support prompt billing of the
is responsible party (RP), documentation of costs is required at NPFC not later than 90 days
16 following receipt of contractor invoice of costs andior receipt of payment of EPA travel
17 vouchers. The cognizant EPA official shall advise the NPFC if a delay is expected, the
18 reason for the delay, and the date the documentation will be provided.
19 Six months from initiation of the removal action and every six months thereafter until site
20 completion, the OSC must assemble an interim cost documentation package and forward
21 copies to the CFMC and NPFC. The cost documentation package will contain all of the
22 elements described in the Cost Documentation Appendix.
23 F. Documentation Retention Period. The USEPA agrees to retain all cost
24 documentation for a minimum of six years following completion of incident removal
25 activity unless otherwise advised by the NPFC. USEPA must retain only that cost
26 documentation which was not forwarded to the NPFC under section VII of this agreement.
27 G. USEPA Indirect Cost Model. The USEPA agrees to develop an indirect cost
28 model that will support USEPA reimbursement of all indirect cost expenditures. The
29 USEPA shall coordinate this project with the NPFC at reasonable intervals to assure that it
30 will support cost recovery actions against RPs.
31 H. Forensic Documentation. When the source of an oil spill is in question, the OSC
32 may use forensic laboratory analysis to compare the spilled oil with suspected sources.
33 The OSC must employ sampling collection and handling procedures that assure
34 uncontaminated samples and an unbroken chain of custody from collection through
35 analysis. The forensic process should be able to withstand challenge in court to be of value
36 in cost recovery.
Printed 28 October 1996 Page 1’
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i The USEPA OSC may use the Coast Guard Marine Safety Laboratory in Groton,
2 Connecticut, or other labs that are approved under the USEPA Contract Lab Program
3 (CLP) and shall provide, if necessary, expert testimony in cost recovery litigation.
4 APPENDIX 6. PROPERTY & EQUIPMENT PURCHASES
5 A. Buy Vs. Lease. All property purchased with OSLTF funds under an
6 incident-specific FPN remains property for wh ch the NPFC has a fiduciary interest. OSCs
7 should only purchase property with OSLTF funds when operational necessity directly
8 related to a removal dictates or when it is clearly more beneficial to the government than
9 leasing. Otherwise, leasing is the preferred choice. When making decisions to buy versus
io lease property, and operational conditions permit, OSCs should factor in the costs
ii necessary for acquisition, maintenance and disposal/disposition of the property. Many of
12 these considerations can be addressed in the planning process before a spill occurs.
13 Documentation of the factors considered in purchasing property during a spill are critical in
14 cost recovery and litigation and shall be documented to the greatest extent possible. OSCs
15 should be aware that property purchased to support a removal will be billed to the
16 responsible party at 100% of the cost. Accordingly, the OSC should provide the
17 responsible party the opportunity to purchase or otherwise directly supply the property
18 needed Upon completion of the removal, any property provided by the responsible party
19 shall be transferred directly to the responsible party.
20 B. Disposal and Property Records. All property purchased with OSLTF funds must
21 be accounted for in the cost documentation. However, not all OSLTF purchased property
22 requires documented disposal/disposition. For example, all consumable items are
23 considered expended during the removal activity. Therefore, consumable property
24 remaining at the completion of removal action only requires cost effective
25 disposal/disposition. Lots of consumable property havin: cost in excess of $1,000 shall
26 be treated as non-consumables. The USEPA shall retain documentation or evidence of
27 disposal/disposition action taken for all non-consumable property and consumables in lots
28 worth more than $1,000. Non-consumable property includes items costing over $1,000
29 and items of lower cost but high interest (e g., radios, FAX machines, cellular phones,
30 computers, pagers, copiers, photographic equipment, protective clothing, test equipment,
31 etc.).
32 C. Defense Reutilization & Marketing Office (DRMO). To properly dispose of
33 non-consumable property, the OSC shall use the closest Defense Reutilization and
34 Marketing Office (DRMO). Transportation costs associated with disposal/disposition of
35 property may be charged to the FPN. The DRMO usually requires a form DD-1348 for
36 each group of like items. Where the form requests a Department of Defense Activity
37 Address Code (DODAAC), use “Z74 100.”
38 D. DRMO & Property Survey Records. The OSC shall forward copies of
39 DD-1348(s) to the NPFC in the billing summary and case completion report following
Pnnted 28 October 1996 Page 18
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i completion of the removal. A copy shall also be placed in the complete case file. Lost
2 property, stolen property, and damaged property that is not suitable for transfer to a DRMO
3 must be surveyed in accordance with federal property management guidelines A copy of
4 the survey report must be forwarded to the NPFC case officer in the billing summary and
case completion report, and a copy shall also be placed in the complete case file.
6 E. Real Property. The Fund may be used to make improvements to real property if it
7 is the necessary or the cost-effective way to effect the removal, however, this does not
8 obviate other requirements pertaining to real property acquisitions, particularly taking and
9 compensation issues. Upon completion of the cleanup, removable fixtures should be
io disposed of in the same manner as personal property purchased with OSLTF funds (see
11 Appendix 6); permanent improvements to real property should be removed, abandoned or
12 excessed, as appropriate, as permitted by the ownership of the real property.
13 F. Additional Information. If questions should arise about property or related
14 issues, such as DRMOs, the OSC should call the case officer.
15 APPENIMX 7. DESIGNATION OF SOURCE & CLAIMS
16 OPA requires where possible and appropriate that the source of each discharge or
17 substantial threat of discharge be designated and the RP notified. Subpart B of the NCP
18 section 300.13 5(c)states that “the OSC shall, to the extent practicable, collect pertinent
19 facts about the discharge or release, such as its source and cause; the identification of
20 potentially responsible parties; the nature, amount, and location of discharged or released
21 material; the probable direction and time of travel of discharged or released materials;
22 the pathways to human and environmental exposure...”; etc. The NPFC is responsible for
23 claims and will notify the RP for USEPA incidents following receipt from the USEPA
24 OSC of the RP’s identity and address (includiug, as appropriate: telephone, telex, and fax
25 numbers; resident agents or agents for service of process; those authorized to speak and act
26 for the RP in this situation, particularly when the RP is an organization, and how they can
27 be contacted; tax ID numbers; and any other information concerning RP organizational
28 structure(s) which could assist the case officer). The USEPA OSC shall scope out the
29 potential for third party claims arising out of the incident. The OSC shall promptly make
30 this information available to the NPFC Case Officer to support the evaluation of the impact
31 of claims, as well as enabling designation and notification. Upon request of the OSC and
32 contingent upon availability, a claims officer will go to the scene of a removal to assist the
33 OSC in evaluating the potential for claims and in identifying sources and potentially
34 responsible parties.
35 APPENDIX 8. BILLING
36 A. The Billing Process. The USEPA OSC must submit all financial documentation to
37 CFMC for verification and final adjustments. CFMC shall submit a preview copy of the
Printed 28 October 1996 Page 19
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i Billing Summary to NPFC for validation of costs to be billed. Once agreement between
2 CFMC and NPFC has been reached on the total amount to be billed, CFMC will initiate
3 reimbursement. CFMC will use the U.S. Treasury’s On-Line Payment And Collection
4 System (OPAC) to send the total bill for reimbursement directly to the USCG Finance
5 Center in Chesapeake, Virginia (ALC = 69-02-5 102). As part of the same action, CFMC
6 shall send (by mail or fax) a copy of the Billing Summary to the NPFC at the following
7 Address:
8 National Pollution Funds Center (cm)
9 4200 Wilson Boulevard, Suite 1000
10 Arlington, Virginia 22203-1804
11 (703)235-4837 fax
12 B. Billing Summary. The Billing Summary is based on supporting documentation for
13 all recoverable costs, including both reimbursable and non-reimbursable. The Summary
14 must contain a line item showing the total dollar amount for each of the major categories of
is costs:
16 1. USEPA Personnel
17 2. USEPA Travel
18 3. Contractors (list each separately)
19 4. Other Government Agency Costs (list each separately)
20 5. Marine Safety Lab
21 6. Miscellaneous
22 The Summary should also provide explanations for any unclear elements or issues.
23 C. Timetables. The preview copy of the Billing summary must be received by NPFC
24 not later than 90 days following the OSC’s receipt of contractor i “.‘oice(s) andlor payment
25 of USEPA travel vouchers. Once NPFC has validated costs on the preview copy of the
26 Billing Summary, CFMC will initiate reimbursement via OPAC. CFMC shall forward to
27 the NPFC and USCG Finance Center the Billing Summary and OPAC accounting
28 information by fax or mail within five working days after submitting the OPAC.
29 APPENDIX 9. CONTRACTING
30 A. AUTHORIZATION FOR USE OF UNITED STATES COAST GUARD BASIC
31 ORDERING AGREEMENTS FOR POLLUTION CLEANUP SERVICES AND
32 EQUIPMENT. USEPA may act as an ordering office under the USCG Basic Ordering
33 Agreements (BOAs) issued by Commander (fcp), Maintenance and Logistics Command
Atlantic and Commander (fcp), Maintenance and Logistics Command Pacific. This
35 ordering authority is subject to the following conditions:
Prwted 28 October 1996 Page 20
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1. Only Contracting Officers or On-Scene-Coordinators duly warranted by the
2 USEPA in accordance with the Federal Acquisition Regulations (FAR) may issue
3 delivery orders, up to the maximum authority of their warrant, under the BOAs. This
4 authority may not be redelegated. Within 30 days of the execution of this MOU,
5 USEPA will provide a list of the names and addresses of all contracting officers
6 executing delivery orders under the BOAs. The list will include the geographic area
7 of responsibility for each contracting officer. Annually, USEPA will update the list.
8 The initial list and the updates will be provided to the two USCG offices listed in
9 paragraph 13 of this appendix.
10 2. If a USEPA OSC does not have a Contracting Officer’s Warrant, all
ii requirements for BOA services and supplies must be referred to a warranted USEPA
12 Contracting Officer.
13 3. USEPA Contracting Officers and warranted OSCs shall be responsible for
14 reviewing, understanding and complying with the provisions of the BOAs.
15 4. All delivery orders shall be within the scope of the BOA and documented as
16 required by the FAR, supplemental agency regulations and the BOA.
17 5. Delivery orders shall be issued only when emergency cleanup is required and
18 internal USEPA procedures and regulations authorize contracting under the authority
19 of FAR 6.302-2, Unusual and Compelling Urgency; when required, the USEPA shall
20 prepare a Justification for Other than Full and Open Competition (JOTFOC); and
21 under no circumstances shall the BOAs be used for remediation, routine or planned
22 actions.
23 6. All delivery orders issued by the USEPA shall contain the following
24 information: full address of the contract administratHn office and name and
25 telephone number of the USEPA Contracting Officer; the full address of the USEPA
26 payment office; the full address where invoices are to be sent; and the name of the
27 entity responsible for certifying receipt and acceptance of services and supplies.
28 7. The USEPA shall be responsible to certify the receipt and acceptance of the
29 services and supplies in accordance with all laws and regulations, and the terms and
30 conditions of the BOA.
31 8. Funding for delivery orders shall comply with applicable provisions elsewhere
32 in this MOU.
33 9. All payments shall be made by the USEPA authorized payment office cited on
34 each individual delivery order and shall be made in accordance with the Prompt
35 Payment Act and FAR 52.232-25, Prompt Payment.
Printed 28 October 1996 Page 21
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1 10. Any interest payable shall be funded by the OSLTF and paid by the USEPA.
2 USEPA shall report to the NPFC total interest paid in the prior fiscal year no later
3 than 15 November of each year.
4 11. The USEPA shall not take any action, either directly or indirectly, that could
5 result in a change to the pricing, quality, established response timeframes, or any
6 other terms and conditions of the BOA; or direct the accomplishment of effort which
7 would exceed the scope of the BOA.
12. The USEPA shall resolve all disputes arising from or relating to delivery
9 orders that they issue. All di putes settled in favor of the contractor will be funded
10 out of the OSLTF and in no event will they be paid out of Coast Guard operating
ii funds.
12 13. Within forty-eight (48) working hours after issuance of a delivery order the
13 USEPA shall forward a copy (minus enclosures) to the NPFC and the appropriate
14 address below:
15 Commander (fcp), Maintenance and Logistics Command Pacific
16 Building 54A, Coast Guard Island
17 Alameda, CA 94501-5100
18 Commander (fcp-2), Maintenance and Logistics Command Atlantic
19 300 East Main Street, Suite 965
20 Norfolk,VA 23510-9113
21 14. The USEPA shall provide the appropriate contracting office listed above with
22 a list of closed out delivery orders by May 15 and November 15 each year.
23 -End-
Printed 28 October 1996 Page 2
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CLEAN WATER ACT
2-13. Inspections and Information Gathering
1. AUTHORITY. Pursuant to the Clean Water Act (CWA), the
authority to:
a. Enter into, upon or through any premises subject to the
Clean Water Act, or in which records required to be maintained
under the CWA are located; have access to and copy records; take
samples, and inspect monitoring equipment and methods.
b. Require the owner or operator of any point source to
establish And maintain records; make reports; install, use, and
maintain mdnitoring equipment; sample effluents; and provide
information;
c. Carry out or require the carrying out of any other
inspection and information gathering activities authorized by CWA.
d. Obtain and execute warrants for the purposes of performing
an inspection or information gathering.
e, Designate representatives of the Administrator to perform
the functions specified in paragraphs 1.a-1.d.
2. TO WHOM DELEGATED. The Assistant Administrator for Water, (for
the exercise of authority other than under Section 311), the
Assistant Administrator for Solid Waste and Emergency Response (for
the exercise of authority only under Section 311), Assistant
Administrator for Enforcement and Compliance Assurance, and
Regional Administrators.
3. LIMITATIONS.
a. The Assistant Administrator for Water, the Assistant
Administrator for Solid Waste and Emergency Response and the
Regional Administrators must consult with the Assistant
Administrator for Enforcement and Compliance Assurance or his/her
designee prior to obtaining warrants.
b. The Assistant Administrator for Enforcement and Compliance
Assurance, the Assistant Administrator for Solid Waste and
Emergency Response, and the Assistant Administrator for Water must
notify the appropriate Regional Administrator prior to exercising
any of the authorities specified in paragraphs 1.a, l.c, and 1.d.
c. The redelegatees of the Regional Administrators must
consult with the Regional Counsel or his/her designee prior to
obtaining warrants.
4. REDELEGATION AUTHORITY.
a. The authorities in l.a may be redelegated to the staff
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level or redelegated to an authorized contractor acting as a
representative of the Administrator under the authority of Section
308 of the CWA.
b. The authorities in l.b and l.e, and the authority in l.c
to require the carrying out of any other inspection and information
gathering activities authorized by CWA, may be redelegated to the
Division Director level at headquarters, and to the Branch Chief
level in the Regions.
c. The authority in l.c to carry out any other inspection
and information gathering activities authorized by CWA and the
authorities in 1.d may be redelegated to the staff level.
5. ADDITIONAL REFERENCES. Sections 308 and 311 of the CWA and
regulations developed thereunder..
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FEDERAL WATER POLLUTION CONTROL ACT
2-14-A. Civil Judicial Enforcement and Administrative
Penalty Collection Actions
1. AUTHORITY. To cause civil judicial actions to be commenced or
to intervene in suits commenced pursuant to the Clean Water Act
(CWA); to request the Attorney General to appear and represent the
Agency in any civil enforcement actions instituted under CWA; to
determine that the Attorney General has failed or refused to appear
and represent the Agency in any CWA civil enforcement action; to
appear and represent the Agency in any CWA action where the
Attorney General has refused or failed to appear and represent the
Agency; to request the Attorney General to initiate an appeal of a
CWA action and represent the Agency in such an appeal; and to
initiate an appeal and represent the Agency when the Attorney
General fails to do so; and to request the Attorney General to
commence civil actions to collect unpaid Class I or II
administrative penalties.
2. TO WHOM DELEGATE. Assistant Administrator for Enforcement and
Compliance Assurance, General Counsel and Regional Administrators.
3. LIMITATIONS.
a. The Regional Administrators may exercise this authority
only in regard to commencing civil actions under CWA, intervening
in civil actions commenced under CWA, requesting the Attorney
General to appear and represent the Agency in civil actions under
CWA and, where appropriate, appearing and representing the Agency
in civil actions under CWA exclusive of appeals. The Regional
Administrators may designate only Regional Counsel attorneys to
represent the Agency.
b. The Regional Administrators may exercise this authority
only in cases specified in agreement between authorized
representatives of the Agency and the Department of Justice.
c. The Assistant Administrator for Enforcement and Compliance
Assurance must notify the Assistant Administrator for Water (or the
Assistant Administrator for Solid Waste and Emergency Response, as
appropriate) and the appropriate Regional Administrator when he or
she refers a case to the Department of Justice and when he or she
formally initiates a judicial appeal.
d The General Counsel may only exercise this authority in
regard to judicial appeals.
e. Any exercise of the judicial appeal authority will be done
jointly by the General Counsel and the Assistant Administrator for
Enforcement and Compliance Assurance. Either office may waive
authority to participate by memorandum.
f. The Regional Administrators must notify the Assistant
Administrator for Water (or the Assistant Administrator for Solid
Waste and Emergency Response, as appropriate) and the Assistant
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Administrator for Enforcement and Compliance Assurance when they
refer cases to the Department of Justice.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a- Memorandum of Understanding between the Agency and the
Department of Justice, June 1977; Direct referral agreement
memorialized in letter of September 29, 1983, from Alvin L. Aim,
Deputy Administrator, to F. Henry I-labicht, Assistant Attorney
General, regarding direct referrals; Sections 309, 311, 402(h), 504
and 506 of CWA.
b. Memorandum to Regional Administrators from Thomas L. Adams,
Jr. dated August 28, 1986, “Expanded Civil Judicial Referral
Procedures .“
c- Memorandum to Regional Administrators from Steven A.
Herman, Assistant Administrator for Enforcement and Compliance
Assurance, dated August 24, 1993, “Incorporation of Clean Water
Act’s Failure to Implement Pretreatment Cases into Categories of
Cases Referred Directly to the Department of Justice.”
d. For referrals of requests for emergency CWA Temporary
Restraining Orders, see the Chapter 2 delegation entitled
“Emergency TRO’ s.”
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CLEAN WATER ACT
2-14-B. Criminal Enforcement Actions
1. AUTHORITY. To cause criminal matters under the Clean Water Act
(CWA) to be referred to the Department of Justice for assistant in
field investigation, for initiation of a grand jury investigation
or for prosecution under CWA.
2. TO WHOM DELEGATED. Assistant Administrator for Enforcement and
Compliance Assurance.
3. REDELEGATION AUTHORITY. This authority may be redelegated to
the Director, Office of Criminal Enforcement; may be further
redelegated to the Division Director level; and may not be
redelegated further.
4. ADDITIONAL REFERENCES. Sections 309 Cc) (1), 309(c) (2),
311(b) (5) and 404(s) (4) (A) of CWA.
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CLEAN WATER ACT
2—14-C. Settlement or Concurrence in Settlement
of Civil Judicial Enforcement Actions
1. AUTHORITY. To settle or exercise the Agency’s concurrence in
the settlement of civil judicial enforcement actions under the
Clean Water Act (CWA); to amend a consent decree pursuant to a
civil judicial enforcement action under CWA; and to request the
Attorney General to amend a consent decree pursuant to be civil
judicial enforcement action under CWA.
2. TO WHOM DELEGATED. Assistant Administrator for Enforcement and
Compliance Assurance.
3. LIMITATIONS. Except for a Headquarters-initiated case, the
Assistant Administrator for Enforcement and Compliance Assurance
must obtain the concurrence of the Agency official who initiated
the case (that is, either the Assistant Administrator for Water or
his designee, the Assistant Administrator for Solid Waste and
Emergency Response or his designee, or the appropriate Regional
Administrator or his designee) before exercising this authority.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
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CLEAN WATER ACT
2-14-D. Emergency TRO ’s
1. AUTHORITY. To refer requests for emergency Temporary
Restraining Orders under the Clean Water Act (CWA) to the
Department of Justice and to the appropriate United States
Attorney.
2. TO WHOM DELEGATED. The Assistant Administrator for Enforcement
and Compliance Assurance and the Regional Administrators.
3. LIMITATIONS.
a. The Regional Administrators must notify the Assistant
Administrator for Enforcement and Compliance Assurance or his/her
designee and the Assistant Administrator for Water or his designee
when exercising this authority. With respect to spills under
Section 311, the Assistant Administrator for Solid Waste and
Emergency Response or his designee must also be notified.
b. The Assistant Administrator for Enforcement and Compliance
Assurance must notify the Assistant Administrator for Water or his
designee and the appropriate Regional Administrator or his/her
designee when exercising this authority. With respect to spills
under Section 311, the Assistant Adnunistrator for Solid Waste and
Emergency Response or his designee must also be notified.
4. REDELEGATION AUTHORITY. This authority may only be redelegated
to on-scene coordinators.
5. ADDITIONAL REFERENCES.
a. Memorandum of Understanding between the Agency and the
Department of Justice, June 1977; Sections 309, 311, 402(h), 504
and 506 of CWA.
b. For referral of other civil actions under CWA, see Chapter
2 delegation entitled “Civil Judicial Enforcement and
Administrative Penalty Collections Actions.”
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CLEAN WATER ACT
2—14—E. Authority to Arrest for CWA Section 311 Violation
1. AUTHORITY. Pursuant to the Clean Water Act, to arrest, with or
without a warrant any person who, in the presence or view of an
inspector, violates the provisions of Section 311 of the Clean
Water Act or any regulation issued thereunder.
2. TO WHOM DELEGATED. The Assistant Administrator for Enforcement
and Compliance Assurance.
3. REDELEGATION AUTHORITY. The Assistant Administrator for
Enforcement and Compliance Assurance may redelegate this authority
to the Director, Office of Criminal Enforcement, who may redelegate
this authority to the Special Agents.
4. ADDITIONAL REFERENCES. Section 311 of the CWA and regulations
issued thereunder.
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CLEAN WATER ACT
2-15-A. Determination of Imminent and Substantial Endangerment
1. AUTHORITY. To determine, pursuant to the Federal Water
Pollution Control Act (FWPCA) and in accordance with Executive
Order 11735, dated August 3, 1973, that there is an imminent
and substantial threat to the public health or welfare of the
United States because of an actual or threatened discharge of
oil or hazardous substance into or upon the navigable waters
of the United States from an onshore or offshore facility.
2. TO WHOM DELEGATED. Regional Administrators and Assistant
Administrator for Solid Waste and Emergency Response.
3. REDELEGATION AUTHORITY. This authority may be redelegated.
4. ADDITIONAL REFERENCES.
a. Section 311 of FWPCA.
b. National Contingency Plan (40 CFR 300.52)
c. For referral of the corresponding civil judicial enforcement
actions to the Department of Justice see Chapter 2 delegations entitled
“Civil Judicial Enforcement and Administrative Penalty Collections
Actions” and “Emergency TRO’s.”
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CLEAN WATER ACT
2-15-3. Administrative Determinations Regarding
the Obtaining of Penalties for Spills
1. AUTHORITY. The perform the administrative functions which are
the responsibility of the Environmental Protection Agency under
Section II of the Memorandum of Agreement dated August 15, 1979
between the Agency and the U.S. Coast Guard. This includes the
authority to determine that it is appropriate to initiate a civil
judicial penalty action for the discharge of oil or hazardous
substances into or upon the navigable waters of the United States.
2. TO WHOM DELEGATED. Assistant Administrator for Water and
Regional Administrators in accordance with the provisions of the
Memorandum of Agreement.
3. REDELEGATION AUTHORITY. This authority may be redelegated to
the Division Director level.
4. ADDITIONAL REFERENCES.
a. Memorandum of Agreement between the Environmental
Protection Agency and the U.S. Coast Guard concerning the
Assessment of Civil Penalties for Discharges of Oil and Designated
Hazardous Substances dated August 15, 1979 and published in the
FEDERAL REGISTER, August 29, 1979, at 44 FR 50785.
b. Sections 309 and 311 of the Clean Water Act (CWA)
c. For referral of the corresponding civil judicial actions
to the Department of Justice, see the Chapter 2 delegation entitled
“Civil Judicial Enforcement and Administrative Penalty Collections
Actions.”
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CLEAN WATER ACT
2—28. Product Placement on NCP Schedule
1. AUTHORITY. To issue, pursuant to Clean Water Act section
311(d) (2) (g), letters of notification of placement of chenu.cal
and biological agents on the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP) Product Schedule in
accordance with Subpart J “Use of Dispersants and Other
Chemicals” of the NCP.
2. TO WHOM DELEGATED. Assistant Adnunistrator for Solid Waste
and Emergency Response.
3. REDELEGATION AUTHORITY. This authority may be redelegated
to the Office Director level.
4. ADDITIONAL REFERENCES. Section 311(d) (2) (G) of CWA; 40 CFR
§300.
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FEDERAL WATER POLLUTION CONTROL ACT (FWPCA)
2—29. Spill Prevention Control and Countermeasure Plan
1. AUTHORITY. Pursuant to the Federal Water Pollution Control
Act (FWPCA), to perform the EPA functions and responsibilities
relative to the Spill Prevention Control and Countermeasure Plan
(SPCC Plan) regulations.
2. TO WHOM DELEGATED. Regional Administrators and Assistant
Administrator for Solid Waste and Emergency Response.
3. LIMITATIONS.
a. Regional Administrators are delegated the authority to
authorize extensions of time for preparation and implementation of
SPCC Plans in accordance with 40 CFR 112.3(f), to require
amendments to SPCC Plans in accordance with 40 CFR 114.6.
Regional Administrators are, also, delegated the authority to
assess and compromise civil penalties in accordance with 40 CFR
112.6, 114.1, and 114.3.
b. The Assistant Administrator for Solid Waste and Emergency
Response is delegated the authority to render decisions on appeals
made pursuant to 40 CFR 112.4 (f) by owners and operators relative
to amendments to SPCC Plans required by Regional Administrators.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a. Section 3 ll(j) (1) (c) of FWPCA.
b. 40 CFR Parts 110, 112, and 114.
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CLEAN WATER ACT
2—51. Class I Administrative Penalty Actions
1. AUTHORITY. Pursuant to the Clean Water Act the authority
to;
a. Act as the complainant in a Class I administrative
penalty action under the CWA.
b. Conduct proceedings, recommend the form of final Agency
action, issue subpoenas and perform all the presiding officer
functions set forth in applicable Agency guidance or regulations
governing the administration of Class I administrative penalty
actions under the CWA.
c. Represent the complainant before a presiding officer in
a Class I administrative penalty proceeding under the CWA.
d. Issue an order on consent between the Agency and a
respondent resulting from the initiation of a Class I
administrative penalty action under the CWA.
e. Act as deciding official in a contested or default Class
I administrative penalty action under the CWA, and to assess a
penalty in such a proceeding.
1. Review sua sponte any exercise of the authority described
in i.e in a contested or a defaulted action.
2. TO WHOM DELEGATED.
a. The authority in l.a is delegated to the Regional
Administrators, and the Assistant Administrator for Enforcement and
Compliance Assurance, for the purpose of redelegation.
b. The authorities in i.b are delegated to the Regional
Administrators for the purpose of redelegation, and are delegated
to the General Counsel.
c. The authority in l.c is delegated to the Assistant
Administrator for Enforcement and Compliance Assurance.
d. The authority in l.d is delegated to the Regional
Administrators, and the Assistant Administrator for Enforcement and
Compliance Assurance.
e. The authorities in l.e are delegated to the Regional
Administrators, and the Assistant Administrator for Enforcement and
Compliance Assurance.
f. The authority in l.f is delegated to the Environmental
Appeals Board.
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3. LIMITATIONS.
a. The Regional Administrators and the Assistant
Administrator for Enforcement and Compliance Assurance shall
redelegate the authority in l.a. The delegatee of the Assistant
Administrator for Enforcement and Compliance Assurance may exercise
such authority only in multi—regional cases or cases of national
significance.
b. The delegatee of the Assistant Administrator for
Enforcement and Compliance Assurance shall consult with the
appropriate Regional Administrator or designee before initiating a
Class I action.
c. The General Counsel or his delegatee may exercise the
authorities described in l.b only in cases initiated by the
delegatee of the Assistant Administrator for Enforcement and
Compliance Assurance.
d. The Regional Administrators and the Assistant
Administrator for Enforcement and Compliance Assurance may exercise
the authority in i.e only if (1) the delegatee of such official
initiated the action and (2) such official or his delegatee
provides the Environmental Appeals Board with a timely copy of the
decision in a contested or a defaulted action so that there is an
opportunity for a sua sponte review.
4. REDELEGATION AUTHORITY.
a. The Regional Administrators may redelegate the
authorities in l.a and l.d to the branch chief level. The
Assistant Administrator for Enforcement and Compliance Assurance
may redelegate the authorities in l.a and 1.d to the division
director level.
b. The Regional Administrators shall, and the General
Counsel may, redelegate the authorities in l.b to a person meeting
the neutrality requirements of applicable Agency guidance or
regulations.
c. The Assistant Administrator for Enforcement may
redelegate the authority in 1.c to any Agency attorney.
d. The Regional Administrators may redelegate the authority
in l.e on a case—by-case basis to the person exercising the
authorities in i.b. The Assistant Administrator for Enforcement
and Compliance Assurance may not redelegate the authority in i.e.
e. The Environmental Appeals Board may not redelegate the
authority in l.f.
5. ADDITIONAL REFERENCES.
a. Section 309 of the Clean Water Act, 33 U.S.C. Section
1319, as amended by the Water Quality Act of 1987.
b. Section 311 of the Clean Water Act, 33 U.S.C. Section
1321, as amended by the Oil Pollution Act of 1990.
c. Agency guidance or regulations governing Class I
administrative penalty actions under the Clean Water Act.
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CLEAN WATER ACT
2—52—A. Class II Administrative Penalty: Initiation
of Action; Public Notice; Consultation With
State; Negotiation and Signing Consent
Agreements; and Assessing Penalties
1. AUTHORITY. Pursuant to Section 309(g) and 311 of the Clean
Water Act (CWA), the authority to:
a. Make findings of fact; propose penalty to be assessed;
issue, amend, or withdraw Class II administrative complaints;
b. Provide, or cause to be provided, public notice of
proposed assessment and provide commentors with copies of orders
entered on consent or on default;
c. Consult with States, as required;
d. Sign consent agreements between the Agency and the party
against whom a class II penalty is proposed to be assessed;
e. Issue final orders assessing Class II penalties where no
hearing is requested by the respondent or pursuant to a consent
agreement; and
f. Decide petitions by cornrnentors to set aside final orders
entered without a hearing and provide copies and/or notice of the
decision.
2. TO WHOM DELEGATED. Regional Administrators, the Assistant
Administrator for Enforcement and Compliance Assurance.
3. LIMITATIONS.
a. The Regional Administrators may exercise the above
authorities only for those cases initiated by the Regions.
b. The Assistant Administrator for Enforcement and Compliance
Assurance must notify the appropriate Regional Administrator or
designee before exercising l.a and must consult with Regional
Administrators or designee before exercising authority 1-c; the
Assistant Administrator for Enforcement and Compliance Assurance
must consult with Regional Administrators or designee and notify
the Assistant Administrator for Water before exercising authority
1 .d.
c. The Regional Administrator must consult with the Regional
Counsel or his/her delegatee and obtain concurrence on legal
sufficiency of documents to be issued before exercising authorities
l.a or l.d.
d. The Assistant Administrator for Enforcement and Compliance
Assurance may only exercise authorities l.a through 1.d, and may
only exercise those authorities in multi-regional cases and oases
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of national significance.
e. The Environmental Appeals Board may only exercise
authorities l.e and l.f and only in those cases initiated by
Headquarters.
4. REDELEGATION AUTHORITY.
a. Authority l.f and the authority to issue consent orders
under authority i.e may not be redelegated. All other authorities
may be redelegated to the Division Director level. Authorities l.b
and i.c may be further redelegated to the staff level. The
Assistant Administrator’s authority to consult with States may be
transferred to Regional Office employees, with the agreement of the
Regional Administrator or his delegatee.
b. Persons exercising authority l.d may allow other
appropriate EPA officers or employees to join as “co” or
supplemental signatories.
5. ADDITIONAL REFERENCES.
a. Section 309(g) and 311 of CWA.
b. Chapter 1, Delegations 1-37 and 1-38 entitled “Hearings”
and “Adjudicatory Proceedings”.
c. 40 CFR Part 22.
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CLEAN WATER ACT
2-52-B. Class II Administrative Penalty: Agency
Representation in the Hearings; Initiating
Internal Appeals of Adverse Determinations;
and Representing Agency in Appeals
1. AUTHORITY.
a. To represent EPA in Class II civil penalty adjudications
conducted under Section 309(g) and 311 of the Clean Water Act;
b. To initiate internal Agency appeals from orders, rulings
or decisions; and
c. To represent the Agency in internal appeals from orders,
rulings, or decisions entered in administrative proceedings,
whether or not initiated by the Agency, and in proceedings
initiated by commentors to set aside Orders entered without
hearings.
2. TO WHOM DELEGATED. Authorities l.a through l.c are delegated
to the General Counsel and the Assistant Administrator for
Enforcement and Compliance Assurance. Authority l.b is also
delegated to Regional Administrators.
3. LIMITATIONS.
a. The Assistant Administrator for Enforcement and Compliance
Assurance may exercise the above authorities in multi-regional
cases and in cases of national significance.
b. The Regional Administrators or their delegatees and the
General Counsel or delegatee shall consult with each other before
exercising authority l.b.
c. The Assistant Administrator for Enforcement and Compliance
Assurance must notify the appropriate Regional Administrator before
initiating an appeal. The Assistant Administrator for Enforcement
and Compliance Assurance must notify the Assistant Administrator
for Water (or the Assistant Administrator for Solid Waste and
Emergency Response, as appropriate) or designee in cases of
national significance or involving policy issues.
d. The Regional Administrator or the General Counsel or
delegatee must obtain concurrence from the Assistant Administrator
for Enforcement and Compliance Assurance or designee before
initiating an appeal.
e. The Regional Administrator or delegatee or the General
Counsel or delegatee shall consult with the Assistant Administrator
for Enforcement and Compliance Assurance or designee any time they
do not recommend an appeal of an adverse decision.
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4. REDELEGATION AUTHORITY. Authorities l.a and l.c may be
delegated to an Agency attorney. Authority l.b may be redelegated
only to the Division Director, Associate General Counsel or
Enforcement Counsel level.
5. ADDITIONAL REFERENCES.
a Section 309(g) and 311 of CWA.
b. Guidance on Headquarters Involvement in the Issuance by
Regions of the First three Proposed and Final Class II
Administrative Penalty Orders.
c. Final guidance regarding Regional—Headquarters
coordination of initial administrative penalty enforcement actions
under the Oil Pollution Act of 1990, Office of Enforcement and
Compliance Assurance/Office of Solid Waste and Emergency Response,
December 1991.
d. 40 CFR Part 22
e. Chapter I, Delegations 1-37 and 1—38 entitled “Hearings”
and “Adjudicatory Proceedings”.
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2—85. Administrative Orders Under Section 311(e) of the
Clean Water Act
1. AUTHORITY. Pursuant to section 311(e) of the Clean Water
Act, to determine when there may be an imminent and substantial
threat to the public health or welfare of the United States
because of an actual or threatened discharge of oil of a
hazardous substance from a facility or vessel in violation of
section 311 (b) and to provide notice, or cause notice to be
provided to the affected state, and issue administrative orders
or take other actions necessary to protect the public health and
welfare.
2. TO WHOM DELEGATED. Regional Administrators, the Assistant
Administrator for Solid Waste and Emergency Response, and the
Assistant Administrator for Enforcement and Compliance Assurance.
3. LIMITATIONS. The Assistant Administrator for Solid Waste
and Emergency Response and the Assistant Administrator for
Enforcement and Compliance Assurance may exercise these
authorities only in multi-regional cases or cases of national
significance and must consult with the appropriate Regional
Administrators or designees prior to exercising these
authorities.
4. REDELEGATION AUTHORITY. This authority may be redelegated
to Division Director level.
5. ADDITIONAL REFERENCES. Section 311(e) of the Clean Water
Act as amended by the Oil Pollution Act of 1990. Executive Order
12777 (October 18, 1991) (Published at 56 FR 54757, October 22,
1991).
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CLEAN WATER ACT
2—86. Facility Response Plans
1. AUTHORITY. Pursuant to section 311(j) (5) of the Clean Water
Act as amended by the Oil Pollution Act of 1990 (CPA)
a. To approve means to ensure the availability of private
personnel and equipment to implement facility response plans for
non—transportation—related onshore facilities;
b. To review and approve such plans for non—transportation-
related onshore facilities under section 4202(b) (4) of OPA; and
c. To authorize non—transportation—related onshore
facilities to operate without approved response plans for
non-transportation--related facilities under section 311(3) (5) (F).
2. TO WHOM DELEGATED. Regional Administrators.
3. REDELEGATION AUTHORITY. The authority in l.a. and l.b. may
be redelegated to On-Scene Coordinators. The authority in 1.c.
may be redelegated to the Section Chief level.
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2—87. Equipment Inspections
1. AUTEORITh. Pursuant to section 311 ) (6) (A) of the Clean
Water Act as amended by the Oil Pollution Act of 1990, to require
periodic inspections of containment booms and equipment used to
remove discharges at non-transportation-related onshore
facilities.
2. TO WHOM DELEGATED. Regional Administrators.
3. REDELEGATION AUTHORITY. This authority may be redelegated
to the On—Scene Coordinator level.
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CLEAN WATER ACT
2-88. Tests of Facility Removal Capability
1. AUTHORITY. Pursuant to section 311 (J) (7) of the Clean Water
Act, as amended by the Oil Pollution Act of 1990:
a. to conduct periodic drills of removal capability under
relevant response plans for facilities located in the inland
zone; and
b. to publish annual reports on those drills.
2. TO WHOM DELEGATED.
a. The authority in l.a. is delegated to the Regional
Administrators.
b. The authority in 1.b. is delegated to the Assistant
Administrator for Solid Waste and Emergency Response.
3. REDELEGATION AUTHORITY. The authority delegated to the
Regional Administrators may be redelegated to the Section Chief
level. The authority delegated to the Assistant Administrator
for Solid Wa5te and Emergency Response may riot be redelegated.
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2-89. Removal of Discharge or Threat of Discharge
1. AUTHORITY. Pursuant to section 311 (c) of the Clean Water
Act, as amended by the Oil Pollution Act of 1990 (OPA):
a. To remove or arrange for the removal of a discharge and
to mitigate or prevent a substantial threat of a discharge;
b. To direct or monitor all Federal, State, and private
actions;
c. To remove and, if necessary, destroy a vessel that is
discharging or threatening to discharge;
c i. To consult with affected trustees; and
e. To determine when the removal is complete.
2. TO WHOM DELEGATED. The authority in l.a., 1.b., i.c., and
i.e. is delegated to the Regional Administrators and the
Assistant Administrator for Solid Waste and Emergency Response.
The authority in 1.d. is delegated to the Regional Administrators
and the Assistant Administrator for Solid Waste and Emergency
Response, and to the Assistant Administrator for Water in those
situations where EPA is coordinator of long term restoration.
3. LIMITATIONS.
a. Section lOll of the OPA linuts the authority in i.e. to
cases that involve the discharge of oil.
b. The authority in section l.a. to l.d. is to be
exercised in accordance with the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP) and appropriate Area
Contingency Plans, in order to ensure immediate and effective
response.
c. The authority in l.b. includes issuance of orders.
4. REDELEGATION AUTHORITY. This authority may be redelegated
to On-Scene Coordinators.
S. ADDITIONAL REFERENCES.
a. Delegation 2—85, January 19, 1993, entitled
“Administrative Orders Under Section 311(e) of the Clean Water
Act.”
b. NCP (40 CFR Part 300)
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2—90. Receipt of Designations for Natural Resource Trustees
1. AUTHORITY. Pursuant to section 1006(b) (3) and (4) of the
Oil Pollution Act of 1990, to receive the designations of State
and Indian tribe trustees for natural resources.
2. TO WHOM DELEGATED. Assistant Administrator for Solid Waste
and Emergency Response.
3. LIMITATION. The Assistant Administrator for the Office of
Solid Waste and Emergency Response must notify the Assistant
Administrator for Water or his designee when exercising this
authority.
4. REDELEGATION AUTHORITY. This authority may be redelegated
to the Division Director level.
5. ADDITIONAL REFERENCES.
a. National Oil and Hazardous Substances Pollution
Contingency Plan (40 CFR Part 300).
b. Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) section 107(f) (2) (B).
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CLEP N WATER ACT
2—91. Area Committee Designation and Preparation and Review
of Area Contingency Plans.
1. AUTHORITY. Pursuant to section 311(j) (4) of the Clean Water
Act (CWA) and section 4202(b) (1) of the Oil Pollution Act of 1990
(OPA)
a. To designate Areas;
b. To appoint Area Cornrtu.ttee members;
c. To require information to be included in Area
Contingency Plans; and
d. To review and approve such plans as defined in the
National Contingency Plan (NCP).
2. TO WHOM DELEGATED. Regional Administrators.
3. REDELEGATION AUTHORITY. This authority may be redelegated
to the Division Director level.
4. LIMITATIONS. Pursuant to a notice published in the Federal
Register, (57 FR 15198, April 24, 1992), the Administrator has
designated 13 initial geographic areas now covered by the
Regional Response Teams, and the Regional Response Teams as the
initial Area Committees. Regional Administrators may designate
thfferent areas within their Regions and appoint different Area
Committee members.
5. ADDITIONAL REFERENCES. “Designation of Areas and Area
Committees Under the Oil Pollution Act of 1990, (57 FR 15198,
April 24, 1992).
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•i .•::
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u ’nTED STATES ENVIRONMENTA_ PROTECTION AGENCY
WASI-(INGTON. DC. 20460
IWG 1 i 7975
VZ
/)I.t .
Mr. William II. Prokop
Director of Engineering Services
Nzitional flenclerers Association
3150 Des Plaines Avenue
D s Plaines, Illinois 60018
Dear Mr. Prokop:
Thank you for your )etter of May 16, l 75. The Agency has carefully
reviewed the letter and the information attached thereto. We see no
reason to modify the views expressed to you previously; that animal
(tncluding poultry) fats and oils are “oil” as defined in section 311
of the Federal Water Pollution Control Act (FWPCA).
L \\
ç % ‘1.
c_ ’ - - ,
) 4\’v
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The language of the law, and regulations promulgated pursuant thereto,
is fully consistent with the legal interpretation contained in Mr. Kirk’s
January 9, 1975 letter. Neither section 311 of the FWPCA nor the
regulations contained in 40 CFR Parts 112 and 114 are written Sc S
to apply solely to facilities handling oil of petroleum origin. The term
“barrel” is used in section 311 only once, namely section 311 .(f)(2),
nd is thcre used as a measure of quantity for both oil and hazardous
materials. In the regulations ,. quantities are given in gallons. The
pliysical phenomena described in the regulations defining a harmful
discharge can be caused by oils of anirp. 1 or vegetable origin, as well
as petroleum derived oils. And, while certain portions of the regula-
tions are directed specifically at facilities involved in crude petroleum
production (sections 112. 7(e)(5), (6) and (7)), the remainder are
applicable to facilities of all types.
The facility in F1orida which you mentioned in your letter was apparently
Tampa Soap and Chemical Co. This facility was inspected by personnel
of the Environmental Protection Agenc ”s Region IV office on October 24.
1974. The facility had prepared no SPCC Plan and had sufficient ft e1
oil storage, as well as tallow, at the facility to be sub)ect to EPA’S 1 ç . /
oil pollution prevention regulation. The facility was assessed —
fine, which was paid and was required to submit an SPCC plan t .i C
Rcgiona]. Office by March 28. 1 975. It is not accurate to say that thc
facility was “fined for not diking his tallow tanks”, since the inspection
occurred prior to the deadline for plan implementation (January 10,
1975). The owner or operator had not prepared a plan (the deadline
for plan preparation was July 10, 1974) for any part of his facility 1
including petroleum storage.
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We arc a varc that compJ:ance v.-:th thc oi T 1 ut,o p-rvcnt:on
‘ eg il.mons will not rchevc the owner or opcr’atoi- of li bili y under
ction 311 (b)(6) should ho have a spill from hts far,li y. In addition
.o a pocsible finc. as yOU p3int out in your letter, he would also Ue
rcspon5iblc for the cost of cleaning up the Oil and removing it from
the water and shorelines.
In our expcricnce. these costs are often very high. For this reason
we have always thought that the development of a good SPCC plan,
incorporating adc uate prevention measures, should be looked upon as
a prudent precaution by facility owners and operators.
The next section deals with the technical issues i aiscd in your May 1G
letter regarding effects, toxicity, physical state, biodegradability and
analytical determination of animal fats. We intend to reiterate the
technical ‘oasis of our rationale and to rebut those statements in your
letter that ‘ie believe to be inaccurate. Following are our responses
to the technical points discussed in yourlettcr:
I. Animal and Poultry Fats are Environmentally Ilarmiul
Your letter states: “T.n any discussion of environmentally harmful
effects upon aquatic life, it should be recognized first that ANIMAL
and POULTRY FATS are triglycerides and are not fatty acids. Any
attempt to equate these FATS with fatty acids, rde soybean oil, etc.
s having identical harmful effects is not accurate.” In our ovcmbcr 11
tter, we did not claim that imal fats and vegetable oils are fatty
- cid . We did say, however, that because fatty acid moieties con-
stitute the greater part of the triglyceride molecule, the chemical and
physical properties of animal fats or vegetable oils are determined
largely by the properties of its component fatty acids. We want to
emphasize that crude soybean oil, like animal fats, consists of
triglycerides, and because petroleum and nonpetroleuxn oils share
similar properties, they have a common potential for environmental
impact when spilled into water.
A. EPA Rationale
The EPA position with respect to noripetroleum oils is described
in detail in the paper entitled “Properties and Effects of Nonpetrolaum
Oils” presented at the 1975 National Conference on Prevention and Control
of Oil Pollution. In essence, the rationale is as follows:
1. Nonpetroleurn oils qualify as oils under section 311 of the Federal
Water Pollution Control t ct Amendments of 1D70 and 1972 (FWPCA).
2. Because noripetroleum based oils share certain similar physical
and chemical properties with petroleum oiL the EPA considers
them a potential danger to the aquatic environnient.
5—26
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3. Likc petrolc um oils, nonpetrolcurn o .is rna,’ occur at four lcvclS
of the aquatic environment: (a) floating on thc surface, (b) cmuls fRd
in thc water column. (c) olubi]izc.d, and (ci) scttlcd or. hC
bottom as sludge.
4. Oily substa.nccs of any kind can CaUSe: (a) lcthal effects on Water-
fowl by drov’ning because of loss of bouyancy, exposure because
of loss of insulating capacity of feathers and starvation and inc
abaility to predators clue to lack of mobility (b) toxic effects
on fish due to coating of epithelial surfaces of gills preventing
respiration, (c) asphy :iation of bcnthic life forms when floating
masses becc,tne engaged with surface debris and settle th
bottom, (d) fish kills due to biochemical oxygcn demand (BOD)
and (e) adverse aesthetic effects of fouled shorelines and bcacheS.
The main thr zst of our argument is that petroleum and nonpetrOleum
based oils have a predominant hydrocarbon character and therefore have
common physical and chemical properties which cause similar harrnful
effects in the aquatic environment. On page five of your letter YOU state
Tn.ts conclusion totally ignores the importance of functional groupS lfl
organic chemistry which have a much greater influence upon the p ySiCa1
and various other properties (including toxic effects upon aquatic life)
for a particular class of compounds. For example, the fatty acids in
ANfl ’7AL and POULTRY FATS have a carboxyl group and th.se are Ln
soluble in water at normal atmospheric temperatures. However, when
reacted with a boiling caustic soda solution, a sodium salt of fatty acid
results and soap is Lox-med. Although the ‘ predominant hydroCa1”)°hi
character” remains unchanged, the water solubility has been draStiC Y
increased.” We maintain that the saponifica on of organic acidS
under the harsh conditions required above does not occur in the aquatiC
environment. Consequently, the behavior of animal fats and vegetable
oils in the environment is due to the predominant hydrocarbon c iaracter
of these materials and does not depend upon the terminal carboxil group.
On the same page you also state: “Although ANTh’IAL and
POULTRY FATS and petroleum oil have certain similar physical
properties, it does not follow that they cause equivalent harmful CfIOCtS
upon aquatic life.” We have never implied or stated anywhere that
petroleum and nonpetroleurn based oils cause identical harmful eLiCCtS.
We recognize that different petroleum products can have different
harmful effects. Toxicity is gvcatcst for refined thstillates. part U la Y
those high in aromatic hydrocarbons. The effects of oil in different
environments may vary considerably due to synergistic thteraCt10
between oil and other environmental stresses. The oil regu lat i onS
under section 311 do not establish harmful quantities for oils of an
kind and in any form solely on the basis of fish toxicity. A harmful
discharge is a discharge which “will be harmful to the public hea1th O’
welfare...., including but not limited to fish, shellfish, wjldlifC
public and private property, shorelines and beaches. . ...“ SOCtiOn tatcd
Animal and vegetable fats and oils can cause such harm, a. demons
by the spill at Mankato, Minnesota, discusscd below.
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To cuc oric llv £ti c that ani r al fat, icic’d t v tcr,
not recult in a sheen or film iS CCU3.tC. n - al f: will c: :.c •
or form a sheen or film under most circumstances. In cJircct un:i ht
khe surfacc temperature of flozttuig t C tn readily e :c nd the ( ° 1’
solidification point ention d in your previous letter. E posurc to
sunlight and agitation by wind aud wave action vj1l form emulsions
or oily films at the water/solid interlace. When thes:o surface fihns
an .1 emulsions become engaged v ith silt arid debris, their specific
gravity increases, causing the oil to settle on the bottom as a sludge.
In those instances wlicrc animal and vegetable fats and oils soLidify
on being discharged into water, their discoloration of the surface
of the water also violates the Ji armful Oil Discharge Regulation.
40 CFR Part 110. Furtherniore, the Harmful Oil Discharge Regulation.
consists of a definition with two elements: (1) violation of applicable
water quality standards, or (2) formation of a sheen, film, sludge,
emulsion or discoloratiou of the surface water. All states have adopted
the 1 68 National Technical Advisory Committee summary recommendations
or similar criteria that surface waters should be free of substances
attributable to discharges or wastes which: (1) float as debris, oil,
scum, and other matter; (21 produce objectionable color, odor, taste
or turbidity; and, (3) settle to form objectionable deposits. Consequently,
floati.ng nonpetrolcumn based oils violate local water quality standards.
This is in keeping with Congressional intent expressed in section
311(b)(1) of the FWPCA of 1972 that it is the policy of the tJnitud States
t iat there should be no discharge of oil or hazardous substances into
or upon navigable wa1 rs.
Formation of oily films, sludges or emulsions can icad to
harmful effects on waterfowl, fish. and benthic organisms and the fouling
of shorelines and beaches. These effects can be due to a combination
of surface action such as coating and direct toxicity. The possible
absence of dir ect to c city does no mean that animal and vegetable oils
are not “harmful”.
With reference to the 1968 National Technical Advisory Committee
report on Water Quality Criteria , we need only to reiterate that the
section on oil described on pages 45 and 46 clearly indicates that oil
of animal and vegetable as well as petroleum origin arc harmful and
were meant to be included in the Recommendation. The sources of
oil pollution (page 45) are defined as broadly as possible and include
both oils of petroleum and nonpetrol.eum origin.
Although floating consolidated materials, as you state in your letter,
maybe readily removable by skimming from the water’s surface,
removal is entirely dependent upon local environmental conditions,
accessibility to the spill site and availability of spill rcmnoval cq iip-
meat. Evidence of three million gallons of scniisolithfied cruoc so bcari
and salad oil discharged at Mankato, Minnesota, during January 1 963
was found as far as 250 river miles downstream from the original
spill site. The adverse environmental effects of this spill lastcd more
than hair a year.
5—28
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C. Fish To:: :i .y of rn 1 Fats
As we have indicated h orc, a :atic to’::citv ot t ,c r ri c:.
or harm. Other f:tctors inchdc Zurfa(:L’ c fect fiora
_auna, lethal effectS Ofl v.’atcr o’.v1, smot 1 cri g of h ritt ic or ::ni -. 3,
biochemical oxygefl demand, and recuction ot aniemties. 1oi’t r .tc1y,
Static bioassay tests fail to simulate tnc Cnvironn c (al con iiuoz z
prevailing dur ng an actual oil spill cvcnt.
‘We intend to pcrforrn bioassay studies with a sp cic morc scnsiav
than the threespined sticklcback used in your tests and under con-
ditions which allow e osure of test anli a.s to bio1o ica1 c orn o ition
products. t’nlike the bioassay sthdies performed under contract to
you by Daylin Laboratories 1 procedures can be designed to study the
effects of decomposition prociucis over a longer time oeriod by not
renewing test solutions at twenty-four hour intervals.
fl. Animal and Poultry Fats and Their Physical State
Animal fats vill emulsify and form slicks or films on the surface
of the water whcn exposed to sunlight, r d and wave a ’tion, micro-
biological degradat on and the possible presence of natural and snet:c
surfactants in receiving waters. The emulsions and films can be
expected to cause the adverse environmental effects previously descr:bcd
unçier EPA’s rationale.
Grease-like substances have been found tlong the shore or floating
Lake Ontario near Rochester, New York, as described in the paper
..ntltled “Properties and Effects of Nonpetroleum Oils.” These and
other pollutants have caused difficulties by coating boats and beaches,
tainting fish, causing death of waterfowl, and creating taste znd odor
problcms in water treatment plants. Iso] ted instances of “grease-ball”
contamination have been reported along 50 miles of shoreline east
and west of Rochester. Samples were analyzed as mixtures of animal
and vegetable fats with similar fatty acid contents. Analogous to the
grease balls from vegetable oil and animal fats are the tar balls of
petroleum origin which have been found in the marine environment or
washed ashore on beaches.
LU. Biodegradability of Animal and Poultry Fats
It is recognized by various authorities that anL al fats are more
rapidly biodegradable than petroleum oils. The level and rate of
oxidation can be measured by the standard biochemical oxygeti de arid
tests (EOD). This parameter measures the level to which a material
may be degraded by the oxygen consumed in a given period of time.
When fats are spilled, they undergo microbial oxidation with an
accompanying decrease in dissolved oxygen level. Extensive bacterial
oxygen depiction could result in oxygen starvation to fish and other
aquatic fauna. This effect is more serious in smaller water bodies
VIZCn more complete mixing occurs. For cxaniple, the dissolved
5—30
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. HEW Report on Oil Spills Affecting M nn s ta and Mississippi
Rivers
This report documents two separate spills: The first spill of
approximately one million gallons of petroleum oil occurred at Savage,
Minnesota, during December 1962; thc second Spill of approximately
three million gallons of crude soybean and salad oil occurred at ManI:ato,
M3nnesota , during January 1 963. We recognizc that the environmental
assessment of damage caused by the vegetable oil is complicated by the
spill of petroleum oil si weeks earlier. In your letter you concludc:
“The loss of the ducks was due to the presence of both petroleum
oil and crude soybean oil. The exact contributions oi either, the
petroleum or soybean oil, toward the loss of this wildlife is not specified
in the report.” This complication was recognized early in thc assessment
of damage by selecting infrared spectrophotometry as the analytical
technique, because this method is capable of distinguishing between
petroieum and nonpetroleum oils. The HEW report also states in
the summary section (pages VI and VII): .• “Analytical results indicated
the ranges in total ether-extractable oils, and the extractions were
identified by infrared.spectrophotometry as principally of soybean oil...
The oil samples scraped from dead ducks were identified by the State
Water Pollution Control Laboratory as soybean in most cases, with
petroleum oil present in a few samples.” Although the exact contribution
of either oil toward the loss of ducks is not specified, the report implies
that the rnajority of the waterfowl were killed as a consequence of the
soya oil.
The statement on page 4 of our November letter tha 4 c the “behavior
of crude soybean oil is similar to animal fats under existing spill
conditions ” did not refer to oxidation and polymerization but rather
•to the soLidification temperature of soybean oil at plus 14° P. The oil
spill at Mankato occurred at minus 2C° F, causing the soya oil to
solidify immediately. Your Association has repeatedly argued that
animal fats solidify at water temperatures normally encountered and
therefore do not qualify as oils. The fact that an oil solidifies does
not exempt it fro i section 311 of the FWPCA which defines “oil as
“oil of any kind and in any form.” Circumstances surrounding the
Mankato spill demonstrate that environmental harm can result regardless
of the physical state of the oil.
You state in your letter that animal fats will not behave like soya
oil in a spill situation because soya oil oxidizes and polymerizes, while
animal fats will oxidize at a slower rate and do not polymerize. While
we agree that oxidation and polymerization contribute to the settling
process of oil, we do not agree that animal fats will not settle. AU
oils, including petroleum oils, which also do not o:ddize and polymerize
to any appreciable extent, will settle when they come in contact with
silt and debris. The key is the strong association of oil with
suspended materials which increases its specific gravity and causes
the oil to settle on the bottom of the body of water.
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o;; c’n conccn ration of ftc I y1 r 1 ) i : s v sOt :
wcrc d st’cafly i’cduccd ‘ th nc fat co’-’ciit in 1 rr ivclv
hnrt porind of tirnc. .4 t.ho’. h anirna) rats biodegride r r i r r tp d1’
th: .n petroleum oil, the n ura1 env ro rnciit d3 noL rc .d v a :s -.
aiumal fats and vegetable oils in a spifl-type di :: argc wititout somc
short-term damage.
flT Use of Oi ; nd Grcasc Method
EPA’s proposed prctrc tmcnt t :idards under section O7(b) and Cc)
of the FWPCA for sources dtschar ng to pubhc),’ o nec) trcatmer.t
wor , published in the Fcdcral P e .ctcr on .,ril 22, arc riot relevant
to section 3i1 of the FWi it. Scc on 4fl addresses thschargcs in
harmful quantities of ofl . ind hazarcio is substances into or upon the
navigable wa crs of the United States.
rIi toricaU ’, EPA’s “Methods for Chemical Ar .alvsis of Water and
Wastes”, the American Public Health As ciation’s “Standard letho s
for the Exarn na:ion of Water and Wastcwater”, and the American Society
for Tcstrng and Materials’ “Manual on Industrial Water and Was ewatcr’ 1
have been employed as the st idard procedures for the analysis of
oils, fats and creases. The fact that these standard methods do
not distinguish between petroleum and animal or vegc able dcrived
matoria.ls is caused by: (1) the common physical and chemical
properties of thcse oils, and (2) their .similar adverse eficct on the
environment. Eecause of these characteristics, it has no: been generally
necessary to dLtinguish between petroleum and nonpetrolcum oils.
Although it is possible to distinguish them anal)rtically, this capability
does not diminish the significant advezse environmental impact of
animal fats and vegetable oils,.
The tec1iziical rationale for distinguishing between oil and hazardous
substances as published in the 1971 and 1075 Procccdin s of thc Jo int
Conference on Prevention and Control cif Oil S Us app es to animaL
anc ve ctaoie iats anc oils. it is based on tne cietermination that any
nonpetroleum-derived material that is extractable by an organic solvent
qualifies as an oil, providing that its chemical structure is not defined
or the substance is a complex mixture of chemical compounds. Under-
lying this determination are the common physical and chemical proper-
ties of petroleum and nonpetroleum oils. Your )ettcr suggests EPA’S
technical rationale is invalid u i view of the availability of a definitive
analytical technique for thstinguishmg petroleum and nonpetroleum oils.
EPA’s rationale was designed as a tool for distinguizhing between oils
and potential hazardous substances. Such factors as a definitive analytical
method and consideration of the potential environmental impact are not
required in our rationale to determine whether a substanec qualifies
as an oil or a material that may be hazardous. The Harmful Discharge
of Oil Regulation. 40 CFR Part 110, cstablishcs the harmful quantity
for oils sub)cct to regulaUori under section 311.
-------
we hope that our comrrc:1 s id the meeting with
Associatio n on June 16. 1973, have further clarified
jhthe definition of “oil” and I he application of thc Oil
jevcntiOfl itegulation as it pert ains to your nduztry. We
interpretation that animal fats and other similar
.sof animal or vegetable ángin arc “oil” within the definition
ars in the FWPCA and are subject to the Harmful Discharge
, 40 CFR Part 110. \Ve appreciate this opportunity to reply
tàL . hnical issues raised in your May 1 6 letter and trust that
we have pSvided you with all the pertinent information
Sincerely yours,
lkenneth E. Biglaflc
Director, Oil and Specihl
Materials Control Division (WH-448)
8
5—32
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WAS -4INCTON DC 20460
7JUN 1978
OFFICE OF WATER AND
HAZARDOLS MATERIALS
SUBJECT: Applicability of EPA’s Oil Pollution Prevention
Regulation, 40 CFR Part 112, to Oil Filled
Electrical Transformers
FROM: H. D. VanCleave, Chief i\
Spill Prevention and Control rancI (WH-548)
TO: E. Wallace Cooper. Emergency Response Branch
S&A Division. EPA Region V I
In reply to your mamorandum f May 5, 1978. and the letter
of April 4. 1978. from Mr. J.E. Cea.rley of Conoco, let me state
my view of the applicability of 40 CFR Part 112 to transformers
and other oil filled electrical devices.
In general this equipment La covered by the regulation, as there
is no provision in the regulation exempting it. It should be viewed
as any other oil conthining equipment. If the transformer itself
contains more than 660 gallons of oil and the other requirements
are met, an SPCC Plan should be prejared and implemented to
cover it.
Likewise, if a facility with a number bf operations involving oil
prepared an SPCC Plan for those ope ations, the transformers at
the facility should be included in the plan even if they are individually
less than 660 gallons. ml ;a exactly the same trea nent that any
non-transformer operation should receive.. In other words, since
there is no exemption in the regulation, transformers are viewed
In the same manner as other types of- oil handling equipment.
These policies apply nationwide and have sip. e the regulation
became effective in January of 1974.
During the process of proposed kt1ernaking for the regulation
(July - December, 1973) EPA received several comments on the
regulation’s app1icaJ uity to electrical equipment. EPA determined
not to exempt it, because polluting spills have been caused by this
equipment.
5—34
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2
EPA has met with such organizations as the T.V.A., the $cral
Electrification Administration (REA) of t e Department of Agriculture
and Westinghouse Electric to discuss the” evelopment of S-PCC Plans
for electrical equipment.
I do not view transformers as “bulk storage tankjs. therefore,
the secondary containment requirements of Section IN2. 7(e)(2)(ii)
do not necessarily apply (i. e. total secondary containment for the
largest unit). However, many operators, including ItEA appear to
be designing their facilities for this level of protection. The secondary
containment is usually pr vided in the crushed rock base of the units.
In preparing the SPCC Plan, a careful anlsys of the units, should
be completed, looking at their spjil potential, and the most effective
means of containing a spill (which insy be located down drainage,
away from the units), and a reasonable level of protection should
then be provided, in the I lan.
Discharge of accumulated rainwater is covered in 112. 7(e)(2)(iii).
I might add that if the oil in this equipment is contaminated with
FCB’s (which is sometime the case), the faciitymay have to meet
more stringent requirements issued under the Toxic Substances
Control Act.
5 —25
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iftR — 4 t98 1
i x
S’JtJLCT Jurisoicticn Over lntenittent trcatas u ccr Liii tf
tA c Citon Aator i iCt
Lthsard A. gurrnt
L irector , Lnforce tettt Civision (W—333)
Louise U. Jacobs
ê)itectcjr, £n&rccaeuc iVtSiOt% , .c ) .tfl wit
2ht 2n Coast Guart. t4 :trt t, St. i.oua:, h lsbQur l, h ..s ra sui
tn t issue o whether t l ar. a ter Act jurs JictiQn . tsj 00 acsecteó
over a seasonal drainayc cour se wF ict t ta o tiue of the tpi l,
contained only i ttec 4ttcnt pool: oE water hut whsch at otti r
tirnes flows to 4 n aed yearerourzd ii teCCOutSC. It has bc.en u :j—
¶ested that the recant .L th Circuit opinion in .ir.atea Ztatenv.
cxas Pipe Line Corpap provic3ec o thority for iie ropc. ,ziti n
that unless a oa y o %Jflcr it a runnin’ or l winq trua
at the tthc of a sni ii, it c.annct be auO3cct to 3fl Clean ?!atc.r
Act juriz icticn.
Tht Texan ?i e Line C33C Lnnlve cn oil psl1 ron a
pigolinc €hat was itruct by b builao cc. 3cforc the tl i coulJ
be shut off, approxi atcly GG barrclb ot oil escaped. Thu oil
spilled into an unns d tributary of a named croec, wh-ic i dia—
charjed into another na cd Cretic, whica was a trinutory o a
navigable river. The record at trial indicated that tbcra was
a sisal! flow of water in the unnceed tributary, but there was
no evidence that the othar stroa s were or were not flasinq.
7 mc Vedeni Court tot the Lastern District’ of Oklahoaa held
that tht Federal Water Paflution Control Act (rcICA) applies
4 to tributaries of navigaule waters rcgcdlaaa cf aücthcr there
£3 a cont inuous flow at W4tCC throujh tue tr3outarscs tO the
n navtcabie water:
a
the Court is oL thu opinion tan t E
FW2C \ A iio.’ei ts at s 72 ore apinc.sx4c to
the triaut2r 1e: a r.L3vLr .bie waters anc2 that
tt i a is so re’Jcr ic s 0L .inother there is a
continu u tlc,w at atCt rori the ;osnt ef
-------
an oil s?ii.l, tz.ccu n any r 4 ter neJi .tc
ut ri £Ifld Vpntua. . ’ fldVL 3 :lt:
L, 1tcro at the pe:i. ic t e o an aLl
ator lo n.n; i. tr c u ::c t.r • t ry o
t .c ic i vcr, i na:i ja 1c ri’ .r, wi
c e o t c c. t rc of tnc Jn .od t ”
within tnc ne rtin o .1362(7), r J v
therefore one o the vi si 4t r3 f the
Jnit d tatuz’ unJor S1321(i)(3) . . . t. . V.
‘ 2t cas Pj ,e Ljre Cor.iany , .o. 77—üJ— .
on the j suo on ippcal to the luth Circuit za whcth c
the diach .rge of oi.i. thvolvec ‘.S4.1 into ndvi;able iater3 within
the eaniLlz4 of the !‘?:PCA. ‘ ic i th Cir t a :1r. cd the c i ;rict
caurt ur dictLona.L fin.iinj:
Whjle ti erc ic nothir.5 in thia rccor to
show t o cff ct cn ic r tatc or r o
th3.a unna cI t i ut 1 .ry, a thout u tion it
1.ijt2 in tAc i; tcn c cc;cr ’e o the PCh.
It fio’ii g ci ail ount u w .t r 4t the
tirne of the s iU. Thether or n t t c flov
contiiucd into the ke iver dt that tiae,
it obviously would dur .ng 1 ni .cdnt
rainfall.
The lan uago in tho Th 1 a Pie L.inc . deci3 c , to the cff ct
t t t .e uc na e4 trib t ary into ni h t e oil w ic pillcd es
1 wia. at 2’e ti e ct thc srii. h .tc contl-y i -Cfl cited v C te
LCtLcZ AO aut1iovtt for the pr3po ition at urtlc a c’ .iy &
iater I c a rnin or lovjr3 tre .a at tno t O of baili,
it car.not be øu )ect to 3i.I Cle rt .ater Act urisdictiort.
Ho.scvcr, this interpretation is by no d t i.eJ t ’ the
la uage of the iCth Circuit üecizion. Uthou h it is noted in
Lno decision that the body into whicn oil was tpilled az rlowin 7
dt the tirne of the c isc *rçc, it i not at alL noce:sary to
conotrue this as the eascntial uri dictionai tact in tI’e caze.
A perouazive arguaent c’an be aa.ie tiat the Court wo i.2 have
4tfir cd the federal governn enta ur1 dictional oterrnination
i.n Texas Pice Line even o ent a sboi;in j that i ter u sa f.Lo ing
dt t O ti::Q 0 tiC c iU, rticulariy cince it ruled that it
no ditference wbethcr th receivth water b0, y i or is not
dcn r. tnrj water contifluously into a COnr1tctcc i tor Course ot
tii ti c o a apii.L i r r’.ircoscs of Clean atcr Act jurizdict an.
-------
Ir 1i i . t; fl:. ;L1tj ___ L
‘J ,4aSC t. D(. t t .t tCI t t: 2. LG. L
ctC’ rlt JLV .Z i t.r. .::cr t c :
flJ ‘i ii. c. t,. ,.,I!
‘ 1. 1CtiJfl. .C1C i 1 ..j
C t: t CL . / .. ‘J . ‘/ A; y
J.utos .Lth tIio .. . c .mc :u: t r
s u J t .. rr, - ys ....C .;‘ ±;.
X / See discu sthn ot 1e is1 tive ir ited t3te V.
\ I nd Oil. 4T d r flST OCtc tjQfl Co. , C’. .d LIL7 (i I7 ), e r.s
L tate v. uo.L.Linci , JL c. t’u ., b1 7J (.1.1 YJa.
.J74J r oFo it .an t at Con .7re intcn cd ‘waters the
L utod .3t tes ’ to reach to tt e iuU i i i. 1u undcr
t. c r st. .tu ion.
4/ Sce Urtit d .tate i V. Pbe1p od c Cur orati n , 3 j1
LX X (C. A: z. i 1 ) :or th r’o it cri cz at t c F C cztc d
to XX oX1utont3 wbzci are di c r;cd into ny wuter y, in—
ci dirty nor al.iy dry arr yo , ‘& erc any .a cr ich i jL t
t.neroin could r L!Or. 1y cr4 u n dF Lo y u water, to hicr
or Lfl WhX t t tC LZ i Q uL 1 .L era t.
c; i c ic.,n 1 £ri rcer . r.t 4rizicn D .rcctcrs
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C UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 2 1991
MEMORANDUM
SUBJECT: New Administrative Penalty Procedures
FROM: Frederick F. Stiehi.
Enforcement Counsel for Water, OE
1 7 uce M. Diamond,
Off ice of Waste Programs Enforcement, OS R
TO: Regional Administrators, Regions I—X
As a result of the Administrator’s recent delegation of
authorities under Section 311 of the Clean Water Act (CWA), we
are now able to issue Oil Pollution Act (CPA) administrative
penalty procedural guidance for oil and hazardous substance spill
violations of CWA §311(b)(3).t The Agency should use the
procedures provided with this memorandum —— guidance titled “Part
28” for Class I proceedings and an adaptation by guidance of Part
22 for Class II proceedings. Part 28 was recently published as a
proposed rule, and we expect to propose changes to Part 22 which
will incorporate CPA authorities in 40 C.F.R. Part 22.
We have attached to this memorandum a copy of (1) the
Administrator’s new delegations of OPA authority; (2) a
redelegation of Class I CWA representation authority from the
Assistant Administrator for Ehforcement; (3) the guidance titled
“Part 28”; (4) guidance on the use of Part 22 procedures; (5)
guidance on Headquarters’ review of initial CPA administrative
actions; and (6) guidance on using 40 CFR 112.6 and 40 CFR Part
114 for CPA SPCC cases at this time. The second and third
documents have also been sent to you in a similar CWA §309(g)
memorandum signed by the Acting Assistant Administrator for
Enforcement and the Assistant Administrator for Water.
Authorization to take Spill Prevention Control and
Countermeasure enforcement proceedings under CWA §311(j) and the
new procedures will be provided as soon as certain necessary
regulatory changes are implemented.
pnnwd on Recyr.Jed Pap
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—2—
You may begin using the OPA administrative spill enforcement
authorities as soon as you have executed the necessary
redelegations of authority. Although the Part 28 guidance also
encompasses elements of the Safe Drinking Water Act, EPCRA and
CERCLJ , these elements of Part 28 are not being implemented as
guidance for these acts.
We request that the Regions execute any necessary
redelegations of authority under new Delegation 2—51(2) (a) to
initiate Class I cases under Part 28 procedures. Under
Delegation 2—51(2) (b) the Regions may choose to designate a
standing Presiding Officer for all Class I cases, or may
designate individuals on a case—by—case basis. (Because the Part
28 guidance calls for a Presiding Officer to be assigned in each
Part 28 case, it may be simpler to make a blanket designation
before initiating the first cases under the new procedure.) The
Assistant Administrator for Enforcement has redelegated his
authority to represent the Agency in CWA S311(b) (6) Class I
actions to the Regional Counsels for cases arising in the
Regions.
The P’egions are requested to submit for review their first
actions under the new law, as further described in the attached
guidance document. 2 Office of Enforcement staff have recently
provided to the Offices of Regional Counsel staff a computer disk
with a number of OPA pleading and practice forms in order to make
this process easier.
As with other Agency guidance, the decision to use these new
procedures does not establish or affect legal rights or
obligations. Agency decisions in particular cases will be made
by applying the law and regulations to the specific circumstances
of that case.
If you have any questions, please have your staff contact
David Drelich of OE—Water at FTS 260—2949, or Cecilia Smith of
OWPE, OSWER, at FTS 260—9811.
Attachments
cc: Acting AssIstant Administrator for Enforcement
Assistant Administrator for Solid Waste and Emergency
Response
Assistant Administrator for Water
2 Although the attached guidance will also apply to SPCC
cases under Section 311(j) of the Clean Water Act, as noted in
the attachment on this issue, initiation of these cases under the
new OPA procedures should be delayed until we can provide a
specific authorization.
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—3—
Deputy egiona1 Adiainistrators
Regior a1 Counsels
Environmental Services Division Director, Region I
Waste Manageu3erit Division Directors,
Regions Il-VI, VIII—X
Water Management Division Directors, Region VII
Director, Office of Enforcement, Region X
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Final guidance regarding Regional—Headquarters coordination
of initial administrative penalty enforcement actions under the
Oil Pollution Act of 1990
I. Purpose
The purpose of this guidance is to provide the framework for
interaction between Headquarters and the Regions for
administrative penalty actions taken by Regions under Section 311
of the Clean Water Act (Act), as amended by the Oil Pollution Act
of 1990 (CPA).
This guidance is being issued with new delegations of
authority, which allow the Regions to undertake enforcement of
the amended Section 311. This guidance discusses roles and
responsibilities for Regional and HQ offices in EPA’s use of
these new enforcement authorities, including coordination
responsibilities. The guidance is intended to promote consistent
and sound development and use of these authorities, effective
national management of the new enforcement program, and helpful
information exchange, while affording significant flexibility in
individual cases.
II. Background
Oil Pollution Act
The OPA was signed into law on August 18, 1990. Among other
matters, it comprehensively changed the Agency’s administrative
penalty authorities relating to SPcC violations and oil and
hazardous substance spills. Section 4301(b) of the OPA borrows
heavily from existing CWA Section 309(g), by establishing Class I
and Class II penalty authorities. Like its counterpart, new CWA
Section 311(b) (6) Class I authority provides for non-APA
procedures and penalties of up to $25,000, and its Class II
authority provides for APA procedures and penalties of up to
$125,000.
III. HQ Review of Initial Proposed and Consent Penalty AC’s
The complexity of amended CWA §311 results in four major
categories of Regional actions, depending on whether there is a a
CWA §311(b) (3) spill or CWA S311(j) SPCC or response plan case,
or an administrative complaint or a consent order. Each type of
action is significantly different from the others. Consequently,
the number of reviews requested below reflects the significantly
different nature of the types of documents needed in the various
categories.
A. Regional submissions
Each Regional office, by at least the CRC branch chief level
and program branch chief level, should, prior to issuance, submit
to the OSWER and OE contacts the first two Section 311(b) (3)
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—2—
administrative complaints and the first Section 311(j) complaint,
as well as the first two Section 311(b) (3) proposed consent
orders and the first Section 311(j) proposed consent order. In
order for Headquarters to effectively review the proposed consent
orders, the Regions should also submit the administrative
complaint associated with the submitted proposed consent order.
The Region should provide to the Office of Waste Programs
Enforcement, OSWER (OWPE), hard copies of all CPA administrative
complaints and settlements. OWPE will maintain a complete Agency
file of CPA complaints and settlements.
B. Implementation
EPA Regions should obtain a response from OE-Water and OWPE
on these first administrative complaints and proposed consent
orders before signing or issuing these documents to the
respondent or to any other party outside of EPA. CE and OWPE
will provide one joint response to the Region wherever possible.
In order to expedite Headquarters review of administrative
complaints and proposed consent orders, the Regions are requested
to include an action memo or fact sheet explaining the factual
basis, rationale, and significant issues, such as penalty
settlement calculations, associated with each complaint and
proposed consent order. This material should show the basis for
electing the procedures chosen, and should designate a contact
person in the Region with whom Headquarters may communicate on
the package. We expect that in many cases the Regions will be
able to use the same action memo already developed for their own
internal use.
The Region may submit in the package any other relevant
materials which it believes may assist Headquarters during the
review process.
OE and OWPE review will focus on whether the submitted
documents are consistent with law and national policy in the area
of CPA programs, OPA enforcement and enforcement generally. The
Headquarters offices will review the legal and technical
soundness of the administrative documents submitted by the
Region. The Headquarters memorandum to the Region may request
document changes needed to protect the Agency’s enforcement
position, or may make recommendations to the Region.
CE and OWPE will generally respond jointly in writing to the
Region no later than ten working days from receipt of the package
unless there is a good cause for delay. Headquarters may need to
delay its response if, for example, additional information is
needed from the Region before a response may be given.
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—3—
Upon resolution of the matter causing delay, OE and OSWER
agree to respond to the Region as quickly as possible, but no
longer than ten working days from receipt of all information
requested.
If Headquarters does not respond to the Region within the
appropriate time frame, the Region should notify OWPE that a
response has not been received. If neither OWPE nor OE responds
to the Region within two working days, the Region may assume that
the Headquarters offices have rio comment on the administrative
complaint or the proposed consent order and do not object to its
issuance.
Where possible, the Regions are encouraged to forward
diverse cases, involving a variety of CWA §31]. violations, to
Headquarters for concurrence.
IV. Other procedures
A. Submission of copies
Through this guidance, we are asking the Regions to submit
copies of administrative complaints and final penalty orders,
either litigated or on consent, to OWPE within thirty days of the
issuance of the order. Delegation 2-51(3)(e) requires that the
Regions submit a copy of each litigated or default Class I
penalty order to the Chief Judicial Officer in a timely fashion
in order to allow for sua sponte review by the Chief Judicial
Officer within thirty days of the Regional Administrator’s
signature. To satisfy that requirement, the Region should submit
such orders to the Chief Judicial Officer within seven days after
the Regional Administrator’s signature. The copies provided to
the program office will be used as one mechanism for evaluating
the effectiveness of implementation of administrative penalty
authority and assessing national consistency in the use of the
authorities. Submission of these copies should not delay or
impede a Region’s ability to use the administrative penalty
authority.
B. Compendium of administrative opinions
Headquarters will develop a compendium of decisions issued
by Presiding Officers and Administrative Law Judges, as well as
any decisions handed down by courts on appeal. This information
will be made available to the Regions through the Enforcement
Data Retrieval Service (EDRS).
C. Circulation of noteworthy opinions/orders
In addition to preparation of a compendium, Headquarters
will distribute copies of noteworthy administrative decisions, as
-------
—4
well as copies of final orders which are particularly well done,
to all Regions. These wjll be distributed as they become
available to Headquarters.
D. Coordination on precedential issues
From time to time, Regions may identify cases where the
issues have national implications or are precedential in nature.
In such circumstances, the Regional attorney should notify and
work with OE-Water to develop arguments to be used in pleadings
to administrative judges. Additionally, Regions should be aware
that the concurrence of the Assistant Administrator for
Enforcement is required before an appeal of a Class II decision
is initiated and the the same Assistant Administrator must be
consulted when no appeal of an adverse decision is recommended.
(See Delegations of Authority.)
E. Headquarters oversight of administrative penalties
After the first several reviews conducted under this policy,
Headquarters will exercise oversight of Regional use of OPA
administrative penalty order authority primarily through program
reviews or audits, as opposed to case-by—case, real—time review.
The reviews will be supplemented by information developed through
review of the copies of penalty orders submitted by the Regions,
and data from any system used to track the orders. In assessing
overall performance, Headquarters will examine the following
areas:
• Conformity with national enforcement policy;
I Conformity with penalty policy (GM-21 and GM-22 until a
Section 311 specific policy is developed);
• Efficiency and use of penalty orders, including number of
orders issued, timely response and completion, and effective
negotiation and advocacy;
I Establishment of significant precedent; and
• Overall penalty levels obtained.
Guidance contacts:
OE-Water LE-134W
Regions 1,11, III, IV, and X:
Northern Regions Branch Chief 260—7888
Regions V, VI, VII, VIII and IX:
Southern Regions Branch Chief 260—8177
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—5—
OWPE OS-510
Cecilia Smith FTS 260—9811
Guidance and Evaluation Branch,
CERCLA Enforcement Division
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#\ D SZI
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D C 20460
0 c9
DEC 23 1991
MEMORM DUM
SUBJECT: Interim Guidance on Cost Recovery Actions Under the Oil
Pollution Act
FROM: j’ ruce Diamond, Director 4 i44 L L 7
Off ice of Waste Programs Enforcement
Frederick F. Stiehl - % t - - L_
Associate Enforcement Counsel for Water
TO: Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I—X
This memorandum provides interim guidance concerning the
initiation of cost recovery cases pursuant to the Clean Water Act
Section 311, as amended by the Oil Pollution Act (OPA). Until
there is further guidance, the Coast Guard will generally take the
lead on cost recovery.
Costs associated with a removal of oil or hazardous substances
under the Clean Water Act (CWA), as amended by the OPA, are in most
cases recoverable from the responsible party. Section 1015(b) of
the OPA authorizes the Department of Transportation (DOT) to
recover money expended from the Oil Spill Liability Trust Fund
(“the Fund”). Presumably the DOT will delegate this authority to
the Coast Guard. However, there may be instances where money spent
on clean ups did not come out of the Fund created by the OPA and
managed by the Coast Guard. The CPA language does not explicitly
indicate that the Coast Guard is the sole agency with authority to
recover these non—Fund expenditures.
The Office of Waste Programs Enforcement (OWPE) and the Coast
Guard will address the issue of agency lead in cost recovery
actions after the Enforcement Memorandum of Understanding (MOU) is
signed. Until the determination of lead agency is made, the
Regions should forward to the Coast Guard copies of all
documentation related to cost recovery matters for Coast Guard
lead.
Coast Guard guidelines f or documentation are described in the
attached procedures. It should be noted that EPA guidelines for
cost recovery under CERCLA are more extensive than those described
in the Coast Guard guidance.
-------
If a Region identifies particular circumstances where it
determines EPA is better suited to initiate a cost recovery action,
that Region should consult with OWPE before proceeding.
If you have any questions regarding this matter please call
Cecilia Smith of OWPE at FTS 260-9811.
Attachment
cc: Stephen Luftig
Phyllis Anderson
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U. De c menT
of Transpcr c icr
United 5 ctes
C cstGucrd
Commander
National Pollution
Funds Center
Mr. Steve Luftig, Director
Emergency Response Division
Office of Solid Waste and Emergency Response
United States Environmental Protection Agency
Washington, D. C. 20460
Dear Mr. Luftig:
..i -i
4200 Wilson Blvd. &
Suite 1000
Arlington, VA 222 )-1
Staff Symbol: (cp)
(703) 235—4712
16451
Ji -.
j A
Enclosed is a copy of the Commandant Instruction issued today to
provide interim guidance on management of the Oil Spill Liability
Trust Fund. As we discussed in our meeting on 16 September, this
guidance is provided to you for distribution to your field units.
It reflects pre-Executive Order procedures for use of the fund,
places no mandates on other agencies, and establishes preliminary
organizational relationships among the various entities £volved
in response to oil pollution incidents.
Some of these procedures will need to be modified once the Executive
Order is signed. However, most will remain effective until changed
by other directives.
Again, I wish to thank you for taking the time to meet with me.
I felt that much was accomplished and we made a good start on
developing procedures for State Acces to the Fund. I look
forward to working with you an ou, s taff in the future.
- W. H ’. NORRIS
Copy: G-MEP
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3—NSR G—NVT G—NVT—1 G-NVT-2 G—TC 0—TA G—L. ‘3-UI.; G-TGC-1 L’F
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COMCCGARD NPFC L.JASHINGTON DC
‘ ‘:. : NONE FOUND
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DO I CCMO 0ARD NPFC L.JASHZNGTON DC
R C31 .2SZ OCT 91 ZY5 ZUI ASN-0002Th000277
FM COMD .OCARD I4ASHNGTON DC//6—CCS/i’
TO ALDIST
ACCI CG— ARC
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UNCLAS !/N s 0e//
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‘CdrNC E 80O
SUE.: IN I G1.JDANCE FOR HANDLING OIL. POLLuTION NCIDENTS
UNDER THE OIL POLLUTION ACT OF 1990
A. MAR:NE SAFETY MANUAL, COMDTNST M1 000.11, VOL VI, CHAPTER 7
6. coMDI:N 7 7. 0. I ISERIES)
C. CC FI JCE J SOP
:. REv:CuS INTER:M GU:DANCE REGARDING THE CIL POLLUTION ACT OF
: 0, ( 1- 0) (CPA 0), HAS EXPII ED. THIS DIRECTIVE PROVICES NE.4
INTERIM G ::ANcE OR MANAGEMENT OF THE OIL SPILL L:AE:L:TY TRUST FUND
U ’JND) N CONNECTION ITH OIL POLLUTION INCIDENTS tiNDER CPA 90, AND
ESTAE.L:S ES PRELIMINARY ORGANIZATIONAL RELATIONSHIPS AMONG THE
NAT:oNAi_ OLL’JTION FUNDS CENTER (NPFc). FEDERAL ON-SCENE-COORDINATORS
.FOSC), DSTRICT COMMANDERS AND THE:R CHIEFS OF MARINE SAFETY
DIVISION CM), AND OTHERS INVOLVED IN RESPONSE TO OIL POLLUTION
INCDENTS. REFERENCE (A) IS TO BE USED IN CON.;UNCTION L4ITH THIS
GUIDANCE.
2. RESPONIIBILITIES:
A. COMMANDER, NPFC (ADDRESS: NATIONAL POLLUTION FUNDS CENTER,
200 JLSON BLVD 1 SUITE 1000, ARLINGTON, VA 22203— 80 ) PROVIDES
TIMELY FuNDING TO FOSC’S, THROUGH DISTRICT COMMANDERS, FOR OIL SPILL
031 2SZ OCT t COMDT 003ARD WASHINGTON DC PAGE 01
* a * * a * a * * a a a * a a a a an a a * a a a
a uNCLASSIFIED
a * * a a
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• ‘..Nc_.A s::E:
2R*tS*C
EtF:NSE • D RE OVAL ACTIONS. ‘NOTE: NP C’F :CE o’ c TC’
- ST’EDT, MON -i RI. AFTEI HO:If S CALLS HO’JLD EC :REcTEC’ Ti
‘iF : L)MMA’ ) DUTY O1 ICER THFCLJCH THE HE DOUARTER COMMAND CE s.7EP.
t..ASE MANAGEMENT DI ,its:L:IN 1CM) • T L rw :s— .
- . A A OF Cc.R TO EACH :.PEC FIC UIL POLLUTION CASE TO ACT AS
i NGL. POiNT OF LONTAL i OR ALL NFFC ACT j.UN PELATINO TO TH .
i CIFC A E. INC ’JDINc, MANGLING OF THIRD PARTY CLAIMS FOR r)Ar A ,3ES
L’I I Ti) Tk INC ID NT -
12) FINANCAL MANAGEMENT DZVSION (OF), TEL NR (703) 35-
TAEL ES DISTRICT TARGETS AVAILABLE FOR RESPONSE TO
INCIDENT.. AND MANAGES OVERALL FUND STATUS AND ACCOUNTING.
P’)LTCY ANt) COORDINATION DIvISION (CR), TE NR I )
67 ’L2, NE CTATES AND ADMINISTERS AGREEMENTS FOR FUND ACCESS BY TH
STATES AND NATuRAL RESOURCES TRUSTEES AND COORDINATES ISSUES AMONG
AGENCIES AT ALL LEVELS.
1 ) VE55 cER 7 IF:CATION DIVISION (CV ), TEL NR (703) 235-
43L , .S ’ES VE ’ ’SEL. CERTIFICATES OF FINANCIAL REsPONSBILTY (COFR)
AND AOV.:F USCO AND USCS FELO LINITS’OF COMPLIANCE STATUS. (NFFC
( cv) :: FI:E :- cJ.’RS EXTENC) TO SAT.
15) LEGAL DIVISION (CL), TEL NR (703) 235— 7 0, PROVIDES
LEGAL ADVICE AND GUIDANCE ON NPFC ACTIVITIES, INCLUDING CLAMS BY AND
AGAINST ‘HE FUND, ACCESS TO THE FUND, AND REGULATIONS, AND
COORDINAES REFERRAL OF MATTERS FOR LITIGATION.
6. COMMANDANT (G•-M), THROUGH THE MARINE ENVIRONMENTAL PROTECTION
DIVISION G-ME ), PRoVIDES OPERATIONAL POLICY AND GUIDANCE FOR
REF’ONSE AND REMOVAL OF OIL SPILLS.
C. o:STRICT COMMANDERS ISSUE FEDERAL PROJECT NUMBERS (FPN) OF
SPILLS J HIN THEIR DISTRICTS; ESTABLISH THE cE:LING FOR FEAL
RESPONSE COSTS ZN EACH SPECIFIC CASE (NOT TO EXCEED REMAINING TARGET
AVAILAELE ; MANAGE THE FUND TARGETS ALLOCATED; PROVIDE SUPPORT TO
FO$CS TH CtJGH C ’STRICT RESPONSE ADVISORY TEAMS; AND REVIE!
DOCUMENTATION SUBMITTED BY THE FOSC’S.
0. F)SCS ENSuRE TIMELY AND E FECTVE RESPONSE TO INCIDENTS;
INVESTIGATE AS NECESSARY TO DETERMINE THE SOURCE, NATURE, EXTENT, AND
CAUSE O EAC:H INCIDENT AND THE RESPONSIBLE PARTY OR PARTIES; DOCUMENT
FOSC-AUT ORIZED P.ESPONSE COSTS; AND REPORT THOSE COSTS TO THE NPFC
CASE OFF ER AND COGNIZANT DISTRICT COMMANDER (M).
E. COMMANDERS OP MAINTENANCE AND LOGISTICS COMMANDS PROVIDE
c:ONTRACTING AND LOGISTICAL SUPPORT TO FOSC’S.
F. COMMANDING OFFICER, CG FINANCE CENTER, MAINTAINS THE OFFICIAL
ACCOUNTING RECORDS FOR THE FUND; pROVIDES TIMELY PROGRAM ELEMENT
STATUS (PES) REPORTS TO EACH DISTRICT COMMANDER CM) FOR THE SPECIFIC
DISTRICT ACCOUNT AND NPFC (cF) FOR ALL POLLUTION FUND ACCOUNTS; PAYS
PROPERLY DOCUMENTED AND AUTHORIZED CHARGES TO THE FUND; AND RECORDS
AMOUNTS RECOVERABLE TO THE FUND EASED ON .INFORMATION FROM NPFC.
3. FUND USE FOR REMOVAL ACTIONS:
A. O A ‘O AUTHORIZES PAYMENT OF “REMOVAL COSTS, INCLUDING THE
COSTS OF MONITORING REMOVAL ACTIONS, CONSISTENT L4ITri THE NATIONAL
0.31 23Z OCT ‘ L COMOT COGARD WASHINGTON DC PAGE 02
*****k* * R**x * X*** **
UNCLASSIFIED *
****xR ******
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uNc.LAssIr::
c NT:N EN: F- .AN. T}- r5 ALLOL45 PAYMENT F INc:DFNT—s Ec: :c
s N FOSC, INCLUDING COST’ OF McN: TC’RINO A
LEANUP, AS L4ELL AS COZTS OF ACTUAL F ::EPAL CLEANUP
rI.’ITI ::.. THE FUND MAY PAT:
(t) COSTS OF CONTAINMENT AND REMOVAL OF O.LL FROM ATER AND
;-1’R L IrJES
.2 TO PREVENT, MINI 1IZE, OR MITIGATE OIL POLLUTION
‘4: Er T,iE E IS A LIBSTANTAL THREAT OF C)ISCHARC F OIL; AND
) COSTS OF TAKING OTHER RELATED ACTIONS NECESSARY I’D
MINIMIZE ‘‘R ‘TTLOAIE DAMAGE T i) THE PUBLIC HEALTH OR WEL ARE
INCLL’DLNG, BUT NOT LIMITED TO, DAMAGE TO FISH, SHELLFISH, I,JILDLFE,
PUBLIC ANU PPIVATE PROPERTY, SHORELINES, AND BEACHES. -
B. EXAMPLES OF INCIDENT—SPECIFIC FEDERAL REMOVAL COSTS PAYASLE
iWM THE FUND INC’ (JDE- OUT-OF—POCKET EXPEN S ( 0. , P R DI M AND
TRAVEL. ‘ ‘ ICLE MILEAGE. REPLICATON, TRANSMISSION, AND DELIVERY OF
F 1S. FENTAL CARS. AND FIELD CONSUMABLES); CONTRACTED COSTS (E.G.,
LEANL’P L J7 CTrFS); COSTS OF EPA TECHNICAL ASSISTANCE TEAMS;
SPECIF:c SALARY C0575 FOR TEMPORARY GOVERNMENT EMPLOYEES HIRED OR
ACTIVATED OR THE DURATION OF THE SPILL RESPONSE (E.G’, RESERVE
PERSONNEL ACTVArED FOR MONITORING); AND SPECIFIC SALARY COSTS FOR
FEDERAL E 1P!_UYEES NOT NORMALLY AVAILABLE FOR OIL SPILL RESPONSC.
SALARY COSTS R A FEDERAL EMPLOYEE AR BASED ON THE NUMBER OF HOURS
THE SPECIFIC EMPLOYEE SPENT ON THE RESPUNSE AND A STANDARD HOURLY
RATE FOR EMFLOYEES OF THAT GRADE. THIS AMPLIFIES THE INFORMATION
CONTAINED IN REFERENCE (A), SECTION 7.5.6 AND FIGURE 7—10.
(1.. PROCEDURES FOR ACCESSING THE FUND:
A. T E FCSC REQUESTS ISSUANCE OF AN PN AND A CORRESPONDING
CEILING AUTHORIZATION FROM THE COGNIZANT COAST GUARD OSTRICT
COMMANDER.
E. THC D:sTRICT COMMANDER ISSUES AN FPN TO THE FCSC BY MESSAGE
CITING: Tr E NAME OF ALL VESSELS AND/OR FACILITIES INVOLVED; THE
SOL’PCE OF DISCHARGE OR SUBSTANTIAL THREAT OP DISCHARGE (IF
KNOWN) ; T .E RESPONSIBLE PARTY (IF KNOL.JN); THE LOCATION AND DATE OF
TriE DISCHARGE; THE IDENTIFICATION OF THE BODY OF WATER IMPACTED; THE
CEILING AMOUNT AUTHORIZED FOR OBLIGATION UNDER THE FPN; THE PLANNED
OBLIGATIONS; AND THE CLEANUP CONTRACTOR(S) SELECTED (IF ANY).
C. THE FOSC ENSURES THAT OBLIGATIONS AND EXPENDITURES FROM THE
FUND REMAIN WITHIN THE CEILING AND, IF NECESSARY, PROMPTLY REQUESTS
INCREASED CEILING AUTHORIZATIONS FROM THE DISTRICT COMMANDER.
0. THE DISTRICT COMMANDER NOTIFIES THE NPFC, FINCENS IILC
(CONTRACT:NG BRANCH), AND THE POSC BY ROUTINE MESSAGE WHEN AN FF’N IS
CANCELLED OR RESPONSE HAS ENDED. CANCELLED NUMBERS SHALL NOT BE
REISSUED.
E. ALL POLREPS AND OTHER MESSAGES RELATED TO THE INCIDENT WHERE
THE FUND HAS BEEN ACCESSED SHALL INCLUDE THE NPFC, FINCEN, AND
COGNIZANT MLC CONTRACTING BRANCH AS INFO ADDEES, N ADDITION TO
CuRRENT REPORTING- REOIJ IREMENTS.
5. INCIDENT RECORDKEEPING/ACCOUNT INC/CORRESPONDENCE:
03i 28Z OCT G1 COMDT COGARD WASHINGTON DC PAGE 0.3
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• . UNC_A S SIFIED -
* V •*W Vt ., WVW * V V WWVV . V
A. THE FOSC C ES THE FJND ACCOUNTING D 7A Di ECTLY ON PURIHA-LE
RDE S, DE tVER ORDERS, OIL PIL_ RESPON E
AL EEriENTS, ETC. THE NPFC CASE OFFICER WILL su ’ ANY NEC:SSARV
iA TA.
6. THE FOSC RECORDS REMOVAL COSTS ON A DAILY BASIS IN THE
LL t4INO CATEGORIES. 1 CONTRACTOR COSTS, 2) OTHER AGENCY COSTS
.INPE rI.PR’ , IAr , ETC. , 3) FCSC DIRECT EXPENSES CHAPGED TO T 1E
t.’ND, .) Q’JT-O - OC c T CO5T REIMBURSABLE FROM THE FUND, 5) SALARY
cosrs REIMBURSABLE FROM THE F .ND (I.E., A) SALARIES OF NON-FEDERAL
PERSONNEL, AND B) SALARIES OF FEDERAL PERSONNEL NOT NORMALLY
AVAILABLE FOR OIL SPILL RESPONSE), AND ) SALARY COSTS FOR THOSE
FEDERAL PERSONNEL NORMALLY AVAILABLE FOR OIL SPILL RESPONSE.
(CONTACT COMOT (G—MEP) IF THERE ARE QUESTIONS ABOUT WHICH FEDERAL
Pt RSONNEL ARE NORMALLY AVAILABLE FOR OIL SPILL RESPONSE”.) FOf
FEDERAL SALARIES, THE COST DOCUMENTATION INCLUDES THE NAME, GRADE,
AGENCY, HOURS OF WORK ATTRIBUTABLE TO REMOVAL (INCLUDING MONITORING)
ACTIVIT:E5 FOR COST RECOVERY, AND THE APPLICABLE STANDARD RATE PER
RE ERE’JCE (5)
C. CACH FOLREP INCLUDES A CUMULATIVE SUMMARY OF THE DAILY
FINANCIAL RECORDS THAT IDENTIFIES THE FOLLOWING:
(1) AMOUNTS ACTUALLY SPENT TO DATE AND CHARGED DIRECTLY TO
T E FUND
2) OBLIGATIONS TO DATE, INCLUDING CONTRACT COSTS, INTER-
AGENCY AGREEMENTS, MIFR’S, ETC., WHICH APPLY TO THE CEILING;
(3) FEDERAL SALARIES, OUT-OF-POCKET COSTS, AND FEDERAL
RESOURCE COSTS THAT ARE RECOVERABLE BUT NOT CHARGED DIRECTLY TO THE
FUND; AND
( ) FEDERAL SALAR:ES OF PERSONNEL NORMALLY AVAILABLE FOR CT
SPILL RESPONEE.
0. IT IS EXREMELY IMPORTANT TO INITIATE RECORDKEEPNG PROMPTL-
FOR ALL FEDERAL COSTS. THE POSC ESTABLISHES, AS NECESSARY, FORMAL
AGREEMENTS U.JTH OTHER FEDERAL/STATE/LOCAL/TRUSTEE AGENCIES, REQUIRING
THOSE AGENCES TO OBTAIN SPECI C FOSC AUTHORIZATION FOR RESPONSE
ACTIVITIES, AND REQUIRING THEM TO DOCUMENT THEIR COSTS IN ACCORDANCE
WITH NPFC REOIJIREMENTS. IF NECESSARY, THE POSC COORDINATES WITH THE
DISTRICT COMMANDER, FINCEN, AND NPFC CASE OFFICER TO ESTABLISH A
SPECIAL AFC-8ø REIMBURSABLE ACCOUNT FOR ANY COAST GUARD INTERNAL
DIRECT EXPENSES WHICH CANNOT BE CHARGED DIRECTLY AGAINST THE FUND.
E. THE MLC COMMANDER ASSISTS THE FOSC IN CONTRACTING FOR
RESPONSE SERVICES AND EQUIPMENT, AND MAY ALSO ASSIST IN PREPARING
SPECIFIC AGREEMENTS (MIPR’S, tAG’S, ETC.) WITH OTHER GOVERNMENTAL
ENTITIES TO OBLIGATE AND PAY FOR SERVICES OR EQUIPMENT.
F. NO LATER THAN 5 WORKING DAYS AFTER AN OBLIGATION, THE FOSC
(OR SUPPORTING CONTRACTING OFFICE) FORWARDS COPIES OF ALL OBLIGATING
DOCUMENTS TO FINCEN, THE COGNIZANT DISTRICT COMMANDER, AND THE NPFC
CASE OFFICER. THE DISTRICT COMMANDER OBTAINS AND FORWARDS COPIES OF
OBLIGATING DOCUMENTS PREPARED BY AN EPA FOSC.
G. ACCOUNTS PAYABLE PROCEDURES ESTABLISHED IN CHAPTER 3 OP
g3t 2BZ OCT 91 COMDT COGARD WASHINGTON DC PAGE ø
UNCLASSIFIED
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• pAir, ccrrn
¼. i_ . ._, . r —
• •* .W***SStV • .
: E E i’:E :c L?, AMPLIFIED A F’ LL iS
•n ‘)P ’ N MARr ET E.MALL F” :- E S , ) LL’”-J’- ’
A’ . AE ERENCE (C).
‘ 1 ...IVERY OF ER .ArN T t’C’ AFJi) NTRACT’ .
‘ .r. ,t. 1MENT . ‘ , COMMERCIAL. coNrRAcToRS SUBMIT ONE INvOICE
- TL.’ I i 1 r :Nc:rJ AND SECUNr:i TO THE ; :. T F’ ( ‘ ,EV
TI E t JVCi’ , ‘ .“ Y .‘ S RECEIPT OF THE S’JPPLiE5/ R ’ Ario FcI wARD5
THE A. ‘7’: .E’.J NV L ’ . .JITH S .P1’ORT IrJt3 000IJMENTAT ION TO rHE COGNI 2AN r
CC’NlRACTING C’FFCER 1THIN 5 DA’fS. THE CONTRACTIN OFFICER FORWARr.5
r; 1 • P uv D L”JV’ICE T ) FINL N FOR FA’mENT. l EN THE tNVQIC
AD7U$TE O ‘HANGE T’iE AMOUNT OF THE PAYMENT. THE CONT ACTING OFFICER
::r’ . • r AO:;JSTED INv’JIC TO H’ N FC CASE UFFICE.
E1M5’JP.SA6LE AGREEMENTS r1IFR ’S, lAG’S, ETC. , THE
A ’iC!ES ‘ ‘IT L’_:rir, DOCUMENTATION TQ THE FOSO. TH OSC REVIE S.
ADJuE TS ‘.IP NECC SuRY), AP ’RO\IE , AND FORWAPt S THE BILL 1’) lHt NPFC
“A E 3F. I’E WITHIN 5 DAYS. THE NPFC CASE OFFICER ARRANGES
RE E EN N. T -E AGENCIES.
( ‘ ‘ Tr E J LC L AE STAMPS ALL INVOICES UPON RECEIPT, AND
ANr4U rA ...,H Ill) J 1 JT TO E LECT ThETHEP PARTIAL’ i)1? “-INAL_”
I’.L NG.
, ) Tr - VOID DELA ’C IN PAIMENT, THE FOSO SENDS INVOICES OR
6 LLiNG DC’C.JMENTS DIRECTLY TO TH FINCEN OR (OGNIZANT CONTP.ACTING
SRANCH AND NOT VA THE DISTRICT COMMANDER. COPIES OF ALL INVOICES
ARE SENT TH DISTRICT COMMANDER AND THE NPFC CASE OFPCER WITH THE
COST i EPORT DESCR:E.:D BELOW.
H. THE NPFC CASE OFFICER IS AVAILABLE TO PROVIDE ADVICE ON
RECDPDV.EEP:NG F OCEDUP ES AND CASE ADMINISTRATION. (AS AFOREMENTIONED
THE .ASE (JF CER IS THE SINGL.E NPFC FCC FOR ALL INCIDENT-SPECIFIC
ISSUES. SHOULD A PARTICULAR INDIVIDUAL SE UNAVAILASLE, NPFC (CM)
WILL IDEN7:. Y AN ALERNATE.) DURING A MAJOR DISCHARGE, THE NPFC CASE
OFFICER 13 AVAiLABLE UPON FOSC’S REQUEST TO ASSIST oN—SITE IN
EsrA L:sHINc . AA i EMENTS, COLLECTING DOCUMENTATION, AND ASSISTING L4I H
OT E FINANC:AL MANAGEMENT ISSUES. IN APPROPRIATE CIRCUMSTANCES, THE
CASE OFFI.ER MAY DEPLOY TO A SCENE WITH A TEAM OF SUBJECT MATTER
EXPERTS (CASE MANAGEMENT TEAM) TO ASSIST THE FOSC WITH FUNDING AND
rJrHER F: ScAL ISSUES, E.G., FACILITATING THIRD PARTY CLAIMS OR MEETING
WITH RESPONSIBLE PARTIES ON COST RECOVERY ISSUES.
I. AC’DPE3$ ANY CASE—RELATED CORRESPONDENCE FOR THE NPFC CASE
ØFFICER 70 THE NPFC ADDRESS CITED IN PARAGRAPH 2 ABOVE, MARKED “AT7N:
CASE OF :CER, FPN C )“.
b. REPØRTING:
A. THE TIMELY DELIVERY OF INFORMATION TO THE NPFC CASE OFFICER
IS CRITICAL TO THE SUCCESSFUL RECOVERY OF COSTS FROM THE RESPONSIBLE
PARTY. FAILURE TO SUBMIT REPORTS WITHIN THE TIME FRAMES SET BELOW
MAY RESULT IN DELAYS IN REIMBURSEMENT FOR RESPONSE COSTS AND PAYMENTS
TO CONTRACTORS.
B. WITHIN 15 DAYS OF RECEIPT OF THE LAST INVOICE OR 5 DAYS AFTER
THE RESPONSE ZNOS, WHICHEVER 15 EARLIER, THE FOSC SUBMITS TWO
OCT 1 COMDT COGARD WASHINGTON DC PAGE 05
A UNCLASSIFIED
a * * * S * * S — * 5 * S * X S * * 5 5 * * S — S
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* ‘! I,,
jv._ .‘j.r
.*,t. ., * . .W*ttXP
rOENTICAL. IMMAR /CCi’E ,T RE:OvER” R r:iRrS (ONE D:RECTLV T I) TH
NPFc. AEE OF ICER AND ONE TO THE DISTRIC T COMMANDER . SOME CA5E y
WARRANT rNTERIM F PORTS. U MZ SiON O THE RF’)f 5 vIA FAX,
ELE ’ ’ ZC tiAtL, OR OVERNIt HT r,CLIVERY MA’( BE APPROFRIATE. I4HEN
I.INL.I L)AL I:IRCI.PM AN ES PREVENT :OLLECTINt3 ALL COST DOCUMENTATION, r
F’DS’ SLISMITS A FAP.TIAL REPORT ANC’ FORWARDS HE REMAINING DATA AS COON
A O TEL . r’ C r ’I TRII:T COMMANDER ADvISES TH ! NFFC A E I) IC2ER OF
ANY CHANGES OR CC’PRECTIONS TO THE REPORT AND ANY DISTRICT LE/ L COSTS
APPL.ICAELE TO TH c.ASE WITHIN 15 DAYS AFTER RECEIPT OF THE REPORT AT
THE DISTRICT, INCLUDING NEGATIVE REPORTS. THE NFFC CASE OFF:CER.
AP TER REVIEW O THE REPORT, AUTHORIZES REIMBURSEMENT FOR COSTS NOT
CHARGED DIRECTLY TO THE FUND, AND FORWARDS A COPY OF THE COST SUMMARY
T’) FNEN. C’RMATS Ar PPOPRIATE FOR THIS REPORT APE UNDER DEVELOPMENT
AND EAMPLES WILL BE PROVIDED TO EACH DISTRICT FOR DISTRIBUTION. IN
ADOTTION TO THE R !CORDS IN PARA. 5.8., THIS REPORT ALSO INCLUDES
AFC-30 COSTS ‘.CG UNITS DIRECT INCIDENT COSTS) AND THE FOLLOWING
•jpp , T:N:; DOCUM NTAT ION FUR THE RECOVERY OF COSTS:
(1) A 5RIE FORM LET ER FROM THE FOSC DEsCRIBING THE SOURCE,
NAT’JFE, E’
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•
W• S t R W
C _A IM N )R T)LC’ TriAT Tr ’ ARE I TE -in)’; N r IriD
THE C.AS7 jAF’ O OR AN’ OT?-ER CNTITY.
A. .3N MAKINO IN JRES ARDIN CLAIMS AR tN’ ‘IN A
‘ Ø SHC’R..D SE NFC’RMED: “UNTIL ISSUANCE OF AN EXECUTIVE C’P ER
L.EOATING PRESIDENTIAL AUTHORITY UNDER rHE OIL FOLLUTIC N ACT OF
i 9ø. THE CflAST OJARD AS NO AUTIORITY TO TAKE ANY OFFICIAL ACTION ON
Af’i :Lr s r t’ ’ t)A rpER THAT ACT FENDING PUBLICATION OF o
•:LAIM E:-t.’LAT:oNS, C’FrICIAL GUIDANCE ON AN? CLAIMS ARISING .‘NDER
r;lAr CT 13 LIMITCD TO T 4E TEXT OF OPA 90 AND ITS LEGISLATIVE
HISTORY’
8. N ADDITION TO MEETING EXISTING REQUIPCMENTS IN PAPA T.6.o C.
FE- Er:N:E (A , E F’) 5( HQ’.ILD 000’JMENT AND ESERV ALL INFQRMAT:O J
ABOUT THE INCIDENT WHCH IS REASONABLY EXPECTED TO BE NECESSARY FOP
TH I COAST GUARD TO EVALUATE INFORMATION SLJEMITrED B? CLAIMANTS.
POLF EFS HOULD INCLUDE UNDER “SITUATION NOT ONLY RESPONSE ACTIV TIES
BUT ALSO . NOWN r:jR SUSPECTED IMPACTS. EXACTLY WHAT MAY BE NEEDED IN
EACH CASE MUST BC DETERMINED EASED ON A COMMON SENSE EVALUATION OF
THE S’J FETED IMPACT OF THE DISCHARGE, OR THREATENED DISCHARGE, GIVEN
THE vARIOUS OPA ‘ O CA EGORIE5 OF POTENTIAL CLAIMS.
C. FURT’ 4 ER QUESTIONS REGARDING CLAIMS SHOULD BE REFERRED TO THE
NFFC CASE CF ICER THE ADDRESS/TEL SHOL.JN IN PARAGRAPH 2 ABOVE. IF
ANY THIRD PARTY INTEREST IN FILING CLAIMS IS NOTED OR EXPECTED AS 4
RESULT OF AN INCIDENT, THE NPFC CASE OFFICER SHOULD BE PROMPTLY
NOTIFIED.
. NATURAL RESOURCE DAMAGE ASSESSMENTS AND RESTORATION. ALTHOUGH
OPA O ALSO AUTHORIZES THE USE OF THE FUND FOR NATURAL RESOURCE
DAMAGE ASSESSMENTS AND RESTORATION, THESE ACTIONS CANNOT BE FUNI .ED
UNTIL PROML’LGATION OF AN EXECUTIVE ORDER. REFER ALL CASE-SPECIFIC
OUE3TIONS TO NP C CASE OFFICER.
. WHILE NOT DIRECTLY RELATED TO THE SUS.3 OF THS MSG, THE FOLLOWING
INFO ON VESSEL CERTIFICATES OF FINANCIAL RESPONSIBILITY IS PROVIDED
FOR GENERAL G:JIDANCE. ALTHOUGH COFR REGULATIONS ARE UNDER REVISION,
PREVIOUS RC3ULATIONS REMAIN IN EFFECT. PRIOR TO TAKING ENFORCEMENT
CTON SUCH AS DENYING ENTRY, DETAINING, OR SEIZING A VESSEL, THE
DISTRICT CGMM4NDER AND/OR CAPTAIN OF THE PORT CONTACTS NPFC, VESSEL
CERTIFICATION DIVISION (Cv), TO DETERMINE WHETHER THE VESSEL HAS SEEN
ISSUED THE REQUIRED CCFR OR IS OTHERWISE IN SUBSTANTIAL COMPLIANCE
WITH THE LAW. IF IT IS DETERMINED THAT THE VEESEL IS NOT IN
COMPLANCE, THE CAPTAIN OF THE PORT MAY DENY ENTRY OR MAY DETAIN THE
VESSEL UNTIL NPFC (Cv) CONFIRMS COMPLIANCE. NPFC WILL ONLY PROVIDE
INFORMATION ON THE STATUS OF A VESSEL’S COFR AND WILL NOT PROVIDE
ENFORCEMENT GUIDANCE. QUESTIONS REGARDING POTENTIAL SEIZURE SHOULD
BE DIRECTED TO COMDT (G—MEP), TEL NR (202) 2 7—2 11 OR, AFTER HOURS,
VIA THE HEADQUARTERS COMMAND CENTER.
10. THIS MESSAGE IS INTENDED SOLELY AS INTERNAL GUIDANCE TO PROMOTE
Er FICIENCY AND CONSISTENCY IN PUBLIC SERVICE ABOVE AND BEYOND THE
REQUIREMENTS OF LAW OR REGULATION, AND IS NOT TO BE RELIED UPON BY
THE PUBLIC AS CREATING ANY DUTIES. THE COAST GUARD RETAINS
031 23Z OCT 91 COMDT COGARD WASHINGTON DC PAGE O
UNCLASSIFIED
WRX***R R **RR*R**RkRR
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•1tRW RwtwRtRwnR* , V. p*W.*
:D DEVIATE OR AuTHOR E DEv:AT: )N OM E u:’ .
EFS5ONNEL. ARE EXPECTED TO LISE DtSCRETION 14 EN AcT:NG T :S
( :JI)ANCF .
ii.. APEA, 1LC, AND DISTRICT C MANDERS SHALL ENSURE THAT ALL
, ER ONNCL INVOLVED IN OR s’JPPoRrING RESPONSE OFEt ATIONS ARE MACE
ALJARE OF THIS INFORMATION.
aT
NNNN
031 28Z OCT 91 COMDT COGARD WASHINGTON DC PAGE 08
UNCLASSIFIED
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S
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D C 20460
4 4
C CE o
SC -SE VE GE .C P SPONSE
X MOBAND1 X
BUBJBCT: Use of Alternative Secondary Containment Measures at
Facilities Regulated under the Oil Pollution Prevention
Regulation CFR Part 11 )
PROM: Don R. ciac /1
Assistant Adininistr or
TO: Director, Environmental Services Division
Regions I, VI, VII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III IX
Director, Waste Management Division
Regions IV V, VIII
Director, Hazardous Waste Division
Region X
This memorandum addresses the U.S. Environmental Protection
Agency’s (EPA) interpretation of the term “secondary containment”
as it is used in section 112.7(c) of the Oil Pollution Prevention
regulation (40 CFR Part 112), also known as the Spill Prevention,
Control and Countermeasures (SPCC) regulation. It also addresses
teclinologi.. that may be used to provide secondary containment
for smaller, shop-fabricated aboveground storage tanks (ASTs)
consistent with 40 CFR Part 112.7(c).
BACXGROWID
Since 1913, the SPCC regulation has included the following
provision addressing secondary containment and the allowance for
equivalent preventive systems. Section 112.7(c) states:
Appropriate containment and/or diversionary structures or
equipment to prevent discharged oil from reaching a
navigable water course should be provided. One of the
following preventive systems or its equivalent should be
Pr ,, ed or, ec,c(ed P ô r
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used as a minimum: (1) Onshore facilities: (1) Dikes,
berms or retaining walls sufficiently impervious to contain
spilled oil; (ii) Curbing; (iii) Culverting, gutters or
other drainage systems; (iv) Weirs, booms or other barriers;
(v) Spill diversion ponds; (vi) Retention ponds; (vii)
Sorbent materials.
The SPCC regulation implements Section 311(j) (1) (C) of the
Clean Water Act (CWA) for non-transportation-related facilities.
In 1988, the Agency published regulations at 40 CFR Part 280 for
underground storage tanks (USTs) implementing the requirements of
Subtitle I of the Resource Conservation and Recovery Act. An
apparent result of the implementation of the UST
regulation is a trend of facilities replacing USTs with ASTs.
In response to this trend, tank manufacturers have developed
various new designs for shop-fabricated AST systems. Alternative
AST systems for which we have information generally do not exceed
12,000 gallons capacity. Some of these new designs include a
steel or reinforced concrete secondary shell fully encasing a
storage tank; others include an attached, shop—fabricated
containment dike. Many other system designs may also be
available. Typically, these alternative AST system designs
provide containment for the entire capacity of the inner tank for
spills resulting from leaks or ruptures of the inner tank.
In 1988, EPA noted in its Oil SPCC Program Task Force Report
that the Agency has limited inspection resources to implement the
SPCC program. Less than 1,000 of the estimated half million
SPCC-regulated facilities are inspected by EPA annually.
Moreover, section 311 of the CWA does not permit EPA to delegate
this program to the States. The Task Force, therefore,
recommended that EPA attempt to target these very limited
resources to inspecting the highest-risk facilities. In general,
we believe that facilities using smaller-volume AST systems
generally pose less risk than larger field—erected tanks and tank
farms of large uncontrolled spills reaching navigable waters,
especially if these facilities are not located near sensitive
ecosystems or water supply intakes.
The traditional method of providing secondary containment
for ASTS ha. been to construct dikes, berms, retaining walls
and/or diversion ponds to collect oil once it spills. Based on
the experience of EPA Regional personnel implementing the SPCC
regulation since 1973, those traditional means of secondary
containment are very effective and reliable methods of protecting
the surface waters from oil spills from ASTS. However, the SPCC
regulation is a performance-based regulation that permits
facility owners or operators to substitute alternative forms of
spill containment if they provide protection against discharges
to navigable waters substantially equivalent to that provided by
the systems listed in section 112.7(c).
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Consistent with section 112.1(e) of the SPCC regulation,
this memorandum does not supersede the authority of “existing
laws, regulations, rules, standards, policies and procedures
pertaining to safety standards, fire prevention and pollution
rules,” including fire codes or other standards for good
engineering practice that may apply to alternative AST systems.
On October 22, 1991, EPA proposed revisions to the SPCC
regulation. The proposed revisions do not affect the provisions
of section 11.2.7(c) that describe alternative systems that are
substantially equivalent to those specifically listed in
paragraphs (C) (1) (i) through (C) (1) (vii).
OBJECTIVE
This memorandu tt should allow EPA Regional personnel to
provide consistent interpretation of the secondary containment
provisions of section 112.7(c) of the SPCC regulation to
facilities with generally smaller shop-fabricated ASTs.
Alternative AST systems, including equipment and procedures to
prevent reasonably expected discharges, should satisfy the
secondary containment provisions of the SPCC regulation under
most site-specific conditions.
DIBCUS S ION
As smaller shop-fabricated ASTs are increasingly appearing
in the market, we have observed a number of innovative
technologies to reduce the risks of both leaks and spills.
Moreover, these smaller shop-fabricated tanks do not pose the
same risk of large uncontrolled oil spills to navigable waters as
the larger field-erected tanks. Therefore, we believe that there
should be many situations in which protection of navigable waters
substantially equivalent to that provided by the secondary
containment systems listed in section 112.7(c) could be provided
by alternative AST systems that have capacities generally less
than 12,000 gallons and are installed and operated with
protective measures other than secondary containment dikes. For
example, .ome State programs provide an exemption from State
spill pr.vention requirements for ASTs with similar capacities.
However, in certain situations, these alternative AST systems
might appropriately not be presumed to comply with the provisions
of section 112.7(c). An example of this type of situation is
facilities containing four or more ASTs or ASTs with combined
capacity greater than 40,000 gallons, where a number of larger
tanks are connected by manifolds or other piping arrangements
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that would permit a volume of oil greater than the capacity of
one tank to be spilled as a result of a single system failure. 1
The owner or operator of any facility subject to the SPCC
regulation, including facilities using alternative AST systems,
must adhere to all applicable provisions of the SPCC regulation.
The owner or operator of each regulated facility must develop a
site—specific SPCC Plan that must be certified by a Registered
Professional Engineer as required by section 112.3 of the
regulation. Pursuant to the requirement of section 112.7 that
the SPCC Plan shall “include a discussion of the facility’s
conformance with the appropriate guidelines listed,” a complete
SPCC Plan for any facility using alternative AST systems should
include a discussion of why the facility is considered to be in
conformance with section 112.7(c).
In evaluating these shop-fabricated ASP systems, EPA’S
Office of Solid Waste and Emergency Response (OSWER) has looked
at requirements the Agency has established for tanks in
situations where traditional secondary containment systems cannot
be provided (e.g., USTs covered by 40 CFR Part 280).
Additionally, OSWER has evaluated relevant State and local
government requirements. OSWER also has considered factors
related to alternative AST systems, including tank size, typical
pumping rates used to fill and empty them, and the lower risk of
large, uncontrolled oil spills from facilities using such AST
systems, based on tank size, design, and pumping rates. We
believe that for these smaller shop-fabricated ASTs some
alternative AST systems that include adequate technical spill and
leak prevention options such as overfill alarms, flow shutoff or
restrictor devices, and constant monitoring of product transfers
generally would allow owners and operators of facilities to
provide protection of navigable waters substantially equivalent
to that provided by secondary containment as defined in 40 CFR
Part 112.7(c). For example, small double walled ASTs, when used
with equipment and procedures described in this guidance,
generally would provide substantially equivalent protection of
navigable waters under section 112.7(c) of the SPCC regulation
when the inner tank is an Underwriters’ Laboratory-listed steel
tank, the outer wall is constructed in accordance with nationally
accepted industry standards (e.g., those codified by the American
Petroleum Institute, the Steel Tank Institute, and American
Concrete Institute), the tank has overfill prevention measures
that include an overfill alarm and an automatic flow restrictor
This is based on similar capacities in proposed National Fire
Protection Association standards and consideration of the risks to public
health or welfare or the environment of spills of potentially larger size.
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or flow shut-of f, 2 and all product transfers are constantly
monitored .
CONCLUB ION
When the only significant source of potential oil spills to
navigable waters of the United States from a facility is from
alternative ASTs as described in this memorandum, an SPCC Plan
that is certified by a Registered Professional Engineer and that
requires equipment and operating practices in accordance with
good engineering practice and the principle of substantial
equivalence as described above should be presumed to achieve the
protection of navigable waters substantially equivalent to that
provided by the preventive systems specified in 40 CFR Part
112.7(c).
cc: Bowdoin Train
Henry Longest
Bruce Diamond
Deborah Dietrich
Walter Kovalick
James Makris
Charles Openchowski
David Ziegele
Wendy Butler
Removal Managers, Regions I—X
2 Consistent with the performance standards for these devices as
described in section 280.20(c) of EPA regulations for USTs at 40 CFR Part
280 and in an Aug .tst 5, 1991, amenthnent, an automatic flow shut-off will
shut off flow so that none of the fittings located on top of the tank are
exposed to product as a result of overfilling, an automatic flow restrictor
will restrict flow 30 minutes prior to overfill or when the tank is no more
than 90 percent full, and a high level alarm will alert the operator one
minute before overfilling or when the tank is no more than 90 percent full.
Consistent with the performance standard for overfill control as
described in section 280.30(a) of EPA regulations for USTs at 40 CFR Part
280, an owner/operator of the facility will ensure that the transfer
operation is monitored constantly to prevent overfilling and spilling.
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WASHINGTON. D.C. 20460
4 ’t 4 .mo t’
JUN I 5 1993
OFFICE OF
SOLID wASTE AND EMERGENCY RESPONSE
OSWER Directive 9360.8-10
MEMORANDUM
SUBJECT: Interim Guidance for the Determination of Significant
and Substantial Harm Facilities For 0 1 Pollution Act
Response Plans
FROM: Henry L. Longest II, Director
Office of Emergency and Remedial nse
TO: Director, Waste Management Division
Regions I, IV, V , VII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, VIII, IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, VII
This transmits the “Interim Guidance for the Determination
of Significant and Substantial Harm Facilities.” This Interim
Guidance supplements the proposed response plan revisions to 40
CFR Part 112 of February 17, 1993 • The purpose of this guidance
is to assist Agency personnel in determining whether a facility
could reasonably be expected to cause “significant and
substantial harm to the environment.” The Oil Pollution Act
(OPA) of 1990 requires that such facilities must have their
facility response plans reviewed and approved by the Agency. The
Interim Guidance includes a description of the screening process,
forms to document the determination process, and an attachment
that explains the justification for each criterion.
The Interim Guidance was prepared with the input of Regional
On-Scene Coordinators (OSCs), the Of f ice of General Counsel
(OGC), the Office of Waste Programs Enforcement (OWPE), the US
Coast Guard (USCG) and the Research and Special Programs
Administration (RSPA) of the Department of Transportation (DOT),
the National Oceanic and Atmospheric Administration (NOAA), and
the Minerals Management Service (10 ( 5).
Pnnted on Recycled F
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The Interim Guidance has three screens for use in
determining if a facility poses a risk of significant and
substantial harm to the environment. The screens are organized
according to the ease of obtaining the required information. To
evaluate a particular facility, the three screens should be used
sequentially. The first two screens evaluate information from
the facility plan. The third screen performs two functions:
(1) to allow facilities to be designated as significant and
substantial risk based on site-specific characteristics that
are not captured under the first two screens, and
(2) to re—evaluate those facilities that wer, designated as
significant and substantial risk under th. first two
screens, but that may have unique locational or facility-
specific circumstances that mitigate the potential to cause
significant and substantial harm.
If a facility is not identified by any of ths thre. screens, the
facility would not reasonably be expect.d to cause significant
and substantial harm to the environment.
To ensur. national consistency in making these
determinations, I strongly suggest that the scr..ning process
described in th. guidance be documented on the attached forms for
each facility identified as reasonably expected to cause
significant and substantial harm.
Facilities d.signat.d as significant and substantial risk
should be notified of their status and be requested to provide to
EPA by July 18, 1993 a certification of the implementation of
resources described in their respons. plan. This will enable EPA
to evaluate a facility’s certification prior to the August 18,
1993, statutory deadline. Approval of a facility’s certification
will allow it to remain in operation until February 18, 1995, or
until. its respons . plan is approved prior to February 18, 1995.
If you bays questions on th. us. of the criteria, please
contact Bobbie Lively—Diebold at (703) 356—8774.
Attachment
cc: Regional Removal Managers
Cecilia Smith, OWPZ
Tom B.is .w.ng.r, OGC
Sup.rfund Document Center, (OS-245)
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INTERIM GUIDANCE FOR THE DETERMINATION
OF SIGNIFICANT AND SUBSTANTIAL HARM
The information presented below is designed to guide Agency personnel in determining
whether a facility reasonably could be expected to cause significant and substantial harm to the
environment. A facility that could be expected to cause such harm must have its response plan
reviewed and approved by EPA pursuant to secuon 3 11(j)(5)(D) of the Clean Water Act. 33 Stat.
1321(j)(5)(D). This guidance supplements guidance provided by the proposed revisions to 40
CFR part 112 (58 FR 8824, February [ 7, 1993).
The guidance offers three screens for use in the significant and substantial harm
determination process. The screens are organized according to how easily the information is
obtained. To evaluate a parttcular facility, the three screens should be used sequentially. Screen
I is based on readily available information from the facility’s Response Plan Cover Sheet or the
plan itself Those facilities that do not meet the critenon in Screen 1 should then be evaluated
under Screen 2, which also relies on information available from the Cover Sheet or the plan.
Facilities that do not meet the criteria in Screen 2 should then be evaluated under Screen 3. This
third screen is designed to allow for selection of facilities based on site-specific characteristies and
involves a greater degree of data analysis by Agency personneL If a facility is not identified under
any of the three screens, then the facility should not reasonably be expected to cause significant -
and substantial harm to the environmenL
Screen 3 also may be used to consider locational or facility-specific circumstances that may
mitigate the potential of a facility to cause significant and substantial harm. if a facility meets the
criteria in one of the first two screens, but certain characteristies of the facility or the surrounding
area indicate that the facility could not be reasonably expected to cause significant and substantial
harm to the environment, that determination may be made under Screen 3. A flowchart detailing
the screening process is shown in Attachment 1. Additional discussion of the screening cnteria is
attached.
You should document the evaluation of each facility and the basis for the Agency’s
determination whether a facility may reasonably be expected to cause significant and substantial
harm to the environment. The form in Attachment 2 provides a means to document that
decision.
SCREEN 1. OVER-WATER TRANSFERS
All complexes that have a total oil storage capacity greater than or equal to 42,000 gallons
and perform over-water transfers to or from vessels should be designated as being reasonably
expected to cause significant and substantial harm to the environment. However, if the additional
locational or facility-specific circumstances are relevant, the facility may be further evaluated
under Screen 3 and, in appropriate circumstances, found not to be reasonably expected to cause
significant and substantial harm to the environment.
Information on a facility’s capacity and whether it performs over-water transfers should be
available from the Response Plan Cover Sheet. 1.1 not, the information can be readily determined
from the response plan.
If a facility is not identified under this screen, proceed to Screen 2..
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SCREEN 2- COMBINATION OF SUBSTANTIAL HARM CRITERL4
Under Screen 2, Regional personnel should use certain combinations of the substantial
harm self-selection criteria in § 112.20(0(1) of the proposed rule to identify whether a facility
reasonably could be expected to cause significant and substantial harm to the environment.
Specifically, a facility should be considered to pose such a threat if the facility has a storage
capacity greater than or equal to I million gallons and at least of the following are true:
- - The facility lacks adequate secondary containment for any aboveground storage
area.
-- A discharge from the facility would shut down a public drinking-water intake.
— A discharge from the facility could cause injury to an environmentally sensitive
area.
The facility had a reportable spill exceeding 10,000 gallons in the past 5 years.
This screen is designed to identify higher-risk facilities that would be identified under the
substantial harm screening process, which requires only one of the above factors to be met.
Facilities meeting two or more of the above criteria generaLly should pose a greater risk to the
environment than facilities meeting only one. However, if the additional locational or facility-
specific circumstances are relevant, the facility may be ftirther evaluated under Screen 3 and, in
appropriate circumstances, found not to be reasonably expected to cause significant and
substantial harm to the environment.
Information on these factors should be available from the Response Plan Cover Sheet. If
not available, information from the response plan should be used and, if necessary, the formulas
provided in Appendix C of the proposed rule should be used to assess this criterion.
If a facility is not identified under this screen, proceed to Screen 3.
SCREEN 3- EVALUATION OF SIGNIFICANT AND SUBSTANTIAL HARM FACTORS
Screen 3 is designed for two purposes: (1) to identify those facilities that do not meet the
criteria in Screen I or Screen 2, but that reasonably could be expected to cause significant and
substantial harm to the environmént and (2) to further evaluate those facilities that meet the
cricena in Screen 1 or 2, but which possess unique locational or facility-specific characteristics that
may mitigate the potential of a facility to cause significant and substantial harm to the
environment, and lead the Agency to determine that, for purposes of section 311(j)(5)(D) of the
Clean Water Act, the facility could not be expected to cause significant and substantial harm to
the environment This screen is the least specific of the three screens discussed in this guidance
and relies more heavily on Regional assessment of unique locational or facility-specific
characteristics that indicate the potential for high-risk to the environment. Under Screen 3
Regional personnel may evaluate the facility’s potential to cause significant and substantial harm
based on the following factors listed in the proposed rule:
A) Lack of secondary containment;
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B) Proximity to navigable waters:
C) Proximity to environmentally sensitive areas;
D) Type of transfer operation;
E) Total oil storage capacity
F) Proximity to drinking-water intakes;
G) Proximity to other environmental areas of concern:
I) Spill histoty;
3) Tank age; and
K) Other site-specific or environmental factors.
Presented below is guidance on how each factor should be interpreted. In using these
factors to evaluate the level of risk posed by a facility. Regional personnel should idenufy and
evaluate site-specific characteristics. When Regional discretion is applied, within the limits
discussed below, you should document the basis for the decision reached on the attached form.
Much of the information necessary to evaluate the criteria should be available from the response
plan, although other sources are noted.
Criterion A - Lack of Secondary Containment
In the evaluation of this criterton, the facility’s lack of secondary containment generally
should be considered in combination with other criteria, such as proximity to navigable waters,
total oil storage capacity, and proximity to public drinking-water intakes or environmentally
sensitive areas. If you consider this factor in combination with total storage capacity, you
ordinarily should apply the factor in a manner that results in the selection of higher-risk facilities
than would be selected when using this factor in the substantial harm determination. For
example, it may be appropriate to combine lack of secondary containment with a total storage
capacity greater than the I million gallon threshold used in the substantial harm screen (e.g., 5
million gallons), or lack of secondary containment from multiple tankc in combination with a total
storage capacity of 1 million gallons or greater.
Much of the information needed to assess this criterion should be available from the
Response Plan Cover Sheet or the response plan.
Criterion B - Proximity to Na igabIe Waters
Proximity may be thought of in terms of distance from the navigable water or nearness in
time of travel for the oil to reach navigable waters. Facilities that border navigable waters should
be considered proximate and are likely to pose a threat of significant and substantial harm. For
other facilities, Regional personnel should determine the nearest opportunity for a discharge (e.g..
tank, outfall, pipeline) at the site or installation to assess this criterion. Relevant factors for
assessing proximity incLude:
• Topography of the site between the nearest opporturnty for a discharge and the
navigable water,
• Location of the facility in relation to earthquake zones;
• Viscosity of oil that could discharge; and
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Time needed to mount a response prior to a potential discharge impacting
navigable waters.
Actual values (from the nearest opportunity for a discharge to the navigable water) may
range up to 2 112 miles. You should use a value in this range for assessing proximity, but you
should not apply the value without consideration of facility-specific circumstances in relation to
the factors discussed above.
Information on distance to navigable waters will be available from the Response Plan
Cover Sheet. However, assessing proximity is likely to require a review of the plan itself. Other
sources that may be needed are topographic and geographic maps (or geographic information
systems (GIS)), Area Contingency Plans, and SPCC inspection reports.
Criterion C. Proximity to Environmentally Sensitive Areas
Proximity to environmentally sensitive areas should be evaluated in a similar manner to
that discussed above for “proximity to navigable waters.” You may need to consider the potential
for waterborne transport of oil in addition to overland flow. Regional personnel should note that,
in general, a facility that is closer to an environmentally sensitive area (e.g., 10 miles) should be
regarded as posing a higher risk than a similar facility located further away (e.g., 30 miles). This
factor should be considered in combination with other factors such as lack of secondary
containment, total oil storage capacity, or spill histoty. When applying this criterion to a
particular facility, Regional personnel also should consider the vulnerability of a particular
resource to oil contamination, the limitations of a potential response (e.g., damage to wetlands as
a result of physical recovery operations), and the prioritization of sensitive environments in Area
Contingency Plans (ACPs). If this factor is considered in combination with total storage capacity,
you generally should apply the factor in a manner that results in the selection of higher-risk
facilities than would be selected when using this factor in the substantial harm determination. For
example, it may be appropriate to combine proximity to environmentally sensitive areas (as
defined using the formula in Appendix C) with a total storage capacity greater than the I million
gallon threshol4 used in the substantial harm screen (e.g., $ million gallons).
In general. information needed to assess this criterion will be available in the plan (e.g.,
hazard evaluation section). The distances calculated using the formulas in Appendix C may be
useful for this determination. If the response plait does not contain distances as calculated using
the formulas in Appendix C, you may wish to perform the calculations to determine such
distances. Regional personnel may need to refer to other sources such as Area Contingency
Plans for additional information.. The Regions are encouraged to work with the Natural Resource
Trustees to identif ’ concerns about environmentally sensitive areas.
Criterion D - Type of Transfer Operation
As discussed above, certain transfer facilities may reasonably be expected to cause
significant and substantial harm under Screen 1. However, facilities with other types of transfer
operations may also pose a threat of harm sufficient enough to warrant such designation. In
evaluating this criterion, you should consider the number of times that oil is handled (i.e..
transferred from vessel to facility, tank to tank within the facility, facility to pipeline, and tank to
truck/train loading rack) or a throughput gallon standard. This criterion may also be considered
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in connection w th other criteria such as lack of secondary containment or total oil storage
capacity.
The information could be obtained from the response plan. State agencies or the U.S.
Coast Guard may also be able to provide relevant information to evaluate this criterion.
Critenon E . Total Oil Storage Capacity
The storage capacity factor generally should be considered in combination with other
factors such as such as lack of secondary containment, proximity to navigable waters, and type of
transfer operation. The majority of those facilities identified as being reasonably expected to
cause substantial harm under the self-determination process will have a storage capacity of greater
than or equal to 1 million gallons. Therefore, for many such facilities it may be appropnate to
use a total storage capacity threshold in excess of I million gallons in combination with other
factors to identify those higher-risk facilities that may reasonably be expected to cause significant
and substantial harm to the environment. However, for those facilities that were identified as
“substantiaL harm” based on RA discretion (or because of over-water transfer operations), the use
of lesser storage capacity thresholds in combination with other factors may be appropriate. In
either event, the total storage capacity value should not be applied without consideration of the
facilizy& unique locational and operational chararerirticz.
Information on total oil storage capacity will be available from the Response Plan Cover
Sheet or the plan itself.
Criterion F - Proximity to Drinking-Water Intakes
Proximity to drinking-water intakes, as defined in the rule, should be evaluated in a similar
manner to that discussed above for “proximity to navigable waters.” Since surface drinking-water
intakes are located on waterways, you should address the potential for waterborne transport of oil
in addition to overland flow.
This factor generally should be considered in combination with other factors such as lack
of secondary containment, total oil storage capacity, or spill history. If this factor is considered in
combination with total storage capacity, you ordinarily should apply the factor in a manner that
results in the selection of higher-risk facilities than would be selected when using this factor in the
substantial harm determination. For example, it may be appropriate to combine pro mity to
drinking water intakes (as defined using the formula in Appendix C) with a total storage capacity
in excess of the I million gallon threshold used in the substantial harm determination (e.g., 5
million gallons), or use a distance greater than that calculated through use of the formula in
Appendix C in combination with a total oil storage capacity of I million gallons or greater.
This information should be in the plan but may be difficult to assess. The evaluation of
this criterion may require examination of probable spill scenarios at a facthty. Distances
calculated using the formulas in Appendix C to the proposed rule may be useful for this
evaluation.
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Criterion G. Proximity to “Other Ernironmental Areas of .2oocern ”
This criterion generally should only be used in cor ination with other factors such as Jack
of secondary containment, total oil storage capacity, or spill history. In general. you should
evaluate proximity for this criterion in the same manner as for the other “proximity” cnteria
described above. In addition to those areas listed in Appendix D, examples of “other
environmental areas of concern” include: power plant cooling water intakes, fisheries processing,
manufacturing water intakes, concentrations of human populations. and “areas of special State
environmental or economic importance where spills might cause disruption and impose undue
costs to communities.”
Information on this criterion is available from various sources, including the response
plan. topographic and geographic maps, State emergency responders, inspectors, and resource
managers, the U.S. Census Bureau, GIS, and other programs that could identify facilities with the
potential to impact areas of concern (e.g., States, USACE, FEMA).
Criterion H - Spill history
This criterion generally should only be used in combination with other factors such as lack
of secondary containment. total oil storage capacity, and proximity to navigable waters. sensitive -
environments, or drinking-water intakes. When evaluating this factor, you should consider both
the size and frequency of past spills, potential spills (if known), the facility’s maintenance
program, as well as the quality of response actions by the facility. In general, you should consider
spills at the facility that occurred within the last 5 years.
If this factor is considered in combination with total storage capacity, you ordinarily
should apply the factor in a manner that results in the selection of higher-risk facilities than would
be selected when using this factor in the substantial harm determination. For example, spill
history (de ned as experiencing a reportable spill exceeding 10,000 gallons in the last 5 years) may
be considered in combination with a total storage capacity of 5 million gallons or greater or
consider multiple spills in combination with a total oil storage capacity of 1 million gallons or
greater.
This information should be available from the response plan. Additional information on
reportable spi 11 s may also be available through the Emergency Response Notification System
(ERNS) or from State agencies.
Criterion I - Task Age
Age of tanb generally should be considered in combination with other factors such as
lack of secondary containment, total oil storage capacity, and proximity to navigable waters,
sensitive environments, or drinking-water intakes. When evaluating this criterion., you should
consider the elapsed time since construction or reassembly, the tank’s maintenance history, and
whether a tank exhibits the potential for brittle fracture failure under American Petroleum
Institute Standards.
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In general. detailed information on tank age will not be available from the response plan.
To obtain such information, you may need to review inspection reports. if available, or physically
visit the facility. Other sources of information include State and local agencies.
Criterion J - Other Site-Specific or Environmental Factors
Other factors chat may be relevant to a particular facility include: location of residential
communities, populations, schools, private and industrial water intakes (e.g., electric generating
station and nuclear water intakes), and/or similar structures in relation to the facility: the potential
for fire/explosion hazarcs and the need for evacuation planning at the facility; the proximity of the
facility to earthquake. tornado, hurricane, and flood zones; and the storage of volatile oil products
in combination with proximity to navigable waters and population centers.
Information on other facility-specific and Region-specific concerns may not be available
from the response plan. To obtain such information, you may need to review inspection reports,
if available, or physically visit the facility. Other sources of information include Area Contingency
Plans. GIS, and State and local agencies.
If you determine that a facility should be characterized as being reasonably expected to
cause “significant and substantial harm” to the environment based on any of the above screens
you should document in detail the basis for such a determination. This documentation should
discuss how the risk-based determination was made using the information provided in this
guidance. Be as clear and specific as possible in supporting your decision.
If Screen 3 is used to determine that a facility meeting one of the criteria in Screen I or 2
could not be reasonably expected to cause significant and substantial harm to the environment.
you should carefully document the locational or facility-specific characteristics that led to the
deterrnJnation. Examples of unique circumstances that might warrant further review include small.
remote facilities that perform a single over-water transfer on an annual basis or facilities located
such that the surrounding topography would not allow the transport of oil in the direction of
navigable waters or environmentally sensitive areas. In the event Screen 3 is used in such a
manner, careful documentation should be provided on the attached form.
DISCLAIMER This document is EPA guidance and is intended solely for the use of
government personneL It is not intended and cannot be relied upon to create rights,
substantive or procedural, enforceable by any party in litigation with the United States. The
Agency reserves the right to act at variance with this interim guidance and to change it
anytime without public notice,
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ATrACHMENT 1
FLOWCHART OF THE SIGNWLCANT AND SUBSTAj ’I’ HARM
SCREENING PROCESS
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[ I SIGNIFiCANT AND SUBSTANTIAL HARM DETERMINATION FORM —
FACILITY NAME: — Pt .AN ID NO.: _____
instructions: Use this form to document your determination of whether a faalily coui
reasonabty be expected to cause significant and substantial harm to the environment and
where this information was obtained. To evaluate faalitles, the ScrSen 5 outUned below should
be used in a sequential manner. Refer to the accompanying interim Guidance for the
Detarminaton of Significant and Substantial Hatm to complete this form .
SCREEN 1: OVER.WATER TRANSFERS
Does the faality have an oil storage capacity that is greater than or equal to 42.000 gallons
and conduct operations thai includi over-water transfers to or from vessels?
Proceed to Screen 2.
The facility could reasonably be expected to cause significant and substantial
‘—‘ harm to the environment. Indicate the sources used to arrive at the
determination.’
Sources:
SCREEN 2: COMBINATiON OF SUBSTANTIAL HARM CRITERIA
Does th• f ty have an ad storagi capacity greater than or equal to one mithon gallons
g meet two or mars of the following criteria?
O The facility ladv a ed.quat. s.condaiy containmant for any aboveground
storage area.
O A scharg. from the fecility wou shut down a pubic dslnldng-wat.r imaxe.
O A dschaigs from the faadlty could caus ln iry to an sn*onmsntaliy
sensitive area.
O me acilty heda spuff exceedIng 10,000 gallons In th. past 5 years.
Proceed to Screen 3.
The facUlty could reasonably be expected to cause significant and
sub ’iti& harm to the environment Indlests which criteria were used by
ch.cldng ch box above that applies. Mao Indicats the sources used to
arrive at the determination.’
Sources:
I t O( I IOCI oI’ * or 4 )E15C ckUUfl S th mey a hIO the p r* L toII tocV Y to
aet s qrttflc 1 — — sub ai ham to tM a oivneI . Screen 3 n v be used Is ii dTh 1t10fl
th* the fsdRty oou n be ,eesoi y . ipoctod to caa sI fl d end subitaltol ham tD the ITE flhi15flt.
If screen S Is used toe th apess, $ no(ition of that sMuid be aMend b the --- prsvtdsd Ion soUrC —
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SCREEN 3: EVALUATiON OF SIGNIFiCANT AND SUBSTANTIAL HARM FACTORS
Cou the facility reasonably be expected to cause Sigruficant arid substantial harm to the
environment based on an evaluation of the following factors (as dscussed in the
accompanying guidance)?
If further review of a f lity selected based on Screen 1 or 2 indIcates that the faality could
not be reasonably expected to cause significant and substantial harm to the environment
check the N0 box and document your reasons below.
Lack of secondary containment
O Proximity to navigable waters
0 Proximity to environmentally sensitive areas
O Type of transfer operation
O Total oil storage capacity
O Proximity to dMnh ng-water intakes
O Proximity to other environmental areas of concern
o Spili history
o Tank age
o Other site-specific or Rogioflpecific charactsdstics or environmental factors
, The facility could not reasonably be expected to cease significant and
substantial harm to the environment.
The facility could reasonably be expected to cause significant and substarttlsl
L.J harm to the environment Check each box above that applies and complete the
following:
Describe how the appUcabief or(s) were evaluated:___________________
Indcate the sources used to arrive at determlnatlon ____________________________
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DISCUSSION OF SIGNIFICANT AND SUBSTANTIAL HARM SCREENING CRITERIA
Provided below is a discussion of the screening criteria to be used by EPA Regional
personnel to evaluate facilities for the potential to cause significant and substantial harm to the
environment. The discussion indicates why the Agency considers the criteria important indicators
of risk. Supporting justification was taken from the Technical Background Document (TBD) 1
for the proposed facility response plan rulemaking (58 FR 8824. February 17. 1993). The TBD
may be referenced for additional information on the criteria. The criteria are discussed in the
approximate order presented in EPA’s Interim Guidance for the Determination of Significant and
Substantial Harm.
Over-Water Transfers
Marine transfer facilities are more likely to experience discharges into navigable water
than other facilities because of their location and complex nature of operations. Storage tank
overflow is a common spill cause resulting from such transfer operations. An analysis of 1989
Emergency Response Notification (ERNS) data reveals that overflo resulting from mechanical
failure or operator error account for over 10 percent (549 out of 5,336) of aLl spills. Moreover,
transfers to and from vessels (e.g., barges) at these facilities often involve large quantities of oil.
A worst-case discharge at such a facility would almost certainly enter directly into navigable
waters. The impacts of such spills would be immediate and potentially significant given the rapid
transport of oil on moving water and the likelihood that other areas of concern (e.g., sensitive
environments and drinking-water intakes) may be affected. -
Total 011 Storage Capacity
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 during the Ashland Oil spill. In addition, concern over
tank integrity is heightened for tanks with large oil storage capacities where the resulting forces
on the tank (created by large fluid volumes) are greater.
Lack of Secondary Cont 1nment
The importance of secondazy containment as a means of preventing spills from reaching
navigable waters is documented in the TBD. The TBD provides a case study analysis that
demonstrates the effectiveness of adequate secondary containment. The analysis is based on 373
oil spill reports, dating between 1987 and 1990, which were extracted from the ERNS data base.
Of 91 spill reports that mentioned the presence of secondary containment, only 13 cases resulted
in some portion of the oil reaching navigable waters. A similar analysis indicated that of 122
cases analyzed where navigable waters were affected, 109 cases (89 percent) involved facilities
without secondary containment
See the Technical Background Document to Support the fmplementatwn of the
OPA Response Plan Requirements, SPCC-2P-7-4, available for inspection in Room M2427 at
the U.S. EPA. 401 M Street, SW., Washington, DC 20460.
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Proximity to 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 impact of such a spill was demonstrated
when the water service of approximately 17.000 persons in two Pennsylvania counties was
disconnected for up to 48 hours, as a result of the of the 750.000 gallon Ashland Oil spill into the
into the Monongahela River. Such an interruption of public drinking-water supplies can threaten
the health and safety of affected communities.
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 that secondary containment measures fail. The
potential for oil spills to damage environmentally sensitive areas was demonstrated by the inipact
of the Ashland Oil spill on the fish and wildlife population inhabiting the Monongahela River.
The impact of the spill on juveniles/reproduction was particularly high for certain areas near the
spill. Another example is a spiLl in the U.S. Virgin Istands in 1989, caused by Hurricane Hugo.
where heavy concentrations of No. 6 fuel contaminated four miles of coastline causing localized
mortalities in crustaceans and other small marine animals in the littoral zone.
Spill 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 or potential spills may be an indication of the potential for a
facility to cause significant and substantial harm to the environment. Also, high spill frequency
may be an indication of inadequate maintenance or training.
Proximity to Navigable Waters
The proximity of a facility to navigable waters often directly influences the probability that
a discharge that 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. The TBD lists 17 examples of worst-case spills. In all 17 cases, the
facility involved was located within one mile of navigable waters.
Type of Transfer Operation
As discussed above, marine transfer facilities are more likely to experience spill events
into navigable water than other facilities because of the complex nature of their operations.
Facilities that conduct other types of transfer operations on a regular basis (e.g., to and from tank
trucks and pipelines) pose similar risks to the environment because of the increased likelihood of
spills caused by operator error or mechanical failure of transfer equipment.
Proximity to ‘Other Environmental Areas of Concern’
As discussed above, 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. Other environmental areas of concern that are not specifically included in the
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definition of EnvironmentalIy Sensitive Areas” are equally vulnerable to the potential for damage
from an oil spill.
Tank Age
Older tanks that are not properly maintained tend to have weakened structural tntegrny
that increases the risk of a spill. The American Petroleum Institute (API) Standard 653 requires
that 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.
Other Site-Specific or Environmental Factors
Other factors that may be relevant to a particular facility include: location of residential
communities, populations, schools, private and industrial water intakes (e.g., electric generating
station and nuclear water intakes), and/or similar structures in relation to the faciliry the potential
for fire/explosion hazards and the need for evacuation planning at the facility the proximity of the
facility to earthquake, tornado, hurricane, and flood zones; and the storage of volatile oil products
in combination with pro ni.ity to navigable waters and population centers.
These factors may increase the risk a facility poses to the environment and shotild be -
given careful consideration because of their significance to public health. For example, facilities
that are located in areas prone to natural hazards (i.e., floods, hurricanes, acid earthquakes) may
pose a greater threat to the environment. Case studies from the TBD indicate that facilities
susceptible to such events are more likely to have multiple tank failures and may have greater
spiii volumes than comparable facilities located outside these areas. 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.
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. Karsi and unstable terrains 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 and release its content to the ground water if the substrate providing a foundation for the
tank were to suddenly shift by a sigm cant amount.
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O Si 4 , , 5
4.
1%
UNITED STATES ENVIRONMrN 1 AL PROTECTION AGENCY
I V E D WASHINGTON. D.C. 20460
It
S -
EPA/ORG
Water Office RGENCV RESPONSE
Memorandum
Subject: Enforcement Authorities and Elements of
Vio] .ations/Evidentiary Requirements under the Clean
Water Act S311 as amended by the Oil Pollution Act of
From: Director
CERCL Enforcem Division
To: Addressees
Attached please find a document which outlines some
enforcement authorities availa ble under the Clean Water Act S311
as amended by the Oil Pollution Act (CWA S311) and the elements
of violations and evidentiary requirements for violations of the
CWA SS311(b)(3) and (j). The document should be used to help
educate EPA employees on CWA S31l enforcement and to assist as a
kind of “checklist” when gathering evidence to put together a
case. The target audience of this document is not the regulated
community and the document should not be used as a general
outreach tool.
The attached document will be revised as appropriate and
made into a pamphlet or handbook for more friendly usage, upon
the issuance of the final Spill Prevention Control and
Countermeasures (SPCC) regulation revisions, also kr own as “SPCC
Phase I”, and the final Response Plan Regulation.
If you have questions or suggestions about issuance of the
final document, please call Cecilia Smith at 703/603-8943.
Attachment
Printed on Recycled Paper
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ADDRESSEES
Region I: Don Grant, Toni Bandrowicz, Donald Berger, Jeff
Fowley
Region II: Angel Rodriguez, Michael Siegel, Bruce Sprague,
Warren Liewellyn
Region III: Neil Wise, Linda Ziegler, Dennis Carney
Region IV: Gwen Eason, Huitherto Guzman, Doug Lair, Rowland
Heyward
Region V: Padma Klejwa, Jose Cisneros, Richard Karl, Michael
Smith
Region VI: Ralph Corley, Jane Nakad, Charles Gazda, Jim
Collins
Region VII: Becky Dolph, Pearl Fain, Bob Webber, Larry B.
Ferguson
Region VIII: Chis Phillips, Elayana Sutin, Wendy Thomi, John
Giedt
Region IX: Caroline Ireson, Mark Klaiman, Donald White
Region X: Carl Lautenberger, Keith Cohon, Bub Loiselle,
James Everts, Ann Prezyna
HDQ: Tom Beisswenger, Bobbie Li ..dy-Diebold, Rich
Norris, John Cunningham, Dz.vid Drelich, Avi Garbow
Other: Steven Baer, DOJ
Chris Boegel, USCG
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ENPORCEMENT AUTHORITIES AND ELEMENTS OF VIOLATIONS/EVIDENTIARY
REQUIREMENTS UNDER THE CLEAN WATER ACT 5 311 AS AMENDED BY THE
OIL POLLUTION ACT OF 1990
November 1993
Enforcement Authorities Under the Clean Water Act 311 as airtended
by the Oil Pollution Act of 1990
I. Administrative Penalty Assessment
EPA has the authority to assess administrative penalties for
the unauthorized discharge of oil or certain hazardous substances
in violation of Section 311(b) (3) or for the violation of
regulations issued pursuant to Section 311(j) (the Agency’s
authority to regulate facilities handling oil and hazardous
substances). These penalties are assessed by one of two
procedural means: Class I proceedings or Class II proceedings.
Class I
a. A Class I hearing is not subject to the Administrative
Procedure Act, but EPA must provide a respondent with a
“reasonable opportunity to be heard and to present evidence.”
b. EPA, using Class I procedures, may assess a penalty of
up to $10,000 per violation not to exceed $25,000.
c. Prior to the penalty assessment, the EPA, as
complainant, must give the alleged violator:
• Notice of proposed assessment; and
• Opportunity to request a hearing, within 30 days of t..-ie
date the notice is received .
d. Guidance issued in December 1991 says that the proposed
“Part 28” procedures should be used for the assessment of CWA
Section 311 Class I penalties.
Class II
a. When EPA proposes a Class II penalty, interested third
parties have rights to participate in the proceedings.
b. EPA, using Class II procedures, may assess a penalty of
up to $10,000 per day of violation not to exceed $125,000.
c. Prior to the penalty assessment EPA as complainant must
give the alleged violator notice and opportunity for a hearing Qfl
the record in accordance with Section 554 of the Administrative
Procedure Act.
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1. Prior to the penalty assessment, EPA as
complainant must provide, for the benefit of any interested
person public notice of and reasonable opportunity to comment on
the proposed issuance of an order assessing a Class II civil
penalty.
2. If any person comments on a proposed penalty then
EPA as complainant must give that person:
• Notice of any hearing;
• Notice of the order assessing such penalty; and
• If there is a hearing, a reasonable opportunity to be
heard and to present evidence.
If there is no hearing, any person who commented on the
propo ec ssessment may, within 30 days of the issuance of -h
order, petition the Regional Administrator to set aside the cder
and provide a hearing. If the petitioning commenter offers
material evidence not considered upon issuance of the order, the
Regional Administrator shall set aside the order and provide a
hearing. If the Regional Administrator denies the petitioner’s
request for a hearing, the Regional Administrator shall publish
in the Federal Register a notice setting forth the reasons for
the denial.
EPA policy states that the procedures at 40 CFR Part 22
should be used as guidance for the assessment of CWA Section 311
Class II penalties until 40 CFR Part 22 can be amended to include
CWA Section 311 Class U penalties within its scope.
II. Civil Judicial Penalty Assessment
EPA and the U.S. Coast Guard have the authority to refer
civil judicial actions to the Department of Justice seeking
penalties for the following Section 311 violations in the
following amounts:
a. Unauthorized discharge of oil or certain hazardous
substances in violation of Section 311(b) (3): .Penalty of up to
$25,000 per day of-violation or.up. to $1,OO0 per barrel of. oil or
unit of repprtable quantity (RQ) of hazardous sub tahcé
discharged.
1 Reportable quantities for Clean Water Act designated
hazardous substance are set forth in 40 CFR Section 117.3.
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• Where the 311(b) (3) violation was the result of
gross negligence or willful misconduct of a person,
the penalty shall be not less than $100,000 and not
more than $3,000 per barrel of oil or unit of RQ of
hazardous substance discharged
b. Violation of regulations issued pursuant to Section
311(j) (the agency’s authority to regulate facilities handling
oil or hazardous substances): Penalty of up to $25,000 per day
of violation .
c. Without sufficient cause, failure to carry out removal
of discharge under an order issued by EPA pursuant to Section
311(c) or noncompliance with an administrative order issued
pursuant to Section 311(e) (1) (B): Penalty up to $25,000 per day
up to 3 times the cost incurred by the Oil Spill Liability
Trust Fund as a result of the failure.
Note: In assessing either an administrative or judicial penalty
amount, the Agency or court must 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;
• Any other matters as justice may require.
III. Federal removal authority
Section 3 11(c) authority to d .rect responses has both
enforcement and response elements.
a. The U.S. Coast Guard and the EPA are authorized to
direct all Federal. state and private actions to remove a
discharge g mitigate prevent the substantial threat of a
discharge of oil or hazardous substances
• into or upon the navigable waters;
2 The authority to tldjrectfl is only one of a number of
authorities provided to EPA in CWA Section 311(c). As EPA
interprets “direct,” this term includes both order and non-order
situations.
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• their adjoining shore .ines;
• into or on the waters of the exclusive economic zone;
or
• that may affect natural resources belonging to,
appertaining to, or under the exclusive management
authority of the U.S.
b. Under Section 311(c) (2) the U.S. Coast Guard and the
EPA are recniired to direct all Federal, state and private party
actions when a discharge or a substantial threat of a discharge
is of “such a size or character as to be a substantial threat to
the public health or welfare.”
Note: It is not necessary to make a finding of “imminent and
substantial threat to the public health and welfare of the United
States” in order to “direct” a cleanup under Section 311(c).
IV. Administrative Orders for Clean up
a. Upon a finding that there may be an “imminent and
substantial threat to the ur’lic health or welfare of the United
States... ” because of an actual or threatened unauthorized
discharge of oil or hazardous substance, the EPA is authorized
under Section 311(e) to issue administrative orders or take any
other ac ion necessary to protect the public health and
welfare.
Note: Prior notice to the affected State reguired .
b. Upon a finding that there is a substantial threat of _ a
discharge or has been a discharge of oil or a CWA hazardous
substance to an area protected by CWA Section 311 , the EPA is
authorized under Section 311 c)(1) to direct all federal, state
or private actions, which may 4 include issuing administrative
orders to remove a discharge.
3 The “public health or welfare of the United States” includes
fish, shellfish, and wildlife,- public and private property,
shorelines, beaches, habitat, and other living and nonhiVing
natural resources under -the jurisdiction and control of the United
States.
4 Areas protected are those areas set fä rth in Section
311(c) (A): (i) into or on the 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.
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c. Upon a findinci that there is a “substantial threat to
the public health or welfare of the United States.. .“ because of
an actual or substantial threat of a discharge , the EPA is
required under Section 311(c) (2) to direct all federal, state or
private actions, which may include issue adininistrtive orders to
remove the discharge or to mitigate or prevent the threat of the
discharge.
V. Court Relief
Upon the same finding as in IV. above, EPA may request “the
Attorney General to secure any relief from person . . . as
may be necessary to abate such endangerment.” Note: Prior
notice to the affected State is not required.
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Elements of Violations/Evidentiary Requirements Under the Clean
Water Act S311 as amended by the Oil Pollution Act of 1990
This section discusses the elements of potential violations
under Section 311 and the evidence required to develop
enforcement cases for violations of the Section 311. If a
violation is suspected, the case development team must consider
several factors before taking action. These factors include
evaluating the evidence supporting allegations against the
suspected violator.
In all cases, Federal, State and local coordination is
crucial in identifying violations and pursuing enforcement
actions. Exchange of pertinent information among Federal, State
and local governments should ensure that the facts supporting the
violation are well established. Close coordination will also
improve the chances that an action taken achieves the desired
results: Compliance and deterrence.
Elements of CWA Section 311(b (3) Violation and Evidentiary
IZequirenients
Section 311(b) (3) prohibits the discharge of hazardous
substances (listed in 40 CFR Part 116) and oil in any harmful
quantity 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 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.
A harmful quantity of a hazardous substance for purposes of
Section 311 is any amount of RQ listed in 40 CFR Part 117. A
harmful quantity of oil for purposes of this section has been
determined to be any amount which “violates applicable water
quality standards,” any amount which causes “a film or sheen
upon or discoloration of the surface of the water or adjoining
shorelines or cause(s] a sludge or emulsion to be deposited
beneath the surface of the water or upon adjoining shorelines”
(See 40 CFR §110.3).
For violations of Section 311(b) (3), docum ntation or
testimony in support of the following is also necessary:
1. The alleged violator owned or operated or was the
person in charge of the vessel, onshore facility, or offshore
facility in question when the alleged violation occurred; and
2. A discharge of oil occurred in a quantity sufficient to
cause a sheen or other evidence of a discharge of a harmful
quantity as defined in 40 CFR §110.3; or
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A discharge of a hazardous substance designated in 40
CFR Part 116 occurred in a quantity equal to or above that
hazardous substance’s designated RQ set forth in 40 CFR Part 117;
and
3. The discharge (i) went into or upon the navigable
waters of the United States, adjoining shorelines, or into or
upon the waters of the contiguous zone, or (ii) occurred in
connection with activities under the Outer Continental Shelf
Lands Act (43 TJ.S.C.A. Section 1331 et sea.], or the Deepwater
Port Act of 1974 (33 tJ.S.C.A. Section 1501 seq.], or may
affect natural resources belonging to, appertairiing to, or under
the exclusive management authority of the United States
(including resources under the Magnuson Fishery Co servation and
Management Act (16 UIS.C.A. Section 1801 sea.);
4. The discharge was not :
(1) Permitted under the Protocol of 1978 Regulating to the
- iternational Convention for the Prevention of Pollution from
sAdps, 197 3; and
(ii) Permitted in quantities and at times and locations or under
such circumstances or conditions as the President, by regulation,
determines not to be harmful.
Elements of Violations of 40 CFR Part 112 Recnilations
Implementing CWA Section 311(j
Section 311(j) provides authority for regulating facilities
handling oil and hazardous substances. Currently, there are
regulations covering only oil facilities, referred to as the
Spill Prevention Control and Countermeasures (SPCC) program or
the oil pollution prevention regulation, at 40 CFR Part 112.
There are at least 13 possible types of violations of the SPCC
regulation.
A. For all violations of the SPCC regulation, documentation or
testimony in support of the following is necessary:
1. The alleged violator owned or operated the facility at
the time of violation.
The statute requires only that the discharge “...m y affect
natural resources belonging to, appertaining to...” (emphasis
added). However, in cases where the Agency relies on a discharge’s
possible affect on natural resources, the Agency will be in a
stronger position if it can prove that the natural resources were
actually affected.
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2. The facility is a non-transportation-related facility
engaged in drilling, producing, gathering, storing, processing,
ref ining, transferring, distributing or consuming or otherwise
handling oil and oil products.
3. The facility, due to its location, has or could
reasonably be expected to discharge oil in quantities that may be
harmful into or upon the navigable waters of the United States or
adjoining shorelines.
4. The facility does not satisfy the criteria for an
exception as set out in 40 CFR Section 112.1(d).
Additionally .
B. For a violation of 40 CFR 112.3, Failure to Prepare Plan,
the following supporting documentation or testimony is necessary:
1. (a). Under 112.3(a), that the facility was in
operation on or before January 10, 1974;
(b). Under 112.3(b), that the facility became
operational after January 10, 1974.
2. (a). That the owner or operator did not prepare a SPCC
Plan in writing and in accordance with Section 112.7 by July 10,
1974;
(b). That the owner or operator did not prepare a SPCC
Plan in writing and in accordance with Section 112.7 within six
months after the facility began operation.
3. That the Regional Administrator did not authorize an
extension of time in accordan e with 40 CFR 112.3(f) for
preparation of the SPCC Plan.
6 Note that the exceptions set out in 40 C.F.R. Section
112.1(d) are affirmative defenses and therefore, the Agency should
not plead in the complaint that the respondent does not fall under
an exception. However, the case development team should review the
exceptions -to make its own determination -of whether the respondent
falls under an exception before proceeding yith-the case
T Like the exceptions in 40 C.F.R. Section 112.1(d), whether
the Regional Administrator authorized an extension under 40 C.F.R.
Section 112.3(f)’is’an affirmative defence.- Therefore, the Agency
should not plead in the complaint that the respondent did not
receive an extension from the Regional Administrator for preparing
its plan. However, the case development team should make a
reasonable effort to determine if any such extension was authorized
before proceeding with the case.
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C. For a violation of 40 CFR 112.3, Failure to have the SPCC
Plan certified, the following supporting documentation or
testimony is necessary:
The SPCC Plan has not been reviewed by a Registered
Professional Engineer certified by such Professional Engineer
as having been prepared in accordance with good engineering
practices, as set out in 40 CFR 112.3(d).
D. For a violation of 40 CFR 112.3, Failure to maintain a
complete copy of the Plan at the Facility, the following
supporting documentation or testimony is necessary:
A complete copy of the Plan was not maintained and made
available to the Regional Administrator’s representative/
inspector for on—site review during normal working hours.
Note: “on—site” is the facility if it is normally attended at
least 8 hours per day and the nearest field office if the
faci’y is not so attended.
E. For a violation of 40 CFR 112.3, Failure to implement th
Plan, the following supporting documentation or testimony is
necessary:
1. (a). The owner or operator did not fully implement the
SPCC Plan prepared, in writing and in accordance with Section
112.7 by January 10, 1975;
(b). The owner or operator did not fully implement the
SPCC Plan prepared in writing and in accordance with Section
112.7 within one year after the facility began operation.
2. The Regional Administrator did not authorize an
extension of time in 8 accordance with 40 CFR 112.3(f) for SPCC
Plan implementation.
F. For a violation of 40 CFR 112.4, Failure to submit
information as set forth in that section after a spill to the
Regional Administrator, the following supporting documentation or
testimony is necessary:
1. (a). That the facility 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; Q
8 Whether an extension to implement a plan was granted is an
affirmative defense. See footnotes 3 and 4.
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(b). That the facility has discharged oil in
quantities that may be harmful into or upon the navigable waters
of the United States or adjoining shorelines in two spill events
within a 12 month period, reportable under section 311(b) (5) of
the Clean Water Act.
2. That the owner or operator did not submit the
information required under Section 112.4 to the Regional
Administrator within 60 days from the spill events described in
Fl. above.
G. For a violation of 40 CFR 112.4, Failure to submit to the
State a complete copy of the information submitted after a spill
to the Regional Administrator, the following supporting
documentation or testimony is necessary:
1. That the alleged violator be an owner or operator of a
facility subject to the requirement to submit information to the
Regional Administrator pursuant to 40 CFR 112.4.
2. That the e” er or operator did not simultaneously
submit to the State a complete copy o the information it was
required to submit to the Regional Administrator pursuant to 40
CFR 112.4.
H. For a violation of 40 CFR 112.4, Failure to amend the Plan
pursuant to the instruction of the Regional Administrator, the
following supporting documentation or testimony is necessary:
1. That the alleged violator be an owner or operator of a
facility subject to the requirement to submit information to the
Regional Administrator pursuant to 40 CFR 112.4.
2. That after review of the facility’s SPCC Plan, together
with all other information submitted by the facility’s owner or
operator, and by the State agency:
(a). The Regional Administrator has found that the Plan
does not meet the requirements of 40 CFR Part 112; Q
(b). The Regional Administrator has found that an
amendment of the Plan is necessary to prevent and to contain
discharges of oil: from such facility.
IT. 11 ‘ïà) rhat the Regional Administrator has notified the
facility operator 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
has specified the terms of the amendment; and
(b). Where the facility owner or operator is a
corporation, a copy of such notice was also mailed to the
10
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registered agent, if any, of the corporation in the State where
such facility is located.
4. That thirty days elapsed since the date of notification
(during which the facility owner or operator may have submitted
written information, views, and arguments on the amendment).
5. That the Regional Administrator has considered all of
the relevant material presented, and has notified the facility
owner or operator of any amendment required (i.e., has not
rescinded the notice).
6. That thirty days have elapsed since the date of the
notice of required amendment and the Regional Adinini trator did
not, for good cause, specify another effective date.
7. That the owner or operator of the facility has not
amended the plan as required by the ional Administrator.
I. For a violation of 40 CFR 112.4, Failure to implement the
amendment required by the Regional Administrator, the following
supporting documentation or testimony is necessary:
1. That the owner or operator of a facility is required to
amend its SPCC plan for the facility pursuant to 40 CFR 112.4.
2. (a). That six months elapsed since the amendment
became a part of the Plan and the Regional Administrator has not
specified another date by which to require that the amendment to
the Plan be fully implemented;
(b). That an alternative effective date of the
amendment, if any, specified by the Regional Administrator has
passed.
3. The owner or operator has not fully implemented the
amendment to the Plan.
1. For a violation of 40 CFR 112.5, Failure to amend Plan when
there has been certain change(s) in the facility, the following
supporting documentation or testimony is necessary:
1. That there has been a change in the facility design,
construction, operation or maintenance.
2. That the change materially affects the facility’s
potential for the discharge of oil into or upon the navigable’
waters of the United States or adjoining shorelines.
9 W1iether the Administrator specified another effective date is
an affirmative defense. See footnotes 3 and 4.
11
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3. That th owner or operator has not amended the SPCC
Plan accordingly.
K. For a violation of 40 CFR 112.5, Failure to implement the
amendment required due to certain changes at the facility, the
following supporting documentation or testimony is necessary:
1. The owner or operator of a facility is required to
amend its SPCC plan for that facility pursuant to 40 CFR 112.5.
2. Six months elapsed since the amendment was required
(i.e., since the certain change(s) in the facility occurred).
3. The amendment to the Plan has not been fully
implemented.
L. For a violation of 40 CFR 112.5, Failure to review and
evaluate the BPCC Plan every three years, the following
supporting documentation or testimony is necessary: That the
owner or operator of the facility has not coi leted a review and
evaluation of the SPCC Plan at least once eve y t” ee years from
the date such facility became subject to the S?CC regulations.
M. For a violation of 40 CFR 112.5, Failure to amend 8PCC Plan
where appropriate after review and evaluation, the following
supporting documentation or testimony is necessary:
1. The owner or operator of the facility has reviewed and
evaluated the SPCC Plan as required by 40 CFR 112.5.
2. The review and evaluation reveals that more effective
prevention and control field proven technology will significantly
reduce the likelihood of a spill event from the facility.
3. Six months has elapsed since the Plan review.
4. The owner or operator has not amended the SPCC Plan to
include the more effective technology.
N. For a violation of 40 CFR 112.5, Failure to have the
required amendment to the BPCC Plan certified, the additional
supporting documentation or testimony is necessary:
10 In the Matter of Ashland Ofi, In c. , EDRSDoc. No. SPCC;91-1,
September 15, 1992, -the Environmental Appeals Board (EAB) held that
Ashland violated 40 CFR 112.5 because it had not amended its SPCC
plan in a timely fashion. Ashland had amended the plan almost five
months after the change in the facility had occurred. To meet the
requirement of S112.5, the EAB concluded, “...SPCC Plan amendments
must be made contemporaneously with the event that triggered the
need for the amendment.”
12
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1. The owner or operator is required under 40 CFR 112.5 to
amend the SPCC Plan.
2. The time allowed for such amendment under 40 CFR 112.5
has elapsed.
3. The amendment to the Plan has not been certified by a
Professional Engineer in accordance with 40 CFR 112.3(d).
0. Other violations of 40 CFR in §112.7 include (Note that when
the owner or operator of a facility is a violation of 40 CFR
112.7, it has violated 40 CFR 112.3 which requires preparation of
an SPCC Plan in accordance with 40 CFR 112.7):
• T 1 e SPCC Plan is not carefully thought-out. 40
CFR 112.7).
• The SPCC Plan is not prepared in accordance with good
engineering practices. ( 40 CFR 112.7).
• The SPCC Plan does not have the full approval of
manage ent at a level with authority to commit the necessary
resources. ( See 40 CFR 112.7).
• The complete SPCC Plan does not follow the sequence
outlined in S112.7. ( See 40 CFR 112.7).
• The complete SPCC Plan does not include a discussion of
the facility’s conformance with the appropriate guidelines listed
in S112.7.
In the Matter of Ashland Oil. Inc. , EDRS Doc. No. SPCC;911,
September 15, 1992, the Environmental Appeals Board (EAB) held
Ashland’s SPCC plan was not “carefully thought-out,” as required by
S112.7. The EAB said that the SPCC plan was not “carefully
thought-out” because Ashland had failed to disclose in the plan the
existence of underground storage tanks. The EAB also held that
what constitutes a “carefully thought-out” SPCC plan is to be
determined on an objective basis, not based on whether, in fact,
careful thought had gone into preparing the plan.
13
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O S7
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON,DC 20460
PRO ’
JUL I (997
OFFICE OF
ENFORCEhtENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: Final Guidance on the Issuance of Administrative Orders
Under Section 311(c) and (e) of the Cle
FROM: Barry Breen, Director
Office of Site Remediation Enforcement
TO: Addressees (See Below)
Enclosed is the final guidance document on the issuance of
administrative orders under § 311(c) and (e) of the Clean Water
Act (“CWA”) , as amended by the Oil Pollution Act of 1990 (“OPA”)
These provisions provide legal authority for the issuance of
administrative orders for the cleanup and prevention of
discharges and threatened discharges of oil and hazardous
substances into navigable waters, adjoining shorelines, and
certain other areas. Executive Order (E.O.) 12777 delegated this
authority to EPA for discharges and threatened discharges in the
inland zone, as defined in the National Contingency Plan.
While the guidance document discusses the separate use of
each order authority, it recommends joint use of the § 311(c) and
(e) enforcement authorities whenever possible because of the
broader reach of orders issued under both authorities. Joint
orders, as well as orders issued under the separate authorities,
may be issued either unilaterally or by consent. The guidance
does not discuss enforcement of § 311 orders or cost recovery.
If there is a need for guidance on these issues, they can be
addressed in a separate document.
The guidance document has been revised in response to
comments on the September 5, 1996, draft guidance, which was
circulated for review by EPA regional and headquarters OPA
enforcement contacts, as well as the Department of Justice (DOJ)
and the Coast Guard.
Interim language on consultation with DOJ under E.O. 12777
Recyclod/floCyclable . Printed with Vegelabie Oil Based Inks on 100% Recycled Paper (40% Postconsumer)
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has been included in the guidance document. The Office of Site
Rernediation Enforcement (OSRE) and DOJ are currently working on
the development of more detailed guidance on how DOJ will
exercise its consultation role under the executive order. If
further guidance is developed on this subject, the enclosed
guidance document will be supplemented.
OSRE is also developing model 311(c) and (e) orders to
assist the regional offices in using these authorities more
effectively. We hope to issue final versions of these model
orders in the near future.
If you have any questions on this guidance document, please
contact Bob Kenney of OSRE’s Policy and Program Evaluation
Division at (202) 564-5127.
Enclosure
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
Hazardous Waste Management Division Director, Region III
Waste Management Division Director, Region IV
Waste, Pesticides & Toxics Division Director, Region V
Superfund Division Director, Region VI
Compliance Assurance & Enforcement 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, Region VIII
Water Division Director, Region IX
Superfund Division Director, Region IX
Office of Environmental Cleanup Director, Region X
Sandra Connors, OECA/OSRE/RSD
David Lopez, OSWER/OERR
Lisa Friedman, OGC
Eric Schaeffer, OECA/ORE
Elaine Stanley, OECA/OC
Joel Gross, DOJ
Capt. Derek Capizzi, Coast Guard
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CC: Regional CPA Primary Enforcement Contacts
Dana Stalcup, OSWER/OERR
Earl Salo, OGC
Andy Gordon, OGC
Dan Chadwick, OECA/OC
David Drelich, OECA/ORE
Amy Legare, OECA/OSRE/RSD
Janice Linett, OECA/OSRE/RSD
Estelle Bulka, OECA/OSRE/PPED
Bruce Gelber, DOJ
Karen Dworkin, DOJ
Steven Baer, DOJ
Arthur Haubenstock, Region 9
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Guidance on the Issuance of Administrative Orders
Under Section 311(c) and (e) of the Clean Water Act
INTRODUCTION
The Oil Pollution Act of 1990’ (1FOPAI) amended § 311 of the
Clean Water Act (“CWA” or “the Act’) by, among other things,
rewriting the response provisions of § 311(c) and (e) of the
Act. 2 Although the amended subsections are quite similar with
respect to the authority to issue orders, they are not identical.
This document provides guidance to enforcement personnel of the
Environmental Protection Agency (“EPA” or “the Agency”) on the
application of the § 311(c) and Ce) order authorities, and the
appropriate means of issuing orders under each provision. Both
types of orders may be issued either unilaterally or by consent.
In general, Agency enforcement personnel should use the
§ 311(c) and Ce) authorities jointly whenever possible. Such
joint use may not always be possible, however. Cases in which the
issuance of joint orders may or may not be appropriate are
discussed in the section on “Joint Section 311(c) and (e)
Orders,” below. A short checklist summarizing these subsections
is provided as Attachment A. In addition, Attachment B describes
the differences between the two types of order authorities. The
Office of Site Remediation Enforcement (OSRE) is also developing
model orders to assist the regional offices in using these
authorities more effectively.
BACKGROUND
Section 311(c) of the CWA, entitled “Federal Removal
Authority,” provides broad authority to respond to discharges and
threatened discharges of oil and hazardous substances. Section
311 Cc) (1) (A) requires the President to:
in accordance with the National Contingency Plan and any
appropriate Area Contingency Plan, ensure effective and
immediate removal of a discharge, and mitigation or
‘Pub. L. 101-380 (August 18, 1990)
2 These statutory provisions are codified at 33 U.S.C.
§ 1321 (c) and (e)
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prevention 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 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.
Section 311(c) (1) (B) of the CWA provides (in relevant part)
that:
In carrying out this paragraph, the President 3 may--(i)
remove or arrange for the removal of a discharge [ of
oil or a hazardous substance] , and mitigate or prevent
a substantial threat of a discharge, at any time; [ and]
(ii) direct or monitor all Federal, State, and private
actions to remove a discharge [ of oil or a hazardous
substance] .
In situations where such a discharge or the threat of such a
discharge “is of such a size or character as to be a substantial
threat to public health or welfare,” § 311(c) (2) (A) of the Act
provides that “the President shall direct all Federal, State, and
private actions to remove the discharge or to mitigate or prevent
the threat of the discharge” (emphasis added)
Section 311(e) (1), entitled “Orders Protecting Public
Health,” is similar but not identical to the § 311(c) order
authority. Section 311(e) (1) provides (in relevant part) that:
when the President 4 determines that there may be an
3 The President’s authority under § 311(c) has been delegated
to the EPA Administrator for discharges in the inland zone. See
§ 3 of Executive Order (E.O.) 12777, 56 FR 54757 (October 22,
1991) . Under the Executive Order, this authority is exercised by
the Coast Guard for discharges in the coastal zone. “Inland
zone” and “coastal zone” are defined in the National Contingency
Plan (“NCP”) , 40 CFR Part 300.
4 Pursuant to § 6(b) of E.O. 12777, the President’s authority
to issue orders under § 311(e) (1) has been delegated to the EPA
2
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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
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
[ 311 (b) (3)) , the President may . . . (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.
Agency orders issued pursuant to § 311(c) or (e) of the Act
are enforceable in U.S. district court. Violators may be subject
to a civil penalty of up to $ 27 ,SOO 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” a failure to comply. 6
Section 311 (b) (7) (B) and (E) . Civil penalty actions may be
brought against the owner, operato , or person in charge of a
facility or vessel.
HOW TO USE SECTION 31]. ORDER AUTHORITY
In General
Administrator for § 311 discharges occurring in the inland zone.
This authority is delegated to the Coast Guard for discharges in
the coastal zone.
5 The statutory maximum statutory civil penalty of $25,000
per day of violation was adjusted for inflation by the Agency to
$27,500 per day of violation, effective for violations that take
place after January 30, 1997. 61 FR 69360 (December 31, 1996)
See footnote 30 for additional information on maximum civil
penalty adjustments by the Agency.
6 Enforcement of § 311(c) and (e) orders and related issues
(e.g., the availability of treble damages) are not addressed in
this guidance document. Cost recovery under the CWA and the OPA
is also not addressed in this document.
3
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When the statutory requirements of both 311(c) and Ce) are
met, the Agency should issue written orders under the authority
of both provisions.’ A joint § 311 (c) and (e) order is
preferable to an order issued solely under § 311(e) because a
joint order may, depending on the facts of the case, provide a
broader and more appropriate response authority.
There may be circumstances, however, in which issuance of an
order under only one authority is appropriate. For example, an
On-Scene Coordinator (“OSC”) may need to issue expeditiously a
cleanup order, which the EPA delegations of authority permit
him/her to do only under § 311(c) (and only when such authority
is redelegated by the Regional Administrator) . A § 311(c) order
would also be appropriate, for example, if a discharge were of
less than a reportable quantity of a CWA-listed hazardous
substance.
Section 311(c) and (e) orders may be issued either
unilaterally (“unilateral administrative order” or “tJAO”) or with
the consent of the responsible party(ies) (“administrative order
on consent” or “AOC”) . The latt t er type of order is preferable,
but either type may be issued at the discretion of the regional
office.
Neither § 311(c) nor (e) specifies the parties to whom an
administrative order may be issued. However, both order
authorities contemplate a broad range of parties who may be
directed or ordered to assist in a cleanup.
Several provisions in § 311(c) indicate that any “person”
may be “direct [ ed]” to remove a discharge. Section 311(c) (3) (A)
requires the “owner or operator, or other person participating in
‘Orders should also generally cite the authority of
§ 311(m) of the Act (which authorizes Agency personnel to enter
and inspect regulated facilities and to establish record keeping,
reporting and monitoring requirements for owners and operators of
such facilities) and § 308 of the Act (which authorizes Agency
personnel to enter and inspect “any premises in which an effli .rent
source is located” or in which required records are maintained,
and to require reporting, record keeping and monitoring needed to
carry out § 311 of the Act)
4
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efforts under this section . . .“ (emphasis added) to act in
accordance with the MCP or as directed by the President.
Similarly, § 311(c) (4) (A) exempts from liability for removal
costs or damages “ [ a] person” who acted consistently with the NCP
or as otherwise directed by the President. Because §
311(c) (4) (B) and (c) (6) provide that this exemption does not
apply to a “responsible party,” as defined in § 1001 of OPA 8 , it
is clear that § 311 (c) orders may be issued to a broader group of
“persons” than “responsible parties.”
Section 311(e) (1) (B) authorizes issuance of administrative
orders “that may be necessary to protect the public health and
welfare.” The companion provision in § 311(e) (1) (A) authorizes
the Attorney General to secure relief from “any person, including
the owner or operator of the vessel or facility” as necessary to
abate an endangerment. Read together, these provisions strongly
imply that a § 311(e) order may also be issued to “any person.”
Section 311 (b) (7) (B) limits civil penalties for violation of
a § 311(c) or (e) order without sufficient cause to “any person
described in subparagraph (A) .“ Section 311(c) (7) (A) in turn
applies to “the owner, operator or person in charge of any
vessel, onshore facility, or offshore facility from which oil or
a hazardous substance is discharged . . .“ Therefore, if at all
possible, a § 311 order should be issued to a person subject to
civil penalties under § 311(b) (7) (B)
In appropriate cases, § 311(c) and/or (a) orders (including
tJAOs) may be issued to parties other than those specified in
§ 311(b) (7) (A) and (B), if actions by such parties are necessary
to protect the public health or welfare. For example, an order
may be issued to the owner of land adjoining the site of a
discharge or threatened discharge, to obtain access. An order
may also be issued to prevent a party not listed in
§ 311(b) (7) (A) and (B) from interfering with a response action.
Each order issued under § 311(c) and/or (e) should recite the
basis for issuing the order to a particular party.
8 Section 1001(32) of OPA includes different definitions of
“responsible party” for vessels, onshore facilities, offshore
facilities, deepwater ports, pipelines, and abandoned vessels and
facilities.
5
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This section of the guidance will first address separately
the use of each type of order authority, and will then address
the issuance of joint orders.
Section 311 (e) Orders
Issuing Official: In response to a discharge or threatened
discharge that meets the requirements of § 311 (e) , the Agency may
issue a written order under the authority of that statutory
provision. EPA Delegation 2-85 governs the delegation of
authority within the Agency to issue a § 311(e) order. This
delegation provides that the Regional Administrator may issue
such an order in all cases, and that this authority may be
redelegated to the division director level. Delegation 2-85 also
delegates the authority to issue orders in multi-regional or
nationally significant cases to the Assistant Administrator
(“AA”) for Solid Waste and Emergency Response and the A.k for
Enforcement and Compliance Assurance, subject to consultation
with the appropriate Regional Administrator(s) or their
designee(s) . The delegation of authority to these Headquarters
officials may also be redelegated to the division director level.
Form: All orders issued under the § 311(e) authority should
be in writing and signed by the appropriate EPA official (as
discussed above, this will be a division director or higher-level
official)
Covered Activity & Quantity of Discharge: A § 311(e) order
should state that there is an actual or threatened discharge 9 of
9 ”Discharge is defined in § 311(a) (2) of the CWA as
‘includ [ ingj, but . . . not limited to, any spilling, leaking,
pumping, pouring, emitting, emptying or dumping, but excludfing]
(A) discharges in compliance with a permit under section 402 of
this Act, (B) 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 this Act, and
subject 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.”
6
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a reportable quantity of oil’ 0 or a hazardous substance’ 1 from a
facility or vessel in violation of § 311(b) (3) of the Act.
Protected Resources: Orders issued under § 311(e) should
include, as a legal prerequisite, a finding that, because of the
actual or threatened discharge, “there may be an imminent and
substantial threat 12 to the public health or welfare of the
10 ”Oil” is defined in § 311(a) (1) of the CWA 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.”
11 ”Hazardous substance” is defined in § 311(a) (14) of the
CWA as “any substance designated pursuant to subsection (b) (2) of
this section.” Under authority of § 311(b) (2) , EPA has
promulgated a regulatory list of CWA § 311 hazardous substances
at 40 CFR 116.4. The reportable quantities for these hazardous
substances are listed at 40 CFR 117.3. Section 311 remedies are
generally available only for oil and CWA-listed hazardous
substances. Hazardous substances under the Comprehensive
Environmental Response, Compensation and Liability Act (“CERCLJA”
or ‘ ‘Superfund”) that are not also CWA-listed hazardous substances
are not covered by § 311, but are instead subject to CERCLA
enforcement authorities.
12 The term “imminent and substantial threat” is not defined
in the CWA, the OPA, or the regulations promulgated under either
of these statutes. There is also no legislative history or case
law explaining or interpreting the use of this phrase in § 311(e)
of the CWA. However, case law interpreting the phrase “imminent
and substantial endangerment” in § 106(a) of CERCLA may properly
be relied on in the interpretation of the § 311(e) term because
of the close relationship between CERCLA and the oil.spi ll
provisions in the CWA (e.g., adoption of the CWA § 311 liability
standard in CERCLA § 101(32); common use of the National
Contingency Plan under both statutes)
In light of CERCIJA § 106(a) case law, § 311(e) of the CWA
should be interpreted broadly as applying when there ni be an
imminent and substantial threat to: (1) human health; or (2)
public welfare, including the environment. The phrase “imminent
7
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United States” based on a written description of the specific
threat to the public health or welfare (e.g., a threat to any of
the natural resources listed in § 311(e)).
Type of Response Action: To assure that it is carried out
most effectively, the order should also clearly specify what
actions the recipient is required to take relating to removal of
the discharge, mitigation or prevention of the threat of a
discharge, or other actions necessary for protection of the
public health and welfare.
National Contingency Plan: Unlike § 311(c), § 311(e) does
not contain an explicit requirement that actions taken under its
authority be in accordance with the NCP. However, § 311(d) (4)
provides that “removal of oil and hazardous substances and
actions to minimize damage from oil and hazardous substance
discharges shall, to the greatest extent possible, be in
accordance with the [ NCPI .“ Therefore, actions required to be
taken under a § 311(e) order should, to the greatest extent
possible, be in accordance with the NCP.
Penalties: The order should further state that, upon
noncompliance, the responsible party may be liable under the CWA
for up to $27,500 per day in noncompliance penalties or treble
the costs incurred by the United States.
Legal Review: For at least the first two § 311(e) orders
issued by a regional office, the Office of Regional Counsel (ORC)
(or other regional legal office) should be consulted concerning
the legality of each order as to form and substance. After a
regional office has had experience in the issuance of § 311(e)
orders, it may establish its own policies on the scope of legal
review and consultation. However, it is recommended that the ORC
and substantial threat” itself should also be given a broad
interpretation. “Threat” refers not only to actual harm, but to
threatened or potential harm as well. In addition, the “threat”
need not be immediate to be “imminent” as the latter term is used
in 5 311(e). See United States v. Conservation Chemical Comp. ;
619 F. Supp. 162 (D.C. Mo. 1985) for a thorough analysis of the
phrase “imminent and substantial endangerment” under § 106(a) of
CERCLA.
8
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(or other regional legal office) continue to review orders that
raise legal issues that are novel, complex, or likely to be
contested -
Notice to State: Notice to the affected State 13 prior to
issuance is required by § 311(e) (1) (B) of the Act. The affected
State should generally be interpreted to be the State where the
facility is located and in which the cleanup will be conducted. 14
Unless some other official has been designated by a State, notice
should be given to the director of the State’s pollution control
agency or to the State agency official responsible for oil spill
responses. For a § 311(e) order, circumstances should generally
allow for written notification to the State prior to issuance of
the order. Such written notification may be in the form of a
letter mailed or faxed to the State, which may include a copy of
the order that the Agency Intends to issue. If circumstances
permit only oral notice to the affected State, a written
memorandum memorializing the conversation in which such notice is
provided should be prepared and retained in the case file. The
regional office should also promptly send a follow up written
notice to the affected State.
Section 311(c) Orders (In General)
As discussed elsewhere in this document, § 311(c) should
generally be cited as additional authority when issuing an order
under § 311(e) . However, in situations where a quick response is
needed, it may be more appropriate to Issue an order solely under
the § 311(c) authority.
IsBuing Official: EPA Delegation 2-89 governs the authority
‘ 3 Section 502(3) of the Clean Water Act defines “Statefl as
“a State, the District of Columbia, the Commonwealth of Puerto
Rico, the virgin Islands, Guam, American Samoa, the Commonwealth
of the Northern Mariana Islands, arid the Trust Territory of the
Pacific Islands.” It is EPA policy to give Indian tribes
equivalent notice.
4 Notice may also be given to other States whose resources
may be affected by a discharge (or threatened discharge) or
cleanup.
9
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to issue § 311(c) orders. This delegation provides that the
Regional Administrator may issue such an order, and that this
authority may be redelegated to OSCs and should be exercised in
accordance with the National Contingency Plan and Area
Contingency Plans. The AA for Solid Waste and Emergency Response
also has authority to issue § 311(c) orders. At this time, the
AA for Enforcement and Compliance Assurance does not have
delegated authority to issue § 311(c) orders.
Scope of Guidance: The statute provides that the
appropriate EPA official may and, in certain circumstances shall,
“direct . . . all Federal, State, and private actions to remove a
discharge.” 5 Although the term “direct” is not defined in the
statute or the NCP’ 6 , the authority to “direct” has been
interpreted to include the authority to issue orders.’ 7 This
guidance discusses only the use of “direct” in the context of
order issuance, and does not attempt to prescribe what other
actions are authorized by the use of the term “direct” in the
15 Section 311(c) (1) (B) (ii) and (c) (2) (A) . Section
311(c) (1) (A) provides for the discretionary use of the authority
to direct removal actions in order to “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” into areas protected by the Act. Section 311(c) (2)
requires the use of this authority if such a discharge, or threat
of a discharge, “is of such a size or character as to be a
substantial threat to the public health or welfare of the
United States . . . .“ Note that § 311(c) (2) requires only that
the President “direct” a removal if the criteria of this
provision are met.
‘ 6 The preamble to the most recent revision of the NCP
explains why the Agency is not defining or providing a more
specific description of the term “direct.” See 59 FR 47400
(Sept. 15, 1994)
‘ 7 paragraph 3.c of EPA Delegation 2-89 states that the
authority to direct or monitor all Federal, state and private -
removal actions “includes issuance of orders.” This authority is
also implicit in the provision of penalties in § 311(b) (7) (3) (i)
of the Act for violations of a § 311(c) “order.”
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statute.
National Contingency Plan: Section 311(c) (1) (A) requires
that the federal removal authority be exercised “in accordance
with the National Contingency Plan and any appropriate Area
Contingency Plan.” Section 311(c) (3) (A) provides that “ [ e]ach
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.” In addition, § 311(c) (3) (B) provides that owners
and operators participating in such efforts “shall act in
accordance with the National Contingency 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 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.” 18
Orders issued under § 311(c) should therefore require that
actions taken are in accordance with the NCP and any appropriate
area contingency plan. Orders issued to owners or operators
should also require that actions be taken in accordance with any
applicable § 311(j) facility or vessel response plan.
Form: Orders issued solely under § 311(c) may be issued at
the scene of the discharge or from a regional office. If the
order must be issued on the scene, an OSC with delegated
authority may issue the § 311(c) order either orally or in
writing. The OSC should issue an oral order only if necessary to
protect public health or the environment, and only if there is no
time to reduce the order to writing without significantly
increasing the risk to human health or the environment. In any
other circumstance, § 311(c) orders should be issued in writing
by the OSC or other authorized official.
Oral Section 311(c) Orders
If an OSC issues an oral § 311(c) order, he should take the
18 The clause in § 311(c) (3) (3) that begins with “except” was
added to the statute by § 1144 of the Coast Guard Authorization
Act of 1996, Pub. L. 104-324 (October 19, 1996)
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following important precautions to assure that the responsible
party understands the formality of the order and to support the
legal sufficiency and enforceability of the order:
* If possible without unduly delaying a response action,
the oral order should be issued to the owner, operator
or person in charge 19 of the facility or vessel at
which the discharge or threatened discharge occurred.
As discussed above, these are the parties to whom civil
penalties may apply under § 311(b) (7) (B) in the case of
a failure to comply with a § 311(c) order.
* The OSC should tell the party receiving the oral order
of the OSC’s finding that there is a discharge or a
substantial threat of a discharge of oil or a CWA-
listed hazardous substance to an area protected by
§ 311 of the CWA (as described in CWA § 311 (c) (1)) . If
the discharge or threatened discharge also meets the
19 Section 311(a) (6) of the Act defines “owner or operator”
as “(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 facility 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.”
The term “person in charge” is not defined in the Act or in the
NCP. However, case law under § 311 suggests that the term
“person in charge” includes natural persons who occupy positions
of responsibility and power at a facility (as opposed to “mere
employees”) or who are responsible for the operation of a
facility. See United States v. Mobil Oil Corp. , 464 F.2d 1124,
1128 (5th Cir. 1972); and Apex Oil Co. v. United States , 530 F.
2d 1291, 1294 (8th Cir.), cert. denied , 429 U.S. 827 (1976).
These cases held that “person in charge” also includes a
corporation. In addition, the term “person in charge of a
facility” in § 103 of CERCLA has been interpreted to include a
natural person who exercised supervisory control over a vehicle
that transported a hazardous substance or over the area to whith
the substance was released, even if such person was not the sole
person in charge of the vehicle or area. See United States v.
parr , 880 F.2d 1550 (2d Cir. 1989)
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criteria described in § 311(c) (2) (i.e., a discharge or
threatened discharge of such a size or character as to
be a substantial threat to the public health or
welfare) 2 ° and the § 311(c) (2) authority is required
for implementation of the order, the OSC should also
inform the responsible party of this determination.
* The OSC should tell the responsible party that a
failure or refusal to comply with the order may subject
the party to treble costs for oil cleanup (if the
United States has to spend monies as a result of
failure to comply) or to other civil penalties.
* If at all possible, the OSC should ensure that the oral
order is witnessed by other government personnel.
* The order itself, along with its findings, should be as
simple as possible to avoid misunderstandings, and its
scope should be limited to problems that must be
addressed immediately.
20 The § 311(c) (2) authority should only be used in
appropriate cases. The OPA conference report makes clear that
this provision was intended to be used in the case of spills like
those from the Exxon Valdez in Prince William Sound, Alaska, and
from the American Trader in California’s coastal waters, and the
spill and substantial threat of a larger spill from the Mega Borg
in the Gulf of Mexico. H.R. Rep. No. 653, 101st Cong., 2d Sess.
145-6, reprinted in Oil Pollution Deskbook at 101. Furthermore,
the OPA conference report states that the authority provided in §
311(c) (2) is the same as that in § 311(c) (1) except that under
the former provision the President: (1) must direct the response;
and (2) may exercise this authority without regard to federal
contracting procedures and personnel employment requirements.
This exemption from normal procedures and requirements “is
intended to facilitate emergency response and is not intended to
apply to long-term removal actions.” Id. at 146. Because §
311(c) (2) was intended to be used for spills of the actual or
potential impact described in the legislative history,
characterizing a site that is not of similar impact as these
cases as meeting the criteria of this provision could set an
undesirable precedent.
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* Finally, the OSC should reduce to writing at the time
of the order, or as soon as possible thereafter, the
components and requirements of the order. 2 ’ As soon as
possible after the issuance of the oral order, the OSC
should send a letter to the recipient of the order
confirming the issuance and content of the oral order.
In order to assure the enforceability of the original
order and the adequacy of the confirming letter, an ORC
attorney should be consulted prior to issuance of the
letter.
Written Section 311 (c) Orders
The following guidance applies to written orders issued
under the authority of § 311(c)
Covered Activity, Quantity of Discharge & Protected
Resources: Written orders that rely on the authority of § 311(c)
should include, as a legal prerequisite, a written finding that
there is a discharge or substantial threat of a discharge of oil
or a hazardous substance to an area protected by § 311(c) of the
Act, as described in § 311(c) (1) . The discharge need not be of a
reportable quantity of oil or a hazardous substance. In
addition, when this criterion is met, the order should indicate
that the discharge or substantial threat of a discharge “may pose
a substantial threat to public health or welfare,” as described
in § 311(c) (2) 22 Such findings should be based on a written
description of the existing factual situation concerning the
actual or threatened discharge. In addition to the recitation of
the findings of fact, the order should state that it is issued
pursuant to § 311(c) of the Act.
Type of Response Action: The order should specify what
actions the recipient is required to take relating to removal of
the discharge, or to mitigation or prevention of the threat of
21 Statements of any witnesses corroborating issuance of the
oral order should also be obtained, if possible. The date, time
and place that the oral order was issued should also be
documented.
22 See footnotes 14 and 19, above.
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the discharge. The order should be written in clear and
understandable language, and should be signed and dated by the
Agency official issuing the order.
Penalties: The order should state that if the recipient
fails or refuses to comply with the order, he may be liable under
the CWA for treble costs or up to $27,500 per day of violation in
civil penalties.
Legal Review: For at least the first two § 311(c) orders
issued by a regional office, the CRC (or other regional legal
office) should be consulted concerning the legality of each order
as to form and substance. After a regional office has had
experience in the issuance of § 311(c) orders, it may establish
its own policies on the scope of legal review and consultation.
However, it is recommended that the ORC (or other regional legal
office) continue to review orders that raise legal issues that
are novel, complex, or likely to be contested.
Notice to State: Unlike an order issued under § 311(e),
notice to the affected State is not required for an order issued
under the authority of § 311 (c)
Model Order: OSRE is also issuing a model § 311(c)
administrative order to assist EPA regional offices in the
issuance of such orders.
Joint Section 311(c) and (e) Orders
As discussed previously, § 311 orders should generally be
issued under the authority of both § 311(c) and (e) whenever
possible. Such joint orders should only be issued, however, if
the statutory and administrative requirements for issuance under
both authorities are met. This section of the guidance document
summarizes the requirements for issuance of a joint § 311(c) and
(e) order.
Issuing Official: A joint § 311(c) and (e) order should be
issued by the lowest-ranking EPA official to whom both
authorities have been delegated. For example, if the § 311(c)
authority has been delegated to OSCs and the § 311(e) authority
has been delegated to a division director (i.e., both authorities
have been delegated to the maximum extent allowed by Delegations
15
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2-85 and 2-89), a joint order should be issued by the division
director.
Form: A joint § 311(c) and (e) order should be issued in
written form. If there is a need to issue a cleanup order
expeditiously, an oral order should be issued under § 311 (c).
Covered Activity: A joint § 311(c) and (e) order should be
issued if there is a discharge or “substantial threat” of a
discharge. If there is no discharge and the threat of a
discharge is not “substantial,” any order should be issued under
§ 311 Ce)
Quantity of Discharge: A joint § 311(c) and (e) order should
be issued if the discharge is of a reportable quantity of oil or
CWA-listed hazardous substance, or if the substantial threat of a
discharge is expected to be of such a quantity (see footnotes 11
and 12, above) . If the quantity of the discharge (or threatened
discharge) does not meet this threshold, any order should be
issued under § 311(c). As a factual matter, it is anticipated
that almost any discharge of oil will meet the reportable
quantity threshold set forth in 40 CFR § 110.3 (e.g., a “film or
sheen” of oil on a water surface)
Protected Resources: A joint § 311(c) and (e) order should
be based on a discharge (or substantial threat of a discharge)
that impacts a type of protected resource or interest that is
specified in both § 311(c) (1) (A) and Ce) (1) (B) . This requirement
should be relatively easy to meet for most, if not all, actual or
threatened discharges for which a response action is needed. For
example, an oil spill into a river will most likely meet both
statutory requirements of being “into or on the navigable waters”
( 311(c) (1) (A) (i)) and of posing an “imminent and substantial
threat to the public health or welfare of the United States,
including fish, shellfish, . . . shorelines, beaches, habitat
( 311 (e) (1) (B)) . If a discharge or threatened discharge
impacts a type of protected resource or interest that is
specified in only one of these provisions, the order should be
issued under the authority of the appropriate subsection.
Type of Response Action: A joint § 311(c) and (e) order may
require the recipient to take any of the types of response
actions listed in § 311(c) (1) (B) (e.g., removal of a discharge),
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since such response actions also meet the broad scope of “any
action . . . that may be necessary to protect the public health
and welfare” allowed under § 311(e) (1) (B). If an order requires
only types of response actions that are not listed in
§ 311 Cc) (1) (B), the order should be issued under the broader
authority of § 311(e)
National Contingency Plan: A joint § 311(c) and (e) order
should require that actions taken be in accordance with the NCP
and any appropriate area contingency plan. When a joint order is
issued to an owner or operator, it should also generally require
that actions taken be in accordance with any applicable § 311(j)
facility or vessel response plan (except where deviation from
such response plan is determined by the President or OSC to
“provide for a more expeditious or effective response to the
spill or mitigation of its environmental effects”)
Penalties: A joint § 311(c) and Ce) order should state
that, upon noncompliance, the responsible party may be liable
under the CWA for up to $27,500 per day in civil penalties or
treble the costs incurred by the United States.
Legal Review: For at least the first two joint § 311(c) and
(e) orders issued by a regional office, the ORC (or other
regional legal office) should be consulted concerning the
legality of each order as to form and substance.
Notice to State: Prior notice of issuance of a joint
§ 311(c) and Ce) order to the affected State is required by
§ 311 Ce) (1) (2)
Model Order: OSRE is also issuing a model joint § 311 Cc)
and Ce) administrative order to assist the regional offices in
the issuance of such orders.
CONSULTATION
Consultation with Headquarters: The Assistant Administrator
for Enforcement and Compliance Assurance has established a
requirement for the regional offices to consult with OSRE wherran
order issued under section 311(c) and/or 311(e) significantly
deviates from written Agency policy or breaks new ground in an
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important sensitive area. 23 Consultation with OSRE is also
encouraged in other cases where it would benefit the regional
office and foster national consistency. For OSRE consultation,
the regional office should initially contact the Regional Support
Division (RSD) staff person assigned to OPA issues (currently Amy
Legare, (202) 564-4256) . [ If Amy is unavailable, please contact
the OSRE/PPED contact person for OPA issues (currently Bob
Kenney, (202) 564-5127) .1
The regional office should e-mail or fax to the OSRE contact
a copy of the proposed order together with a short memorandum
containing the following information: (1) the proposed timing of
issuance of the order, including whether the order addresses an
emergency situation; (2) a brief summary of the factual
background; and (3) a brief explanation of the issue(s) requiring
consultation. The OSRE contact will elevate the issue(s), as
necessary, to the Director of OSRE and will provide a response to
the regional office within seven days. The response may be
provided by telephone, but will be followed up with a confirming
memorandum. In emergency situations, OSRE will expedite its
review and depart from the process stated above as needed given
the exigencies of the situation.
Consultation with Department of Justice: Section 10(d) of
E.O. 12777 states that, “The Attorney General, in his discretion,
is authorized to require that, with respect to a particular oil
spill, an agency refrain from taking administrative enforcement
action without first consulting with the Attorney General.” In
addition, section 9 of E.O. 12777 contains a general consultation
provision related to the Department of Justice (DOJ)
“Authorities and functions delegated or assigned by this order
shall be exercised subject to consultation with the Secretaries
of departments and the heads of agencies with statutory
responsibilities which may be significantly affected, including,
but not limited to, the Department of Justice.” If an EPA
regional office receives notification from DOJ that it is
23 May 19, 1995, memorandum from OECA Assistant
Administrator Steven A. Herman, “Office of Enforcement and -
Compliance Assurance and Regional Roles in Civil Judicial and
Administrative Site Remediation Enforcement Cases” (Required
RCRA/OPA/LUST Consultations Category 1.a)
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exercising its authority under section 10(d) of E.O. 12777
concerning a particular oil spill, that office should refrain
from issuing a subsequent administrative order under section
311(c) and/or (e) of the CWA for that spill until it has first
consulted with DOJ. In these cases, notice of the consultation
with DOd is requested to the OSRE contact identified above.
DOCUMENTATION
The Agency office issuing a written order under § 311(c)
and/or 311(e) should keep a copy (or a duplicate original) of the
order for its own files. 24 An unilateral administrative order
does not have to be signed by the responsible party for the order
to be legal and enforceable. If time allows, orders should be
sent by certified mail (return receipt requested) to ensure a
record of receipt by the responsible party. If timely delivery
is not possible by certified mail, orders may initially be sent
by facsimile (faxed) or hand-delivered, but these means of
delivery should be followed by certified mail delivery. If an
order is faxed, the regional office should retain confirmation of
delivery information generated by its fax machine. If an order
is hand-delivered, the regional office should obtain a receipt
from the person receiving the order.
ADMINISTRATIVE RECORD
Although EPA is not legally required to compile an
administrative record for an order issued under § 311(c) arid/or
(e), the regional offices are strongly encouraged to compile an
24 A copy of the order should also be sent to the Policy and
Program Evaluation Division (PPED) of the CECA Office of Site
Remediation Enforcement (OSRE) for its files. If possible, the
copy should be sent electronically or on a diskette (preferably
in Word Perfect format) . A centralized file of § 311 orders will
be a useful resource for the regional offices in drafting their
own orders, and will facilitate a response to Freedom of
Information Act (FOIA) requests. Information on the order should
also be submitted to the National Civil Enforcement DOCKET, as-
called for in the May 9, 1995, memorandum from Elaine Stanley of
the DECA Office of Compliance entitled “Clarification of
Administrative Order Tracking Requirements.”
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administrative record that lists the materials considered by the
Agency in deciding whether to issue the order. Unless the
exigencies of the situation require otherwise, the regional
offices are also strongly encouraged to compile the
administrative record before issuing a § 311(c) and/or (e)
order. The list of materials considered by the Agency, as well
as copies of the materials themselves, should be maintained in an
administrative record file by the office that issues the order.
A carefully compiled administrative record will facilitate
any negotiations with the party(ies) to whom the order is issued
and will serve as the basis for any judicial review action. A
complete, accurate, and contemporaneous listing of the materials
relied upon for issuing a § 311 order will allow the government
to argue both for limiting any judicial review to the
administrative record that supports the decision to issue the
order and for limiting such review to the arbitrary and
capricious standard, i.e., even if a court would have ruled
otherwise, if there was a reasonable basis in the record for the
Agency’s order it must be upheld as a matter of law.
APPLICABILITY OF THE EDIBLE OIL REGULATORY REFORM ACT
The Edible Oil Regulatory Reform Act 2 requires most federal
agencies to differentiate between, and establish separate classes
for (1) animal fats and oils and greases, fish and marine mammal
oils, and oils of vegetable origin, and (2) other greases and
oils, including petroleum, when issuing 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. EPA has
determined that no differentiation between these classes of oil
is necessary for this guidance. This document only sets forth
guidance to assist EPA regional offices in the issuance of
administrative cleanup orders under § 311(c) and (e) of the Act,
as amended by OPA, in response to discharges and threatened
discharges of oil. It does not impose any substantive
requirements on the regulated community that do not otherwise
already exist. Where appropriate, EPA personnel take into
account the different classes of oil, along with other facts and
25 Pub. L. 104-55 (Nov. 20, 1995)
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circumstances related to a discharge or threatened discharge of
oil, in deciding whether to issue a cleanup order under § 311 of
the Act.
RELATIONSHIP TO OTHER ENFORCEMENT AND RESPONSE AUTHORITIES
The regional offices should evaluate whether statutory
authorities other than CWA § 311(c) and/or (e) are available to
require needed actions by responsible parties, and whether it
would be appropriate to use such authorities in lieu of, or in
combination with, the CWA § 311 provisions. CWA § 311 contains
elements that are similar to those of other statutory provisions
which allow the Agency to respond to the release or threatened
release of materials that may harm the public health or welfare
or the environment.
Attachment C is a chart that summarizes the general purpose,
triggering activity, materials and persons covered, response
authority, and penalty provisions contained in the following
statutory provisions enforced by EPA (in addition to a summary of
such information for CWA § 311 (c) and (e)) : Sections 7003 (a),
3008(h), 3013, 9003(h) of the Resource Conservation and Recovery
Act (“RCR.A”) , 42 U.S.C. § 6973(a), 6928(h), 6934, and 6991b(h) ;
Sections 104 and 106(a) of CERCLA, 42 U.S.C. § 9604 and 9606(a);
Section 504 of the CWA, 33 U.S.C. § 1364; Section 1431 of the
Safe Drinking Water Act (“SDWA”), 42 U.S.C. § 300i; and Section
303 of the Clean Air Act (“CAA”), 42 U.S.C. § 7603. The regional
offices should consult this chart, along with applicable policy
and guidance documents, when considering which enforcement
authority(ies) might be the most appropriate for their particular
situation.
CONCLUS ION
This guidance is intended to assist the regional offices in
the issuance of administrative cleanup orders under § 311 of the
CWA, as amended by the OPA. If you have any questions concerning
this guidance or any additional guidance needs, please contact
Bob Kenney of OSRE/PPED at (202) 564-5127.
Attachments
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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* NOTICE: The policies set out in this memorandum are not
* final agency action, but are intended solely as guidance.
* They are not intended, nor can they be relied upon, to
* create any rights enforceable by any party in litigation
* with the United States. EPA officials may decide to follow
* the guidance provided in this memorandum, or to act at
* variance with the guidance, based on an analysis of specific
* site circumstances. The Agency also reserves the right to
* change this guidance at any time without public notice.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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ATTACHMENT A: S1 Th ARY OF
SECTION 311(c) A D (e) PROVISIONS
§ 311(c)
§ 311(e)
LOWEST REGIONAL
REDELEGATION
ALLOWED
On-Scene
Coordinator
Division Director
FORM OF ORDER
Oral or written
Written only
DISCHARGES AND
THREATENED
DISCHARGES COVERED
Any quantity of oil
or CWA hazardous
substance
Reportable quantity
of oil or CWA
hazardous substance
PROTECTED RESOURCE
(1) Navigable
waters
(2) Adjoining
shorelines
(3) Exclusive
economic zone
(4) U_S. natural
resources; and,
(if “substantial
threat”) : Public
health or welfare,
including fish,
shellfish,
wildlife, other
natural resources,
beaches and
shorelines
If imminent and
substantial threat,
public health and
welfare, including
fish, shellfish,
wildlife, public
and private
property,
shorelines,
beaches, habitat,
living and
nonliving U S.
natural resources
RESPONSE AUTHORITY
(1) Administrative
removal order
(2) Direct removal,
mitigation, or
prevention of a
discharge
(3) Removal or
destruction of
vessel
(4) Monitor removal
actions
(1) Any action,
including
administrative
orders, to protect
U S. public health
and welfare; or
(2) Refer abatement
action to DOJ
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ORDER VIOLATION
PENALTIES
Civil penalties or
treble costs
Civil penalties or
treble costs
STATE NOTICE
Not required
Required
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ATTACHMENT B:
DIFFERENCES BETWEEN SECTION 311(c) AND 311(e) ORDERS
There are several differences between the § 311(c) and (e)
order authorities, including differences related to the quantity
of discharge, endangerment threshold, National Contingency Plan,
and notice to affected states. These differences are described
in this attachment.
Ouaritity of Jjischarqe . By its language, § 311(e) authority
is limited to responses to threatened or actual reportable
quantity 26 discharge violations of § 311(b) (3)27• Section 311(c),
however, establishes EPA’s authority to respond to threats from
oil or a CWA hazardous substance even when there is a discharge
or threat of a discharge of less than a reportable quantity of
oil or a CWA hazardous substance that may affect a navigable
water of the United States, adjoining shoreline, exclusive
26 As used in this guidance, the phrase “reportable quantity”
is shorthand for the statutory term in § 311(b) (3) relating to
“such quantities as may be harmful as determined by the
President” under § 311(b) (4) of the Act, and later codified in
EPA regulations.
27 1n relevant part § 311(b) (3) of the Act declares:
“The discharge 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 . . . which may affect natural
resources belonging to, appertaining to, or under the
exclusive management authority of the United States
in such quantities as may be harmful as
determined by the President under paragraph (4) of this
section, is prohibited . . .
Under the authority of § 311(b) (4) of the Act and E.O. 12777, the
Agency has issued harmful quantity regulations at 40 CFR 110.3,
110.4, 110.5, and 117.3.
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economic zone, or U.S.-managed natural resources. 2 e
If there is a potential for a CWA-listed hazardous substance
to reach a § 311(c) protected area, EPA can issue a § 311(c)
order without demonstrating that the quantity of the discharge or
threat of a discharge will meet or exceed the reportable quantity
level for that substance within a 24-hour period. Unlike
§ 311(e), § 311(c) response authority is not tied to a violation
of § 311(b) (3) of the Act, which establishes this threshold.
Endangerment Threshold , Section 311(c) (2) and (e) (1) have
similar (although not identical) endangerment thresholds. Under
§ 311 (c) (2), orders can be issued to parties when a discharge or
a substantial threat of a discharge of oil or a CWA-hazardous
substance poses a “substantial threat to the public health or
welfare of the United States . . .“ Under § 311 (e) (1) , EPA can
issue orders to parties when an actual or threatened discharge of
oil or a CWA-hazardous substance poses an “imminent and
substantial threat to the public health or welfare of the United
States . . .“ No such finding of a threat to the public health
or welfare (whether it is simply “substantial” or “imminent and
substantial”) is needed prior to issuing an order to a party
under § 311(c) (1)
National Contingency Plan . Section 311(c) contains
requirements that actions taken under its authority be in
accordance with the NCP, while § 311(e) does not contain any such
explicit requirement. However, § 311(d) (4) requires that
“removal of oil and hazardous substances and actions to minimize
damage from oil and hazardous substance discharges shall, to the
greatest extent possible, be in accordance with the [ NCP] .“
State Notice . Prior notice to the affected state is
required only under § 311 (e)
Under most factual circumstances, the Agency should issue a
written order citing the authority of both § 311 (c) and § 311 (e),
28 As used in this guidance, the phrase “U.S.-managed natural
resources” refers to the statutory descriptions in § 311 of
“natural resources belonging to, appertaining or under the
exclusive management authority of the United States.”
26
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with the required findings for each section, as described above.
The advantage to this approach is the somewhat broader reach of a
joint § 311(c) and (e) order.
27
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ATTACHMENT C.
COMPARISON OF CWA § 311 TO OTHER ENFORCEMENT AND RESPONSE AUTHORITIES 29
General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CWA
Ensure removal of a
Discharge or
Oil as defined in
Includes owners and
Perform or direct actions
Guidance on CWA
§ 311(c)
discharge, and
mitigation or prevention
of a substantial threat of
a discharge, of oil ora
hazardous substance
substantial threat of
discharge of oil or
hazardous substance
CWA § 31 l(a)(l) or
hazardous substance
as defined in CWA
§ 31 l(a)(14)
operators
to remove the discharge
or to mitigate or prevent
the threat ofa discharge
Remove and, if
necessary, destroy a
discharging vessel
§ 311(c) and (e)
describes resources
protected by CWA
§ 311(c)
Civil penalty for failure
to carry out removal
under § 3 11(c) order
without sufficient
cause Maximum of
$27,500 ° per day of
violation or up to 3
times costs incurred by
Oil Spill Liability Trust
Fund (OSLTF)
29 This table does riot provide an exhaustive list or description of every statutory authority that may
be available to EPA to address endangerments, hazards, releases, etc Rather, it summarizes significant
aspects of several authorities that are similar to CWA § 311.
30 me 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 (“DCIA”)
(31 U S.C. 3701 note; Pub. L. 104-134, enacted April 26, 1996; 110 Stat. 1321) , requires each Federal agency
to issue regulations adjusting for inflation the maximum civil monetary penalties that can be imposed
pursuant to the agency’s statutes. Under this authority EPA increased almost all of its maximum civil
penalty amounts by 10% (except for new maximum civil penalty amounts that were part of the 1996 amendments
to the Safe D,rinking Water Act) . These increased maximum civil penalty amounts apply to violations that
take place after January 30, 1997. See 61 FR 69360 (December 31, 1996), as corrected by 62 FR 13514 (March
20, 1997) (to be codified at 40 CFR Part 19)
28
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CWA
Require action to abate
Actual or threatened
Oil as defined in
Includes owners and
Commence a civil action
Guidance on CWA
§ 3 11(e)
an imminent and
substantial threat to
public health or welfare
discharge of reportable
quantity of oil or
hazardous substance
poses imminent &
substantial threat to
public health or welfare
CWA § 31 1(a)(l) or
hazardous substance
as defined in CWA
§ 31 I (a)(1 4)
operators
to secure any relief
necessary to abate the
endaiigennent
Take any other action,
such as issuing an
administrative order,
necessary to protect
public health and
welfare
§ 311(c) and (e)
describes resources
protected by CWA
§ 3 11(e)
Civil penalty for failure
to comply with
§ 31 1(e) order without
sufficient cause
Maximum of $27,500
per day of violation or
up to 3 times costs
incurred by OSLTF
29
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General PLirpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
RCRA
§ 7003(a)
Abate conditions that
may present an
imminent and
substantial
endangerment to health
or the environment
llandliiig, storage,
treatment,
transportation, or
disposal of solid or
hazardous waste
Any solid waste as
delined in RCRA
§ 1004(27), including
petroleum, or
hazardous waste as
defined in RCRA
§ 1004(5)
Any peison (including any
past or present generator,
transporter, owner, or
operator), who has
contributed or is
contributing to any
covered activity
Commence a civil action
to restrain from
handling, storage,
ticatment, transportation
or disposal, or to take
other necessary action
Take other action, such
as issuing an
administrative order,
necessary to protect
public health and the
environment
Penalty I r williul
violation of, or failure
or refusal to comply
with, § 7003 ordcr
Maximum of $5500 per
day of violation
RCRA
§ 3008(h)
Require corrective
action or other response
measure at any
unpermitted treatment,
storage, or disposal
facility that has or
should have had interim
status, and some
facilities that had interim
status but no longer do
Release of hazardous
waste from facility
covered by RCRA
§ 3008(h)
Hazardous waste as
defined in RCRA
§ 1004 (5)
EPA interprets to
cover hazardous
constituents
EPA interprets to include
the owner or operator of
the facility
Issue an administrative
order to require
corrective action,
suspend or revoke
interim status
authorization, or require
other necessary response
measure
Commence a civil action
for appropriate relief
Civil penalty for failure
to comply with
§ 3008(h) order
Maxinium of $27,500
per day of
noncompliance
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
RCRA
§ 3013
Require monitoring
testing, analysis, and
reporting at hazardous
waste, treatment,
storage, or disposal
facility or site to address
substantial hazard to
human health or the
environment
Presence or release of
hazardous waste
Hazardous waste as
defined in RCRA
§ 1004(5)
Current owner or operator
Most recent previous
owner or operator who
could be expected to know
about the presence and
potential release of the
hazardous waste, but only
if the current owner or
operator could not be
expected to know
Issue an administrative
order to require
iiionitoring, testing,
analysis, and reporting
Legislative history
indicates that the
standard for sLibstalitlal
hazard is lower than the
standard for imminent
and substantial
endangern ent
If EPA conducts
monitoring, testing,
analysis, or reporting, it
may order the owner or
operator to reimburse it
for its costs
Civil penalty for failure
or refusal to comply
with § 3013 order
Matimuin of $5500 per
day of violation
RCRA
§ 9003(h)
Require corrective
action with respect to
any release of petroleum
from an underground
storage tank (UST)
Actual release of
petroleum from an
UST
Petroleum as defined
in RCRA § 9001(8)
Operator of the IJST
In the case of an UST in
use on 11/8/84 or brought
into use after that date, the
owner of the UST
In the case of an IJST in
use before 1118184 but no
longer in use on that date,
the owner of the UST
immediately before the
discontinuation of its use
Issue an administrative
order or commence a
civil action to require
corrective action
Owner/operator is
liable for the costs of
EPA’s enforcement
action
Recipient of 9003(h)
order may request a
public hearing
Civil penalty for failure
to comply with
§ 9003(h) order
Maximum of $27,500
per day of continued
noncompliance
31
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CERCLA
Respond to actual or
Actual or substantial
I lazai dons subsiancc
Current ownci s or
Pci lot in or i equire
E PA Lifl seek
§ 104
substantial threat of
release of hazardous
substance
Respond to actual or
substantial threat of
release of pollutant or
contaminant which may
present an imminent and
substantial
endangerment to public
health or welfare
thrcat of release of
hazardous substance
Actual or substantial
threat of release of
pollutant or
contaminant
as deliried in
CERCLA § 101(14),
including hazardous
substances designated
under CWA
§ 31 l(b)(2)(A), but
not petroleum
Pollutant or
contaminant as
defined in CERCLA
§ 101(33), but not
petroleum
operators, owners or
operators at time of
disposal, generators, and
transporters
removal or remedial
action or any other
response measure
consistent with the
National Contingency
Plan
reinibursemuetit of
response costs &
collect up to 3 times
EPA’s costs due to
noncompliance with
the order as punitive
daniages under
CERCLA § 107
Civil penalty for failure
to comply with § 104
AOC, per CERCLA
§ 109 Maximum of
$27,500 per day for
first violation and
maximum of $82,500
per day for second or
subsequent violation
32
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General l urpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CERCLA
Abate imminent and
Actual or threatened
IlazardoLis subsiance
Current owners or
Commence a civil action
EPA risks a cl itiii
§ 106(a)
substantial
endangerment to public
health or welfare or the
environment
release of hazardous
substance
as delined in
CERCLA § 10 1(14),
including hazardous
substances designated
under CWA
§ 31 l(b)(2)(A), but
not petroleum
operators, owners or
operators at time of
disposal, generators, and
transporters
to obtain SLidi relief as
may be necessary to
abate the danger or
threat
Take other action, such
as issuing an
administrative order, to
protect public health and
welfare and the
environment
against the Hazardous
Substance Superfund ii
the PRPs believes that
they are not liable or
that EPA was arbitrary
and capricious
EPA can seek
reimbursement of
response costs & up to
3 times EPA’s costs
incurred due to
noncompliance with
order under CERCLA
§ 107
Penalty for willful
ViOl itIOii oi 1 iiliire oi
relusal to comply
without sufficient cause
with § 106(a) order
Maximum fine of
$27,500 per day of
violation or failure to
comply
33
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Add ilional Notes
CWA
§ 50.1
Abate imminent and
substantial
endangerment to the
health or welfare of
persons
Pollution source
presents an imminent
and substantial
endangerment
Pollution source or a
combination of
sources
Any person causing or
contributing to the
pollution
Coiiimcnce a civil action
to restrain any person
causing or contributing
to the pollution to stop
the discharge of
pollutants or to take
other necessary action
“WclIaic of persons”
means the livelihood of
such persons
SDWA
§ 1431
Abate conditions that
may present an
imminent and
substantial
endangerment to the
health of persons
Presence of
contaminant in, or
likelihood that
contaminant will enter,
a public water system
or underground
drinking water source
Contaniinant as
defined in SDWA
§ 140 1(6)
Includes persons causing
or contributing to the
endangerment
Take action, such as
issuing an administrative
order, necessary to
protect human health,
or commencing a civil
action for appropriate
relief
EPA may act if the
appropriate state and
local authorities have
not acted to protect
human health
Civil penalty for
violating or failing or
refusing to comply
with § 1431 order
Maximum ofSl 5,000 ’
per day of violation or
failure to comply
31 The maximum civil penalty of $15,000 for violating or failing or refusing to comply with a SDWA
§ 1431 order was not increased by the Agency in its inflation adjustment under the DCIA because this p na1ty
provision was enacted into law in 1996 See 62 FR 13514, 13515 (March 20, 1997)
34
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CAA
Abate imminent and
Emission of air
Pollution source or
Any person causing or
Commence a civil action
EPA may issue an
§ 303
substantial
endangerment to public
health or welfare or the
environment
pollutants
combination of
sources (including
moving sources)
contributrng to the
pollution
to restrain any person
causing or contributing
10 the pollution from
emitting air pollutants to
stop the emission or to
take other necessary
action
Issue an adminisirative
order necessary to
protect public health or
welfare or the
environment
administrative order if
initiating a civil action
is not practicable to
assure prompt
protection
Civil penalty for
violation of 303
order Maximum of
$27,500 per day of
violation
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C 20460
AUG 2 1998
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT Penalty Policy for Se ns 311(b) and (j) of the Clean Water Act
FROM: Steven A, er4ii’ ’/
Assistant Adr i1is or
TO: Addressees
Attached you will find the “Civil Penalty Policy for Section 3 11 (b)(3) and Section 3 11(j)
of the Clean Water Act” It was developed by an Agency workgroup comprised of Oil Pollution
Act enforcement staff from Headquarters and all Regions, and has been reviewed by OSWER,
OGC, and the Department of Justice
This policy governs enforcement staff in the negotiation of most Section 311 penalty
cases, and may be used as optional penalty pleading guidance for administrative cases Although
it addresses both administrative and judicial civil matters, the policy does not govern criminal
prosecutions under Section 3 11 of the Act or penalty enforcement actions for a violation of a
response order issued under either Section 311(c) or (e) of the Act. This policy shall be
implemented no later than thirty days from the date of this memorandum and, upon
implementation, its settlement elements should be applied in any Section 31 1(b)(3) or Section
311(j) civil case in which the parties have not yet reached an agreement in principle on a penalty.
As noted in the policy itself it does not constitute final agency action, and does not create
any rights, duties, obligations or defenses, implied or otherwise, in any third parties. It does not
affect the right of any respondent or defendant to decline to settle a case in favor of litigating
liability or the proposed penalty amount, and it does not bind judges or presiding officers in their
assessments of penalties Other than its settlement elements, however, it may be used to support
a prosecution argument as to the appropriate penalty amount.
As with any new penalty policy, we may find instances in which its application raises
unexpected issues In this situation, please consult with the Water Enforcement Division of the
Office of Regulatory Enforcement for assistance. The Regions need concurrence from the Water
Enforcement Division for the settlement of the first three administrative cases under this policy,
as well as continuing to require OECA concurrence for judicial referrals under Section 311 of
the CWA In appropriate circumstances, this policy may be waived on a case-by-case basis by
R cyc ed/ReCycIabI Pith ed with Ve etabIe Oil Sase Inl on 100°f. Recycled Paper (40% Postcxnsumer)
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2
the Director of the Water Enforcement Division of the Office of Regulatory Enforcement. For
longer term purposes, OECA plans to monitor the effectiveness of the policy during the first year
of its implementation Consequently, I am also requesting that the penalty policy workgroup
remain together until this oversight period is complete
I want to thank the staff from each Region who contributed to the formation of this
Section 311 penalty policy and especially Keith Cohon of Region X who, together with ORE
staff, drafted the policy If you have any questions regarding this policy, please contact Brian
Maas, Director of the Water Enforcement Division, or David Drelich, ORE’s staff contact, at
(202) 564-2240
Attachment
cc Ira Leighton, Region I
Walter Mugdan, Region II
Richard Caspe, Region II
William Early, Region III
Thomas Voltaggio, Region III
Phyllis Harris, Region IV
Richard Green, Region IV
Gail Ginsberg, Region V
William Muno, Region V
Myron Knudson, Region VI
Samuel Coleman, Region VI
Martha Steincamp, Region VII
U. Gale Hutton, Region VU
Carol Rushin, Region VIII
Michael Risner, Region VIII
Nancy Marvel, Region IX
Keith Takata, Region IX
Randall Smith, Region X
Jackson Fox, Region X
David Lopez, OSWER
Lisa Friedman, OGC
Walker Smith, DOJ EES
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CIVIL PENALTY POLICY
FOR SECTION 311(b)(3) AND SECTION 311 (j)
OF THE CLEAN WATER ACT
Office of Enforcement and Compliance Assurance
August 1998
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TABLE OF CONTENTS
1. INTRODUCTION AND BACKGROUND . 1
A. Purpose and Scope 1
B. Statutory Authorities 2
C. Choice of Forum 4
II. ADMINISTRATIVE PENALTY PLEADING GUIDANCE 4
III. MINIMUM SETTLEMENT PENALTY CALCULATION 5
A. Introduction S
B. Preliminary Gravity Calculation 6
1. Section 3110)-- SPCC and FRP Violations 7
STEP 1: Seriousness 7
STEP 2: CuLpability 9
STEP 3: Mitigation 10
STEP 4. History of Prior Violations 10
2. Section 31 1(b)(3) -- Discharge Violations 11
STEP 1: Seriousness 11
STEP 2: Culpability 12
STEP 3: Mitigation 13
STEP 4: History of Prior Violations 14
C. Adjustments to Gravity 14
I. Other Penalty for Same Incident 14
2. Other Matters as Justice May Require 14
3. Economic Impact of Penalty on Violator 15
D. Economic Benefit 15
E. Adjustment for Gross Negligence or Willful Misconduct 16
F. Additional Reductions for Settlements 16
1. Litigation Considerations 16
a. Appropriate and Inappropriate “Litigation Considerations t ’ 16
b. Factoring Litigation Considerations Into Penalty Calculation IS
c. Approval of Litigation Considerations 18
2. Supplemental Environmental Projects 19
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1
I. INTRODUCTION AND BACKGROUND
The Oil Pollution Act of 1990 (“OPA”), part of which amended Section 311 of the Clean
Water Act (“Act” or “CWA”), became law shortly after the Exxon Valdez spilled 22 million
gallons of oil into Alaska’s Prince William Sound. The Oil Pollution Act provided EPA with
new authorities to enforce Section 31 l(b)(3) and Section 311 (j) of the CWA, 33 U.S.C.
§ 132l(b)(3) and (j). Section 31 l(b)(3) prohibits the discharge of threshold amounts of oil or
hazardous substances to navigable waters of the United States. To reduce the likelihood of a
mishap, regulations issued under Section 31 1(j) (published at 40 C.F.R. Part 112) require
facilities that store oil in significant amounts to prepare spill prevention plans and to adopt
certain measures to keep accidental releases from reaching navigable waters Certain types of
facilities that pose a greater risk of release must also develop plans to respond promptly to clean
up any spills that do occur.
Sections 31 l(b)(6) and (7) of the CWA, 33 U S.C. § 132l(b)(6) and (7), authorize civil
penalties for violation of any of these requirements. The penalty monies are deposited in the Oil
Spill Liability Trust Fund, administered by the U.S. Coast Guard, and are used to help cover any
spill cleanup costs incurred by the government. Civil penalties reduce the likelihood of a spill by
providing an incentive to the violator and to other members of the regulated community to
comply with the Act’s requirements, help replenish funds that are used to clean up the
environment, and provide a level playing field for businesses that meet their obligations under
the law.
A. Purpose and Scope
This civil penalty policy is provided for the use of EPA litigation teams in establishing
appropriate penalties in settlement of civil administrative and judicial actions for violations of
Sections 31 1(b)(3) and 31 1(j) of the Clean Water Act. It does not apply to criminal cases that
may be brought for violations of Section 311 of the Act, nor to the civil enforcement of response
orders issued under Section 311(c) or (e) of the Act, 33 U.S.C. § 1321(c) or (e). This policy sets
forth how the Agency expects to exercise its enforcement discretion in determining the minimum
civil penalty settlement for violations of Section 311 (b)(3) and (j) of the Clean Water Act, and
states the Agency’s views as to the proper allocation of enforcement resources by clarifying the
minimum penalty amount that EPA may accept in settlement of a case This policy also provides
general guidelines on administrative civil penalty pleading practices under Sections 311(b) and
(j) of the Clean Water Act.
This policy is intended as guidance, and is not final agency action. It does not create any
rights, duties, obligations, or defenses, implied or otherwise, in any third parties. It does not
affect the right of any respondent or defendant to decline to settle a case in favor of litigating
liability or the proposed penalty amount, and it does not bind judges or presiding officers in their
assessments of penalties. Upon concurrence by the Water Enforcement Division in ORE, this
policy may be waived on a case-by-case basis.
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2
This policy shall be implemented no later than thirty days after its issuance. It applies to
all Section 31 1(b)(3) and (j) actions filed after its implementation. It also applies to all cases that
are pending when it is implemented, but in which the government and the respondent or
defendant have not yet reached agreement in principle on the amount of the civil penalty.
B. Statutory Authorities
OPA increased penalties for violations of Section 311 of the Clean Water Act. In
administrative cases, Section 31 1(b)(6) of the Act, as amended, 33 U.S.C. §1321(b)(6),
authorizes EPA to assess Class I or Class II administrative penalties for the violation of Section
311 (b)(3) or Section 311(j). A Class I penalty may be assessed in an amount of up to $10,000
per violation, not to exceed $25,000. For the reasons provided in earlier Agency guidance
interpreting a predecessor provision of the Clean Water Act, for liability purposes each violation
should also be tabulated on a daily basis.’ A Class II penalty may be assessed in an amount of up
to $10,000 per day of violation, not to exceed $125,000. These and all other statutory provisions
cited in this policy have been increased by ten percent, for events occurring after January 30,
1997, by the Debt Collection Improvement Act of 1996 (DCIA) 2 and its implementing
regulations published at 40 C.F.R. Part 19. Future across-the-board inflation adjustments under
the DCJA are to be published not less often than every four years.
OPA also established new judicial sanctions. A person who violates Section 31 1(b)(3) of
the Act is subject to a civil penalty of up to $25,000 per day of violation, or up to $1,000 per
barrel of oil or per unit of reportable quantity of CWA-listed hazardous substance discharged. In
instances of gross negligence or willful misconduct, these penalties increase to a $100,000
minimum and a maximum of $3,000 per barrel or unit of reportable quantity discharged. EPA
interprets this to mean that in the judicial forum the government may elect whether per day or
volumetric penalties may apply according to how it pleads its case, or plead both approaches in
the alternative. 3 The law also provides that a person subject to regulations implementing the
The Class I “per violation” language was borrowed from the Class I approach in Section 309(g) of the
Act. SeeH.R. Rep No 653, 101st Cong, 2d Sess 153 (August 1, 1990)(Conference Committee Report on HR
1465) We adopt here the rule and reasoning provided in 1987 guidance interpreting Section 309(g) See
‘Guidance on the Effect of Clean Water Act Amendment Civil Penalty Assessment Language,” OW/OECM, August
28, 1987 (published in the CWA Compliance/Enforcement Compendium, 1997 ed., at II1B 8)
23j USC 3701 note, PubI L 104-134, 110 Stat 1321 (1996) See6I Fed. Reg 69,359(December3l,
1996)(rncludes erratum that Section 31 I(b)(7)(B) spill penalty has been adjusted from $25,000 per day to $11,000
per day, instead of $27,500 per day) and 62 Fed Reg 13514-17 (March 20, 1997) (Correcting errata in December
31, 1996, publication as a technical correction, maLntaintng the January 30, 1997, effective date in all cases)
This is based on the plain meaning of the disjunctive statutory language, which does not limit a penalty
request, and Senator Lieberman’s statement in debate during consideration of OPA that, “It was my intent in writing
the penalty provisions of my legislation, which have been substantially adopted in this bill that, in the event of a
spill, the Government apply the penalty provisions in a manner which will punish the violator and deter and prevent
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3
spill prevention and response program of Section 311 (j) of the Act may be assessed civil
penalties of up to $25,000 per day of violation. These statutory penalties have also been
increased by ten percent for events occurring after January 30, 1997.
Pursuant to Section 31 1(b)(8) of the Act, 33 U.S.C. §1 321(b)(8), a Section 311 civil
penalty assessment is based on the following factors:
• The seriousness of the violation or violations;
• The degree of culpability involved;
• The nature, extent, and degree of success of any efforts of the violator
to minimize or mitigate the effects of the discharge,
• Any history of prior violations;
• Any other penalty for the same incident;
• Any other matters as justice may require;
• The economic impact of the penalty on the violator; and
• The economic benefit to the violator, if any, resulting from the violation.
If negotiations break down and a case is litigated, the judge or presiding officer must
consider these elements to determine the amount of any civil penalty. Agency negotiators
themselves are riot explicitly required to use the Section 311 (b)(8) assessment factors But since
settlement negotiations are always conducted in the shadow of the courtroom, this policy uses
each statutory factor (as well as other necessary, but extrinsic, considerations) to guide the
Agency bottom-line settlement position and to allow it to be coordinated with any subsequent
litigating position. Because failed penalty negotiations often lead directly to litigation, the
enforcement team should establish and keep an accurate record of each of these factors.
Four of the statutory factors (seriousness, culpability, mitigation efforts, history of
violations) relate to the severity of the violator’s actions, and form the gravity component of the
calculation. The next three factors (other penalties incurred, other matters as justice may require,
and economic impact on the violator) are broad considerations that may lead to case-by-case
adjustments of the gravity component based on specific circumstances. Calculating the gravity
component is descnbed in Sections III. B and C, below. The violator’s economic benefit is
added to the gravity component to form the base penalty amount.
In limited circumstances, for settlement purposes only, the bottom line settlement
amounts may be further adjusted based on litigation considerations, and based on Supplemental
Environmental Projects (SEP’s). These are not mentioned in the statute, and therefore are not
relevant to a judge or presiding officer deciding any contested proceeding.
future violations Large civil penalties are also especially important because, in certain cases, the liability of the
spiller for cleanup costs under Federal law is limited by the provisions of this bill, aggressive penalties may need to
compensate for this limited liability” 135 Cong Rec S 11,545 (daily ed August 2, l990)(statement of Sen
Lieberman)
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4
In all cases, however, EPA is limited in settlement and litigation to seeking no more than
the violator’s statutory maximum civil penalty liability. If a particular application of this policy
results in a settlement figure greater than the available statutory maximum, subject to choice of
forum concerns (see I.C below) the settlement bottom line must be reduced to conform to
statutory limitations. All civil penalties paid pursuant to Section 311 of the Act, whether
imposed administratively or judicially, are to be deposited in the Oil Spill Liability Trust Fund. 4
This fund is administered by the National Pollution Funds Center of the Coast Guard pursuant to
Department of Transportation delegations and Section 7 of Presidential Executive Order 12777
(October 18, 1991),
C. Choice of Forum
The Agency enforcement team should apply this policy to determine whether to seek a
penalty administratively or judicially. If the bottom line requires higher penalties than can be
achieved in an administrative proceeding, EPA should refer the case to the Department of Justice
for judicial enforcement. EPA staff may also choose to refer a Section 311 enforcement case for
judicial action for other reasons, such as the need for injunctive relief.
In a case where a spill resulted from gross negligence or willful misconduct,
Section 311(b)(7)(D) of the Act, 33 U.S.C. §1321(b)(7)(D), requires use of the judicial forum.
As amended by the DCIA, it provides for a minimum penalty of $100,000 for events occurring
before January 31, 1997, or a minimum of $110,000 for events occurring on or after that date.
II. ADMINISTRATIVE PENALTY PLEADING GUIDANCE
In judicial cases, the United States does not request a specific proposed penalty, but
instead paraphrases the Clean Water Act in reciting a request for a penalty “up to” the statutory
maximum. This is sometimes referred to as “notice pleading” for penalties. By contrast, Agency
administrative complaints under proposed 40 C.F.R. §22.14(a)(4) (63 Fed. Reg. 9464, 9469,
9485 [ February 25, 1998]) either may include a form of notice pleading or use a specific penalty
request. (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. 5 ) Although this section of the policy provides general guidelines on how EPA
may select an appropriate penalty amount in an administrative complaint, it does not direct when
an Agency litigation team should use penalty notice pleading and when it should plead for a sum
certain.
See Section 4304 of OPA (Pub L 101-380, tit IV, §4304, 104 Stat 484) and 26 U SC §9509(b)(8)
See also 63 Fed Reg 9478 (February 25, I 998)(addressing Class 1, non-APA cases)
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The Agency litigation team may elect to adapt the settlement methodology in Part III of
this policy (“Minimum Settlement Penalty Calculation”) to establish a definitive penalty request
in an administrative complaint. After reasonable examination of the relevant facts and
circumstances (including any known defenses), the litigation team, when proposing a specified
penalty in an administrative complaint, should in good faith make the most favorable factual
assumptions, legal arguments, and judgments possible on behalf of the Agency. As a practical
matter, any specific penalty amount proposed in an administrative complaint, unless the
complaint is subsequently amended, will be the maximum that the enforcement team may seek at
hearing, and generally will provide a starting point for settlement negotiations. Such an
administrative penalty request therefore should be higher than the bottom line settlement amount
determined under Part lU of this policy. 6 Although appropriate in settlement calculations, Part
1II.F, “Additional Reductions for Settlements,” should not be applied in drafting a complaint
penalty figure.
A proposed penalty should not be inconsistent with the statutory factors in
Section 311 (b)(8), because those factors would ultimately be the basis of the presiding officer’s
penalty assessment. In any Class II complaint seeking a specific penalty, the Agency litigation
team should also take into account the requirements of the Small Business Regulatory
Enforcement Fairness Act (“SBREFA”), P.L. 104-121 (1996), if the respondent qualifies as a
small business under that statute. 7 SBREFA by its terms does not apply to non-Administrative
Procedure Act (“non-APA”), Class I cases. 8 For a more extended discussion of SBREFA, see
“Interim Guidance on Administrative and Civil Judicial Enforcement Following Recent
Amendments to the Equal Access to Justice Act,” OREIOECA, May 28, 1996 (“SBREFA
Guidance”).
When SBREFA does not apply, the “Adjustments” in Part III should not normally be
used in drafting a definitive complaint penalty figure. These “Adjustments” are mitigating
factors that are more appropriately asserted by the respondent, since at the outset of the case
exculpatory or mitigating circumstances generally will be more accessible to the alleged violator
than to the Agency.
III. MINIMUM SETTLEMENT PENALTY CALCULATION
A. Introduction
6 See “Distinctions Among Pleading, Negotiating and Litigating Civil Penalties for Enforcement Cases,”
OECMIOW, January 19, 1989 (published in the CWA Compliance/Enforcement Compendium, 1997 ed , at
IV C 17), for a detailed discussion of this issue
7 SeeI3CFR. §121
8 Sections 331 and 332 of SBREFA amend the Equal Access to Justice Act (“EAJA”), 28 U S C. §2412, 5
U S C §504 and EAJA apply by their terms to APA proceedings only Consequently, SBREFA does not apply to
Class I (non-APA) Section 311 complaints
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Before the filing of the complaint, the Agency litigation team must use the following
guidelines to determine the minimum amount the Agency will accept in settlement for counts
based on violations of Section 311(b)(3) or 311 (j) of the Act, or receive a case-specific
exemption from the Director of the Water Enforcement Division in ORE. This amount, along
with the appropriate Appendix worksheet and a supporting rationale, should be included in the
enforcement-confidential portion of the case file. After a complaint is filed, as the Agency
receives more relevant information regarding liability and penalty issues, the litigation team
should adjust its settlement figure accordingly, documenting the rationale for the changes.
The bottom-line figure resultingfrom application of this Section 311 civil penally
settlement policy and the specific calculation that led to it are not public Each is privileged,
enforcement-confidential information It is work product developed for negotiation purposes,
and should not be shared with administrative judges, respondents or defendants, or the public. 9
This policy itself, however, is public and not confidential.
In calculating the bottom-line settlement figure, the case development team should
assume that all the allegations in the complaint will be successfully proven, except to the extent
this policy specifically allows for the incorporation of litigation considerations into the penalty
calculation. The subjective aspects of the various penalty factors should be applied
conservatively in determining the settlement bottom line because that figure represents the
minimum the Agency will accept in settlement, which may be less than the penalty amount that
the litigation team considers otherwise ideally suited to the violation.
In creating the gravity penalty methodologies provided below, EPA has taken into
account the 1997 effects of the DCIA on its statutory civil penalty claims. When further DCIA
adjustments to Section 311 penalty authorities are published in the Federal Register, the dollar
amounts provided below are deemed to be increased by the same inflation factor without need to
republish this policy.’ 0 EPA may, of course, republish this policy to clarify the newly adjusted
settlement amounts.
B. Preliminary Gravity Calculation
Although the arithmetic methodology of the gravity components for violations of each
Section 311 enforcement program is similar, the nature of violations of the 31 1(j) and 31 l(b)(3)
programs are substantially different. Consequently, this settlement policy provides separate
discussion of gravity for each program. Both of the methodologies begin with a “seriousness”
In administrative cases, which are governed by 40 C F R Part 22, the settlement figure is not subject to
any disclosure requirements of 40 C F R § 22 14(a)
10 The revised figures apply to all actions filed after the DCIA regulatory effective date as well as all filed
cases in which the government and the respondent or defendant have not yet reached an agreement in principle on
the amount of the civil penalty
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figure and then provide additional, statutorily-based adjustment factors. For both the Section
31 1(j) and 31 1(b)(3) programs, each adjustment factor calculation acts upon and replaces the
immediately preceding calculation. The settlement methodologies, then, use an initial
“seriousness” figure subject to a chain of sequentially applied adjustments.
1. Section 311(j) — Spill Prevention Control and Countermeasure
(SPCC) and Facility Response Plan (FRP) Violations
The gravity portion of the settlement penalty for violations of CWA Section 311 (j) is to
be determined by applying the following sequential steps
STEP 1: SERIOUSNESS
The seriousness of a 311(j) violation depends, in part, on the risk posed to the
environment as a result of the violation. Risk can encompass the extent of the violation, the
likelihood of a spill, the sensitivity of the environment around the facility, and the duration of the
violation. The extent of the violation, which also contributes to the seriousness of the violation,
depends on the storage capacity of the violator’s facility, the existence and adequacy of secondary
containment, the degree and nature of the violations of the relevant requirements, and the
duration of the violation. The sensitivity of the environment can be characterized by considering
the potential environmental impact from a worst case discharge at the facility.
Step 1.a: Apply matrix . Determine an initial figure from the following table. Within
each range, the Agency litigation team should exercise discretion, considering storage capacity
and extent of noncompliance only, since other considerations are incorporated in later steps.
Extent of
Noncompliance
Storage Capacity of the Facility in gallons
T
Less than 42,001 to
42,000 200,000
200,001 to
1 million
More than
1 million*
Minor
Noncompliance:
$500 to
$3,000
$2,000 to
$6,000
$5,000 to
$12,000
$8,000 to
$20,000
Moderate
Noncompliance:
$3,000 to
$8,000
$6,000 to
$15,000
$12,000 to
$25,000
$20,000 to
$50,000
Major
Noncompliance:
$8,000 to
$20,000
$15,000 to
$30,000
$25,000 to
$60,000
Not less than
$50,000
* This column also applies to all Facility Response Plan violators.
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Extent of Noncompliance : Use the following criteria to determine extent of
noncompliance:
• Minor Noncompliance. Cumulatively, the violations have only a minor impact
on the ability of the respondent to prevent or respond to worst case spills through the
development and implementation of a plan.
• Moderate Noncompliance. Cumulatively, the violations have a significant
impact on the ability of the respondent to prevent or respond to worst case spills through
the development and implementation of a plan.
• Major Noncompliance. Cumulatively, the violations essentially undermine the
ability of the respondent to prevent or respond to worst case spills through the
development and implementation of a plan.
Examples in each category are provided below. These examples are for purposes of illustration
only. The category actually used should be based on the cnteria provided above, taking into
consideration the specific facts of the case and the number of violations involved, even if that
category is different than the one suggested by the list of examples below.
SPCC VIOLATIONS
Minor noncompliance : Failure to review plan after three years; failure to
amend plan after minor facility change; failure to have amendment
certified.
Moderate noncompliance : Plan not available during the normal 8-hour
work day, inadequate or incomplete plan; inadequate or incomplete
implementation of plan (but neither a complete lack of secondary
containment, nor grossly inadequate secondary containment); no plan, but
adequate secondary containment; implementation of applicable state plan
that does not reference SPCC or meet all SPCC requirements; failure to
amend or implement amended plan after spill or any major facility change;
failure to submit required information after a spill; failure to certify plan.
Major noncompliance : No SPCC plan and no secondary containment;
failure to implement SPCC plan; inadequate or incomplete plan
implementation resulting in (1) grossly inadequate or no secondary
containment or (2) hazardous site conditions.
FRP VIOLATIONS
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Minornoncompliance : Failure to maintain certificate of nonapplicability;
improper plan format; failure to provide copy of plan to local or State
authority; no annual review of FRP to ensure consistency with the NCP/
ACP; failure to update or submit plan reflecting minor facility changes.
Moderate noncompliance : Submission of inadequate plan; submission of
plan inconsistent with NCP/ACP; late submission of plan; failure to
update or amend plan reflecting major facility changes; failure to amend or
resubmit plan in response to RA notification; inadequate, incomplete, or
late implementation of plan (without presenting a major risk); failure to
develop or conduct a drill/exercise program.
Major noncompliance : Failure to submit FRP; substantial failure to
implement FRP; inadequate or incomplete plan implementation resulting
in major risk of significant and substantial harm to the environment;
failure to maintain current proof of equipment and personnel available to
respond to a worst case discharge; intentional or knowing violations.
Because spill response plan requirements established under Section 31 l(j)(5) and 40 C.F.R.
§ 112.20 assume the existence of a facility posing a significant risk of harm, penalties for any
facility that is subject to the facility response plan requirements should be read under the “more
than 1 million gallons” column on the right, regardless of the facility’s actual storage capacity.
Step 1.b: Adjust the amount determined from the matrix to reflect the potential
environmental impact of a worst case discharge . Choose the most serious applicable category:
• Major impact A discharge would likely have a significant effect on human
health, an actual or potential drinking water supply, a sensitive ecosystem, or wildlife
(especially endangered species), due to factors such as proximity to water or adequacy of
containment. Upward adjustment of 25% to 50%.
• Moderate impact A discharge would likely have a significant affect on
navigable waters (other than a drinking water supply), adjoining shorelines, or vegetation
(other than a sensitive ecosystem) due to factors such as proximity to water or adequacy
of containment. Upward adjustment of up to 25%.
• Minor impact. No adjustment.
Step ic: Adjust the amount from STEP lb to account for the duration of the violation .
Determine the number of months that the violation continued. For each month, add one half of
one percent to the amount from Step l.b (e.g., if the violation continued for 32 months, increase
the amount from the previous step by 16%), up to 30% maximum.
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STEP 2: CULPABILITY
Consider the degree to which the respondent should have been able to prevent the
violation, considering the sophistication of the respondent and the resources and information
available to it, and any history of regulatory staff explaining to the respondent its legal
obligations or notifying the respondent of violations Depending upon the degree of culpability,
the litigation team may increase the amount from STEP 1 by as much as 75%.
STEP 3: MITIGATION
Section 311 (b)(8) requires that in assessing a penalty the judge or presiding officer must
consider the “nature, extent, and degree of success of any efforts of the violator to minimize or
mitigate the effects of the discharge.” Though a violation of SPCC regulations increases the
threat of a discharge rather than actually causing a discharge, this factor can be taken into
account in 311 (j) cases by considering how quickly the violator comes into compliance, thereby
mitigating the threat of a discharge. The litigation team should use the following guidelines:
• If the violator qualifies for application of EPA’s “Incentives for Self-Policing:
Discovery, Disclosure, Correction and Prevention of Violations Policy” (60 Fed. Reg.
66706, December 22, 1995) (“Audit Policy”), the terms of that policy apply.
• When the violator comes into compliance before being notified of its violation
by regulatory staff orally or in writing, reduce the amount from STEP 2 by up to 25%.
• When the violator, after notification of its violation, comes into compliance
within a reasonable time period not to exceed six months: No adjustment.
This is a downward adjustment only because any failure to come into compliance
promptly after being informed of the violation is accounted for in STEP 2 (Culpability).
STEP 4: HISTORY OF PRIOR VIOLATIONS
Adjust the amount from STEP 3 if the respondent has a relevant history of violations
within the past five years. Consider violations of SPCC and facility response plan regulations,
discharges in violation of Section 311(b)(3), and any violation of an environmental statute that
relates to the respondent’s ability to prevent or mitigate a discharge in violation of Section
31 1(b)(3). Related violations, for example, could include certain operation and maintenance -
violations that indicate a respondent s inattention to pollution control requirements. Relevant
violations at any other facility under common ownership or control should be considered under
this Step.
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Violations include admitted violations (such as discharge monitoring reports or other
required self-reporting), adjudicated violations, findings of violations by EPA or other agencies
that have not been withdrawn or overturned by a reviewing authority, and cases that were settled
by consent and involved the payment of a penalty (whether or not liability was admitted). If
there is a history of such violations, the litigation team may increase the STEP 3 amount by up
to 100%, depending on the frequency and severity of such past violations.
2. Section 311(b) (3) — Discharge Violations
STEP 1: SERIOUSNESS
The potential environmental impact of a discharge, the amount of the hazardous
substance or oil involved, and (in certain circumstances) the duration of the discharge are critical
factors in determining the senousness of a violation of Section 3 11(b)(3) of the Act. Potential
harm is distinct from actual harm because mitigation efforts can reduce the actual harm.
Mitigation efforts are considered in STEP 3 below; this initial Step considers only risk factors.
Alternative A: To determine the seriousness component of the penalty when potential
environmental impact and quantity discharged are the most significant elements of the
Section 31 l(b)(3) violation, select an amount within the appropnate cell in the following table.
Potential
Impact
Quantity Discharged (BarrelsIRQ)U
Less than 5 to 19 201079 80 to 125 [ More than 125
Minor
Impact:
$400 to
$2,000
$1,000 to
$6,000
$5,000 to
$12,000
$9,000 to
$20,000
$100 to $250
per bbl/RQ
Moderate
Impact:
$2,000 to
$7,000
$6,000 to
$12,000
$10,000 to
$25,000
$16,000 to
$45,000
$250 to $500
per bblfRQ
Major
Impact:
$7,000 to
$12,000
$12,000 to
$30,000
$18,000 to
$55,000
$45,000 to
$90,000
$500 to $1000
per bblIRQ
See Section 31 1(b)(7)(A) ofthe Act, 33 U SC §1321(b)(7)(A)
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Quantity : Use the entire quantity discharged in violation of Section 31 1(b)(3),
determined in accordance with any applicable Agency guidance or interpretation. The quantity
of oil is measured by the number of barrels (one barrel equals 42 gallons). The quantity of
hazardous substances is measured in reportable quantities (RQ), which are listed for each
substance in 40 C.F.R. Part 117.
Potential Environmental impact : The environmental impact of a spill can be greatly
reduced by intervening factors that are not attributable to the discharger, such as intervention by
independent third parties or luck (wind, tides, weather, time of day, etc.). These external factors
should not affect the penalty amount. This factor also should not be affected by any mitigation
efforts, since they are considered separately in STEP 3 below This factor should therefore be
based on the risk to the environment caused by the spill, and not simply the actual harm it
caused. Appropriate considerations include the proximity of the facility to sensitive areas (such
as inhabited areas, dnnking water, wildlife habitat), and the nature of the water body or shoreline
potentially affected or endangered, such as pristine habitat for endangered species, a drinking
water source, or a highly polluted industrial waterway. Use the following criteria to determine
potential environmental impact:
• Major Impact. The discharge posed a significant threat to human health, an
actual or potential drinking water supply, a sensitive ecosystem, or wildlife (especially
endangered species).
• Moderate Impact. The discharge posed a significant threat to navigable waters
(other than an actual or potential dnnking water supply), adjoining shorelines, or
vegetation (other than a sensitive ecosystem).
• Minor Impact. All other discharges resulting in the entry of oil or a CWA
hazardous substance into navigable waters or upon an adjoining shoreline in a reportable
quantity.
Alternative B: If there is a reportable quantity of oil or a hazardous substance discharged
to an adjoining shoreline or a navigable water of the United States, the duration of the event may
be a more significant measure of seriousness than the quantity discharged. In such a case, the
Agency litigation team should use the following criteria for this step, but only f this leads to a
higher amount than established by Alternative A
• Major duration. There has been a continuous or intermittent discharge
representing more than fourteen days of violation. Not less than $100,000.
• Moderate duration. There has been a continuous or intermittent discharge
representing at least four, but not more than fourteen, days of violation. From $25,000 to
$100,000.
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• Minor duration There has been a continuous or intermittent discharge
representing two or three days of violation. From $3,000 to $25,000.
STEP 2: CULPABILITY
Adjust the dollar amount from STEP 1 based on the degree of culpability, using the
highest applicable criterion:
• If gross negligence or willful misconduct were involved, triple the dollar
amount derived in STEP 1.
• If gross negligence or willful misconduct were not involved, apply a sliding
scale to increase the STEP 1 amount by up to 50%, depending on the degree of
culpability. Culpability in this circumstance can include either an act of commission,
such as setting a valve in the wrong position, or by an act of omission, such as failing to
check a pipeline for corrosion.
STEP 3: MITIGATION
Adjust the dollar amount from STEP 2 based on the “nature, extent, and degree of
success of any efforts of the violator to minimize or mitigate the effects of the discharge,” using
the following guidelines:
• If the violator otherwise qualifies for the complete elimination of the gravity
component under EPA’s Audit Policy through a qualifying audit, and the discovered
discharges: (a) are reported immediately pursuant to the requirements of Section
311(b)(5), 33 U.S.C. §1321(b)(5), and its implementing regulation, 40 C.F.R. 300.300;
(b) are made subject to governmental corrective or preventive measures that are
independently enforceable under applicable environmental law; (c) collectively result in
minor impact as descnbed in Alternative A of Step 1, and, (d) are not the result of gross
negligence or willful misconduct, the gravity component shall be reduced to zero.’ 2
12 A Section 311(b) spill violator never can qualify for a 75% gravity component reduction under the Audit
Policy since any discharge that is self-evident enough to be discovered in the ordinary course of business -- without
a qualifying audit -- is already subject to the implicit monitoring and explicit reporting provisions of Section
31 l(b)(5) of the Act. To treat such disclosures as voluntary would undermine the purposes of Section 311 of the
Act There are several reasons why only certain minor, and no moderate or major, spill violations under Section
311 are eligible for mitigation under the Policy. The Audit Policy encourages the identification of violations that
might not otherwise be discovered, whereas significant spills are likely to be found in the ordinary course of
business or by third parties, even in the absence of auditing. Second, the Policy provides an incentive to prevent
violations before they occur, while spills by definition reflect a failure to prevent Third, penalties for spill
violations are returned to the Oil Spill Liability Trust Fund to help cover response costs, failure to recover such
penalties in some circumstances may unfairly shift the burden of Fund support to other parties Finally, Condition
D 8 of the Policy itself excludes vio’ations that result in “serious environmental harm
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• If the violator has conducted the best and most prompt response possible (range
depending on effort required), reduce at least 5% but not more than 40%.
• If the violator has conducted an adequate response, make no adjustment.
• If the violator has conducted an inadequate response, increase up to 25%.
• If the violator has failed to respond, increase at least 25% but no more than
50%.
Failure by the violator to properly notify the National Response Center also should be
considered in this Step if the violator’s inadequate notification or lack of notification adversely
affected EPA’s ability to respond effectively to the discharge or to direct the cleanup. In that
case, the respondent’s mitigation efforts should be classified as inadequate or worse. A failure to
notify may be, independently, a criminal violation of Section 311 (b)(5) of the Act, which is
beyond the scope of this policy.
STEP 4: FIISTORY OF PRIOR VIOLATIONS
Adjust the amount from STEP 3 if the respondent has a relevant history of violations
within the past five years. Consider violations of spill prevention and response regulations,
discharges in violation of Section 31 l(b)(3), and any violation of an environmental statute that
relates to the respondent’s ability to prevent or mitigate a discharge in violation of Section
311 (b)(3). Related violations, for example, could include certain operation and maintenance
violations that indicate a respondent’s inattention to pollution control requirements. Relevant
violations at any other facility under common ownership or control should be considered under
this Step.
Violations include admitted violations (such as discharge monitoring reports or other
required self-reporting), adjudicated violations, findings of violations by EPA or other agencies
that have not been withdrawn or overturned by a reviewing authority, and cases that were settled
by consent and involved the payment of a penalty (whether or not liability was admitted). If
there is a history of such violations, the litigation team may increase the STEP 3 amount by up
to 100%, depending on the frequency and severity of such past violations.
C. Adjustments to Gravity
Further, since a purpose of the Audit Policy is prevention of harm to the environment, an audit-based
discovery and reporting of a concluded Section 311 discharge must lead to prevention or correction of the
uncovered problem to qualify for any civil penalty reduction. To this end, EPA may invoke other statutory
provisions that may apply, such as Sections 309(a), 309(b), (b), 311(c) or 31 1(e) of the Act, or Section 7003(a) of
RCRA, 42 U SC §6973(a), since Section 31 I(b)(3) of the Act is not directly enforceable through injunctive relief.
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1. Other Penalty for Same Incident
If the violator has already paid a penalty to a State or local government for a violation
arising out of the same incident, the Agency litigation team may use the prior penalty to offset
the statutorily available federal penalty by as much as may be appropriate, taking into account
the similarities and dissimilarities of the different laws that are being enforced.
2. Other Matters as Justice May Require
The litigation team may use this factor to adjust the proposed penalty amount if there are
other relevant factors not set forth above, other than litigation considerations, which are
discussed below. Litigation considerations should not be double counted here. The Agency
litigation team should document for the case file an explanation of the considerations that were
used in applying this factor.
3. Economic Impact of Penally on Violator
Although reliable information regarding the economic impact of the penalty on the
violator is unlikely to be available to the Agency prior to issuance or filing of the complaint, the
litigation team should take this factor into account to the degree known in establishing a
preliminary bottom line penalty amount. Absent reliable information to the contrary, the
litigation team should assume that the violator is viable, and that economic impact is minima!
and not sufficient to cause a reduction to the proposed settlement. In appropriate cases where
known economic impact would otherwise be minimal, the litigation team may increase the
penalty amount in order to ensure that there is a sufficient impact to specifically deter the violator
from future violations) 3
This factor should only be applied after analysis of copies of actual federal tax returns,
audited financial statements, or financial information of comparable reliability. If an adjustment
is made for an inability to pay, the case development team shall fully document its decision in
the case file. The litigation team should also consult the SBREFA Guidance to determine if it
may apply to this factor.
D. Economic Benefit
Violators frequently obtain an economic benefit by avoiding or delaying necessary
compliance costs, by obtaining an illegal profit, by obtaining a competitive advantage, or by a
13 The Conference Committee’s report on the Oil Pollution Act of 1990, H Rep 101-653, noted that “Civil
penalties should serve primarily as an additional incentive to eliminate human error and thereby reduce the number
and seriousness of oil spills” At 154
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combination of these or other factors. Calculate the economic benefit or savings accruing to the
violator by the noncompliance, and add that amount to the gravity figure determined above. The
recapture of economic benefit prevents a violator of environmental laws from having any
financial incentive to disregard its legal obligations. The Agency litigation team should
document in the case file how economic benefit is calculated.’ 4
Because Section 31 l(b)(3) establishes a ‘no discharge” standard for oil or CWA listed
hazardous substances in quantities that may be harmful, each person subject to this provision of
law has an obligation to make whatever investment is necessary to avoid prohibited discharges.
To estimate economic benefit in a Section 311 (b)(3) case, the litigation team should, to the extent
possible, determine the violator’s avoided prevention costs, which may include capital costs,
operation and maintenance costs, and training costs. Economic benefit is to be measured in the
moment before the Section 31 l(b)(3) violation occurred, and based solely on avoided costs that
would have been incurred prior to the discharge. There should be no offset recognized under this
factor for any economic losses the violator incurs as a result of the illegal discharge, such as the
cost of lost product, or cleanup or response costs. Cleanup and response costs - - which are
independent reasons for a violator to comply with the law - - are already recognized as potentially
mitigating factors in STEP 3.
In Section 311 (j) cases, Agency staff should fully recognize all delayed or avoided costs,
such as failure to prepare or implement an SPCC plan under 40 C.F.R. § 112.3(b), hire a certified
engineer as required by 40 C.F.R. § 112.3(d), or prepare and submit a facility response plan
pursuant to 40 C.F.R. §112.20.
E. Adjustment for Gross Negligence or Willful Misconduct
If the complaint alleges gross negligence or willful misconduct and use of the policy to
this point has led to an amount that is less than the statutory minimum, the penalty figure for the
Section 311 (b)(3) count must be revised here to the statutory minimum amount. At the time of
this writing, that is no less than $100,000 for events occurring before January 31, 1997, and no
less than $110,000 for events occurring upon or after that date, pursuant to Section 311 (b)(7)(D)
of the Act, as amended by the DCIA. This figure may be reduced by applying litigation
i4 The standard method for calculating the economic benefit resulting from a violator’s delayed or avoided
compliance is through the use of EPA’s BEN model Please refer to the “BEN User’s Manual” (Office of
Enforcement, December 1993, or any subsequent revision) for specific information on the operation of BEN In
some OPA cases, BEN may be inapplicable For example, a pipeline operator may have been able to avoid
noncompliance by operating its lines at fifty percent capacity, but instead established a risk of noncompliance by
operating its lines at a higher capacity in order to enjoy greater product throughput In this circumstance, a delayed
or avoided cost analysis would be inappropriate In such a case, it is necessary to look at the profit obtained from
the extra throughput Where the litigation team suspects that the violator is obtaining an economic benefit from an
illegal profit or other, “non-BEN” means, the team should consult any developed guidance on these subjects or, in
the absence of such guidance, consult with Headquarters for further advice
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considerations, if appropriate. Cases involving gross negligence or willful misconduct should be
pursued judicially.
F. Additional Reductions for Settlements
1. Litigation Considerations
Some enforcement cases may have legal or evidentiary weaknesses, or equitable
considerations, that make it likely that a judge or presiding officer would assess a penalty that is
less than the bottom line calculated according to the above method. In such circumstances the
bottom line penalty amount may be reduced to reflect the government legal staffs best
professional judgment as to what penalty ajudge or presiding officer might assess.
a. Appropriate and Inappropriate “Litigation Considerations”
While there is no universal list of appropriate litigation considerations, the following
factors may be appropriate in evaluating whether the penalty settlement figure exceeds the
penalty the Agency would likely obtain at trial:
1. Known problems with the reliability or admissibility of the government’s evidence
proving liability or supporting a civil penalty.
2. The credibility, reliability, and availability of witnesses. 15
3. The informed, expressed opinion of the judge assigned to the case (or person
appointed by the judge to mediate the dispute), after evaluating the merits of the
case.’ 6
4 The record of the judge assigned to the case in comparable or related cases. In
contrast, the reputation of the judge or the judge’s general demeanor, without a
specific penalty or legal statement on a similar case, is rarely sufficient as a litigation
consideration.
5. Statements by Federal, State or local regulators which the respondent credibly may
argue led it to believe it was complying with the federal law under which EPA is
seeking penalties.
s The availability of a witness can affect the settlement bottom tine if the witness cannot be produced at
tnal, it does not relate to the inconvenience or expense of producing the witness at trial
16 This factor, except as provided below with respect to the record of the judge or other trier of fact, may
not be applied in anticipation, or at the stage of initial filing, and should not be applied by taking at face value what
a judge might say simply to encourage settlement
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18
6. A mix of troublesome facts and weak legal argument such that the Agency faces a
significant risk of obtaining a negative decision of national significance.
Litigation considerations do not include:
1. The Agency s desire to minimize the resource investment in the case to ordinary or
minor expense.
2. A generalized goal to avoid litigation or to avoid potentially precedential areas of
the law.
3. A duplicative statement of elements included or assumed elsewhere in this policy,
such as inability to pay, or other factors as justice may require, or no history of prior
violations, or good faith efforts by the violator to minimize or mitigate the threatened
or actual discharge.
4. Off-the-record statements by the judge that large penalties are not appropriate before
the court has had a chance to evaluate the specific merits of the case.
5. The fact that the protected adjoining shoreline or water of the United States is already
polluted or can assimilate additional pollution.
6. The simple failure of a regulatory agency to initiate a timely enforcement action.
b. Factoring Litigation Considerations Into Penalty Calculation
The steps in the penalty calculation method set forth above correspond to the statutory
penalty factors set forth in 31 l(b)(8), which a judge or presiding officer must use in determining
the penalty amount. Whenever possible, litigation considerations should be incorporated into the
bottom line penalty calculation by identifying the statutory penalty factor or factors that they
affect, and adjusting the corresponding steps in the above calculation appropriately.
For example, if the litigation consideration is an evidentiary weakness pertaining to the
degree of culpability, that step in the calculation should be adjusted to reflect the possible
conclusions as to culpability a judge or presiding officer might reach at a hearing or trial.
Similarly, if the litigation consideration is an evidentiary weakness as to the quantity spilled, or
as to the potential environmental impact, the corresponding step in the calculation should reflect
the possible conclusions a judge or presiding officer might reach after hearing the evidence.
Some litigation considerations may relate to issues that the penalty calculation method
outlined above does not address at all, such as evidentiary or legal issues pertaining to
establishing liability, or other factors that the litigation team has reason to believe will affect the
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19
judge’s or presiding officer’s decision. In such a case it may be appropriate to adjust the overall
penalty without reference to a specific penalty factor or step in the methodology provided above.
Although this policy allows an initial estimate of litigation considerations in order to
develop a bottom-line settlement figure, reductions for litigation considerations are likely to be
most useful after the Agency obtains an informed view, through discovery and settlement
activities, of the weaknesses in its case and the presiding judge’s view of the case.
The Agency litigation team should document in the case file the rationale for any
adjustments made on account of litigation considerations.
c. Approval of Litigation Considerations
The Agency recognizes that the quantitative evaluation of litigation considerations often
reflects subjective legal opinions. Therefore, EPA Regions may reduce the preliminary penalty
amount for litigation considerations for up to one-third of the net gravity amount (i.e., gravity as
modified by the gravity adjustment factors) without Headquarters approval. Of course, such a
reduction must be fully explained and maintained in the case file.
2. Supplemental Environmental Projects
The Interim Revised EPA Supplemental Environmental Projects Policy (“the 1995 SEP
policy”) applies to administrative and judicial settlements reached under Section 31 l(b)(3) and
Section 31 1 (j) of the Clean Water Act, and it, or any successor policy, is incorporated by
reference into this policy. The 1995 SEP policy qualifies a SEP as an action “which the
defendant/respondent is not othen’vise legally required to perform.” [ Emphasis in originalJ.
In a Section 31 l(b)(3) context, this means that spill cleanup activities are not eligible for
SEP recognition, since the statutory scheme already recognizes the violator as having cleanup
responsibility. The development of an SPCC plan or installation of appropriate containment is
not eligible for SEP recognition, since each is already required by regulation. Measures taken to
prevent additional discharges in violation of Section 301(a) of the Act, 33 U.S.C. § 1311(a),
(when the government has made a concurrent unpermitted discharge claim under that provision)
may quali as a SEP if the injunctive relief is beyond the scope of equitable relief that the -
government may, after litigation, receive from a court pursuant to Section 30 1(a) of the Act.
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J tD $ 4p
____ UNITED STATES ENVIRONMEN AL PROTECTION AGENCY
WASHINGTON. t. .C. 20460
•• ,/ /cj7c;
OFFICE OF ENFORCEMENT
MEMORANDUM
To: Regional Enforcement Directors
From: Acting Deputy Assistant Administrator for
Water Enforcement
Subject: Section 311 Jurisdiction over Local, State,
and Federal Entities
In Ken Biglane’s and my joint April 23, 1975,
memorandum entitled “Spill Prevention Control and
Countermeasure (SPCC) Plan Program,” I promised to
distribute the General Counsel’s opinion as to whether
the definition of “person” in section 31]. includes
federal, state, and local entities. Attached is such
an opinion, dated April 25, 1975, from Ray NcDevitt,
Associate General Counsel, Water.
The General Counsel’s opinion concludes that all
ons iore and offshore facilities, including those owned
or operated by local, state, and federal entities, are
subject to section 311 and the SPCC Plan regulations,
40 CFR Part 112. Those Regions which are not already
doing so should ensure that all local, state, and
federal facilities are in compliance with SPCC Plan
preparation and implementation requirements.
LL ‘-“--- a
J. Brian Molloy /
Enclosure
—S
• SEP9
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___ UNITED STATES ENViRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
I L 1L
APR 2 1915
OFFICE OF
ENFORCEMENT AND GENERAL COUNSEL
MEM0B .M DUM:
TO: Acting Deputy Assistant Admln{strator
for Water Enforcement (EG—338)
FROM: Associate General Counsel, Water (EG-331)
SUBJZCT: Section 311 Jurisdiction Over Local, State,
and Federal. Entities
You have asked for a legal opinion as to the applicability of
Section 311 of the FWPCA to local, state and federal entities, in
particular, whether SPCC plan regulations (40 C.F.R. Part 112) under
Section 311(j) can be applied to local, state, and federal facilities.
It is the opinion of this office that Part 112 is applicable to such
facilities.
Section 311(j) applies to “any owner or operator of a vessel or an
onshore facility or an offshore facility or any other person subject
to regulations issued under. . .this subsection. . . .“ Both “onshore
facility” and “offshore facility” are broadly defined by Section 311(a)
(10) and (11) to include, “any facility of any kind”. In contrast,
“vessel”, as defined by Section 311(a)(3) does not include a public
vessel, which means (Section 311(a) (4)) “a vessel owned or bareboat—
chartered and operated by the United States, or by a state or politi-
cal subdivision thereof. . .except when such vessel is engaged in
cotiimerce”.
The scope of the ce m “owner or operator” depends upon the -
definition of “person”. See Section 311(a)(6). As defined in Section
3U(a)(7) “person’ includes an individual, firt, corporation, associ-
ation, and a partnership.” Eowever, Section 502(5), one of the general
definitions which apply throughout the Act “except as otherwise specifi-
cally provided”, defines person to mean “an individual, corporation,
partnership, association, State, municipality, commission, or political
subdivision of a State, or any interstate body.” Because the Section
3l1(a)(7) is inclusive and open—ended rather than restrictive, there is
no conflict between it and the Section 502(5) definition, and therefore
no reason why the latter should not apply.* The broader definition is
* Section 502(5) was added to the Act by the 1972 Amendments, while -
Section 311(a) (7) derives from the 1970 enactment.
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also consistent with the brcadth of the ect1oi 31) def n tion of
onshore and offshore facility, and with the policy expressed fr,
Section 311(b) (1) “that there should be no diccharge of oil or
hazardous substances into or upon the navi hJ. waters of the United
States, adjoining shore.line3, or into or upon thc wcterr of the.
contiguous zone.” (emphasis added).
Although the federal government is not incJ :nSed wit bin the
Section 502(5) definition of “person” there is ample reason to
believe that it too is subject to Section 311(j). The ahove-inentSon d
policy of Section 311(b) (1), the broad definit1on . of onr hore and
off shore facilities (particularly in light of the specific’ exclusion
from coverage of publicly owned vessela),** and the overal) purposes cif
the Act, and of Section 311(j) in particui.ar, el) point- to this con
clusion. In addition, Section 313 provides that federal facilities
“shall comply with Federal, State, interstate, Jd 1c’c Ll Te.qVlTernPJut :
respecting control and abatement of po11utio to tbc’ san extent that
any person is subject to such requirements. . . .“ While there is
some question as to whether a federal facility m st comply with state
or local “procedural’ requirements, there is no such question here,
since Section 311(j) is administered by the federal government itself.
Just as federal facilities are subject to fedetally—issued Secti on 1:02
permits, they should be subject to SPCC plan requirements under
Section 311(j).
The view that federal, state and local entities are subject to
Section 311(j) is bolstered by the legislative history of the
Federal Water Pollution Control Act of 1970, . 1 ere this provision
first appeared. The House bill, in the section which is now Section
311, specifically excluded from references to onshore and offshore
facilities “a facility owned or opcratcd by tiic United States, a
State, or a political subdivision of a State”. See H.R. Kept. No.
91—127 (1969) at 46, 48, 49 .*** These exelusirns were cleieted by 11w
Conference .Couimitten. Although there appear . to be no
explanation for this deletion, it is highly dr.ubtful that it resulted
from inadvertence or was without significance. Nor Is tJie e - arty i r tcil—
cation in the legislative histories of the 1970 Act ano’ the ]972
Amendments that Congress meant to exclude fedcxoi, state and local
entities from coverage by Section 311(j).
** It is clear that publicly—owned vessels, ‘s defined in Section
311(a)(4), are not subject to Section 311(j).
The House bill did not provide for spill ?revention regulations
for onshore and offshore facilities, this as added froiti the
Senate bill.
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3
It is therefore clear fron the lai’-uage, policy, and history of
Section 311 that all onshore and offshore facilities are subject to
Section 311(j) requirenents.
As I a sure you are aware, the Coast Guard has concluded that state
and local entities (unless incorporated) are not subject to Section 311.
I have attached two eooranda, one prepared by Region I staff, and one
prepared by Naren 1iche1et, a legal intern on y staff, criticizing the
Coast Guard decision. These memoranda expand upon and further explain
many of the ideas expressed in this opinion.
Ray NcDevitt
Enclosures
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r 1. ‘4 1.0 • C. . c.rrt r r f . . .-.— .
CONFiDENTIAL
February 3 1994
MEMORANDUM
SUBJECT: Legislative and Regulatory History of 40 CFR 110.8
FROM: Chuck Chappell, Gary Yoshioka, and Ann Coyle
TO: Gail Thomas and Hubert Watters
This memorandum provides the information that you requested
concerning the legislative and regulatory history of 40 CFR
110.8, “Dispersants.” The background, methodology, and results
of our work are presented below.
Ba ckg round
section 110.8 of CFR Title 40 is a part of the “Discharge of
Oil” regulation (40 CFR part 110), which is administered by the
U.S. Environmental Protection gency (EPA) under the authority of
the Federal Water Pollution Control Act (commonly known as the
Clean Water Act, or CWA). In general, 40 CFR part ].l0 defines
oil discharges that “may be harmful to the public health or
welfare,” prohibits such discharges, and requires that any such
discharges that do occur be reported to the Federal government.
The regulation does allow discharges from properly functioning
vessel engines and research-related discharges for which EPA has
issued a permit.
Under 40 CFR 110.3, one of the ways in which oil discharges
“may. be harmful” is if they “ [ c)ause a film or sheen or
discoloration on the surface if the water....” Oil discharges to
water commonly affect the water’s surface in this manner. If,
however, the oil is treated with a dispersant prior to discharge,
the oil may instead disperse below the surface in small droplets.
The 40 CPR 110.8 provision appears to address such a possibility.
It states: “Mdition of dispersants or emulsifiers to oil to be
discharged that would circumvent the provisions of this part is
prohibited.”
Methodoloqv
We obtained information on the legislative and regulatory
history of 40 CFR 110.8 by searching the Federal Register ,
related rulemaking documents (e.g., comment letters), the
legislative history of the CWA provision authorizing 40 CFR part
110, and interpretive documents (e.g., policy statements, court
opinions, legal texts). Using the information obtained, we
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r t i ‘4 £ C. t..ZH Ut I- LL UP U j11LN-L tJ’U Vr UM1
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reconstructed as much of the legislative and regulatory history
of 40 C?R 110.8 as was possible. The results of cur work are
presented below.
Results: The History of 40 CFR 110.8
Th e Authorizing Statute and its Legislative History .
Authority for 40 CFR part 110 was established by the Water
Quality Improvement Act of 1970, or WQIA (P.1.,. 91-224), a set of
amendments to the CWA signed into law on April 3, 1970. Part of
the WQIA created a new CWA section U concerning oil pollution
(the predecessor to the pre ent CWA section 311). Among other
things, section 11 prohibited discharges in “harmful quantities”
with certain exceptions, required that such discharges be
reported immediately to the Federal government, and required that
regulations “be issued as soon as possible” to determine what
quantities are “harmful quantities.”
Respor sibi1ity for issuing the new CWA regulations was
assigned to the Federal Wate. Quality Administration (FWQA), one
of EPA’s predecessors, in the U.S. Department of the Interior
(Dot). (Executive Order 11548, July 20, 1970, 35 E 3.1677,
delegated the President’s CWA regulatory authority to the
Secretary of the Interior.)
The specific issue raised by the present 40 CFR 110.8 was
not directly addressed in the statute. In addition, we found no
mention of the issue in the key documents of the statute’s
legislative history: the original House bill (H.R. 4148); the
original Senate bill (S.7); the bill agreed to by a House—Senate
conference committee (a later version of H.P. 4148); and the
committee reports for each of these bills (H. Rept. 91—127, S.
Rept. 91—:351, and Conf. Rept 91—940, respectively).
The Senate report, authored by the Senate Committee on
Public Works, does include statements that could have formed at
least part of the basis for the dispersants regulation. On page
14 of the report, the Committee notes that: “One source of
spills which is most difficult to police and of great concern to
the beach owners and users is the indiscriminate bilge pumping
and tan3c flushing at night by vessels along the coast.” Later in
the report (page 35), the Committee expresses concern about the
use of dispersants.
Dispersal of oil as a method of oil cleanup must be
evaluated on the basis of possible long-term effects.
Once oil is dispersed, there is potential for
incorporation of hydrocarbons in aquatic organisms
harvested for human consumption.
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FEB i.e ‘94 1623 EPA OFFICE OF CRIrILr4-L t ui&rt i
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The Committee did not link the page 14 and page 35
statements by discussing the use of dispersants for vessel
cleaning. Dispersants, however, were used in this manner. As
the National Research Council noted on page 21 of its 1989
report, UsJ ng Oj.1 Dis ersants on the Sea , “(b)efore about 1970,
dispersant formulations were basically degre Sing agents that
were developed to clean tanker compartments, bilges, and engine
rooms.”
flevelopment of the Pronosed Regulation . In developing the
proposed regulation to implement the new CWA provisions during
the spring and early summer of 1970, the FWQA probably considered
both the legislative history and the use of dispersants for
vessel cleaning. Taken together, these considerations may have
formed the basis for the regu Latory provision concerning
dispersants.
A likelier and perhaps additional basis for the dispersants
provision is a government-industry workshop on tank vessel
ba3.lasting and tank cleaning practices held b the FWQA in
Arlington, Virginia, on May 12. and 12, 1970. We were not be able
to obtain records of the workshop, but its occurrence is noted
and briefly described in letters from James J. Reynolds of the
American Institute of Merchant shipping to Secretary of the
Interior Walter 3. Hickel (May 28, 1970) and FWQA Commissioner
David 0. DomInick (July 22, 1970).
The FWQA published a proposed rule to implement the new CWA
provisions on July 24, 1970 (35 11908). Specifically, the
FWQA proposed to establish 18 CFR part 610, “Discharge of Oil,”
(the forerunner of today’s 40 CFR part 110), including 18 CFR
610.7, “Dilution” (the forerunner of today’s 40 CFR 110.8).
Section 610.7 stated: “Dilution or addition of dispersants or
emulsifiers to oil to be discharged which would circumvent the
provisions of this part is prohibited.”
Development of the FinalRegu].ation . On August 4, 1970, the
Subcommittee on Air and Water Pollution of the Senate Committee
on Public Works held a hearing on the July 24, 1970, proposed
rule. Senators criticized some sections of the proposal but did
not mention the proposed § 610.7. Several comments on this
provision, however, were submitted to the FWQA by members of
regulated community.
• The Mid—Continent Oil and Gas Association (August 19, 1970)
and Atlantic Richfield (August 21, 1970) suggested that
§ 610.7 be revised to allow discharges of dispersed or
emulsified oil where justified on a case-by-case bas s.
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• Enjay Chemical Company (August 19, 1970) and Texaco, Inc.
(August 20, 1970) suggested a clarification that the
appropriate use of dispersants on spills that have already
occurred is allowed.
• Kerr—McGee Corporation (August 21, 1970) urged that § 610.7
be deleted because, they contended, it contradicted
provisions that permit the use of dispersants.
• The American Petroleum Institute (API) and Humble Oil &
Refining Company (both August 21, 1970), contending that the
use of dispersants in discharged oil has legitimate S
purposes, suggested that the § 610.7 prohibition be narrowed
to cover only discharges with the intent to circumvent part
610.
• API also requested that all references to “dilution” be
deleted from the provision because, they said, such
references could be construed to prohibit the use of
dilution water in the treatment of oily wastes.
Aithogh we did not find records of any FWQA responses to
these comments, the text of the final rule shows that the only
change made to the proposed language was related to the API
comment concerning dilution. As published on September 11, 1970
(35 LR 14306), the final § 610.7 was retitled “Dispersants” and
stated: “Addition of dispersants or emulsifiers to oil to be
discharged which would circumvent the provisions of this part is
prohibited.”
Subsequent Events . The only changes that have been made to
the dispersants provision since its 1970 publication are two
renuaberings and one grammatical correction. We found no court
cases or other interpretive statements concerning the provision.
Reorganization Plan No. 3 of 1970 (3 CFR 1970, Comp. p. 199)
established the EPA on December 2, 1970. Under the terms of the
Plan, the functions of the FWQA and other agencies were
transferred to the EPA. To reflect this consolidation of agency
functions, EPA consolidated its CF Title 18 and other
regulations by republishing them in Title 40 on November 25, 1972.
(36 22369). As a part of this change, 18 CFR part 610 became
40 CFR part 13.0, and 18 CFR 610.7 became 40 CFR 3.10.7.
On November 11, 1976 (41 49810), EPA changed the
references to CWA section numbers in 40 CFR part 3.10 to conform
to the 1972 CWA amendments.
Later amendments to the CWA -- in 1977, 1978, and 1980 --
required substantive changes to 40 CFR part 110. EPA proposed
these changes on March 11, 1985 (50 9776). Although no
substantive changes to 40 CFR 110.7 were proposed, comments on
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FEB 10 ‘94 16: 4 J-1-4 tj p iLt . ijr u(Lrw’v- L J’ULfl LJ
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the provision were received. Conoco, Inc. (May 7, 1985) noted
that the provision would be unnecessary if EPA were to replace
the “sheen test” for determining whether a spill is reportable
with a “volumetric trigger.” The U.S. Coast Guard (May 9, 1985)
recommended a clarification that dispersants may be used on
discharged oil in accordance with the National Oil and Hazardous
Substances Pollution Contingency Plan.
Despite these comments, EPA made no substantive changes to
the provision in its final rule (52 10712, April 2, 1987).
The Agency, however, renumbered the provision as 40 CFR 110.8 and
changed the word “which” to “that,” thus leaving the provision in
its present form.
We hope you find this information helpful. If you have any
questions or comments regarding this memorandum, if you would
like copies of any of the documents we have cited, or if you
ou1d like us to research this issue further, please let us know.
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September 18, 1995
MEMORANDUM
SUBJECT: Meaning of “adjoining shorelines” in Section 311
FROM: David Drelich, Senior Attorney
Water Enforcement Division
Office of Regulatory Enforcement
TO: Brian Maas, Acting Director
Water Enforcement Division
Office of Regulatory Enforcement
Introduction
The Oil Pollution Act of 1990 (“OPA of 1 990”) amended Section 311 of the
Clean Water Act several years ago by increasing civil penalties according to the
volume of oil (or hazardous substance) spilled that reach a navigable water of the
United States or an adjoining shoreline. 1 In land-based spills, the majority of the
discharged pollutants often does not reach a surface water. As a result, the
preexisting phrase “adjoining shorelines” in Section 311(b)(3) has become much
more important in evaluating civil penalty liability for spills originating on land than
was true under previous law -- when civil penalties were not related to volume
discharged and, in the case of large spills, were set at much lower levels. 2
In addition, one reasonable plain meaning of Section 311 requires for liability purposes only a calculation
of how much is spilled if any amount of the spill reaches a navigable water of the United States or an adjoining
shoreline. Section 311 (b)(7) of the Act applies penalties upon a Section 311 (b)(3) violation according to total
amount ‘discharged” rather than “discharged upon an adjoining shoreline or navigable water of the United
States.”
2 Oil civil penalties were capped at a $5,000 administrative ceiling, and hazardous substance civil judicial
cases were limited to claims for $50,000. See 33 U.S.C. §1321(b)(6l [ 1988 ed.t and EPA’s MOU with the
Coast Guard on this subject, published at 44 Fed. Reg. 50785 (August 29, 1979). For purposes of this
memorandum, the greater penalties available in enforcement cases alleging gross misconduct or willful
negligence are not relevant and are not discussed. Similarly, hazardous substance penalty liability is discussed
only to the degree that it sheds light on the development of the meaning of “adjoining shorelines”
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As a result of the increased penalties available since 1 990, the adjoining
shorelines issue has become worth litigating, and therefore worth addressing in
Agency settlement and litigation policy. There is little on the record to guide EPA
deliberations: No statutory definition is provided, no regulatory definition has been
promulgated, and no public Agency policy statement has addressed the meaning of
“adjoining shorelines” in Section 31 1(b)(3). All that exists to supply meaning is the
course of federal legislation touching on this area, EPA litigation positions taken in
1 983 and 1 993, and dicta in one recent private lawsuit under the Oil Pollution Act
of 1990.
Summary
An analysis of the legislative history, Agency practices, and d 1 Lion of oil
spill legislation results in the following conclusions regarding the mean..’g of
“adjoin ng shorelines” in Section 31 1(b)(3) of the Clean Water Act, as amended:
• “Adjoining shorelines” includes land areas adjacent to both inland and
coastal waters.
• “Adjoining shorelines” applies to both land and water-based discharges of
oil or a hazardous substance, and therefore includes land areas not swept by
tides or within high water marks.
• “Adjoining shorelines” includes all land areas from which a discharge of oil
or a hazardous substance under Section 311 reached a navigable water of
the United States.
• “Adjoining shorelines’ includes all land areas from which, absent
intervention, a reportable quantity of oil or hazardous substance may
reach a navigable water of the United States.
Legislative History
Over the past thirty years, Congress has continually extended the lines of
defense against environmental harm from oil spills into water. Today, there are
three lines of defense that have been placed in Section 311 of the Clean Water
Act.
First, there is a provision intended to prevent the possible occurrence of any
spill into a water of the United States or onto “adjoining shorelines.” This is found
in Section 311(j), which requires persons in a position to spill oil into water to
prepare and implement preventive plans. Second, opportunities to control land-
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based spills from reaching navigable waters have been created through the
“adjoining shoreline” notification requirement of Section 311 (b)(5) and the removal
authority of Section 311(c). This statutory notice and opportunity to control
scheme creates a potential protective zone, so that if a spill occurs, it can be
removed from the area from which it threatens a water of the United States.
Finally, though least effectively, notification requirements and removal authority
extends to the navigable waters themselves, so that environmental harm can be
mitigated. The spill prohibition of Section 311 (b)(3) and the civil penalty
authorities of Section 311 (b)(6) and (b)(7), together with the criminal penalties set
forth in Section 309(c), make the scheme enforceable by EPA.
Although there is no legislative history directly explaining the meaning of
“adjoining shorelines,” the record set out below highlights the circumstances of its
adoption, and establishes it in the context of subsequent legislative schemes.
Early Legislation
Oil pollution was first addressed in federal legislation in 1 924, in the Oil
Pollution Act of 1924, 43 Stat. 604 (“OPA, 1924”). While the Refuse Act of 1899
prohibited pollution that could obstruct navigation, 3 in 1 922 a district court held it
did not apply to oil pollution. 4 In response, Congress passed OPA, 1924. It
governed discharges of oil from certain vessels in coastal navigable waters and,
like the Refuse Act, established violations as misdemeanors. 5 This first OPA did
not address oil pollution in inland waters, waters that were not navigable-in-fact, or
nearby land areas or coastlines.
This limited law remained in place until 1 966 when Congress amended OPA,
1 924, at the urging of the Senate.
- . . ji)t shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in
any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where
the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms
or floods, or otherwise, whereby navigation shall or may be impeded or obstructed. . . .“ 33 U.S.C. §407.
The Refuse Act and its immediate predecessors in the 1 890’s used as their model 1886 local
legislation controlling the disposal of wastes into New York Harbor.
See United States v. Standard 0 /1, 384 U.S. 224, 229 n.5 (1966).
“Except in case of emergency imperiling life or property, or unavoidable accident, collision, or stranding,
and except as otherwise permitted by regulations . . . it shall be unlawful for any person to discharge, or
suffer, or permit the discharge of oil by any method, means, or manner into or upon the coastal navigable
waters of the United States from any vessel using oil as fuel for the generation of propulsion power 33
U.S.C. §433 11964 ed.I.
The misdemeanor penalties were the same. See Section 16 of the Refuse Act, 33 U.S.C. §410 and
Section 4 of OPA, 1924, 33 U.S.C. §434 (1964 ed.J.
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The 1966 Legislation
In 1 966 the Senate passed a bill, S.2947, that represents the legislative
beginning of modern Section 311. The Senate proposed creating oil removal and
cost recovery authorities, even for land-based spills. The Senate legislation would
have made it illegal:
“for any person to discharge or permit the discharge from any boat,
vessel, shore installation, or terminal facility of oil . . . into or upon the
coastal, interstate, or navigable waters, and adjoining shorelines of the
United States.” 6
This was the first time “adjoining shorelines” appeared in federal oil spill
legislation, and it was meant to apply to certain land-based oil facilities. The
purpose of the Senate bill was to extend the reach of the 1 924 law to
“navigable and interstate, as well as coastal waters, and the adjoining
shorelines of the United States, and to extend application of the
prohibition on oil discharges from vessels to boats, shore installations
and terminal facilities.” 7
6 S.2947, §215, 89th Cong., 2d Sess., 112 cong. Rec. 24,628 (September 30, 1966).
Sen. Rep. No. 1367, 89th Cong., 2d Sess. 3, reprinted in 1966 U.S. Code Cong. & Ad. News 3969,
3970. See a/so California v. S.S. Bournemouth, 307 F.Supp. 922, 929 (C.D. Cal. 1969).
The desire to prohibit oil spills in inland waters, at terminal facilities, and onto adjoining shorelines was
expressed by Sen. Kennedy during the initial debate:
During the Ispring of 19651 oil spillage occurred in the Charles River, a river bordered by
historic and cultural landmarks. The picturesque shoreline was coated with a layer of black
sludge, all the way from Watertown to the ocean. Indeed there are waterways in our State
such as the waters of the Mystic River and the wharf areas of Boston that are continually
polluted with oil.”
11 2 Cong. Rec. 1 5,600 (July 1 3, 1 966)(remarks of Sen. Kennedy). In addition, coastal shorelines were an
object of this protective legislation. This intention was stated by the bill’s Senate manager -- a coastal state
Senator -- who described the amendments to the 1924 law as “a protection for the adjoining shorelines against
the grossly negligent spillage of oil which has deleteriously affected both the recreational values of these
shorelines and has seriously damaged coastal fisheries.” 112 Cong. Rec. 27,245 (October 1 7, 1 966)(remarks
of Sen. Muskie). The Senator had earlier put into the Congressional Record a number of newspaper articles
from his home state of Maine which decried the environmental damage being done to its coastline by various
types of pollution. 11 2 Cong. Rec. 1 5,587.94 (July 13, 1 966)(remarks of Sen. Muskie).
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Shore installations were described in the accompanying Senate report as types of
oil production and transfer facilities; 8 terminal facilities were defined in the bill as
vessel-related oil storage or transfer structures. 9
The Senate bill would also have extended removal and cost recovery
remedies against persons discharging oil “from any boat, vessel, shore installation,
or terminal facility into or upon the coastal, interstate, or navigable waters of the
United States,” requiring them to immediately remove the oil from such waters
“and adjoining shorelines” or be liable to the United States for its removal costs
and expenses in addition to spill penalties. 1 °
Only a few of the Senate’s reforms were adopted in the legislation that
passed both houses of Congress, the Clean Water Restoration Act of 1966,11
(“1966 Act”). The Senate succeeded in getting amendments to OPA, 1924. The
amendments allowed misdemeanor penalties to be applied to boats as well as
vessels, and applied in inland waters as well as coastal waters. In addition to the
criminal sanctions, persons spilling oil from boats or vessels could be required to
remove the oil not only from the water, but also from the adjoining shorelines. 12
But the Conference Committee rejected extending to land-based actors an oil
spill prohibition, removal requirements, or cost recovery liability,’ 3 and, therefore,
The report described ‘shore installations as “those facilities at which oil is a primary production factor and
which either receive oil or oil products from, or discharge oil or oil products to, boats, vessels, and terminal
facilities.” Sen. Rep. No. 1367. 89th Cong., 2d Less. 3, reprinted in U.S. Code Cong. & Ad. News, 3969,
3981.
This characterization was based on a definition that “‘shore installation’ means any building, group of
buildings, manufacturing or industrial plants, or equipment of any kind adjacent to the coastal, interstate, or
navigable waters, and adjoining shorelines of the United States, upon, within, or contiguous to which
equipment and appurtenances dealing with oil may be located, including, but not limited to, storage tanks,
pipelines, pumps, and oil trucks.” S.2947, §215, 89th Cong., 2d Sess , 112 Cong Rec. 24,628 (September
30, 1966).
“Terminal facility’ means any pier, wharf, dock, or similar structure to which a vessel may be moored or
secured, or upon, within, or contiguous to which equipment and appurtenances dealing with oil may be
located, including, but not lim ted to, storage tanks, pipelines, pumps, and oil trucks.” S.2947, §21 5, 89th
Cong., 2d Sass., 11 2 Cong. Rec. 24,628 (September 30, 1966).
‘° S.2947, §215, 89th Cong., 2d Sass., 112 Cong. Rec. 24,628 (September 30, 1 966).
Pub.L. 89.753, §211(a); 80 Stat. 1252 53.
12 Id.
13 “ [ TIhe Senate provided strengthening amendments to the Oil Pollution Act. The Senate amendments
would have extended the scope of that act to shore installations and terminal facilities and provides that boats,
vessels, shore installations, and terminal facilities depositing oil on coastal, navigable and interstate waters and
adjoining shorelines would be responsible for the removal of that oil. The legislation reported from conference
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did not in the final legislation bother to include a definition of “shore installations”
or “terminal facilities.”
The 1970 Legislation
In late 1970, following several major maritime oil spill disasters, both House
and Senate members recognized that OPA, 1 924, even as recently amended, was
inadequate for problems encountered in major oil spills. 14 As one Representative
noted,
“ [ Tihe penalties contained in the Oil Pollution Act of 1924 . . . do not
begin to cope with the threats posed by the expanding oil extraction
and transportation industry. Far larger tankers, drilling platforms
operated improperly or placed in seismically active offshore land, and
increasing commerce with increasing chance of accidents -- all call for
the reform provided by this bill.” 15
Congress repealed and replaced OPA, 1 924, with the Water Quality
Improvement Act of 197016 (“the 1970 Act”), a law that vindicated the Senate’s
position four years earlier. The 1 970 Act, the clear predecessor to present-day
limits this removal feature to boats and vessels by eliminating application of the Oil Pollution Act to shore
installations and terminal facilities. However, the Senate conferees were assured that both shore installations
and terminal facilities were subject to the enforcement provisions of the Federal Water Pollution Control Act.”
112 Cong. Rec. 27,245 (October 17, 1 966)(remarks of Sen. Muskie).
t4 By 1 970, in fact, the Refuse Act of 1 899, rejected in 1 922 as applying to oil pollution, had been
judicially revived to the point where it was being applied to enjoin shore-based facilities discharging oil, and
providing for clean-up:
“In Oceana Terminals, where the problem was oil leaching into the East River from an oil
saturated shore, the defendant was required to maintain an adequate boom and to
continuously clean the oil from the water, while at the same time he was required to repair
the underground leaks from his tanks.”
118 Cong. Rec. 10,780 (March 29, 1 972)(remarks of Cong Dingell, quoting statement by Ross Sandier,
Assistant U.S. Attorney for the Southern District of New York, January 1972.)
116 Cong. Rec. 9,333 (March 25, 1 970)(statementof Cong. Roth). Similar statements were put in the
Congressional Record during the House’s consideration of this legislation. See 11 5 Cong. Rec. 9039 (April 1 5,
1 969)(remarks of Cong. KarthW ’New legal tools have to be provided the executive department to cope with
unanticipated threats to the water resources in our environment); 115 Cong. Rec. 9291 (April 16,
1 969)(remarks of Cong. Boland)(Enforcement of OPA, 1924, “has proved so difficult to do that the Department
of Justice has prosecuted only a handful of cases. The result is that oil spills, leakage, and accidental
discharge have occurred in many widely dispersed areas almost with impunity.”); 11 5 Cong. Rec. 9025 (April
1 5, 1969) (remarks of Cong. Wright)(”The Oil Pollution Act of 1924 does not meet present day needs . . it
applies only to vessels, It does not apply to spills from fixed installations, either onshore or offshore ).
‘° See Section 108 of the Water Quality Improvement Act of 1 970 (Pub.L. 91-224); 84 Stat. 91, 11 3.
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Section 311, explicitly declared for the first time that is was “the policy of the
United States that there should be no discharges of oil into or upon the navigable
waters of the United States, adjoining shorelines, or into or upon the waters of the
contiguous zone.” 17
In support of that goal, the 1 970 Act prohibited “Etihe discharge of oil into or
upon the navigable waters of the United States, adjoining shorelines, or into or
upon the waters of the contiguous zone in harmful quantities as determined by the
President • .“ Civil penalty liability of up to $10,000 was provided in cases
of knowing discharge against “ [ amy owner or operator of any vessel, onshore
facility, or offshore facility . . . .“; criminal penalties were made applicable against
the.same persons for failure to provide immediate notification of such a spill.’ 9 It
also required the President to prepare a National Contingency Plan, and set up a
$35 million revolving fund to implement oil spill responses.
The new legislation went well beyond the 1 966 Senate proposal in
regulating land-based oil spills. “Onshore facility” was defined br adIy as “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” 2 ° -- in other words, as the House conferees noted, from all facilities “from
which oil could be discharged into the waters in question.” 21 The owners and
operators of such facilities were to be liable for removal or removal cost
recovery, 22 as well as civil penalties for “knowingly” discharging oil. 23
17 Pubi.L. 91-224, §102; 84 Stat. 91, 92.
18 1d.
‘ 9 /d.
20 Id. One Congressman further described it as applying to “pipelines, refineries, manufacturing plants of
various types and other kinds of industrial activities that use and store large quantities of oil.” 11 5 Cong. Rec.
9025 (April 1 5, 1 969)(remarks of Cong. Wright).
21 Conference Report 91-940, Statement of the Managers on the Part of the House, reprinted in U S. Code
Cong. & Ad. News, 89th Cong., 2d Sess., at 2712. (Emphasis supplied.)
22 For the first time, Congress enacted an oil removal definition. It referenced not only oil removal from
“water and shorelines” but also to mitigating
“damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife,
and public and private property, shorelines, and beaches.”
Pub.L. 91-224, § 102; 84 Stat. 91, 92. See also 115 Cong. Rec. 29, 027 (October 8, 1 969)(remarks of Sen.
Yarborough)r’ln light of the danger to the people of the coastal areas and their property, it is only right that the
expense of cleaning up oil spills be charged to the owners and operators of . . onshore facilities that
discharge this dangerous oil.”)
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This was not an easy political step. According to one Representative, the
onshore facility cost recovery scheme, which capped liability at $8 million,
“was a particularly difficult and in some respects a very delicate
determination. . . . The committee is conscious of the fact that when
we begin to apply a liability upon onshore facilities that may spill
various pollutants into waters of the United States, then we apply that
liability against almost countless numbers of large and small
enterprises that exist on the banks of the small streams that flow into
the navigable waters of the United States.” 24
From the point of view of the owners and operators of onshore facilities, an
entirely new regulatory system had been imposed. The 1970 law extended the oil
spill removal system to land-based dischargers, and provided a government cost
reco ry remedy for spills from onshore facilities. For the first time, federal law
created civil penalty liability against any person responsible for a harmful, land-
based oil spill “into or upon the navigable waters of the United States [ or] adjoining
shorelines.” 25
The 1972 Legislation
When Congress passed the Federal Water Pollution Control Act Amendments
of 1972, it proclaimed in Section 101(a) its general environmental goals to be “to
restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters,” and the first enumerated goal was “that the discharge of pollutants into
the navigable waters be eliminated by 1985.” The 1970 policy declaration against
oil spills was maintained in Section 311 (b)(2) of the new law.
Congress took a new direction to protect navigable waters from oil spills by
directing the creation of an onshore oil spill prevention program. The 1972 law
required the Executive Branch to
“issue regulations . . . establishing procedures, methods, and
equipment and other requirements for equipment to prevent
discharges of oil . . . from onshore facilities . . . , and to
23 Pub.L. 91-224, §102; 84 Stat. 91, 92-95.
24 11 5 Cong. Rec. 9,025 (April 1 5, 1 969)(remarks of Cong. Wright). See a/so 115 Cong. Rec. 9,020,
9,021 (April 1 5, 1 969)(remarks of Cong. Cramer).
25 Pub.L. 91-224, §102; 84 Stat. 91, 92.
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contain such discharges • “26
In response, EPA promulgated in December 1 97327 the Spill Prevention
Control and Countermeasure (SPCC) regulations governing, subject to certain
capacity thresholds,
“owners or operators of non-transportation-related onshore
facilities 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 expected to
discharge oil in harmful quantities, as defined in part 110 of this
chapter, 28 into or upon the navigable waters of the United States or
adjoining shorelines.” 29
Congress so added a hazardous substance spill prohibition to Section
311(b)(3) in 1972, giving rise to removal remedies against dischargers of those
substances. But, despite using the identical spill prohibition, Congress adopted a
different civil penalty regime for hazardous substances than for oil spills -- using a
volumetric approach and limiting civil penalty liability for hazardous substance spills
only to spills directly into navigable waters. 3 ° This limitation remained in place
26 Pub.L. 92-500, 52; 86 Stat. 816, 868 [ codified as Section 311 (j)(1 )(C) of the Federal Water Pollution
Control Act Amendments of 1972,33 U.S.C. S1321(jH1HC [ 19--ed. )l.
27 See 38 Fed. Reg. 34,165 (December11, 1973).
28 According to 40 CFR Si 10.3 fl 994):
“For purposes of section 311(b) 01 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 welfare 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.”
29 40CFR 5112.1 (b) [ 1994).
30 The report accompanying the Senate bill that first proposed establishing penalties for hazardous
substance spills explained that
“many hazardous substances cannot be cleaned-up by standard methods because they
immediately dissolve in the receiving waters. These substances, the discharge of which may
cause environmental disaster, could not be subject to any meaningful clean-up liability. . .
The Committee believes that the discharge of such substances should be subject to penalty
even though clean up is not practicable. - . . ITihe penalty would be strictly limited to those
substances actually released into the water.”
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until 1978, when hazardous substance spill liability was extended to discharges
onto adjoining shorelines. 31
The Oil Pollution Act of 1990
Prompted by more oil spill disasters, especially by the coastal Exxon Va/dez
spill, Congress passed the Oil Pollution Act of 1 990.32 It effected numerous
changes in federal law, including amendments to Section 311 of the Clean Water
Act. None of the changes affected the meaning of “adjoining shoreline” in Section
311(b)(3), 33 although the phrase became more important by the adoption of a
volumetric civil penalty spill liability scheme.
Although Congressional debate was dominated by threats posed to navigable
waters from major vessel spills, legislative attention was also generally on spill
response authorities and abilities:
“Each year over ten thousand oil spills are reported, which either
pollute or threaten to pollute United States waters. Although the
majority of these spills are minor and are routinely removed, or require
no removal, questions remained whether the current system of Federal
and state laws could provide an adequate response to a major
spill.
Building on the 1972 law, Congress in 1990 required the preparation and
submittal of a worst-case oil (or hazardous substance) onshore facility spill
response plan if the facility,
S.Rep. No. 92-414, 92d Cong., 1st Sess. 66-67 (1971),reprintedin 2 A Legislative History of the Water
Poljution Control Act Amendments of 1972, at 1484-85(1 973). The water-only limitation was expressed in
statutory terms by limiting penalty liability to the discharge of a designated hazardous substance “determined
not subject to removal.” S.2770, 31 1(b)(2)(B), 92d Cong., 1St Sess., enacted as Section 31 1(bH2XB) of the
Federal Water Pollution Control Act Amendments of 1 972, 33 U.S.C. § 1 321 (b)(2) (B)I1 972 ed.J.
‘ Pub.L. 95-576. This was part of a legislative agreement growing out of the decision in Manufacturing
Chemists Association v. Costle, 455 F.Supp. 968 IW.D. La. 1979), which had invalidated EPA’s hazardous
substance regulatory scheme. See 124 Cong. Rec. 37,680-83 (October 14, 1 978)(remarks of Sen. Stafford).
3233 U.S.C. 270t-2761 , 104 Stat. 484.
“ ‘The body of law already established under section 311 of the Clean Water Act is the foundation of the
reported bill.” Sen. Rep. 101-94, 101st Cong., 1st Sess. 4 (July 28, 1989Uto accompany S. 686).
H.R. Rep. 101-242, Part 1, lOlstcong., 1st Sess. 28 (September 18, 1989)(accompanying H.R. 1465)
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“because of its location, could reasonably be expected to cause
substantial harm to the environment by discharging into or on the
navigable waters [ or] adjoining shorelines • •
If the facility also could cause “significant and substantial harm to the
environment” by such a discharge, the plan must also be approved by the
Executive Branch. 36
The OPA of 1990 created a $1 billion spill fund, expanded spill prevention
requirements, improved removal authority and response remedies, and greatly
increased penalty liabilities.
Existing Law and Interpretations
Current law pertaining to the discharge of oil into or upon “adjoining
shorelines” is expressed in two key provisions of Section 311 of the Clean Water
Act, as amended. The first is found in Section 311 (b)(3) of that Act:
“The discharge of oil or hazardous substances . . . into or upon the
navigable waters of the United States, adjoining shorelines, or into or
upon the contiguous zone . . . in such quantities as may be harmful
[ under §311 (b)(4)] is prohibited . . .
The geographic prohibition in this provision has not changed since its enactment in
the Water Quality Improvement Act of 1 970, although the triggering “quantity”
was effectively lowered by 1978 amendments. The second provision is set forth in
Section 311 (b)(7):
“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 [ 31 1(b)(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.” 38
Section 311 (J)(5)(B) of the Clean Water Act, as amended, 33 U.S.C. 1 321 (j)(5)(B). [ Emphasis supphed.I
Section 311 (jX5HD) of the Clean Water Act, as amended, 33 U.S c. § 1321 (J)(5)(D).
“Section 31 1(b)(3) of the Act, 33 U.S.C. §1321(b)(3) [ Emphasis supplied.]
38 Section 31 1(b)(7HAI of the Act. 33 U.S.C. §1321(b)(7)(A).
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This volumetric judicial civil penalty regime was established by the Oil Pollution Act
of 1990.
The existing statutory language cited immediately above provides little
guidance on the meaning of “adjoining shorelines.” As a result of changes to
Section 311 by the OPA of 1 990, the lack of a controlling definition has become
significant in oil or hazardous substance spill violation cases, since the scale of
applicable civil penalties will often rely on the meaning of “adjoining shorelines.”
Many years before 1 990, drawing upon analogous case law and the purpose
of the Clean Water Act, EPA’s enforcement office interpreted the phrase to mean
“that area of land from which any portion of a reportable quantity of oil or
hazardous substance is likely to reach adjacent navigable waters.” 39 In
particular, this interpretation relied upon understanding “adjoining shorelines” to be
“potential ‘conduits’ for oil or hazardous substances deposited on shore,” similar to
the tributary analysis undertaken under Section 301 (a) in Ash/and 01/ and
Transportation Corp., 504 F.2d 1317, 1381 (6th Cir 1974). ° This definition
was used by the Department of Justice in 1 993 ne tiations in the first OPA of
1990 judicial oil spill enforcement cases.
Since then, in connection with the review of CWA reauthorization efforts in
Congress, EPA, DOJ, and Coast Guard Headquarters staff agreed on the following
working definition of “adjoining shoreline”:
“Adjoining shoreline’ is that area of land from which, absent
intervention, a reportable quantity of oil or hazardous substance may
reach a navigable water of the United States.”
More recently, however, a federal district court in a private OPA case
addressed this question, adverting in dicta that
“It is clear at the outset that no threat was posed to “shorelines”
as defined by the Act. Although the term “shoreline” is not defined in
the Act, its meaning is obvious, and the court takes judicial notice of
“ Letter from Louise Jacobs, Associate Enforcement Counsel for Water, OECM, to Lloyd Guerci, Assistant
Chief, Environmental Enforcement Section, Department of Justice (February 22, 1 983).
40 Id. at 4. (“It would, of course, make a mockery of [ Congress’ interstate commerce powersi if its
authority to control pollution was limited to the bed of the navigable stream itself. The tributaries which join to
form the river could then be used as open sewers as far as federal regulation was concerned. The navigable
part of the river could become a mere conduit for upstream waste.” 504 F.2d at 1326.)
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the fact that Adams County, Pennsylvania, is not adjacent to any
shore or shoreline. The parties make no argument to the contrary.” 4 ’
The court, not briefed on this issue, did not analyze the meaning of “adjoining
shorelines” in the context of its actual legislative history. The court did not appear
to be aware that the use of “adjoining shorelines” originated not in the Oil Pollution
Act of 1 990, but in federal oil spill legislation of 1 966 and 1 970. The more recent
OPA legislation it relied upon did not, in fact, address the phrase, or use of the
phrase “adjoining shore’ines.”
Analysis
Although there is no statutory definition or legislative history directly
discussing the meaning of the phrase “adjoining shorelines,” th circumstances of
its 1 966 adoption and its integration into later oil spill laws esta lish its meaning.
The language was added to federal oil spill legislation in 1 966 in a Senate bill
that contributed to the Clean Water Restoration Act of 1 966. The Senate
proposed a spill prohibition, an oil removal requirement, and a cost recovery liability
not only as to spills from boats and vessels, but also as to spills from a relatively
limited class of land-based oil transfer facilities. Although this effort was turned
back by the House in the Conference Committee, the Senate conferees succeeded
in extending OPA, 1 924, to boats, to water-based spills on inland waters, and to
“adjoining shorelines” for purposes of oil removal and cost recovery in such water-
based spills. More significantly, it created the starting point for more widescale
reforms adopted in 1970 by both houses of Congress that covered all land-based
oil spillers into coastal or inland navigable waters or upon their adjoining shorelines.
• The first threshold that arises in any consideration of “adjoining
shorelines” is whether the phrase applies only to coastal land areas, or to both
coastal and inland land areas. 42 The Sun Pipe Line court implied in dicta,
‘ Sun Pipe Line Co. v. Conewago Contis., Inc., 1994 U.S. Dist. LEXIS 14070 (M.D.Pa., August 22. 1994),
at ‘5. The court bolstered this reasoning by correctly noting that “Concern about the integrity of the nation’s
shorelines and coastal waters and about the catastrophic and far-reaching consequences of oil spills led
Congress to pass the OPA to prevent such disasters and to hold the parties involved accountable for the harm
caused by their conduct - . . .“, Id. at ‘18, and that “remarks made by members of Congress urging passage
of House Bill 1465 almost universally referenced the importance of protecting coastal waters and shorelines
from oil spills. Such remarks strongly indicate that the protection of such areas was the Act’s foremost goal.”
id. at ‘27.
42 There has been a suggestion that, for settlement purposes, only oil actually reaching a navigable water
be considered. This option would effectively nullify the “adjoining shorelines” phrase in Section 31 1(b)13) as it
relates to spill penalty cases. It is inconsistent, also, with the legislative history of Section 311, as discussed
throughout this memorandum, and a particularly inappropriate statutory application in light of the differing
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incorrectly, that shorelines could only be coastal. The history of S.2947 in 1 966,
together with the legislative history of the Water Quality Improvement Act of
1 970, prove that Congress intended “adjoining shorelines” to refer to land areas
adjacent to both coastal and inland waters. See pp. 3-8 supra. Debate on the Oil
Pollution Act of 1 990, which did dwell on coastal impacts, did not result in any
changes to the enforceability of Section 311 (b)(3) of the Clean Water Act.
• The second issue that arises is whether “adjoining shorelines” only
describes land areas reachable by waterborne oil. This was a fair reading of federal
law from 1 966 until 1 970, under the literal terms of the 1 966 Act, but it has not
been the case for the past twenty five years. The Senate’s impetus in including
“adjoining shorelines” in S.2947 clearly was to cover land-based oil spills from
certain oil-handling facilities located further inland than riverbanks or high water
marks. The Senate would have regulated “shore installations,” defined in relevant
part as certain equipment “adjacent to the . . . adjoining shoreilnes of the 1. ,ited
States . . . contiguous to which equipment and appurtenances dealing with oil may
be located . . . In 1970, this approach was embraced by both houses of
Congress, and expanded to all land-based sources.
Additionally, the better reading of the statute dictates that “adjoining
shorelines” in the post-OPA Section 311 refers to areas beyond the reach of
waterborne oil spills. Under Section 311 (b)(3) and (b)(7) volumetric civil penalty
liability is perfected in any water-based spill the instant the oil hits the water; there
is no purpose served to penalize oil discharges onto “adjoining shorelines” -- within
or without a high water mark -- unless a penalizable spill could also have originated
on land. If “adjoining shorelines” is read to refer only to water-based events, it
would become meaningless in a civil penalty spill case. Since a statute “should be
construed so that effect is given to all its provisions so that no part will be
inoperative or superfluous,”” this “riverbank” interpretation should not be
followed.
• The third issue presented is whether a land-based spill that distributes oil
on both land and a navigable water of the United States should, therefore, be
considered to have been discharged entirely upon an adjoining shoreline and
navigable waters. The key point for this inquiry is whether Congress intended to
regulate land-based spills that reach navigable waters.
Congressional treatment of hazardous substance liability in 1972, when only spiiis directly into navigable
waters were penalizable, even though the hazardous substance spill prohibition also applied to adjoinfng
shorelines. - See pp. 9-10.
See n.8, supra. (Emphasis supplued.I
“Sutherland Stat. Const. §46.06 IN. Singer 5th ed. 1992).
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The answer appears to be yes. In 1 970 Congress adopted the present broad
definition of “onshore facility”: “ [ Amy facility (including, but not limited to, motor
vehicles or rolling stock) of any kind located in, on, or under, any land within the
United States other than submerged land.” 45 If any source was left out of that
definition, it is not readily apparent. Congressional drafters noted that this
definition reached any facility “from which oil could be discharged into the waters
in question.” 46
By its 1970 Act, Congress extended the spill prohibition, federal removal
requirements and cost recovery liabilities; these provisions were now directed at
both onshore and offshore facilities, not merely vessels and boats. It established
civil penalty authority and notification requirements. By extending and creating
these provisions in this way, the 1 970 Act affected all sources, including all land-
based facilities, whose oil spills could reach water. 47
S The final question is whether a land-based spill that threatens, but does
not enter, a navigable water of the United States, has occurred on an “adjoining
shoreline.” This depenas -- for spill penalty purposes -- on whether there is a
preventive purpose served by the term “adjoining shoreline.”
An examination of the legislative evolution of Section 311 of the Clean
Water Act, as amended, reveals enactment of an increasingly preventive series of
statutes. In the beginning, S.2947 in 1966, the Senate applied the idea of
adjoining shorelines to misdemeanor fines, removal requirements, and simple cost
recovery remedies against a limited class of “shore installations” and “terminal
facilities.” Penalties deter, whether criminal or civil; the Senate’s extension of
penalty liability to certain onshore spillers was preventive. In a water pollution
control law, removal from water and simple cost recovery are remedial, while
removal from nearby land is preventive. Even these first steps were rejected in the
1 966 Act, which had no onshore application, other than riverbank removal
authority for water-based spills.
Section 311(afllO)of the Act, 33 U.S.C. §1321(a)(1O).
46 See n,21, supra. The original Senate bill that contributed to the 1970 law, S.7, had excluded from the
“onshore facility” definition “any facility, other than a marine facility, used or capable of being sued to store
five hundred barrels of oil or less.” S.7, § 1 2(a)(1 1), 11 5 Cong. Rec. 28,948 (October 7, 1969). This
exclusion was not part of the final legislation. A size threshold for onshore oil-handling facilities, however,
does exist today in the SPCC and facility response regulations. See 40 CFR § § 11 2.1 (d)(2) and
11 2.20(f}(1 1(1994].
‘ Given the stated goals of water pollution legislation to protect surface waters, the 1 970 provisions aimed
at avoiding water pollution from land sources are more self-evident than the 1 966 provisions protecting
riverbanks from waterborne oil spills. But as the debate cited at pp. 7-8 indicates, the reasons why “adjoining
shorelines” were protected from land-based sources four years after water-based sources were regulated were
more political than logical.
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But in 1 970, the Water Quality Improvement Act adopted a no-discharge
goal for oil in navigable waters or upon adjoining shorelines. It explicitly regulated
broadly defined “onshore facilities,” and established over them civil penalties and
onshore removal authorities. As one Congressman noted,
“ [ T]his is a particularly important piece of water pollution control
legislation for several reasons, one of which is that it sets up
preventive measures as well as remedial ones. The oil pollution
control section establishes the machinery for reducing or eliminating
the pollution of our rivers, harbors, and lakes by oil and other
dangerous substances; but it also establishes the procedures for
preventing pollution from major spills of oil and matter through a rapid
clean-up process.” 48
Preventive measures were strengthened with the passage of the 1 972
Federal Water Pollution Control Act Amendments, which for the first time
employed a strict liability civil pena’ty scheme, and required the Executive Branch
to promulgate spill prevention regulations for onshore (and offshore) facilities. In
1 973, EPA issued its SPCC regulations. These regulations apply to onshore, non-
transportation-related oil facilities that, “due to their location, could reasonably be
expected to discharge oil in harmful quantities . . . into or upon the navigable
waters of the United States or adjoining shorelines.” 49
With the passage of the Oil Pollution Act of 1990, civil penalty liability for
spills was dramatically increased, certain cost recovery remedies were trebled
(changing their nature from remedial to preventive), and onshore facilities posing
the greatest spill risks were required to create facility response plans to combat
worst case spills. Of those, the riskiest required federal approval as a condition of
operation.
48115 Cong. Rec. 9,291 (April 16, 1969)(remarksof Cong. Kluczynski).
40 CFR §112.1 (b)(1 994]. For purposes of Section 311 (j)(1)(B) and its implementing SPCC regulations,
“adjoining shorelines” are themselves to be protected from the harm of an oil or hazardous substance
discharge without relying upon the threat of harm the adjoining shorelines may pose to a navigable water of
the United States. See, e.g., remarks of Sen. Yarborough cited in n.22 supra, and Sen. Leiberman’s statement
on page 1 7 infra.
The distinction between the Section 311 penalty liability and the Section 311 prevention and response
program liabilities is highlighted in the language of the present oil and hazardous substance spill law. Civil or
criminal spill penalties — even removal order violation penalties -- may be invoked only if there is a violation of
Section 311 (b)(3), requiring, among other things, the discharge of a reportable quantity of oil or a hazardous
substance upon a navigable water or adjoining shoreline. These thresholds are not required for the issuance of
a removal order under Section 311(c). Section 311(c) authority may be used to prevent the substantial threat
of a discharge of oil or hazardous substance, even if there is no reportable quantity. in addition, such “non-
reportable” discharges can result in liability for cost recovery and natural resource damage claims pursuant to
Section 1002(a) and (b) of OPA of 1990.
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As the report to the Senate CPA bill noted, “preventing oil spills is more
important than containing and cleaning them up quickly.” 5 ° A House report
stated, “The first line of defense in any oil spill response program must be
prevention of a spill in the first instance.” 51 One Senator personally involved in
increasing spill penalties under amendments to Section 311 noted,
“The strong civil and crimina’ penalty provisions of this bill are
designed to ensure that companies will act in a manner which protects
our fragile environment . . . . [ T]he most effective way to ensure that
companies act in a manner which will prevent the spill in the first
place is to spell out the consequences of their failure to do so.” 52
In some areas of the law, particularly the facility response program under Section
31 1(j)(5) and the emergency response authority of Section 31 1(e , present law
protects not only navigable water and adjoining shorelines but, more generally, the
environment. 53
As a result of these cumulative actions, Section 311 of the Clean Water Act,
as amended, is today predominantly preventive. It would be a statute aimed at
preventing oil spills directly into water even if the phrase “adjoining shorelines”
50 Sen. Rep. 101-94, 101st Cong., 1st Sess. 3 (July 28, l989Haccompanying S.686).
HR. Rep. 101 -241,Part 1, 101st Cong.. 1st Sess. 30 (September 13, 1989)(accompanying H.R. 3027).
52 136 Cong. Rec. 11 ,545 (August 2, 1 990)(remarks of Sen. Lieberman).
“ Section 311(e) of the Act authorizes administrative orders or judicial Injunctive relief
“ [ Wihen 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 nonliving natural resources under the
lurisdiction or control of the United States, because of an actual or
threatened discharge of oil o a hazardous substance from a vessel or facility
in violation of [ Section 31 1(b)(3))
Section 31 1(j)(5)(BUiii) authorizes regulation of
“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 shoreline, or the exclusive economic
zone.”
Regulation under this provision is triggered by an expectation of potential harm to adjoining shorelines
alone.
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were missing from Section 311 (b)(3). 54 With the phrase, however, Section 311
also guards against the threat of oil spills into water. Land-based oil spills, if they
are in position to reach water, represent just the kind of threat that Congress has
addressed in its ongoing oil pollution control legislation. 55
Recommendation
For purposes of spill penalty cases, EPA should adopt as guidance this
version of the working definition of “adjoining shorelines” developed in 1 994 by
Agency and Coast Guard staff:
“Adjoining shorelines’ are those areas of land from which, absent
intervention, a reportable quantity of oil or hazardous substance may
reach a navigable water of the United States.
This formulation is consistent with the language, history, and purposes of
Section 311 and the Oil Pollution Act of 1 990 by emphasizing the threat of harm to
waters of the United States. 56 Its threshold -- the possibility of harmfulness to
Compare case iaw under Section 301 (a) of the Act. See, e.g., cases cited in Sun Pipe Line:
“Quivira Mining Co. v. United States E.P.A., 765 F.2d 126, 1 30 (10th Cir. 1985), cert.
denied, 474 U.S. 1055,88 L. Ed. 2d 769, 106 S. Ct. 791 (1986) (non-navigable creeks and
‘arroyos’ affect interstate commerce because during times of ‘intense rainfall’ there could be
a surface connection between these waterways and navigable streams) . . . ; United States v.
Ash/and Oil end Transportation Co., 504 F.2d 1317, 1329 (6th Cir. 1974) (Act
constitutionally applies to discharge of oil into non-navigable tributary three waterways
removed from navigable river); Residents against Industrial Landfill Expansion v. Diversified
Systems, Inc., 804 F. Supp. 1036 (E.D.Tenn. 1 992) (Tributary of creeks can be considered
navigable waters under the Clean Water Act.); and United States v. Phelps Dodge Corp., 391
F. Supp. 1181, 1187 (D.Ariz. 1975) (Under the Clean Water Act, ‘navigable waters’ includes
‘any waterway within the United States also including normally dry arroyos through which
water may flow, where such water will ultimately end up in public waters such as a river or
stream, tributary to a river or stream, lake, reservoir, bay, gulf, sea or ocean either within or
adjacent to the United States.’)”
Sun Pipe Line at ‘13-14.
See, e.g., Section 311 (j)(1 )(C) of the Clean Water Act, as amended (SPCC program); Section 311 (j)(5)(B)
and (D), as amended (facility response plans); Section 1002 of the Oil Pollution Act of 1990, 33 U.S.C. §2702
(removal cost and natural resource damage liability). Each of these provisions is keyed to oil spills, intei a/ia,
upon “adjoining shorelines.”
56 This definition is less extensive than the protections afforded land alone by Section 311(j) regulations and
the Oil Pollution Act of 1990. See, e.g., 40 CFR §112.3. In addition, Section 311(c) removal orders do not
require finding a reportable quantity threshold to invoke cost recovery and natural resource damage liabilities.
See n 49 supra. For these provisions, the definition of “adjoining shorelines” recommended in the text for
penalty purposes is too narrow. However, specifically defining “adjoining shorelines” for other purposes is
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navigable waters of the United States -- is determined by use of a reportable
quantity minimum. By its intervention clause, it conforms closely to the spill
prevention programs EPA has implemented under Section 31 1(j) of the Clean Water
Act. The definition is consistent with the positions that EPA has taken in cases
negotiated in 1983 and 1993. Finally, its adoption will help deter oil and
hazardous substance spills through prompting a higher standard of care among oil
and hazardous substance onshore facility owners and operators.
Effect of Recommendation
Section 311 of the Clean Water Act prohibits spills that reach, or threaten to
reach, waters of the United States. Any land area from which a specific oil or
hazardous substance spill may enter a waterway is a possible conduit for oil or
hazardous substance pollution. Illegally discharging dangerous and motile material
and thereby threatening a navigable water is conduct worthy of a civil penalty.
Under this recommended definition, any land-based spill that reaches a water
of the United States in a reportable quantity clearly involves adjoining shoreline for
all oil or hazardous substance discharged on the land. That fact pattern goes
beyond threatening harm to a water of the United States -- it describes harm.
Two other fact patterns, however, require a case-by-case evaluation. First,
a land-based discharge which is actively intercepted before reaching a water of the
United States should be considered to have been on an adjoining shoreline if the
interception more likely than not prevented the entry of a reportable quantity of oil
or hazardous substance into the surface water. If, however, there were a
completely successful passive interception such as by an effective, pre-existlng
SPCC-required containment area, the spill would not be considered to occur on an
adjoining shoreline.
Second, if a land-based discharge does not immediately reach a water of the
United States, Agency personnel will have to determine whether there is any
ongoing likelihood that oil or hazardous substances remaining on the land will reach
a water of the United States in a reportable quantity. This will depend upon a
evaluation of the amount of material discharged, the hydrology of the area
(including slope and saturation of the land), the distance to the water of the United
States, weather conditions, and any other relevant physical factors. For penalty
negotiation purposes, uncertainties relating to these questions are valid litigation
considerations.
beyond the scope of this memorandum.
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Under this recommended approach, a liability determination is not dependent
simply on distance from a waterway. It is possible, under this definition, that a
small spill on a particular site will be deemed not in violation of Section 311, while
a large spill on the same site would be a violation. Or, a first spill would not result
in a violation, but later spills on a more oil-saturated surface could be penalizable.
Other factors, such as oil viscosity, type of hazardous substance, or weather, can
have similar effects on the analysis of risk posed to a nearby water of the United
States.
Finally, the effect of this definition extends only to the issue of penalty
liability, not penalty assessment. Appropriate penalty factors will be, in settlement
matters, determined by any Section 311 specific penalty policy. In litigation, spill
penalties will be determined by a neutral decisionmaker according to the penalty
rules set forth in Section 311 (b)(8) of the Act. 57
“In determining the amount of a civil penalty under ISection 311 (b)(6) and (b)(7)I, the Administrator
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.” 33 U.S.C. § 1 321 (bX8).
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From: CHRISTOPHER ZEMAN
To: kenney-robert
Date: 5/14/97 11:11am
Subject: sec 311(e) (1) (A) and sec 311(e) (2) memo
Chris Zeman
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FROM: Christopher Zeman, Law Clerk
TO: Bob Kenney
RE: Legal Memorandum on CWA section 31 1(e)(1) and section 31 1(e)(2)
Introduction
The Oil Pollution Act of 19901 (“OPA”) amended section 311 of the Clean Water Act by,
among other things, rewriting the imminent and substantial endangerment provision of section
311(e) of the Act. Section 311(e)(1)(A) was added to the section to require the Attorney General
to secure any relief from any person, including the owner and operator of a vessel or facility, as
may be necessary to abate such threat. Section 311 (e)(2) provides the district courts of the
United States jurisdiction to grant any relief, including the issuance of administrative orders,
under this subsection that the public interest and the equities of the case may require. 2 This
document will interpret these provisions in light of the legislative history of the OPA and
subsequent case law.
Legislative history is lacking for both sections 31 1(e)(1)(A) and 31 l(e)(2). The general
purpose of the OPA amendments to the Clean Water Act section 311 was to strengthen federal
response authorities in oil spill scenarios, noting the detrimental effects on the environment in
delaying such cleanup. The purpose of amending section 311(e) was to “clarify and expand the
authority of the President to take action in the case of imminent and substantial threat to the
public health or welfare of the United States because of an actual or threatened discharge of oil or
a hazardous substance.”
Case law directly dealing with these provisions is also lacking, with one case found
Pub. L. 101-380, 104 Stat. 484 (1990).
2 This statuatory provision is codified at 33 U.S.C. Sec. 132 1(e).
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dealing specifically with these provisions. The case is United States v. V-i Oil 3 . This lack of
case law is likely a result of pnor interpretation of similarly worded imminent and substantial
endangerment provisions in other environmental statutes, providing very broad interpretations of
authority strongly in favor of the EPA. It is interesting to note that the amended wording of
section 311(e) is very similar to CERCLA 106(a) and likely shows the influence of nearly a
decade of CERCLA litigation.
Section 311(e)(1)(A )
The OPA amendment to section 311 (e)(1 )(A) amended the previous wording of section
311(e) 4 of the Clean Water Act to require the Attorney General to secure relief rather than the
United States attorney of the district in which the threat occurs. 5 Further, section 311(e)(1)(A)
allows the Attorney General to secure such relief from any person including the owner and
operator of the vessel or facility. Previously, section 311(e) failed to specifically state the liable
party that can be recovered from, but only stated that the District Attorney can secure “such relief
as may be necessary” in the event of the actual or threatened discharge of oil or hazardous
Civil No. 96-0454-E-BLW, (D. Idaho December 20, 1996)
The previous text of section 311(e) is as follows:
In addition to any other action taken by a State or local government, when
the President determines there is an imminent and substantial threat to the public
health or welfare of the United States, including, but not limited to, fish, shellfish,
and wildlife and public and private property, shorelines, and beaches within the
United States, because of an actual or threatened discharge of oil or hazardous
substances into or upon the navigable waters of the United States from an onshore
or offshore facility, the President may require the United States attorney of the
district in which the threat occurs to secure such relief as may be necessary to
abate such threat, and the district courts of the United States shall have such
jurisdiction to grant such relief as the public interest and the equities of the case
may require. 42 U.S.C. Sec. 1321(e).
Sec. 42 U.S.C. Sec. 4306 (1990). Section 31 1(e)(1)(A) now reads as:
(A) require the Attorney General to secure any relief from any person,
including the owner and operator of the vessel or facility, as may be
necessary to abate such endangerment.
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substance from an onshore or offshore facility. Section 311 (e)(1 )(A) clearly specifies the liable
party as “any person, including the owner or operator of the vessel or facility. 6 Terms such as
“owner or operator”, “person”, “vessel”, “onshore and offshore facility” are defined very broadly
in CWA section 311(a). 7
Legislative History
Legislative history interpreting this provision is lacking. The general purpose of the OPA
amendments to the Clean Water Act section 311 was to strengthen federal response authorities in
oil spill scenarios, noting the detrimental effects on the environment in delaying such cleanup. 8
The purpose of amending section 311(e) was to “clarify and expand the authority of the President
to take action in the case of imminent and substantial threat to the public health or welfare of the
United States because of an actual or threatened discharge of oil or a hazardous substance.” 9
Two major criticisms of the handling of the 1989 Valdez oil spill, and of other spill cleanup
efforts occuring at the same time, have been the unclear federal removal authority under the
Clean Water Act and the slowness and weakness of federal response to inadequate private
removal efforts .’°
Delegation o Authority
In 1991, the President delegated most of his new responsibilities under the OPA to the
EPA and the Coast Guard. Executive Order 12777 section 6(b) delegates section 311(e)
6 33 U.S.C. Sec. 1321.
‘ , 33 U.S.C. Sec. 1321(a).
S. Rep. No. 94, lOith Cong., 1st Session, at 15(1989) (“The disaster caused by the
nation’s largest oil spill in Prince William Sound was exacerbated greatly by an unreasonably
slow, confused and inadequate response by industry and government that failed miserably in
containing the spill and preventing the damage.”)
H. R. Rep. No. 653, lOith Cong., 1st Sess. at 155 (1990) (reprinted in the Oil Pollution
Handbook , Envt’l L. Rep. at 104).
‘° S. Rep. No. 94, lOith Cong., 1st Sess. at 2 (1989) (reprinted in the Oil Pollution
Handbook , Envt’l L. Rep. at 247).
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functions to the Administrator for the inland zone and to the Coast Guard for the coastal zone, as
defined by the National Contingency Plan (NCP))’ Specifically, these function are: (1)
determinations of imminent and substantial threat; (2) requests to the Attorney General to secure
judicial relief; (3) and other action including issuing administrative orders) 2 EPA delegation 2-
85 governs the delegation of authority within the Agency to issue a section 311(e) order. This
delegation provides that the Regional Administrator may issue such an order, and that this
authority may be redelegated to the division director level. Delegation 2-85 also delegates the
authority to issue orders in multi-regional or nationally significant cases to the Assistant
Administrator (“AA”) for Solid Waste and Emergency Response and the AA for Enforcement
and Compliance Assurance, subject to consultation with the appropriate Regional Administrator.
The delegation of authority to these Headquarters may also be redelegated to the division director
level.
While section 6(b) of E.O. 12777 pertains to agency authority to act, the authority of the
agencies to seek a judicially imposed penalty for any violation of an order issued pursuant to
section 31 l(e)(1)(B) of the Act is determined by section 31 1(b)(7)(B). 13 The authority of the
Attorney General to represent the agencies to seek judicial relief in the case of an imminent and
substantial endangerment is determined by sections 6(b), 10(a) and 10(c) of Executive Order
12777.14 Section 10 of Executive Order 12777 pertains to litigating section 311(e) orders.
Section 10(a) states in relevant part:
Notwithstanding any other provision of this order, any
representation pursuant to or under this order in judicial
proceedings shall be by or through the Attorney General. The
Executive Order 12777, 56 Fed. Reg. 54757 (1991).
I 2 J
33 U.S.C. section 1321(b)(7)(B) (persons violating a 311(e) order are subject to a civil
penalty in an amount up to $25,000 per day of violation or an amount up to three times the costs
incurred by the Oil Spill Liability Trust Fund as a result of such failure).
‘ 56 Fed. Reg 54757 (1991).
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conduct and control of all litigation arising under the OPA shall be
the responsibility of the Attorney General. 15
10(c) states in relevant part:
Notwithstanding any other provision, the Secretaries of the
Department of Transportation, Commerce, Interior, Agriculture,
andior the Administrator of the EPA may request that the Attorney
General commence litigation under the OPA.’ 6
Finally, 10(d) states that the Attorney General, in his discretion, is authorized to require that,
with respect to a particular oil spill, an agency refrain from taking administrative enforcement
action without first consulting with the Attorney General. ‘7
Case Law
Presently, there exist few judicial interpretation of section 3 11(e). Two likely reasons for
this are: (1) The provision is commonly used jointly with other section 311(c) provisions in
enforcement; and (2) courts have defined such “terms of art” used in section 311(e) in
interpreting similar earlier imminent endangerment provisions in the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA)’ 8 , the Resource
Conservation and Recovery Act (RCRA)’ 9 , and the Safe Drinking Water Act (SDWA) 20 . It is
interesting to note that the amended wording of section 3 11(e) is very similar to CERCLA 106(a)
and likely shows the influence of nearly a decade of CERCLA litigation. 21
The scope of this provision was expanded by the OPA amendments. The Attorney
General can secure any relief from any person, including the owner and operator of the vessel or
l5J
Executive Order 12777 Sec. 10(d), 56 Fed. Reg. 54757 (1991).
Codified at 42 U.S.C. Sec. 9606(a).
‘ Codified at 42 U.S.C. Sec. 6973(a).
20 Codified at 42 U.S.C. Sec. 3 001(a).
21 Russel V. Randle, The Oil Pollution Act of 1990: Its Provisions. Intent, and Effects , 21
ELR 10119.
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facility, as may be necessary to abate such endangerment. 22 This explicitly shows the intent of
Congress that relief can be required from not only the owner and operator, but from any person
in violation of section 3 11(e).
The threshold for liability has also been expanded. Prior to the UPA amendments,
section 311(e) allows relief necessary to abate an actual imminent and substantial threat. In
accordance with the belief that federal action should be taken as quickly as possible 23 , this
provision was amended to allow the Attorney General to seek relief when there may be an
endangerment, rather than an actual threat. 24
“Endangerment” is not defined in either the CWA or the OPA, however this term has
been interpreted by case law dealing with similar imminent endangerment provision in CERCLA
and RCRA. In light of section 31 1(e)(1), which allows the President to seek relief when he
determines that there in be an imminent and substantial threat to the public health or welfare of
the United States. . . because of an actual or threatened discharge of oil or a hazardous substance,
the United States does not have to prove that an imminent and substantial endangerment actually
22 As defined in section 311 (a)(7), “person” includes an individual, firm, corporation,
association, and a partnership. Cities and political subdivisions have been held to be “persons”
withing the meaning of the CWA section 311 (b)(6). United States v. Massachusetts Bay Trans.
Auth... , 614 F.2d 27 (1st Cir. 1980); United States v. New York , 481 F. Supp. 4, 55 (S.D.N.Y.
1979) (includes municipalities within definition of “person”).
23 United States v. Reilly Tar and Chemical Corp. , 546 F. Supp. 1100 (D. Minn. 1982)
(quoting House Committee report accompanying the Safe Drinking Water Act discussing the
meaning of the phrase “imminent and substantial endangerment” as follows:
administrative and judicial implementation of this authority
must occur early enough to prevent the potential hazard from
materializing. This means that “imminence” must be considered in
light of the time it may take to prepare administrative orders or
moving papers to commence and complete litigation and to permit
issuance, notification, implementation, and enforcement of
administrative or court orders to protect the public health.).
33 U.S.C. section 3l1(e)(1)(A).
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exists, nor does the United States need to show that people may be endangered. 25 The United
States must prove only that there may be an imminent 26 and substantial 27 endangerment. Also,
the United States is not required to quantify the risk of harm in order to establish an
endangerment. 28
Recently, courts have upheld that the United States’ burden of showing that there may be
an imminent and substantial endangerment to the public health or welfare can be satisfied by the
“sheen test” 29 , meaning, the discharge of oil results in a sheen on the water’s surface. 3 ° While the
“sheen test” applies only to oil, the courts acceptance of this minimal standard over claims that it
was too vague shows their willingness to accept EPA defined standards regarding hazardous
substances.
In Chevron v. Yost , Chevron accidentally discharged multiple small quantities of oil
which did not actually cause injury to the environment. The district court accepted Chevron’s
defense that, while creating a sheen, the spill was not harmful and EPA was not authorized to
extend its reach beyond actual injury. 3 ’ The Fifth Circuit reversed the district court and stated:
Whether a spill resulted in actual harm to the environment is
25 United States v. Conservation Chemical Co. , 619 F. Supp. 162 (W.D. Mo. 1985)
(interpreting CERCLA 106(a), which has a very similar imminent and substantial endangerment
provision to section 311(e)).
26 An endangerment is “imminent” if factors giving rise to it are present, even though the
harm may not be realized for years.
27 An endangerment is “substantial” if there is reasonable cause for concern that someone
or something may be exposed to risk of harm by release or threatened release of hazardous
substance if remedial action is not taken.
28 Reserve Mining Co. v. EPA , 514 F.2d 492, 519-20 (8th Cir. 1985) (interpreting
CERCLA section 106(a)).
29 40 C.F.R. Sec. 110.3.
° Chevron. U.S.A.. Inc. v. Yost , 919 F.2d 27, 30 (5th. Cir. 1990).
‘ Id.at28.
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irrelevant to the determination of whether section 311’s prohibition
of discharge of oil in quantities which may be harmful has been
violated. The only pertinent inquiry is whether the spill was in a
quantity which may be harmful as determined by the EPA.
Because EPA has determined that a spill of oil which creates a
sheen is a quantity which ‘may be harmful’, such a spill is subject
to the penalty provisions of 33 U.S.C. Sec. 1321 and 40 C.F.R.
Part 110.3.32
The court further states that this decision, denying Chevron a right to rebut the contention
that a spill “may be harmful” is in accord with the previous decision of Chevron v. N.R.D.C. 33
While this case dealt specifically with 33 U.S.C. Sec. 132 1(b)(3) and the civil penalties provision
of section 1321 U.S.C. Sec. 1321(b)(6)(A), section 311(e) has the same “may be harmful”
provision and its scope is likely to be interpreted accordingly broad. 34
Section 311(e)(2) Jurisdiction of the District Courts
The Oil Pollution Act of 1990 amended section 311 (e)( 1) of the Clean Water Act to
provide jurisdiction to the district courts of the United States “to grant any relief under this
subsection that the public interest and the equities of the case may require.” 35 As with section
311 (e)(1), there is little legislative history directly interpreting this provision. Case law is more
32 Id. at3O.
n 467 U.S. at 844 (1984) (Holding that agency regulations should be accorded
“controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”)
3 Sutherland, Statutes and Statutory Construction, section 71.02 at 313 (“statutes
which are enacted for the protection and preservation of the public health are to be given an
extremely liberal construction for the accomplishment and maximums of their beneficent
objectives.”)
Codified at 33 U.S.C. section 1321(e)(2). The actual wording of section 31 1(e)(2) is
as follows:
(2) Jurisdiction of the district courts
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.
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helpful, with an application of the statute in the case United States v. V-i Oil, . Further, courts
have interpreted similar provisions in CERCLA and RCRA and these interpretations can be
extrapolated to section 311(e) of the Clean Water Act. 36
Statutes with wording similar to section 31 l(e)(2) have been interpreted by courts to
invoke the full equity powers of the federal courts in the effort to protect the public health,
welfare and the environment. 37 Such provisions have also been interpreted to incorporate
traditional equitable defenses. 38 In this determination, the district court has discretion and will
weigh several factors in determining whether to grant such relief. Generally, a district court will
consider: (I) the probability of irreparable injury to the moving party in the absence of relief; (2)
the possibility of harm to the non-moving party; (3) the likelihood of success on the merits; and
(4) the public interest. 39 In addition, courts will also consider the practicality of oversight of the
injunction and whether the injunction is in accord with the status quo. 4 ° If the injunction is
mandatory rather than prohibitory, then EPA will have to show that these elements are
substantially in favor of the movant. Elements (1), (3) and (4) will generally weigh strongly in
favor of the enforcing agent in the case of an imminent and substantial endangerment and should
not be difficult to satisfy considering the broad authority and minimal trigger of section 311(e).
Application of Section 311(e)(2) in United States v. V-i Oil
1. Facts in United States v. V-i OIL
V-i Oil operated a gasoline service station that was believed by EPA and State
36 Openchowski, Federal Implementation of the Oil Pollution Act of 1990 , 21 E.L.R.
10605, 10615 (October, 1991).
United States v. Price , 688 F.2d 204, 214.(1982)
38 United States v. Conservation Chem. Cofl , 619 F. Supp. 162, 204 (W.D. Mo. 1985).
However, laches has been determined unavailable as a defense in United States v. California , 332
U.S. 19 (1947). Estoppel and unclean hands will unlikely prevent the government from seeking
remedy to protect the public health and welfare. 619 F. Supp. at 206.
at 210.
40 Status quo is defined as the last uncontested status between the parties before the
controversy occurred.
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environmental agencies to have underground storage tanks leaking gasoline into the surrounding
groundwater Evidence supported EPA’s assertion that there were significant amounts of
gasoline in the groundwater underneath the V-I Oil site and on adjacent property. However,
there was not enough evidence to determine causation nor responsibility. There was only a
likelihood of significant gasoline contamination in the ground underneath the V-i Oil site. The
EPA petitioned the U.S. District Court of Idaho to issue a Temporary Restraining Order, a
Preliminary Injunction and an Administrative Order pursuant to section 311 of the Clean Water
Act and section 7003 of RCRA.
The U.S. District Court of Idaho granted the Temporary Restraining Order (TRO) under
section 311(e) because it found that the contamination posed a threat. Specficially, it determined
that residents were smelling gasoline fumes in their homes and there was a possiblity that the
gasoline could migrate into nearby streams. This threat satisfied EPA’s burden of showing both
irrepable harm and a likelihood of success on the merits. The court granted EPA a TRO
requiring that: (1) the EPA is allowed to enter the property of V-i Oil (2) inspect, monitor, and
test all underground storage tanks and associated equipment; (3) take samples of soil and
groundwater and photographs of the Facility; (4) install up to 10 monitoring and extraction wells
on the V-i property; (5) pump and treat the contaminated groundwater; and (6) dispose of any
contaminated soil removed during the process.
EPA later requested a preliminary injunction against V-I Oil. To meet this burden, EPA
had to show a likelihood of success on the merits and a possibility of irrepable injury. To satisfy
its burden, EPA was required to show that the gasoline contamination may present an imminent
and substantial threat to the public health and/or the environement. This burden was satisfied by
EPA showing; (1) at some monitoring wells, there was a foot and a half of free gasoline above
the water and approximately six feet from the ground surface; (2) surrounding families
complained of gasoline vapors permeating their basements; (3) it was likely that this gasoline
would migrate into sewer lines, thereby contaminating sewage treatment facilities; and (4) by
showing it was likely that the gasoline would spread to proximate creeks where biota and
wildlife was endangered by the contamination.
Once satisfying the burden of showing a likelihood of success on the merits, EPA only
10
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had to establish the possibility of irrepable injury. 41 This burden was satisfied with the following
evidence: (I) risk of fire or explosion from the gasoline vapors causing a loss of life, injury or
destruction; (2) health hazards posed by inhalation of or skin contact with gasoline vapors; (3)
damage to the local sewage treatment plant; (4) environmental harm caused by discharge of
ineffectively treated sewage and petroleum compounds into area waterways.
The Court also considered balancing the hardships in granting the injunction 42 . EPA
faced an imminent and substantial threat of explosion, fire, loss of human life andlor health,
injury to natural resources and undermining of EPA’s ability to expeditiously and efficiently
clean up hazardous sites. On the other side of the analysis, V-l Oil faced only business
disruption resulting from the removal activities. V-i Oil’s gasoline business would be halted for
two weeks, but its main source of income - its propane business - would remain functioning.
Case Interpretation of Other Imminent Enda germent Provisions
In U.S v. Pric 43 , the EPA requested injunctive relief under SDWA section 1431 in the
form of payments from several potentially responsible parties (PRPs) to fund a diagnostic study
of contamination of groundwater migrating toward Atlantic City . The district court denied the
injunctive remedy. The court of appeals affirmed the district court decision stating that it was
within its discretion to deny the injunctive relief, but noted that such relief was an appropriate
form of injunctive relief. 45 It further stated that the District Court correctly considered the unfair
An irrepable injury is one that cannot be adequately remedied by money damages and
which is of a long duration. Amoco Production Co. v. Village of Gambell , 480 U.S. 531, 545
(1987).
42 g U.S. E.P.A. v. Environmental Waste Control. inc. , 917 F.2d 327, 332 (7th Cir.
1990) (holding that there is no need to employ a balancing analysis when the government is the
plaintiff seeking injunctive relief: “Where the plaintiff is a sovereign and where the activity may
endanger the public health, ‘injuctive relief is proper, without resort to balancing’.”)
‘1 United States v. Price , 688 F.2d 204, 2l4.(l982).
Id ,
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and impractical effect of the injunctive relief on the defendants; that it would bind only several of
the 35 defendants and require them to bear the entire cost of the requested relief. 46 The Court of
Appeals noted that the most important consideration in granting injunctive relief is prompt
preventive action that leads to the most practical and effective solution. In this case, the most
practical and effective solution was to refuse the government’s request for a preliminary
injunction thereby necessitating that the study be undertaken by EPA without delay. 47
Reimbursement would be allowed later.
Another factor that a court can consider in granting injunctive relief is whether the
injunctive remedy is preserving the status quo. This factor should not limit the granting of
injunctive relief when EPA is requesting action to modif ’ the status quo (i e. requiring a
defendant to remove such threat). Courts have determined that mandatory injunctive relief is
appropriate when the status quo is a condition of action which if allowed to continue or proceed
unchecked and unrestrained will affect irreparable injury. 48
Previous cases interpreting RCRA 7003 (a) have stated that such a provision provides the
court authority to issue prohibitory injunctions and to order such action that may be necessary.
This allows for both short-term and long-term injunctive relief that should not be withheld or
granted grudgingly in light of Congress’ will to protect the public health and welfare. 49 While a
court is authorized to grant equitable relief, it may not choose to do so. 5 ° However, the mere
existence of another remedy does not preclude injunctive relief and courts must be “conditioned
by the necessities of the public interest which Congress has sought to protect.” 5 ’ The following
46 Id.
47 LI
1 .
48 Id. at 212
688F.2dat214.
° Weinberger v Romero-Barcelo , 456 U.s. 305 (1982) (denying injunction stressing that
an injunction is an extraordinary remedy and other remedies were available).
619 F. Supp. at 162 (quoting Hecht Co. v. Bowles , 321 U.S. 321, 330 (1944)).
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are some examples of situations where courts have determined that conditions may have
presented an imminent and substantial endangerment under RCRA:
• At a shooting range where lead from lead shot had accumulated in the tissues of nearby
waterfowl and shellfish. 52
• At a facility containing several open, unlined pits of oily waste and where oily waste
containing hazardous constituents had leaked from tanks into surrounding soils. 53 EPA
documented the death of several animals and introduced evidence from the U.S. Fish and
Wildlife Service indicating that there was a continuing threat to migratory birds and other
wildlife. 54 In addition, access to the site was unrestricted and there was limited
information available regarding the migration of oily wastes within the site and off-site. 55
• At a municipal landfill that had leaked at least 10% of its leachate containing low levels
of lead into an adjacent wetland. 56 Lead levels in test wells surrounding the landfill were
generally below the maximum contaminant levels (MCLs) for drinking water, 57 and no
actual harm was shown to the wetland. 58 However, the court found an imminent and
substantial endangerment because the leachate contained toxic constituents, lead had
bioaccumulated in the wetland, and some of the chemicals “which continue to migrate
52 Connecticut Coastal Fishermen’s Ass’n v, Remington Arms Co. , 989 F 2d 1305, 1317 (2d Cir.
1993) rev’din part on other grounds , 505 U.S. 557 (1992).
53 United States v. Valentine (“Valentine 1”), 856 F. Supp. 621, 624-5 (D. Wyo. 1994).
Id. at 624-25,
55 I d. at 624.
56 Dague v. City of Burlington (“Dague i’), 732 F. Supp. 458, 463 (D. Vt. 1989).
57 Dague v. City of Burlingtott(”Dague Ii ”), 935 F.2d 1343, 1356 (2d Cir. 1991)
58 1d at 469.
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from the landfill, may have a dramatic adverse impact on the food chain” in the area of
the site. 59
• At a shopping center where dry cleaning solvents discharged from dry cleaning facilities
had contaminated groundwater in a populated area. 6 ° Contaminant levels in the migrating
plume exceeded MCLs. 6 ’ Although some area wells had been closed at least in part
because of the contaminated plume, the court found that the conditions may have
presented an imminent and substantial endangerment to the environment, but not
necessarily to human health. 62
Conclusion
The federal response authority in the case of an imminent and substantial endangerment
caused by an oil spill has been expanded and clarified by the OPA amendments to CWA section
311 and specifically sections 31 1(e)(1)(A) and 31 1(e)(2). Scant legislative history few cases law
exist that specifically interpret these provisions. However, the intent and wording of this
provision is similar enough to allow extrapolation of case interpretations of other imminent
endangerment provision, especially CERCLA 106(a) and RCRA 7003. These previous
provisions have been broadly interpreted, and it is very likely that section 311(e) will be
interpreted similarity, providing the EPA andlor Coast Guard extensive power to quickly remedy
an oil spill or discharge of a hazardous substance.
Dague II, 935 F.2d at 1355-56
60j Properties, 23 Envtl. L. Rep. at 2067 1-72.
61 1d at 20671.
62 1d at 20672.
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When Subsurface Oil Seeps Into
Navigable Waters:
Legal Issues, Regulatory Options
David Drelich
Senior Attorney, ORE-Water
May 30, 1997
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ii
Executive Summary
In the oil enforcement program, one often encounters situations in which oil is seeping
into a waterway from adjacent contaminated soils. In many cases, the immediate source of the
oil is solely subsurface, whether through a connecting aquifer or through oil-saturated property.
This memorandum examines the ability of EPA or, to a somewhat lesser extent, citizen plaintiffs
to take regulatory enforcement actions in instances of such subsurface oil seepage. Legal options
include, in the case of the Clean Water Act (“CWA” or “Act”), causes of action for civil
penalties for violations of Section 311 (b)(3) of the Act and Section 301(a) of the Act, as well as
compliance order or injunctive remedies for unpermitted discharges pursuant to Section 3 09(b)
of the Act. Under the Resource Conservation and Recovery Act (“RCRA”), options include a
potential cause of action for civil penalties for the unlawful disposal of oil as a “hazardous
waste” under Section 3004(d), or compliance order or injunctive remedies available under
Section 3008(a) of that Act for the unlawful disposal of oil, a recognized “solid waste.”
Although citizen plaintiffs have no administrative enforcement remedies and more qualified
standing than the federal government, both Section 505 of the CWA and Section 7002 of RCRA
set forth explicit citizen suit enforcement authorities that are analogous to Sections 309 of the
CWA and Section 3008 of RCRA.
In the typical subsurface oil seepage case, it can be expensive and difficult for anyone to
determine precisely just where and when the oil discharge originated. Some oil seeps can take
years to develop, depending on distance of the originating source to the surface water, type and
amount of oil discharged, and local hydrology and soil. If proof of a regulatory liability theory
relies upon an extensive subsurface physical investigation, the transaction costs of bringing a
civil penalty oil spill case could be prohibitive. This paper explores the best ways to frame
subsurface seepage regulatory enforcement complaints and, along the way, addresses certain
basic questions common to all regulatory programs, including:
• If there is a time lag of more than one day between the misconduct of the
violator and the entry of the pollutant into the protected resource, on what day
does the violation occur (and when does the statute of limitations begin to apply)?
• If the violator’s misconduct occurs over more or fewer days than the number of days the
pollutant enters into or upon the protected resource, which period is applied to the civil
penalty calculation?
• If the pollutant remains in the protected resource, does the civil penalty violation
continue? If so, are subsequent purchasers also liable for penalties for passively allowing
the pollution to pass through or remain in the protected resource? Does a violation
continue for purposes of injunctive relief?
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iii
In general, Section 31 1(b)(3) of the CWA provides the the government’s easiest and most
effective civil penalty remedy in subsurface oil seep cases, and Section 3008 of RCRA provides
the most comprehensive injunctive relief. Use of these theories also best avoids both statute of
limitations problems in enforcement cases, as well as somewhat problematic “continuing
violation” doctrine. As a result, claims based on these statutory provisions are also less costly to
develop and litigate. Citzen enforcement options are not as broad or as attractive.
The summary table below provides a snapshot comparing the three types of regulatory
judicial cases that can be brought by the United States:
Statute
Enforcement Transaction
Cost
Injunctive Relief 1
Object of injunction
Expected strength of civil
penalty case
CWA §31 i(b)(3)/(b)(7)
Low
Not available
Good
CWA § 30l(a) and 309
High
Ongoing violations only!
Discharger, point source
Fair to poor
RCRA § 3 004 and 3008
Very high
Past & present violations!
Resp party, environment
Fair to poor
The analysis below also discusses at length the limitations inherent in the continuing
violation doctrine, the scope of the federal statute of limitations, and the “when” and “where” of
violation occurrence under applicable laws.
This paper does not address Agency remedial order authority under Sections 311(c) or
311(e), or the government’s imminent endangerment authorities under Section 504 of the Clean
Water Act, Sections 3008(h) and 7003 of RCRA, or Section 1431 of the Safe Drinking Water
Act. The analysis does not reach the question of civil penalty liability or regulatory enforcement
response for aboveground oil spills onto “adjoining shorelines” as that term is used in Section
311 of the Clean Water Act. The analysis applies, as well, to seeps of CWA-listed hazardous
substances; the paper simply uses “oil” as a shorthand description for all Section 311 listed
substances.
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iv
Index
Topic Page
I. Purpose and Scope 1
II. Background i
The Three Theories of Regulatory Cases 3
Appropriate Defendant When Ownership Has Changed Hands 8
Availability of Citizen Suits 9
HI. Occurrence of Discharge Penalty Violations 11
Clean Water Act 12
Resource Conservation and Recovery Act 16
Implications of “Occurrence” Law 17
IV. “Continuing Violation” Theory 17
In Civil Penalty Cases 18
In Injunctive Cases 20
The Pattern or Practice Exception 24
Summary 25
V. Scope and Effect of the Federal Statute of Limitations 28
Effect of the Statute on Equitable Claims 28
Effect of the Statute on Civil Penalty Claims 34
Tolling the Statute 36
OPA Statutory Bar 39
VI. Availability of Injunctive Relief 40
Section 311 of the Clean Water Act 40
Sections 309 and 505 of the Clean Water Act 40
Sections 3008 and 7002 of RCRA 43
Summary Tables 44
VII. Civil Penalty Claim Period 45
Section 311 (b)(3) of the Clean Water Act 46
Sections 309 and 505 of the Clean Water Act 47
Sections 3008 and 7002 of RCRA 48
Summary Table 49
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V
VIII. Government Transaction Costs 49
Developing Information to Establish Causation 50
Enforcement Costs 51
IX. Conclusions 52
“Continuing Violation” Theory and the Statute of Limitations 53
Comparing Injunctive and Compliance Options 55
Comparing Civil Penalty Options 56
Citizen Options 57
Summary Tables 58
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1. Purpose and Scope
As the Agency has implemented the Oil Pollution Act of 1990 (“OPA”),’ it has become
aware of a number of sites around the nation that have been contaminated by subsurface oil
releases. Some of them are historically polluted areas, and some are the scenes of more recent
spills. They range from oil refinery sites to abandoned gasoline stations, from oil production
well fields to corroding tank farms or buried oil pipelines. Environmental harm can range from a
recurring sheen along a nearby waterway or shoreline to explosive dangers posed to homes from
infiltrating vapors. Certain of these spills are the subject of an multi-Regional enforcement
action against Koch Industries, Inc., and others are the subject of an investigation of Ashland
Petroleum, Inc. This analysis is meant to provide the federal government with legal support for
these and other, similar enforcement efforts.
This paper analyzes every environmental enforcement option within the jurisdiction of
the Office of Regulatory Enforcement, as well as applicable citizen suit authorities.
Consequently, it excludes CERCLA (otherwise applicable to nonpetroleum oils and hazardous
substance discharges) as well as Sections 311(c) and (e) of the Clean Water Act, which achieve
goals other than deterrence and prevention. 2
II. Background
Federal pollution prohibitions have been written simply and clearly Either by statute or
by implementing regulation, strict liability laws simply ban certain conduct without reference to
various excuses a violator might offer. Determining when a pollution violation 3 occurs under
EPA-administered laws would appear simple: when the terms of the relevant statute are violated.
33 U S C § 27O1-2761, 104 Stat 484
2 In addition, this paper does not investigate the complex and corollary question of whether the remedial
provisions of Sections 311(c) and (e) of the Clean Water Act apply to chronic oil seeps in light of the potential
effects of Section 1020 of the Oil Pollution Act of 1990, which states in its entirety that “This Act shall apply to an
incident occurring after the date of enactment of this Act.” Pub L 101-380, 104 Stat 484, § 1020 “Incident” is
defined in Section 1001(14) of OPA, 33 U S C §2701(14) as “any occurrence or series of occurrences having the
same origin, involving one or more vessels, facilities, or any combination thereof, resulting in the discharge of or
substantial threat of discharge of oil” That issue is worthy of its own separate analysis. See Section IV below,
however, for an analysis of “continuing violations”
For purposes of analyzing subsurface oil seep regulatory enforcement options, only actual “discharge”
type violations are analyzed, status violations (such as failure to hold a permit or failure to conform to site closure
requirements), or reporting, monitormg, and recordkeeping violations are not so exammed For the more general
purposes of this paper, “discharge” encompasses Clean Water Act (“CWA” or “Act”) discharges under both
Sections 301 and 311, Resource Conservation and Recovery Act (“RCRA”) disposals, Clean Air Act (“CAA”)
emissions, Safe Drinking Water Act (“SDWA”) Subtitle C injections, and the like
Attorney Work Product/FOIA Exempt/Do Not Disclose
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2
A calendar should determine days of violation. But it is not always that easy to answer the
central question, what is the violation? For example:
• If there is a time lag of more than one day between the misconduct of the violator and
the entry of the pollutant into the protected resource, on what day does the violation occur
(and when does the statute of limitations begin to apply)? 4
• If the violator’s misconduct occurs over more or fewer days than the number of days the
pollutant enters into or upon the protected resource, which period is applied to the civil
penalty calculation?
• If the pollutant remains in the protected resource, does the civil penalty violation
continue? Does a violation continue for purposes of injunctive relief? If so, are
subsequent purchasers also liable for penalties or injunctive relief for passively allowing
the pollution to pass through or remain in the protected resource?
To get to the answers, it is necessary to explore related issues -- such as determining
when and where a violation of relevant law occurs.
In the case of a subsurface oil seep that does not emerge until it is in contact with a water
of the United States, the violation could be deemed to occur at the point of origin of the
discharge, the point of impact upon a surface water, or some place in between. 5 Due to the slow
subsurface movement of oil, determining where a violation takes place can have a dramatic
impact on when it takes place. Knowing when establishes the number of days in violation and
whether citizen plaintiffs may have standing to sue. And given the impact of the applicable five
year statute of limitations, 28 U.S.C §2462, determining when can also determine if a civil
penalty action can even be undertaken. 6
This dichotomy was referenced by the D.C. Circuit in 3M Company v Browner, 17 F.3d 1453, 1460
(DC Cir 1994)(”3M”)
“A claim normally accrues when the factual and legal prerequisites for filing Suit are in place
While this appears to be a straightforward formulation, there may be complications ‘The statutory
period may begin either when the defendant commits his wrong or when substantial harm
matures This choice, unnecessary where the two events are simultaneous, becomes complex
where considerable time intervenes “ Note, Developments in the Law -- Statutes of
Limitations, 63 HARV L REV At 1200 “(Citations omitted)
Two possible, in-between places could be a discharger’s property line or a “point of no return,” beyond
which the spreading oil cannot be prevented from reaching a water of the United States
6 In the case of Section 311, another statutory bar may apply See discussion in Section V
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In order to determine the most appropriate regulatory claims to make in cases of
subsurface oil seeps, this paper also addresses other basic questions, including elements and ease
of proof under different legal approaches, whether a violation “continues” or is a single event, the
scope and effect of the federal statute of limitations, and how, in oil seep situations, how the
statute of limitations interacts with “continuing violation” or “tolling” theories.
The Three Theories of Regulatory Cases
Since released “oil” for purposes of Section 311 of the Clean Water Act is also a
“pollutant” for purposes of Section 301(a) of the Act, 7 and “solid waste” for purposes of RCRA, 8
an unexpected release of oil to a surface water can give rise to three independent theories of civil
liability. 9 In oil spilP° penalty claims, the United States can use either an unpermitted discharge
See, e g, United States v Lidson, 108 F 3d 1336, 1343 (11th Cit 1997) and United Stat es v Hamel, 551
F2d 107, 109 (6th Cir 1977)
8 Wald.schmidt v Amoco Oil Company, 924 F Supp 88, 89-91 (C D I II. l996)(citing at 924 F.Supp 90 alt
prior cases considering the issue, also holding the same), See also, Meghrig v KFC Wesiern, inc. 116 S Ct, 1251,
134 L Ed 2d 121, 129, 516 U S —‘ 1996 US LEXIS 1955, 10 (citizen cost recovery ruling, assuming without
analysis that “oil” isa solid waste). “Oil” can be, arid has been, the subject ofjoint CWA §31 1/RCRA §7003
emergency remedial orders See, e g, In the Matter of Pickett Road Terminal Site, Docket No l1I-93-003-CW, R 1
“Administrative Order to Protect the Public Health and Welfare and the Environment” (Region Ill l993)(combined
CWA Section 311 (c)(e)(m)IRCRA Section 7003 order) “Solid wastes” are subject to RCRA compliance and
remedial authorities pursuant to Sections 3008, 7002 and 7003 of that Act, “hazardous wastes,” a subset of solid
wastes, are further subject to civil penalty authority under Sections 3004, 3008 and 7002 of RCRA.
There is a useful overlap, emphasized below, between the “discharge” definition of Section 3 11 (a)(2) of
the CWA and the “disposal” definition of Section 1004(3) of RCRA In combination, Section 311 and its
implementing regulation describe violator misconduct as
“the [ spilling, leaking, pouring, emitting, emptying or dumping] of oil into or upon the
navigable waters of the United States [ or] adjoining shorelines in such quantities as [ violate
applicable water quality standards or. cause a film or sheen upon or discoloration of the
surface of the water or cause a sludge or emulsion to be deposited beneath the surface of the
water or upon adjommg shorelines ]“ Sections 31 I(a)(2)(first brackets) and 31 1(b)(3) of the CWA
and 40 CF R. §110.3 (1995)(last bracket)(emphasis supplied)
and describes a violator as “any owner, operator, or person in charge of any onshore facility from which oil
is discharged” as described immediately above Section 31 1(b)(7)(A) of the CWA, see also, Section 31 l(b)(6)(A)
of the CWA Under RCRA the analogous law describes violator misconduct as,
“the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste
into or on any land or water so that such solid waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters, including ground waters”
Section 1004(3) of RCRA (emphasis supplied)
Attorney Work ProductfFOlA Exempt/Do Not Disclose
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4
theory under Section 301(a) of the Clean Water Act” or the spill prohibition embodied in Section
31 l(b)(3) of the Act,’ 2 since the Clean Water Act requires an electio& 3 and either claim can be
applied to the facts of violation.’ 4 In the ordinaiy case, injunctive relief is available only under
an unpermitted discharge theory,’ 5 but an election to use Section 311 penalty authority does not
and describes violators as “owners or operators of facilities for the treatment, storage, or disposal of hazardous
waste identified or listed under this subchapter . “ Section 3004(a) of RCRA These similar definitions of
misconduct invest RCRA “unlawful disposal” case law with precedential value for cases brought to enforce Section
31 1(b)(3)’s spill prohibition. In addition, the definition of “discharge” in Section 1001(7) of the Oil Pollution Act
of 1990, 33 U S C §2701(7), sheds some light on the breadth of the term “emitting” in Section 31 1(a)(2) The OPA
provision states that “discharge’ means any emission (other than natural seepage), intentional or unintentional, and
includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dumping
(Emphasis supplied) Natural seepage of oil can occur from oil production fields or other geologically similar areas.
The limitation on OPA “emission” implies that the Section 31 1(a)(2) definition of “emitting” includes natural
seepage, and that this type of release is therefore subject to the Section 31 1(b)(3) regulatory prohibition Finally,
CERLCA’s definition of “release” in Section 101(22), 42 U S C §9601(22), includes “any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing mto the
environment .“ (emphasis supplied to demonstrate common phrases with either Section 311 or RCRA),
establishes certain cases under that remedial statute as precedential for RCRA and, by extension, Section 311 as
well See United States v Bliss, 667 F Supp 1298, 13 13-14 (E.D. Mo 1987)(” [ S]ome of the elements of liability
under [ CERCLA § 106(a)] and [ RCRA §7003(a)] overlap with those of [ CERCLA § 107(a)] “) and generally,
Section IV
“Spill” is used here colloquially to stand in for the more formal statutory descriptions of unpermitted
discharge or prohibited discharge set forth in Section 301(a) and Section 311(b)(3) of the CWA, respectively
““Except as in compliance with this section and [ sections 302, 306, 307, 318, 402 and 404 of the CWA],
the discharge of any pollutant by any person shall be unlawful” Section 30 1(a) of the CWA
i2 “The discharge of oil or hazardous substances . into or upon the navigable waters of the United States
[ or] adjoining shorelines . in such quantities as may be harmful as determined by the President under [ Section
31 1(b)(4) of the CWA], is prohibited “Section 31 l(b)(3) of the CWA
i3 “Civil penalties shall not be assessed under both this section and [ section 309] for the same discharge”
Section 31 1(b)(1 I) of the CWA, 33 U SC §1321(b)(1 1) See also Sections 309(g)(6)(A) and 31 1(b)(6)(E), 33
U S C § 131 9(g)(6)(A) and 1321 (b)(6)(E)(administrative penalty preemption provisions to the same effect)
If the discharge were instead subject to the NPDES program as a permit violation (based on whether the
event arose from events contemplated in the permitted technological process, rather than outside it), then neither
Section 311 of the CWA nor RCRA would apply to the event. See Section 311 (a)(2) of the CWA and “Policy
Statement on Scope of Discharge Authorization and Shield Associated With NPDES Permits,” OW/OECA/OGC,
July 1, 1994 (CWA) and 40 CFR §261 4(a)(2) (RCRA)
i5 Section 311(e) of the Act also has injunctive authority, but it requires the additional demonstration of
“an imminent and substantial threat to the public health or welfare of the United States . because of an actual or
threatened discharge of oil from a . facility in violation of [ Section 3 11(b)] . .“ CERCLA, also outside the
scope of this analysis, provides injunctive authority over hazardous substance releases in Sections 104
Attorney Work ProductIFOIA Exempt/Do Not Disclose
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5
affect the Agency’s authority to make a supplemental request for injunctive relief under Section
309(b) of the Act,’ 6 and this claim and request should be included in appropriate judicial cases.
In certain penalty cases the United States also may choose to enforce the RCRA Section 3004
prohibition on the unlawful disposal of hazardous waste) 7 This requires the additional
demonstration that the substance discharged, or one of its constituents, can be classified as a
“hazardous waste” under Sections 1004(5)18 and 3004(d)(2) of RCRA’ 9 and their implementing
regulations. 2 °
Although CERCLA’s petroleum exclusion exemption 2 ’ does not exempt nonpetroleum
oils from that statute’s reach, 22 CERCLA contains no civil penalty provision directly addressing
oil or hazardous substance spills. 23 And the Safe Drinking Water Act’s emergency provision,
which is implemented by the Office of Regulatory Enforcement, requires a showing of
(administrative response) and 106 (judicial referral authority), 42 U S.C § 9604 and 9606
16 Section 309(b) allows the Agency to seek any “appropriate relief, including a permanent or temporary
injunction”
See United States v Hawa iian Western Steel, Ltd, mc, Civ. No.92-000587 ACK, Order on Cross
Motions for Summary Judgment, slip op at 31 n 5 (DJ-lawaii May 16, 1996)(Disposal of baghouse dust)(”HWS”);
Compare Zands v Nelson, 779 F.Supp 1254, 1264 (S D Cal 199 I)(RCRA endangerment citizen suit)(” [ 1’]he
Court holds that the mere creation of solid waste, and the subsequent abandonment of it in the ground, will support a
cause of action under section 6972(a)(l)(B).”)
i8 42 U S C §6903(5) It provides “The term ‘hazardous waste’ means a solid waste, or combination of
solid wastes, which because of its quantity, concentration, or physical, chemical or infectious characteristics may
cause, or significantly contribute to an increase in serious irreversible, or incapacitating reversible, illness, or.
pose a substantial present or potential hazard to human health or the environment when improperly treated, stored,
transported, or disposed of, or otherwise managed”
i9 42 U S C §6924(d)(2)
20 See 40 CER § 26 1.4(b) (exclusions), 261 21-24 (characteristic hazardous wastes), and 261 .3 1-33 (listed
hazardous wastes).
2i Section 101(14) of CERCLA, 42 U S C §9601(14) ,
22 Compare the broad definition of “oil” in Section 31 1(a)(l) of the Clean Water Act, 33 U.S.C
§1321(a)(l)(”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”) to the narrower CERCLA exclusion of Section
lOl(14)(”The term ‘hazardous substance’ does not include petroleum, including crude oil or any fraction thereof
which is not otherwise specifically listed or designated as a hazardous substance under. this paragraph . “)
23 Information gathering and compliance order authorities, however, are enforceable by judicial civil
penalties Section 104(5)(B) of CERCLA, 42 U SC §9604(5)(B)
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endangerment to an underground source of drinking water or a public water system before it can
be invoked. 24
Under Section 301(a), the elements of proof are that a person discharged a pollutant from
a point source into a water of the United States without authorization by law. 25 Under Section
311 (b)(3), the government must show that the owner or operator discharged oil in a reportable
quantity 26 from its facility into or upon a water of the United States or its adjoining shoreline. 27
Neither CWA cause of action preempts the other; the government may choose whichever it
prefers to pursue. 28
The statutory penalty provisions for Sections 309 and 311 read differently, but in
subsurface seep cases, the differences dwindle into insignificance. 29 As amended by later law,
24 “Notwithstanding any other provision of this subchapter the Admmistrator, upon receipt of information
that a contaminant which is present in or is likely to enter a public water system or an underground source of
drinking water may present an imminent and substantial endangerment to the health of persons, and that appropriate
State and local authorities have not acted to protect the health of such persons, may take such actions as he may
deem necessary in order to protect the health of such persons... The action which the Administrator may take
may include (but shall not be limited to) (I) issumg such orders as may be necessary to protect the health of persons
who are or may be users of such system (tncludmg travelers), including orders requiring the provision of alternate
water supplies by persons who caused or contributed to the endangerment, and (2) commencing a civil action for
appropriate relief, including a restraining order or permanent or termporary injunction.” Section 143 1(a) of the
SDWA, 42 U.S C §300i(a).
25 See, e g, Michigan v City ofAllen Park; 501 F.Supp. 1007, 1014 (E D Mich 1980), aff’d without
opinion, 667 F 2d 1028(6th Cir 198!), cert denied, 456 U.S. 927 (1982)(Citizen suit).
26 Oil spill violations are defined by Section 31 1(b)(7) of the CWA and 40 C.F R §1103 (1995) as
discharges that regulations describe as “may be harmful,” and the minimum amounts qualif ’ing under this criterion
are published at 40 C F R § 117.3 and are commonly known as “reportable quantities,” after the self-reporting
requirement of Section 31 1(b)(5) of the Act
27 Seen 9
28 See, e g. “Decision and Order on Motions For Summary Determination In the Matter of Chevron U S A
Inc ,“ Docket No IX-FY88-54 (Region IX Presiding Officer 1990)
29 Section 31 1(b)(7)(A) establishes a volumetric civil penalty judicial scheme that can greatly increase the
maximum civil penalty available in big spills over the $25,000 per day level available under Sections 30 1(a) and
309(d), but a volumetric penalty authonty is not particularly useful in a chronic seep case In such circumstances,
only the “up to $25,000 per day” provision available in both Sections 309(d) and 311(b) will be effective And even
though the two sections use different penalty assessment factors (compare Section 309(d) of the Act to Section
31 1(b)(8) of the Act), the difference in application to subsurface seep cases appears no more than mmimal One
mmor difference, at least in Class I administrative penalty actions, is that commenters may participate in
unpermitted discharge cases brought under Section 309(g), but may not participate in oil spill cases brought under
Section 311 (b)(6) All civil penalty provisions mentioned in this memorandum -- whether daily or volumetric, and
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both authorize ajudicial civil penalty of $25,000 per day before January 30, 1997, and, pursuant
to the Debt Collection Improvement Act of 1996, $27,500 per day thereafter. Both permit
administrative penalty actions of up to $125,000 per case before that date and up to $137,500 per
case thereafter. 3 ° RCRA’s hazardous waste judicial penalty authorities are equivalent to those of
the CWA, 3 ’ but its administrative penalty scale is the same as its judicial scale, and are therefore
superior to the lesser CWA administrative penalty options. 32
Under Section 3004(d) of RCRA the government must prove that an owner or operator of
a hazardous waste disposal facility had since July 8, 1987, land disposed oil, a characteristic
RCRA liquid hazardous waste, 33 in a manner that the Administrator had not determined to be
protective of human health and the environment. RCRA authorizes a civil penalty of up to
$25,000 per violation for violations occurring before January 30, 1997 and $27,500 per violation
thereafter. 34
In addition to its civil penalty remedies, EPA may issue administrative compliance orders
under CWA Section 309(a) for unpermitted discharges of oil in violation of Section 301(a) of the
Clean Water Act, or pursuant to RCRA Section 3008(a) for the unlawful disposal of hazardous
waste in violation of Section 3004(d) of RCRA, or both. The Agency may also seek court-
ordered injunctive relief, using Section 309(a) of the CWA as authority for unpermitted
within all federal statutes enacted before 1991 -- have been increased by ten percent, effective January 30, 1997,
through the promulgation of 40 CFR Part 19 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 SC 3701 note, Public Law 104-134, enacted April 26, 1996, 110 Stat.
1321 )(“DCIA”) See 61 Fed Reg. 69,359 (December 31, 1 996)(includes erratum that Section 311 (b)(7)(B) spill
penalty has been adjusted from $25,000 per day to $11,000 per day, instead of $27,500 per day) and 62 Fed Reg
13514-17 (March 20, 1 997)(Correcting errata in December 31, 1996, publication as a technical correction;
maintaining the January 30, 1997 effective date in all cases) Future across-the-board inflation adjustments will
occur under the DCIA no later than every four years
° See Sections 309(g)(2) and 31 l(b)(6) of the Clean Water Act and preceding note
31 Section 3008(g) of RCRA, 42 U S C §6928(g) (“Any person who violates any requirement of this
subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such
violation Each day of such violation shall, for purposes of this subsection, constitute a separate violation “)
32 Section 3008(a)(3) of RCRA, 42 U S C §6928(a)(3) (“In assessing such a penalty, the Administrator
shall take into account the seriousness of the violation and any good faith efforts to comply with applicable
requirements” Id)
u Hazardous wastes are defined in 40 CFR 261 Oil (or its constituent elements) and CWA hazardous
substances must be individually evaluated to determine whether they may be classified as a RCRA hazardous waste
Section 3008(a) and (g) of RCRA, 42 U S C §6928(a) and (g), seen 29
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discharge violations, or Section 3008(a) of RCRA for hazardous waste disposal violations.
Section 311(b), the oil spill regulatory subsection, has no analogous compliance order or
injunctive relief remedies. 35
Appropriate Defendant When Ownership Has Changed Hands
Given the length of time that can pass between the initial subsurface release of oil and the
emergence of that oil into a navigable water of the United States, EPA may face a situation in
which ownership or control of the onshore facility or point source has passed to a new owner or
operator. In that event, the government must decide whether to sue the present owner, the owner
at the time of the original discharge, or both.
RCRA case law indicates that in order for there to be liability for a release to the
environment, the defendant must have caused or contributed to it. 36 The defendant need not
continue to own the affected property in order to be liable for violations. 37 Conversely, under
RCRA and CERCLA holdings a succeeding owner who has not caused or contributed to the
Compare Section 311 (e)( 1) of the Act, a remedial provision, which provides in instances of
endangerment, that the President may “require the Attorney General to secure any relief from any person as may
be necessary to abate such endangerment, or take any other action under this section, including issuing
administrative orders, that may be necessary to protect the public health and welfare” EPA has been delegated this
authority for inland spills by Section 6(b) of Executive Order 12777 (October 18, 1991) See also Section 31 l(c)(l)
and (2) (Administrative removal order authority), for which EPA also has responsibility for inland spills under
Section 3 of the Executive Order
36 See, e g, United Slates v Bayliss mv & Trading Co v Chevron USA Inc. 39 ERC 1428, 1994 U S
Dist LEXIS 12190, *33 (D,Ariz 1994), Zands v Nelson, 797 F Supp 805, 809 (S.D Cal l992)(RCRA citizen suit
disposal endangerment case), Bliss, 667 F Supp at 1313, and, United Slates v Ouat, & Goss, 630 F Supp. 1361,
1393 (DN H. 1985)(CERCLA)
37 See, e g, City of Toledo v Beazer Materials & Service, Inc. 833 F Supp 646, 655-56 (N D Ohio 1993)
(“Beazer Materials”)(RCRA citizen disposal endangerment case).
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discharge may not be held liable. 38 The policy reasons for exoneration are stronger in civil
penalty actions than in suits for injunctive relief 39
If the cause of action includes a claim for injunctive relief, a succeeding owner or
operator -- although unavailable as a defendant -- may need to be included in the complaint as a
necessary party under Rule 19(a) of the Federal Rules of Civil Procedure. 4 ° If the new owner
was an innocent subsequent purchaser, he may have a separate claim against the seller for
damages suffered as a result of the government’s remediation efforts. 41
Availability of Citizen Suits
The right of citizens to sue to enforce environmental laws springs from the laws
themselves, although citizens can lose that right through standing challenges or government
preemption. 42 Under the programs examined here, citizens have authority to sue under Section
505 of the Clean Water Act under an unpermitted discharge theory, and may sue under Section
7002 of RCRA for regulatory, as well as endangering, violations of that statute. Congress has
not authorized citizen suits alleging violations of Section 311 of the Clean Water Act. 43
38 Un ited States v CMDG Realty, 96 F 3d 706, 711 (3d Cir. 1996)(”We hold that the passive migration of
contamination dumped in the land prior to Dowel’s ownership does not constitute disposal “)(CERCLA), CERCLA
§ 107(b)(3), 42 U S C §9607(b)(3)(lnnocent purchaser exemption); Snediker Developers Ltd Partnership v Evans,
773 F Supp 984, 988-89 (E D. Mich 199 1)(RCRA), contra, Nuradinc v Hooper & Sons Co ,966 F,2d 837, 844-
46 (4th Cir ), cerl denied, 113 S Ct 377 (1992) (“Nurad’)(CERCLA) The only theory that would allow the new
owner to be held liable for civil penalties for a situation caused by a previous owner is if the new owner’s sufferance
of the subsurface migration of oil (knowingly or not) represented the new owner’s “continuing violation” of Section
301(a) or Section 31 1(b)(3) of the CWA As discussed in Section IV, this interpretation of the Clean Water Act
appears to be a legal fiction undertaken for other policy reasons in wetlands cases, and has been rejected outright by
RCRA courts in the civil penalty context
Compare Nurad, 966 F. 2d at 845 (Finding disposal to extend beyond active misconduct only because
“the aim of both RCRA and CERCLA is to encourage the cleanup of hazardous waste conditions “)
40 “A person who is subject to service of process and whose jomder will not deprive the court of
jurisdiction over the subject matter of the action shall bejomed as a party in the action if . . in the person’s absence
complete relief cannot be accorded among those already parties
Compare Bowen Engineering v Reeve, 799 F Supp 467, 484-85 (D N J 1992)(CERCLA case, citing to
State law)
42 See Gwaltney of Smithfield v Chesapeake Bay Foundation, 484 U S. 49 (1 987)( ‘Gwaltney 1”) and EPA
v Cay of Green Forest, Arkansas, 921 F 2d 1394, 140 1-05 (8th Cir 1990), cert denied, Work v Tysons Food mc,
502 U S. 956 (1991)
‘ This probably relates back to the original legislative authorization for citizen suits, set forth in the 1970
Clean Air Act, simply to abate ongoing violations See Section 304 of the Clean Air Amendments of 1970, Pub L
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Gwaltney I requires that a Section 505 plaintiff must, at the time a complaint is filed, be
able to make “a good faith allegation of continuous or intermittent violation” and not rely upon
“wholly past” violations for standing. CWA citizen suit standing requirements are satisfied by
a reasonable claim for prospective (not remedial) relief. The Court established its rule by
referring to the prospective injunctive authorities of Sections 309 and 505 of the CWA. 45
Consequently, in the absence of active misconduct in violation of Section 301(a) of the Act (or
its likelihood), citizen plaintiffs are unlikely to withstand a motion for dismissal.
The Supreme Court’s Gwaltney decision is also the touchpoint for RCRA citizen standing
law. But RCRA’s citizen suit provision 46 has two separate authorizing clauses, and applying the
Gwaltney I rule results in two different standing outcomes. Section 7002(a)(1)(A) authorizes
citizen suits when a violator is “alleged to be in violation” of a RCRA regulatory requirement.
Since this phraseology not only matches that of Section 505 of the CWA, but was considered its
grammatical equivalent by the Supreme Court in Gwaltney, 47 clause (A) RCRA citizen decisions
have consistently found that “wholly past” regulatory violations are not actionable by citizens,
91-604, 84 Stat 1676, Sec 304, reprinted in 1970 U S Code & Ad News 1954, 1991.92 There is no citizen suit
authority under Section 311 for the same reason Congress did not provide prospective injunctive relief to the federal
government, no court decree could be expected to prevent unrelated, future accidents
‘ Gwaltney 1, 484 U S at 64 The outcomes in Hamker v Diamond Shamrock Chemical Company, 756
F 2d 392 (5th Cir 1985) and Gwaltney I suggest that, even if citizen suits were authorized to allege Section 311
violations, the lack of regulatory injunctive remedies and the (presumptively) nonrecurrent nature of oil spills would
impede citizen plaintiff standing See United States v Southern Pacific Transportation Co. 94-6176-HO (D.Ore
January 20, 1995), Order on Motion to Dismiss, slip op at 2-3 (finding that United States made injunctive relief
showing under a 30 1(a) theory because it showed a limited purpose in its discovery strategy) Consequently, the
normal factual basis for citizen suits for unpermitted oil spills Lmplies citizen standing difficulties under the Clean
Water Act
Gwaltney 1, 484 U S at 59 (Citizens “may seek civil penalties only in a suit brought to enjoin or
otherwise abate an ongoing violation “) Gwaltney itself seemed to reject an expansive continuing violation theory
for NPDES violations when the Court, reversing the Fourth Circuit, interpreted the Section 505 phrase “to be in
violation” as not encompassing both “unlawful conduct that occurred solely prior to the filing of the lawsuit as well
as unlawful conduct that continues into the present.” 484 U.S at 55, citing district court opinion below in CBF v
Gwaltney, 611 F Supp 1542, 1547 (E.D Va 1985) In support of its rulmg, the Supreme Court contrasted the
prospective effect of CWA legislative language authorizing citizen suits with the clearly retrospective citizen
authorization in RCRA §7002(a)(1)(B) Id, 484 U.S at 57 n.2
46 Section 7002(a)(1) of RCRA, 42 U S C §6972(a)(l).
47 484U S at57n2
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and that clause (A) standing requires a Clean Water Act type, good-faith allegation of continuous
or intermittent violations. 48
Clause (B) cases, however, are brought under statutory language that allows claims
against
any person who has contributed or who is contributing to the past or present handling,
storage, treatment, transportation, or disposal of any solid or hazardous waste which may
present an imminent and substantial endangerment to health or the environment.
The Supreme Court in Gwaltney used this passage to demonstrate how Congress authorizes
citizens to sue for past violations. 49 Courts ruling on standing challenges in clause (B) cases have
ruled in favor of citizen plaintiffs. 50
III. Occurrence of Discharge Penalty Violations
In most cases there is no question as to when a violation occurs. In the great majority of
strict liability environmental cases, and certainly under Section 301(a) of the CWA, the violator’s
active misconduct is the violation. But under Section 31 1(b)(3) and 40 CFR Part 110, which
require a demonstration of environmental effect, the plaintiff must establish a causative chain
from the defendant’s active misconduct to adverse environmental risks or effects. In
aboveground oil spills, such a cause to effect period is often almost instantaneous, 5 ’ and rarely
more than a day long -- a “per day” statutory period that establishes, under one prong of Section
311 (b)(7) of the CWA, the extent of a violator’s civil penalty liability. Any cause-to-effect
sequence happening entirely within the daily, statutory penalty period presents no “occurrence”
problem.
Occurrence issues arise only in those rare factual circumstances, such as subsurface spills,
where the cause to effect penod outgrows the “per day” statutory penalty liability period. And
48 See, e g, Ascon Properties, Inc v Mob,! Oil Co, 866 F.2d 1149, 1159 (9th Cir 1989), Lutz v
Chromatex, Inc. 718 F Supp 413, 424 (M D Pa 1989), and, Coburn v Sun Chemical Corp, 28 ERC 1665, 1672-
73,19ELR20256(ED Pa 1988) Butsee,Dydiov HesstonCorp,887F Supp 1037, 1040-45(ND Ill
1995)(finding that plaintiff’s clause (A) allegations of ongoing failure to remediate UST contamination under 40
CFR §280 60-67 were sufficient to withstand a motion to dismiss, despite the defendant’s “wholly past” disposal
violations)
‘ Gwaltney 1, 484 U.s at 57 n.2.
° See, e g, Prisco v State of New York, 902 F Supp 374, 395 (S D N Y 1995)
5i It takes no more than an instant for the discharged oil to reach an adjoining shoreline or a water of the
United States in violation of Section 31 1(b)(3) of the CWA
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although this issue seems to invite legal analysts to focus attention to the time of the event itself,
the start of the causation chain, courts have instead approached this issue from the other direction
-- years later, when deciding whether and how to apply a statute of limitations.
In this regard, the Supreme Court has been consistent in describing when a claim accrues
for purposes of a statute of limitations. It declared in 1830: “When might this action have been
instituted, is the question; for from that time the statute must run.” 52 Over one hundred years
later, the Court restated this holding as “a right accrues when it comes into existence.” 53 Still
more recently, the D.C. Circuit noted that a party’s action accrued “when his nght to resort to
federal court was perfected” 54 and the federal statute of limitations cannot begin to run until “the
factual and legal prerequisites for filing suit are in place.” 55
Determining when regulatory violations occur in a subsurface oil seep case requires an
examination of the elements of proof of the three possible regulatory penalty violations --
Sections 301(a) and 31 I(b)(3) of the Clean Water Act, and Section 3004(d) of RCRA -- in light
of the “accrual” rule of statute of limitations case law.
Clean Water Act
The Clean Water Act’s strict liability penalty scheme ensures that a violator’s active
misconduct establishes civil penalty liability, and only the fact of violation is necessary to
establish civil penalty liability. 56 Legal responsibility cannot be evaded by equitable excuses. 57
In creating EPA’s judicial civil penalty authorities, Congress measured out an unlawful
discharger’s civil penalty liability violation by violation, or at least day by day. 58 The legislative
52 Wilcox v Plummer, 29 U S (4 Pet) 172, 181 (1830)(” Wilcox”)
United States v Lindsay, 346 U.S 568, 569 (1954)
Oppenheim v Campbell, 571 F.2d 660, 662 (D C Cir 1978).
3M, 17 F.3d at 1460
See, e g, United States v Earth Sciences, mc, 599 F.2d 368, 374 (10th Cir 1979)
See, e g, United States v Tom-Kat, 614 F.Supp 613, 614 (D Alaska 1985)(Timely application for an
NPDES permit is no liability defense against charge of discharging without a permit)
58 See, e g, Section 309(d) of the CWA, 33 U.S C. § 131 9(d)(” [ A] civil penalty not to exceed $25,000 per
day for each violation . “), Section 311 (b)(7)(A) of the CWA, 33 U S C § 1321 (b)(7)(A)(” [ 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 “), and, Section 3008(g) of RCRA, 42 U S C §6928(g)(” [ A] civil penalty in an
amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this
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history of the Clean Water Act, 59 and cases interpreting Congressional intent, 60 support the
proposition that an individual civil penalty violation does not occur over an indefinite period of
time. CWA and statute of limitations case law indicate that a violation occurs in a fixed
moment. 6 ’
Section 311 (b)(3) began as Section 102 of the Water Quality Improvement Act of 1970
(“1970 Act”), 62 and was incorporated into the Clean Water Act as Section 311 upon the CWA’s
enactment in 1972. When Congress established a broad scale oil spill prohibition in 1970,
federal water pollution enforcement was focussed on protecting environmental resources rather
than first encouraging appropriate discharger behavior. 63 The Refuse Act of 1899” and the
CWA’s predecessor, the Water Quality Act of 1965,65 did not adopt polluter-specific regulatory
controls, but instead attempted to defend actual navigability or stream segment usage through
after-the-disaster enforcement. Section 311 (b)(3), essentially unchanged from 1970, has
continued to use this old-fashioned approach. This provision establishes no regulatory controls
over discharges, requires no permits, and sets no effluent limitations -- it just outlaws oil spills.
subsection, constitute a separate violation “).
59 See, e g, H R Rep No 99-1004, 99th Cong 2d Sess 132, reprinted in, Congressional Research Service
of the Library of Congress, 2 A Legislative History ofthe Water Quality Act of 1987, at 821 (1988)(clarifying that
“each distmct violation is subject to a separate daily penalty assessment”)
60 See Atlantic States Legal Foundation v Tyson Foods, mc, 897 F.2d 1128, 1138-39(11th Cir 1990)
(“Tysons Foods”) and In re Borough of Ridgway, Pennsylvania, CWA Appeal 95-2 (EAB May 30, 1996)(”In re
Ridgway”)
61 See Chesapeake Bay Foundation, Inc v Gwahney of Smithfield, Ltd, 890 F 2d 690, 696 (4th Cir
1989)(”Gwalzney 1I”)(”Under the Clean Water Act, civil penalties attach as of the date a permit violation occurs
Liability is fixed by the happening of an event (discharge of effluent with an excessive burden of pollution) that
occurred in the past “)(CWA) and Oppenheim v Campbell, 571 F.2d at 662 (Statute of limitations)
62 PubL 91-224, 84 Stat 91,92
63 Congress did not focus on source violations until the 1972 Federal Water Pollution Control Act
Amendments EPA v State Water Control Board, 426 U S 200, 202-05 (1976) In many, if not most, subsurface
seep cases, the discharger will not incur its Section 311 (b)(5) obligation to notify the government immediately upon
the subterranean event, and often may itself be unaware of the oil leak that will lead to a waterway until it does
reach a surface water and create a sheen. The anticipated sequence of spill response events begins with the
discharger’s notification to the government under Section 31 1(b)(5)
“33 USC §407
65 Pub L 89-234, 79 Stat 903
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For Section 311(b) purposes, a spill must reach either an adjoining shoreline or a navigable water
of the United States, or it is not within the regulatory scope of the law. 66
An above ground spill that threatens or reaches a surface water falls immediately upon an
adjoining shoreline, and determining when it occurs presents no difficult interpretative issues. A
subsurface oil seep, however, whether originating from a buried pipe, tank, or other structure, can
begin far in time and distance from where it ends. A more precise analysis is needed to answer
the question: When and where does a subsurface Section 31 1(b)(3) civil penalty violation occur;
when does the cause of action accrue?
The D.C. Circuit has held that a civil penalty claim arises not at the time of an injury to
the government or to the environment, but at the moment of violator misconduct. 67 This
distinction, however, does not apply to events addressed by Section 311 (b)(3) of the CWA
because, unlike other federal environmental provisions, the law itself requires the possibility of
harm to a navigable water or an adjoining shoreline before civil penalty liability attaches. When
an underground oilbearing structure cracks or ruptures there is, for purposes of the Section
31 1(a)(2) discharge definition, “spilling, leaking, pumping, pouring, emitting, emptying [ or]
dumping,” but there is almost surely not an involved water of the United States or adjoining
shoreline -- and often, no way to know if there ever will be. To have a potentially adverse effect
as described by Section 311 (b)(3) and its implementing regulation, 40 CFR 110.3, the oil must
reach the water or its shoreline. Without an observable or measurable effect of either a sheen, a
water quality standard violation, or the deposit of a sludge or emulsion, EPA has no enforcement
case. 68 In other words, by operation of Section 311 (b)(3) itself, there is no distinction, no
distance, between “when the defendant commits his wrong and when substantial harm
66 CWA remedial provisions, however, allow responses to threats to protected resources See Sections
311 (c)(2) and (e)( 1) of the Act, and Section 311 (j) of the Act, which governs the SPCC and FRP programs,
regulates activities that only threaten waters of the United States or their adjoining shorelines
67 Compare 3M, 17 F 3d at 1460-61 (“In an action for a civil penalty, the government’s burden is to prove
the violation, injuries or damages resulting from the violation are not part of the cause of action; the Suit may be
maintained regardless of damage Immediately upon the violation, EPA may institute the proceeding to have the
penalty imposed . Because liability for the penalty attaches at the moment of the violation, one would expect this
to be the time when the claim for the penalty ‘first accrued “) As discussed in Section V, this holding has caused
problems for the government in its attempt to apply a tolling doctrine in a statute of limitations case
68 The potentially late arrival of Section 31 1(b)(3) liability is supported by the reliance of Section 311
response and enforcement upon the violator’s notification of the spill pursuant to Section 311(b)(5) and 40 C F R
§300.300. These require the spill be reported not at the moment of initial release, but as soon as the violator is
aware that Section 311(b)(3) has been violated--which for subterranean events can occur much later.
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matures.” 69 A Section 311(b) violation cannot occur until a potentially harmful effect occurs to
the protected resource. 7 ° Section 311 (b)’s outdated commitment to environmental harm,
ironically, avoids questions of cause and effect issues by requiring both misconduct and
environmental harm before liability attaches. This legal advantage is not shared by Section
301(a) of the Act, its central and more modern regulatory prohibition.
Section 30 1(a) of the Clean Water Act was enacted in 1972 when Congress overhauled
the ineffective 1965 Water Quality Act. Congress knew the old law was unenforceable. The
1972 Clean Water Act, the foundation upon which EPA’s clean water program is based,
strengthened end-of-pipe technology-based controls over water quality concerns, and moved the
Agency’s approach from reactive to preventive. 7 ’ This relocation of regulatory concern is
reflected in the Clean Water Act’s permit program definition of “discharge of a pollutant,” which
reads “any addition of any pollutant to navigable watersfrom any point source” [ Emphasis
supplied.] In contrast to earlier formulations, including Section 102 of the 1970 Act, the
discharge definition used by Section 301(a) does not require any proof of harm, only proof of an
unauthorized activity at a controllable source.
As a result, the government more quickly perfects a Section 30 1(a) claim than a Section
31 1(b)(3) claim. Rather than waiting to see if there is an effect on a water body -- an approach
rejected in 1972 by Congress for regulated dischargers -- EPA need only examine the active
conduct of the discharger, and determine (perhaps, necessarily, at a later date) whether that
conduct did in fact involve a water of the United States. If the discharge did reach a water of the
69 Note, Developments in the Law -- Statutes of Limitations, 63 HARV L REV. 1177, 1200 (1950)
(“Developments “)
70 Whether groundwater that is hydrologically connected to a surface water is a navigable water of the
United States can be debated. Court rulings are split, but appear to be strongly fact-driven Compare, e g,
McClellan Ecological Seepage (“MESS “) v Weinberger, 707 F. Supp 1182, 1193-96 (E D Cal 1988), vacated on
other grounds, MESS v Perry, 47 F 3d 325 (9th Cir ), cert denied, 116 S. Ct. 51 (l995)(yes) to Village of
Oconomowoc Lake v Dayton Hudson Corp. 24 F 3d 962, 964-66 (7th Cir.), cert denied 115 S Ct 322 (1 994)(no)
See Umitalla Waterquality Protective Association, Inc v Smith Frozen Foods, Civ No. 96-657-AS, Partial
Judgment and Order Certif ’ing Interlocutory Appeal (D Ore, April 9, 1997), slip op at 10-13 (no) for a summary of
case law, both pro and con The Clinton Administration has taken the position before Congress and in an amicus
before the Oconomowoc court that, under certain circumstances, such groundwater was protected by the Clean
Water Act If such groundwater is within the scope of Section 311, if there are relevant water quality standards
applicable to it at the point of the subsurface oil release (a very unlikely combination), it is possible to have a
Section 311 violation close in time to the spill event As discussed in the text below, this circumstance would
present significant proof problems in a government enforcement case Without these circumstances, Section 311(b)
would not apply until the oil eventually emerges from its subsurface path into either a surface water or its adjoining
shoreline
7i For an authoritative discussion of this point, see EPA v State Water Resources Control Board, 426 U S
at 202-05.
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United States, then statutory harm occurred at the time of the point source discharge and Clean
Water Act jurisdiction was present from that moment, 72
The actual day in violation of Section 301(a) -- the date of actual discharge of a pollutant
from a point source that inevitably leads to a surface water -- may be different than the day or
days upon which that violation becomes manifest by the entry of that pollutant into a water of the
72 Although there is no CWA case law directly on this pomt, the Supreme Court has in admiralty
jurisdiction cases examined the issue of when and where a tortious event occurs In Minnie v Port Huron Terminal
Co, 295 U.S 647, 648-49 (1935) it summarized the relevant legal principles’
[ 1]n Smith & Son v Taylor, 276 U S 179 [ 1928] . a longshoreman, employed in the unloading
of a vessel at a dock, was standing upon a stage that rested solely upon the wharf and projected a
few feet over the water to or near the vessel He was struck by a sling loaded with cargo, which
was being lowered over the vessel’s side and was knocked into the water, where sometime later he
was found dead It was urged that the suit was solely for the death which occurred in the water
and hence that the case was exclusively within the admiralty jurisdiction. We held the argument
to be untenable We said. “The blow by the sling was what gave rise to the cause of action It was
given and took effect while deceased was upon the land It was the sole, immediate and
proximate cause of his death The G R Booth, 171 U.s 450, 460 The substance and
consummation of the occurrence which gave rise to the cause of action took place on land ‘id, p.
182
Similarly, it is the unlawful discharge of oil from the underground point source that gives rise to a Section 30 1(a)
cause of action, and the discharge takes effect at some distance from the water that it will eventually reach
Nonetheless, it is this originating event that is the “sole. . and proximate cause” of the entry of the unpermitted
pollutant into a water of the United States As in the Port Huron analysis, “The substance and consummation of the
occurrence which gave rise to the cause of action took place on land,” even if the final effects occurred in the water.
In a later case, Executive Jet Aviation, Inc. v City of Cleveland, 409 U S 249 (1972), the Supreme Court noted the
strength of the argument that “a tort ‘occurs’ at the point of first impact of the negligence,” and not the last point in
a physically inevitable sequence, id at 267, but avoided adopting this position in the case of an airplane crash only
due to the “inherent nature of aircraft [ that] are not restrained by one-dimensional [ sic] geographic and physical
boundaries” Id at 268 In subsurface oil seeps, however, the reasoning of Executive Jet would seem to support a
conclusion that the Section 301(a) violation occurs at the point source.
This line of Supreme Court cases also seems to support the proposition that if discharged pollutants were
discovered inevitably en route to a surface water, irrespective of the presence or absence of any groundwater
(compare n 70), prophylactic injunctive relief may be available under Section 309(b) of the CWA, since the Section
301(a) violation would have already occurred, even if all of its effects had not yet been felt. (This analysis also helps
explain why the older, outcome-oriented Section 311(b) regulatory regime, without a preventive, non-endangerment
injunctive authority analogous to Section 309(b), prohibited oil spills in reportable quantities not only onto
navigable waters, but also upon “adjoining shorelines” Before the creation of Section 309(b)’s judicial equitable
authorities, Congress protected surface waters from oil spills prophylactically by establishing an adjoining, above-
ground protective zone around the waters to which oil should not stray and from which oil could be removed at the
expense of the violator) Pub L 91-224, §102, 84 Stat 91-92 (1970)
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United States. Legislative history 73 and case law 74 hold that point source discharges can be found
even though the path to a water of the United States is circuitous or indirect. And an unpermitted
discharge of oil to a water of the United States via from an underground point source, such as a
buried tank, pipe, or other structure, is unlawful whether the oil seeps from a stream bed or
riverbank no matter whether it got there as a result of gravity alone, or was carried along by
groundwater flow.
Resource Conservation and Recovery Act
RCRA, unlike the Clean Water Act, does not acquire jurisdiction only with a threat to, or
direct involvement of, surface water; RCRA more generally protects the environment. 75 Like
the CWA, however, RCRA employs a strict liability civil penalty approach, 76 and authorizes
EPA’s use of enforceable corrective action orders in Section 3008(a) and (h). For purposes of
this analysis, it is assumed that a Section 3004(d) violator has neither interim status to operate
under RCRA §3005(e) nor a RCRA permit issued under §3005(c). Under the recent Hawaiian
Western Steel ruling, 77 injunctive relief would be available against such a violator only under
RCRA §3008(a). Because RCRA protects the environment from unlawful disposal, a violation
occurs at the moment that the subsurface oil escapes containment and is released into the
surrounding subterranean environment. The government’s RCRA unlawful disposal claim is
perfected instantly.
Implications of “Occurrence” Law
There are two problems that can arise from the application of this instantaneous
occurrence analysis to EPA strict liability cases, and each can undermine an Agency enforcement
S. Rep No 92-414, at 77(1972), reprinted in 1972 U S Code & Ad News 3668, 3742-43; remarks of
Cong Dingell, 118 Cong Rec 33756-57 (1972).
See, e g, Eidson, 108 F 3d at 1341-43 and United States v Pozsgai, 999 F.2d 719, 731-32 (3d Cir
1993), cert denied, 114 S Ct. 1052 (1994), Compare, United States v Ashland Oil & Transportation Co. 504 F 2d
1317, 1323-25(6th Cir. 1974)(CWA §3 11)
See, e g, RCRA’s definition of “disposal” in § 1004(3), 42 U.s C §6903(3), which references disposal to
“any land or water” in a way that any “solid waste or hazardous waste. may enter the environment
76 See, e g, United States v Crown Roll Leaf mc, 1988 U S.Dist LEXIS 15785, * 18 (D.N.J 1988)
(“violations of both RCRA and CERCLA are subject to strict liability Congress modeled the civil violation
provisions of RCRA after the Clean Air Act and Clean Water Act under which civil penalties are strict liability
offenses “)
United States v Hawaiian Western Steel Lid, Inc. Civ No 92-000587-ACK, Order on Motion for
Reconsideration, slip op. at 4-8 (D Haw July 1, 1 996)(”HWS Reconsideration “)(RCRA)
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claim. First, if a violation concludes on the day it occurs, a court may refuse to provide an
equitable remedy under Section 309(b). Second, an instantaneously perfected violation,
especially one that is hidden under the earth’s surface, can escape prosecution for so long that the
statute of limitations can apply to all or part of the government’s civil penalty case. This is
especially true if a severable violation analysis applies, as discussed in Section III, and active and
ongoing violations have ceased. In order to circumvent these problems, the government
sometimes advocates a “continuing violation” theory.
IV. “Continuing Violation” Theory
There are compelling policy reasons for EPA’s interest in establishing a broad theory of
“continuing violations” for underground oil seeps. In the absence of ongoing, fresh discharge
violations, a “continuing violation” finding helps establish a basis for injunctive relief, increases
the maximum civil penalty claim, and can defeat a federal statute of limitations defense. 78 The
Agency has advocated “continuing violations” whenever it can strengthen a regulatory
enforcement claim, without much regard for the type of regulatory case being litigated. 79 For a
violation truly to be “continuing,” however, an individual violation must occur over an indefinite
period. 80 Examples of pure continuing violations are rare in federal environmental law. They
In the case of Section 301 in particular, federal enforcers have an interest in maximizing opportunities to
seek civil penalties Because unpermitted discharges originating underground often do not reach surface water until
months or years later, the Agency or citzens would find it useful to describe such unpermitted discharges as
occurring continuously during the period from origination of the leak to its ultimate entrance into a surface water.
But federal plaintiffs may also argue that continuing violations are present under Section 311 or RCRA
The most common forum for this assertion has been in wetlands cases, where the government has taken
the position that the continuing presence of fill in a wetlands represents a new day of discharge liability for each day
the fill remains in place The counterargument is that the continuing effects of an earlier violation, the adverse
impact of undisturbed fill, should not be confused with violative conduct subject to additional, daily civil penalties
80 The best test to establish the presence of a true contmumg violation may be to ask whether at any
moment during its term, only one sanctionable act by the defendant has been, is, arid will be occurring But see,
Timothy Shanley, Applying a Strict Limitations Period to RCRA Enforcement A Toxic Concept With Hazardous
Results 7 , 10 Pace Env L. Rev. 275, 308 (1992)(”The continuous violation theory to the statute of limitations runs
from each of a series of wrongful acts during the course of a continuing violation Under this theory, a cause of
action accrues only after the occurrence of the last significant event necessary for the claim to be viable occurs
Each time the plaintiff is injured by a defendant’s act, a cause of action accrues, and the statute of limitations begins
to run on that act” (footnotes omitted)). This general statement, however, is based on language in Zenith Radio
Corp v Haze/tine Research, mc, 401 U S 321 (1971), which significantly qualifies its holding by placing it “in the
context of a conspiracy to violate the antitrust laws, such as the conspiracy in the instant case.” Id at 338
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can arise under criminal conspiracy law, for example, during the unpredictable life of the
conspiracy, or under certain statutorily defined “pattern or practice” activity violations. 8 ’
EPA’s likelihood of success will turn, in civil penalty cases, on the fact pattern of the
violations and, in injunctive cases, on the type of statutory authority being brought to bear in the
prosecution.
In Civil Penalty Cases
Regu!atory civil penalty violations can be active or passive: Either the violator has acted
in a way that is prohibited by law, or has failed to take measures -- usually preventive,
informational, or remedial -- required by law; 52 the criterion is whether the violator is alleged by
its inaction to have breached a lawful duty to act, or alleged instead to have acted in defiance of a
prohibition.
If a person has failed in an affirmative duty to perform a task, such as taking steps to
prevent pollution, remediate pollution, or provide information on an ongoing basis, then the
courts will tend to find a continuing violation. 83 If, however, there is only a prohibition against a
certain act, such as illegal discharges, 84 then the courts will tend to deny civil penalty liability --
refuse to find a “continuing violation” -- during periods of inaction, and find a violation only on
81 See, e g, cases under Section 804 of the Fair Housing Act of 1968, 42 U.s c §3604 (anti housing
discrimination statute), and 18 U S C. §1964(c)(Civil RICO, requiring a series of racketeering violations)
82 Compare, eg, Section 301(a) of the CWA and Section 12j(a)(I) of FIFRA (establishing prohibited
conduct) to the SPCC regulations in 40 CFR Part 112 (requiring spill prevention plans), NPDES DMR submission
requirements under Section 308 of the CWA (requiring periodic information production) and orders authorized
under Section 106 of CERCLA (requiring environmental remediation over a period of time)
83 See, e g, In re Ashland Oil, Inc. SPCC Appeal No 91-I (EAB September 15, 1992)(finding per day
liability for contmuing failure to comply with SPCC prevention requirement), Dydso v Hessian Carp, 887 F. Supp
at 1040-45 (in which a RCRA citizen plaintiff elided a standing challenge against wholly past, active misconduct
disposal violations by casting its complaint instead as a failure to remediate case), and In Re Harmon Electronics,
mc, RCRA (3008) Appeal 94-4 (EAB March 24, 1997), slip op at 22-41(”Harmon”)(findrng continuing violations
for failure to have a RCRA operatmg permit for a hazardous waste landfill) and at 42 (“the ordinary meaning of the
word ‘monitoring’ connotes an ongoing activity”) Compare United Stat es v Trident Food Corp ,60 F 3d 556, 559
(9th Cir 1995), cerl denied, 117 S.Ct. 944 (1997)( ”Trident”)(CAA) (Finding only one day of violation for failure
to notify on the basis that, unlike the CWA “there were no specific time periods defined by the statute or
regulation “)
Or illegal construction United States v Campbell Soup Company, 1997 US Dist LEXIS 3211, *3*8
(E D Cal March Il, I 997)(CAA)(”Cainpbell Soup”)(finding no continumg civil penalty violation under particular
law and regulations governing the federal and California ban on authority to construct certain facilities)
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the days upon which there was affirmative misconduct. 85 This mie was well summarized
recently as “one who performs an act of commission is liable for every day that the act occurs. If
the act is one of omission, then the violation continues for each day that the act of omission
occurs -- that is, until compliance.” 86
In Injunctive Cases
85 See, e g, HWS, slip op at 42-43 (D Hawaii May 16, 1996)(”HWS”)(denying liability under continuing
violation theory for lack of active misconduct) This distinction is subject to manipulation For example, a
compliance order prohibiting misconduct can be characterized instead as affirmatively requiring good conduct See
United States v 177’ Continental Baking Company, 420 U S 223, 230-43 (1975)(Under antitrust consent order,
prohibition against “acquiring” certain assets, pursuant to usage in antitrust law and by the parties to the order,
must be interpreted as continuing, including all days rights to the assets were maintained, until disgorgement) (Four
justices dissented, arguing that “Once an acquisition was consummated, the violation was complete.” 420 U S. at
245, Stewart, j , dissenting.) Or a court may impute a statutory requirement to remediate, leading to a conclusion of
continuing violations See In the Matter of Rueth Development Company, Docket No CWA-A-0-007-92 (AU
Kuhlmann, August 20, 1996), slip op at 3, (summarily and incorrectly asserting, in a wetlands action that “Section
301 of the Clean Water Act states that each day that these matters [ of unpermitted fill] are not rectified results in a
violation of the Act “) Contra Joseph G Theis, The Application of the Federal Five-Year Statute ofLimitalions for
Penalty Actions to Wetlands Violations Under the Clean Water Act, 24 Northern Kentucky L. Rev. 1, 17 (1996)
(“Section 301 of the CWA clearly regulates discharges, not mere impacts on wetlands An argument that a wetlands
violation continues as long as the ill effects of that violation continue cannot be supported by the language of
§301 “(Footnotes omitted)) Or a hypothetical may be constructed imprecisely analogizing a Section 30 1(a)
violator’s inaction in not closing a valve (leading to active, multi-day discharge violations) to a wetland Section
30 1(a) violator’s inaction in failing to remove illegal fill (not resulting in any additional physical discharges) The
difference in the hypothetical, of course, is that the discharger’s conduct that resulted in the commencement of the
discharge results in continuous pollutant loading, while the wetland example describes a simple failure to remediate
a prior violation.
86 Trident, 60 F 3d 556, 562 (Ferguson, J , dissenting). See also Shanley, 10 Pace Env. L Rev, at 329
(“ [ A] cause of action exists where the defendant fails to perform a continuous duty required by law regardless of
when the offense began “)
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A different analysis prevails for injunctive relief cases. 87 Where a statute directly
authorizes remedial injunctions, courts find a “continuing violation,” and therefore equitable
jurisdiction, if the court is being asked to undo harm already caused by the defendant. 88 RCRA
disposal “endangerment” cases, for example, have held that the violator’s misconduct in illegal
disposal continues as long as solid waste continues to “migrate” through the environment, 89 even
if the violator no longer owns the contaminated property. 9 ° This long arm approach results from
interpreting RCRA “disposal” in Section 1OO4(3) ’ as encompassing “not only active conduct but
also the reposing of hazardous waste and its subsequent movement through the environment.” 92
87 This distinction is clearest in RCRA case law addressing unlawful disposal claims, where courts,
sometimes explicitly, apply continuing violation liability to requests for injunctive relief, but not to civil penalty
demands. See, e g United Stales v Waste industries, mc, 734 F 2d 159, 164-65 (4th Cir 1984) (contrasting
RCRA subtitles C and D), United States v Price, 523 F.Supp 1055, 1071-72 (D N J.1981), affd, 688 F 2d 204 (3d
Cir 1982)(fmding continuing violations for injunctive purposes under RCRA §7003)(”Price”), Jones v Inmont
Corp. 584 F Supp 1425, 1435-36 (S D Ohio 1984) (“inmont”), and, in re Globe Aero Ltd mc, and ihe City of
Lake/and, Florida, RCRA-89-07-R (AU Greene June 4, 1996), slip op. at 33-35 (rejecting continuing violation
argument in context of civil penalty disposal case under RCRA § 3004(d) and 3008(a) and distinguishing its
holding from those in nonperformance penalty cases, stating at 33-34 “Disposal is an act rather than a state of
continued noncompliance The fact that the waste or waste constituents may migrate does not provide a basis for
finding a continued disposal violation “) See also, Harmon, slip op at 41 n.36, distinguishing United States v
Telluride, 884 F Supp. 404 (D Col l995)(”Telluride”)(”The Telluride decision has no applicability here....
Harmon is being held responsible for its violative conduct [ by operating a landfill without a permit], not the effects
or consequences of that conduct “)
88 See, eg, EDFv Lamphier, 714 F.2d 331, 335 (4th Cir l983)(finding continuing unlawful presence of
hazardous wastes in buried drums as continuing operation of a RCRA storage facility) and Fallowfield Development
Company v Strunk, 1990 U S Dist. LEXIS 4820 (E D Pa l990)(finding continuing violation for improper disposal
until “the proper disposal procedures are put into effect or the hazardous waste is cleaned up “) Under RCRA, courts
need not strain even this much to find jurisdiction The equitable authority set forth in Section 3008(a) reaches past
violators directly “ [ W]henever on the basis of any information the Administrator determines that any person has
violated . any requirement of this subchapter, the Administrator may issue an order requiring compliance or
the Administrator may commence a civil action in United States district court for appropriate relief,
including a temporary or permanent injunction.”
89 See, e g, Waste industries, mc, 734 F.2d at 163-65
9° Gache v Harrison, 813 F Supp 1037, 1041-42 (SD N Y. 1993)(” [ T]he disposal of wastes can
constitute a continuing violation as long as the waste has not been cleaned up and the environmental effects remain
remediable “), accord, Beazer Materials, 833 F Supp at 655-56.
91 “The term ‘disposal’ means the discharge, deposit, injection, dumping, spilling, leaking, or placing of
any solid waste or hazardous waste so that such solid waste or hazardous waste or any constituent thereof may enter
the environment or be emitted into the air or discharged into any waters, including ground waters”
92 Nurad, 966 F 2d at 845, citing Waste industries, mc, 734 F 2d at 164
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Faced with similar requests, but armed with a weaker statutory authority that authorizes
only prospective injunctive relief, 93 many Clean Water Act courts have also relied upon a
“continuing violation” theory to achieve jurisdiction. Because of the statutory disadvantage,
CWA wetlands courts -- in order to remediate an earlier wrong -- sometimes have chosen to push
the concept of “continuing violations” to the point of legal fiction: finding a passive defendant to
have actively engaged in ongoing, serial discharge violations. 94 In this context, the Supreme
Compare Section 3008(a) of RCRA (reaching past and present violators) to Section 309(a) of the CWA
(reaching only present violators); see also, Gwaltney I, 484 U.S. at 57 n.2 (contrasting RCRA and CWA.injunctive
authorities) See generally, discussion in Section VI
See Sasser v EPA, 990 F.2d 127, 129 (4th Cir. 1993)(”Sa.sser”), accord, United Stales v Reaves, 923
F.Supp 1530, 1533-34 (MD Fla. 1996), North Carolina WildlifeFederationv Woodbury, 1989 US Dist. LEXIS
13915, 29 ERC 1941, 1943 (E.D N C I 989)(” Woodbury”)(citizen suit standing for remedial injunctive purposes),
United States v Ciampitti, 669 F. Supp 684, 700 (D.N.J 1987); United States v Cumberland Farms of
Connecticut, 647 F. Supp 1166, 1183 (D Mass 1986), aff’d, 826 F.2d 1151 (1st Cir 1987), cert denied, 484 U.s.
1061 (1988), and, United States v Tull, 615 F Supp 610, 626 (E D.Va. 1983), aff’d, 769 F 2d 182 (4th Cir. 1985),
rev’don other grounds, 481 U.S. 412 (1987).
Numerous wetlands decisions, using the concept of a “continuing violation,” have held that every day that
fill remains in place is a new and independent day of civil penalty liability for the discharger The true basis for
these penalty decisions is the defendant’s passively allowing the continuing presence of fill in a present or former
water of the United States, rather than the active misconduct language of Sections 301(a) and 502(12) of the Clean
Water Act, which prohibit the unauthorized “addition of any pollutant to navigable waters from any point source”
And the legal theory they use is less one of a “continuing violation” than of a continuous series of new violations
arising out of an initial act Days in violation are an open question in many wetlands courts. See, e g. Sasser, 990
F 2d at 129 (“Dr Sasser’s violation of the Act is a continuing one Each day the pollutant remains in the wetlands
without a permit constitutes an additional day of violation “)(Emphasis supplied) There is a discordance in
Sasser ‘s concept of liability, between the singular violation in the first sentence, and the resultant multiple violation
finding in the second sentence, both arising out of the same conduct. One analyst has concluded that “Lain
argument that a wetlands violation continues as long as the ill effects of that violation continue cannot be supported
by the language of 301,” and that a stronger §404 “discharge” argument may be made by relying instead upon
EPA and Army Corps of Engineers regulatory definitions set forth at 40 CFR § 232 2 and 323.2(d), (f), or by
claiming a continuing resuspension and redeposition of dredged or fill material. Theis, 24 N Ky. L. Rev at 17-21
These alternative arguments, however, are limited to the wetlands arena, and do not apply to a subsurface oil seep
being prosecuted under an unpermitted discharge theory
Judges in wetlands cases cannot find help in the Clean Water Act, since the law itself punishes only active
misconduct, and injunctive relief authority is prospective only Sections 309(a) and (b) of the CWA; Gwa!tney 1,
484 U S at 57 n 2 The courts may be especially comfortable adopting a legal fiction in wetlands cases, since the
premise of the common law doctrine of rescission, an element of real property law, is “that the parties can be
restored to the status quo ante,” American General Ins Co v Equitable General Corp. 493 F. Supp 721, 756
(E D Va I 980)(Securities Exchange Act) One commenter has suggested that the continuing violation doctrine is
being used by courts to ensure “fairness to plaintiffs who will not easily become aware of an available cause of
action,” in place of disfavored statute of limitations tolling rules. Albert C Lin, Applications of the Continuing
Violations Doctrine to Environmental Law, 23 Ecology L.Q 723, 758 (1996)
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Court’s Wilcox ruling appears hostile to this line of wetlands cases, since it supported the
repudiation of a continuing violation theory for tort damages under old common law. 95 Faced
with the difficulties inherent in this fiction, and cognizant of statute of limitations case law, some
recent wetlands courts have refused to find “continuing violations” in a civil penalty context. 96
The courts also may be using traditional equity powers to avoid allowmg a wrongdoer to evade
jurisdiction through the violation itself by removing the court’s subject matter jurisdiction -- as if, to paraphrase the
old joke, a man murdered his parents and asked to the court to dismiss his case because it had no authority over
orphans The Woodbury court came closest to articulating this concern, when it held that
Treating private defendants’ acts as a continuing violation is also supported by public policy If
citizen-suits were barred merely because any illegal ditching and drainage of a wetland tract was
completed before it was reasonably discovered, violators would have a powerful incentive to
conceal their activities from public and private scrutiny -- which would lead to serious problems
in public and private enforcement of the Clean Water Act.
1989 U S Dist LEXIS 13915, *8 Where other courts simply assume “continuing violation,” the Woodbury court
at least makes an effort to find legal support for its premise It claims, at *4 _*8, to find it in the minority opinion
(captioned a concurrence, but in this respect a dissent) in Gwaltney I, by citing its reasoning that the statutory phrase
in Section 505(a) “to be in violation” means that the violation continues to exist “so long as [ the violator] has not
put in place remedial measures that clearly eliminate the cause of the violation.” 484 U S. at 69. Woodbury
concludes that “violations having persistent effects that are amenable to correction would constitute contmuing
violations, until remedied, under Gwaliney 1 13915, at *7 Here the Woodbury opinion stumbles The decision
assumes that the effect of the violation, the fill, is itself the cause, or continuation, of the violation -- the very
premise it is purporting to prove It extends a conclusion rejected by the majority of the Supreme Court to support
this reasoning, but the Gwalzney 1 dissent addressed remediatmg causes, not remediating effects.
The prevailing attorney’s argument is recorded in the reporter as including this point
“In the view which the Plaintiff’s counsel takes of this matter, it would necessarily follow, that
after the first term, or court, in which Plummer could have sued, and ough t to have sued, the
plaintiff had a new cause of action against him, every day, for three years, each day’s neglect
being, as it is said, a new default, or a new cause of action If each day’s neglect be a new default,
and new cause of action, it is quite clear that the pendency of a suit for yesterday’s default would
be no bar to a suit founded on a default of to-day, and if these causes of action be, as is contended
they are, all new, independent and distinct, then it follows that independent and distinct damages
may be given in each Arguments can be no more specious which lead to results like these,”
Wilcox, 29 U S. at 180
96 See, e g, Telluride, 884 F Supp at 408 (“Telco is not presently discharging pollutants, and thus no
present or continuing violation exists for the purpose of the statute of limitations The fact that a continuing impact
exists from Telco’s past violations does not render the violation continuing “), Contra, United States v Reaves, 923
F Supp at 1534 (“the court finds in this case that Defendant’s unpermitted discharge of dredged or fill materials
into wetlands on the site is a continuing violation for as long as the fill remains. Accordingly, the five year statute
of limitations under 28 U S C §2462 has not yet begun to run on the Government’s claims either for civil penalties
or injunctive relief This finding is consistent with the remedial purposes of the CWA “(footnote omitted)
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The RCRA courts’ exercise of equitable jurisdiction is better grounded in legislative
history and more traceable to active misconduct by the defendant than the multiple violation
fiction adopted in many wetlands cases. RCRA courts do not seem inclined to find ongoing,
serial violations, at least for civil penalty liability, 98 and especially against a subsequent
purchaser, 99 even though the RCRA definition of “disposal” (which includes the elements of
“dumping, spilling, [ and] leaking”) lends itself more readily to a continuing violation
interpretation than the applicable Clean Water Act definition of “discharge.”°°
Finally, even though a continuing violation approach has often been applied by CWA and
RCRA courts to address the “ongoing impact from past violations,” 01 the doctrine is never truly
necessary to Agency regulatory claims for injunctive relief. There is no need to resort to this
legal theory if a defendant is committing violations up to the moment of the enforcement action.
Under the Clean Water Act, a court clearly may provide injunctive relief where present
misconduct establishes the jurisdiction of the court.’° 2 Under Section 3008(a) of RCRA, the
Gwaltney 1, 484 U S. at 57 n.2 and Waste Industries, 734 F.2d at 163-67.
98 See HWS Reconsideration, slip op at 9 (“the ‘first accrued’ language of 28 U.S C. §2462 means that
liability for RCRA penalties for a disposal and the resulting contamination or threat of contamination depends, for
statute of limitations purposes, on the date of the disposal “)(Emphasis in original), Compare, e g, Price, 523 F.
Supp. at 1071-73 (adopting continuing violation rule for RCRA disposal non-penalty endangerment case) and Waste
Industries, mc, 734 F.2d at 164 (adopting continuing violation rule for RCRA disposal non-penalty endangerment
claim but distinguishing disposal civil penalty claim)
Seen 38.
i00 Section 502(12) of the CWA, applicable to Section 301(a) claims, in relevant part defines “discharge of
a pollutant” as “any addition of any pollutant to navigable waters from any point source.” The Clean Water Act
defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure [ or] container from which pollutants are or may be
discharged” Section 502(14) of the CWA
101 Telluride, 884 F.Supp at 407 (CWA §404).
102 Gwaltney 1, 484 U.S at 57 (CWA §505) The basis for citizen suit jurisdiction under Gwaliney / should
not be confused with a doctrinal finding of “continuing violations” A majority of the Supreme Court recognized in
Gwaltney that a citizen’s judicial standing is achievable by something less than the allegation of an ongoing
violation of indefinite term Under the Gwaltney I rule, an historical discharge violation is not “continuing” into
the present; instead, a present day violation is alleged in good faith to be occurring, or likely to recur, at the time the
complaint is filed. Id (Requiring a good-faith allegation of only intermittent violation), See also, 484 U S at 67-70
(Scalia, J concurring)(criticizlng the majority’s lower threshold for standing than for ultimate proof of violation,
although agreeing that intermittent violations can constitute proof of failure to cure ongoing noncompliance) See
also HWS, slip op. at 40-41(” [ O]ne can be ‘in violation’ of RCRA requirements for [ Gwaltney] purposes of § 6972
(a)(1)(A) even if one is not currently engaged in illegal disposal of hazardous waste -- past disposal in conjunction
with the continuing presence of the dumped materials may be sufficient to allow suit under § 6972(a)(1)(A) “)
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courts are authorized to remediate the effects of past violations ) 03 Jurisdiction here requires only
an existing condition resulting from a earlier violation, but not the presence of a continuing or
active violation itself. As discussed below, despite these distinctions, CWA and RCRA courts
have found “continuing” violations.
The Pattern or Practice Exception
When the relevant statute defines the violation to be as a result of a continuing course of
conduct or a series of related events, the “continuing violation” doctrine applies. In cases of
housing discrimination or racketeering offenses,’° 4 for example, there is case law to support the
proposition that the violation continues as long as the established pattern or practice continues,
and the statute of limitations runs from the end point of the conduct. 105 Even though the
Agency’s implementing statutes generally do not establish “pattern or practice” type
violations,’ 06 favorable rulings in pattern or practice cases have been cited by EPA in arguing for
i03 [ Wjhenever on the basis of any information the Administrator determines that any person has violated
or is in violation of any requirement of this subchapter, the Administrator may issue an order assessing a civil
penalty for any past or current violation, requiring compliance immediately or within a specified time period, or
both, or the Administrator may commence a civil action, for appropriate relief, including a temporary or
permanent injunction “ Section 3008(a)(1) of RCRA, 42 U S C. §6928(a)(1).
i04 See, eg, Section 804 of the Fair Housing Act of 1968,42 U.S.C. §3604, and 18 U S.C §1964(c),
respectively
105 See Havens Realty Corp v Coleman, 455 U S 363, 380-81 (1982)(” [ W]e conclude that where a
plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an
unlawful practice that continues into the limitations period, the complamt is timely when it is filed with the
[ statutory filing period] of the last asserted occurrence of that practice “)(“Havens Realty”)(Fair Housing Act),
Keystone Ins Co v 1-/oughton, 863 F 2d 1125, 1128-31 (3d Cir I 988)(”Houghion”)(Civil RICO) But see, e g,
Stilt v Wi/hams, 919 F 2d 516, 521-22 (9th Cir 1990)(RICO)(adopting discovery rule), Bivens Garden Office
Building, Inc v Barneit Bank of Florida, mc, 906 F 2d 1546, 1553-55 (11th Cir. 1990), cerl denied, Ill S Ct
1695 (199 l)(discovery of pattern rule)(Civil RICO)
i06 But see Section 1001(14) of OPA, 33 USC §2701(14), which defines “incident” as “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” in conjunction with Section 1020 of OPA, 104
Stat. 484, § 1020, which states that “This Act shall apply to an incident occurring after the date of the enactment of
this Act” The determination of whether an OPA “incident” occurs before or after the enactment date of August 18,
1990, may rely upon a “pattern or practice” end point, thereby bringing some pre-OPA activity within its ambit In
an ambiguous bit of legislative history, the OPA Conference Committee noted, “it is the intent of the Conferees that
the entire series of events resulting in the spill of oil comprises one incident” H R. Conf Rep No 653, 101st
Cong,2dSess 102(1990)
The Environmental Appeals Board in dicta in its 1997 Harmon RCRA decision went too far by describing
“acts of disposal that occurred roughly every one to three weeks as part of a continuing course of conduct” Slip op
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a “continuing violation” theory under the different type of statutes it does administer.
Ultimately, as noted by the Supreme Court, “the inquiry into when a cause of action first accrues
is answered on a case-by-case basis ‘in light of the general purposes of the [ underlying] statute
and its other provisions, and with due regard to those practical ends which are to be served by
any limitation of time within which an action must be brought.”° 7
But it is the exceptional Agency case that can employ a “pattern or practice” theory, and
this approach is not available to ORE for oil seep enforcement purposes )° 8 Instead, the three
theories of regulatory cases yield the conclusion that, notwithstanding certain wetlands rulings,
“continuing violations” do not occur in the civil penalty context.
Summary
EPA has been stretching the idea of “continuing violations” to the breaking point under
the CWA and, to a lesser degree, RCRA. Recently, courts have tended to reject EPA arguments
for continuing violations despite earlier, more favorable rulings.’ 09 The limitations of the
concept are beginning to become apparent in recent civil penalty case law.
Although passive violations are termed continuing, oil seep cases fall into the active
violation category. In this branch of the law, true continuing violations are distinct from and
ultimately incompatible with the civil penalty elements of the CWA and RCRA, which establish
only severable, daily violations.” 0 Courts have often, however, informally and harmlessly
denominated such ongoing, severable violations as “continuing.” Applying a more formal
at 49 n 41. The saving distinction in Harmon was that the LAB was using intermittent acts to establish the
respondent as an operator of a landfill, and not applying a continuing violation theory to specific disposal violations
Id at 49-50
107 Harmon, slip op at 37, citing Crown Coat Front Co v Unzied States, 396 U.S. 503, 517 (1967)(itself
quoting Reading Companyv Koons, 271 U.S 58, 62 (1926)).
iOS As alluded to in n. 2, it may be possible to make such an oil seep argument under the remedial
authorities of OPA
109 Compare, e g, HWS, slip op at 39-43 and HWS Reconsideration slip op at 8-10 (rejecting contmuing
violation argument in disposal civil penalty case for statute of limitations purposes)(RCRA) and Telluride, 884
F Supp. 404 (CWA) to Sasser, 990 F.2d at 129 (CWA)(adopting continuing violation argument in wetlands
unpermitted discharge case)
110 See notes 60-62 and accompanying text
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continuing violation theory in the presence of ongoing, severable violations is unnecessary,”
and applying one can lead to peculiar and inappropriate results.” 2
Injunctive claims of continuing violations are received more favorably, although the
terms of government and citizen victories should be recognized as growing out of either statutory
remediation authority under RCRA, or vulnerable legal fictions developed by some wetlands
decisions.
Active violators (which includes subsurface oil discharge regulatory cases) are comprised
of several categories: (1) past misconduct cases, with no need or no option for remedial•
injunctive relief (penalty-only cases); (2) past misconduct cases with a need for remedial
injunctive relief; and (3) continuing misconduct cases, with need for remedial andlor prospective
injunctive relief. 113 Category 1 cases usually do, and always should, avoid the “continuing
In addition to the reasons provided above, with ongoing misconduct, a five year federal statute of
limitations (see Section V) and a generous statutory maximum civil penalty rate, prosecutorial penalty goals are
usually achievable without recourse to more theoretical applications of the doctrine.
ii2 In a bizarre holding that attempted to apply a more rigorous continuing violation theory to ongoing
misconduct, a Regional Administrator recently ruled that continuing NPDES violations “merged” to the point where
the Agency could not bring subsequent administrative enforcement actions on the same legal theory so long as the
respondent was still violating the Act, because that would represent “claim-splitting ““Final Decision and Order of
Withdrawal,” In re Borough of Ridgway, Pennsylvania, July 6, 1995, at 4 (Docket No CWA-lII-141). The
Environmental Appeals Board, upon sua sponte review, emphatically reversed this ruling, recognizing that EPA
could not be foreclosed under res judicata principles from suing on violations which had not yet occurred or been
reported to the Agency In re Ridgway (EAB 1996) The Region’s position, during the period of EAB review, was
cited as support by the court in United Stales v Avatar Holdings, Inc. Civ No 93-281 -CIV-FTM-2 I (M D Fla
1996), even though under EPA’s own procedural guidance, the Regional Administrator’s conclusion was not final
agency action for purposes of the Administrative Procedure Act (APA) Memorandum, “New Administrative
Penalty Procedures,” from Edward E Reich, Acting Assistant Administrator for Enforcement and Laiuana S
Wilcher, Assistant Administrator for Water, to Regional Administrators, October 29, 1991 (set forth in Section
Ill B 13 of EPA’s “Clean Water Act Compliance/Enforcement Compendium” (1996))(establishing proposed 40
CFR Part 28, published at 56 Fed Reg 29999 (July 1, 1991) as procedural guidance for CWA §309(g)
administrative penalty enforcement) and proposed 40 CFR §28 29(a), 56 Fed Reg 30033 (July 1, 199 l)(Upon sua
sponle review, “The Regional Administrator who issued an order shall be deemed the recommending Presiding
Officer for purposes of §28 28 “) A Presiding Officer’s recommended decision does not represent final agency
action (preamble to proposed 40 CFR §28 27(a), 56 Fed Reg 30018, and proposed 40 CFR §28 28(g), 56 Fed Reg
30032-33), and therefore a Regional Administrator’s order that is suspended by sua sponte EAB review (see
proposed 40 CFR §28 29, 56 Fed Reg 30033) is likewise not final agency action
i i3 Another analyst has similarly developed three distinctions
“ [ Tjhere are a number of cases where courts have had to rule on the issue of continuing violations
and where the continuity of the violation is less obvious For purposes of discussion, I divide
these cases into the following categories (I) cases in which a party has been in violation of a
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violations” doctrine. Category 2 cases are always subjected to the doctrine, when it is asserted,
even though it is sometimes unnecessary to achieve injunctive relief. Category 3 violators are
least likely to be the subject of a “continuing violation” claim, since active misconduct is present
at the time the case is filed. These categories are generally predictive of EPA’s success in
arguing for “continuing” violations. Of the programs discussed here, Section 31 1(b)(3)
violations, which are by law are penalty-on1y, 4 necessarily fall within the first, most futile
category. Wetlands and RCRA cases tend to fall into the second, and oil seep cases prosecuted
under a CWA Section 301(a) unpermitted discharge theory may fall within either the second or
third category)iS
statute on several occasions, but on nonconsecutive days; (2) cases where a party has violated a
statute by failing to perform a duty required by statute or permit and where such violation is
curable, and (3) cases where a party has violated a statute by failing to perform a duty required by
statute or permit and where such violation is incurable. Although the distinction between
‘curable’ and ‘incurable’ violations in the latter two categories is hardly obvious or non-
controversial, the term ‘curable’ refers either to substantive harms that can be mitigated or
eliminated by subsequent compliance with the law, or to procedural harms where compliance
would at least allow external monitoring of future activities.”
Lin, 23 Ecology L Q at 731 Lin, however, insists that that the first two categories are not distinguished “merely by
asking whether a party has committed acts of commission or a single act of omission. . . for one can often
characterize a failure to perform a legal duty as a series of violative acts.” Id at 734 That, in fact, is the more
salient analytic point Li i i then analyzes continuing violations as determined by the nature of the continuing effects
of the misconduct, albeit conceding that “courts have not held curability to be determinative of whether a continuing
violation exists” Id Lin’s analysis distinguishes “substantive” and “procedural” violations, they are more
precisely defined here as “active misconduct” and “failure to perform” violations Lin continually has to explain
how courts are unpredictable under his model, see, e g, id at 740 and 743, not contemplating that it is his own
faulty model causing his confusion
i 14 It is not by accident that a “spill” enforcement scheme would not include a provision for prospective
injunctive relief, since spills have been legislatively conceptualized as one-time events rather than part of a
continuing course of conduct. That conceptualization also influenced the Fifth Circuit in its early rule on citizen
standing in Hamker, 756 F 2d 392, a pipeline spill case brought by a citizen plaintiff using a Section 301
unpermitted discharge theory (since there is no citizen suit remedy available for Section 311 violations). This case
preceded and was implicitly overruled by the Supreme Court’s landmark decision in Gwaltney 1, 484 U.S. 49
Some Agency staff suggest that spills also may fit into the second category, as well, due to the adverse
environmental effects of oil remaining upon adjoining shorelines or navigable waters of the United States following
the spill event The discussion below of wetlands cases explores this issues this suggestion raises. Sections 311(c)
and (e), outside the scope of this analysis, provide a statutory means for remedial Injunctive relief in cases of oil
spills
‘ The affirmative misconduct, in Section 301 discharge cases, is the actual release of a pollutant from a
point source that does or inevitably will result in the pollutant reaching a water of the United States
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The RCRA injunctive relief cases are consistently successful in asserting “continuing
violations,” not because violations “continue” more than CWA Section 301 violations
“continue,” but because RCRA statutory goals and remedies clearly provide courts with
equitable jurisdiction over historical discharges. CWA wetlands cases are partially successful,
for reasons explored in this Section. Although there are no cases on point under CWA Section
311(b), this provision is quite unlikely to yield “continuing violation” law favorable to the
government. None of the regulatory theories available for subsurface oil seep cases provides a
solid basis for application of this doctnne.
And so we turn to statute of limitations law, and applicable tolling arguments.
V. Scope and Effect of the Federal Statute of Limitations
“Except as otherwise provided by Act of Congress, an action, suit orproceedingfor the
enforcement of any civilfine, penalty, or forfeiture, pecuniary or otherwise, shall not be
entertained unless commenced within five years from the date when the claim first
accrued “116
This appears to be a law easily construed and applied. By its terms, the federal statute of
limitations applies only to penalty actions. Under case law, it applies to administrative and
judicial EPA regulatory enforcement cases )’ 7 The limitations clock begins to nm when a claim
first accrues. The limitation takes effect after five years have passed.
The legal issues surrounding the law are, however, not as simple: Should a court sitting in
equity apply or borrow the five year rule? What effect does the statute of limitations have after a
finding of “continuing violation”? When, if ever, should the limitations period be tolled?
Effect of the Statute on Equitable Claims
Statutes of limitations exist for several reasons, among them the foreclosure of stale
claims, and preventing the prosecution of forlorn cases in which “evidence has been lost,
memories have faded, and witnesses have disappeared” and in which “the right to be free of stale
‘‘ 6 28USC §2462.
‘ UnitedStatesv Walsh, 8F.3d659, 662 (9th Cir 1993),cert denied, II4SCt 1830, 128 LEd2d459
(1994)(CAA), United States v C & R Trucking Company, 537 F Supp 1080, 1083 (N D W Va 1982)(CWA §31 1),
United States v Central Soya, Inc. 697 F 2d 165, 169 (7th Cir 1982)(Refuse Act) Compare 3M, 17 F.3d at 1455-
59 (applicable to TSCA administrative reporting penalty case). See also, PJRG v Dufflyn Terminals, Inc. 913 F 2d
64, 74 (3d Cir 1990), cert denied, 498 U S 1109 (1991)(”Powell Dufflyn”) (CWA citizen suit), and, Bodne v
Rehman Co, Inc. 811 F Supp 218, 221 (D S.C. I 993)(RCRA citizen Suit)
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claims in time comes to prevail over the right to prosecute them.” 8 These policy concerns fit
old, penalty-only claims better than injunctive relief claims, since ongoing harm continually
creates new evidence, more witnesses, and fresh memories.
In 1830, well before there was a general federal statute on the subject, the Supreme Court
considered the scope issue in Wilcox v Plummer In 3M, the 1994 D.C. Circuit credited the
beginnings of the current federal statute of limitations to that old Supreme Court case ) 2 ° Wilcox,
a tort damages case, excluded nuisance cases from its holding “since the nuisance of to-day is a
substantive cause of action, and not the same with a nuisance of yesterday, any more than an
assault and battery.” 2 ’ Because of this choice Wilcox, and by inference its statutory offspring
Order of R R Telegraphers v Railway Express Agency, mc, 321 U S 342, 349 (1944)
‘‘ 29 U.S (4 Pet) 172 (1830) In that case, an attorney’s estate was sued for the late lawyer’s negligence
in collecting on a debt The question was whether the creditor-client’s claim against its former attorney accrued at
the moment the attorney blundered or later, when through the lawyer’s incompetence the client had irretrievably
forefeited its collection claim through the passage of time if the claim accrued at the time of the blunder, which
occurred first, the attorney’s estate would be able to successfully interpose the applicable statute of limitations
against the plaintiffs, if the claim continued, or did not mature until the damages were complete, the plaintiffs would
prevail Under the prevailing law of the early nineteenth century, the Court held that the claim accrued at the time
of the blunder, and not when the damages became fixed, since “it is clear the damage is not the cause of the action”
Id at 182. (Emphasis in original)
120 The 3Mcourt disregards earlier legislation. There were two specialized, federal statutes of limitations
enacted among the earliest laws of the United States -- one for criminal prosecutions, and the other for collection
actions. The Act of April 30, 1790, 1 Stat 112, 119 c 9 created a limitations period for criminal, non-capital
offenses, stating there should be no prosecution, “unless the indictment or information for the same shall be found
or instituted within two years from the time of committing the offence, or incurring the fine or forfeiture aforesaid”
The Act of March 2, 1799, I Stat 627, c 22, created a claim period for the collection of duties on imports and
tonnage, stating “no action or prosecution shall be maintained in any case under this act, unless the same shall have
been commenced within three years next after the penalties or forfeiture was incurred.” Neither law used the word
“accrued” as marking the beginning of the period of limitations, and there does not appear to be any case law on this
issue until Wilcox which probably, as the D C Circuit concluded, ultimately beget the modern statutes, culminating
today in 28 U S C §2462 But see, Smith v United States, 143 F 2d 228, 229 (9th Cir), ceri denied, 323 U S 729
(l944)(concluding that the Act of March 2, 1799 was a predecessor to the modern, federal statute of limitations)
The 3M court concluded that “It is unclear, and unimportant, whether the ancestor of the Act of 1839” was either the
l790orl799statute 3M, 17F 3dat1458n7
at 181.
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(including, most recently, 28 U.S.C. §2462),i22 do not apply to federal statutory claims for
injunctive relief, the modern successors to common law nuisance cases) 23
This is confirmed by the plain language of the statute itself; which refers only to types of
monetary remedies, rather than other forms of relief) 24 As one district court put it, “The
limitations period set forth in 28 U.S.C. §2462 applies only to suits for civil penalties. This
section, by its own terms, has no bearing on suits in equity.” 125 Furthermore, it is settled that
“Statutes of limitation sought to be applied to bar rights of the government, must receive a strict
122 Since its enactment following Wilcox, the federal statute of limitations has maintained Its effect with
remarkable consistency The 3M court noted that the initial, post-Wilcox statute of limitations, enacted in 1839, was
also limited to monetary remedies
No suit or prosecution shall be mamtained, for any penalty or forfeiture, pecuniary or otherwise,
accrumg under the laws of the United States, unless the same suit or prosecution shall be
commenced within five years from when the penalty or forfeiture accrued.
Act of Feb 28, 1839, ch. 36, §4, 5 Stat 321, 322 Citedat 17 F.3d at 1458 n.7 (emphasis supplied] In 1874, the
law read much the same It “simply provided that ‘no suit or prosecution for any penalty or forfeiture, pecuniary or
otherwise, accruing under the laws of the United States, shall be maintained’ unless it is brought within five years
‘from the date when the penalty accrued,” cuing Revised Statutes § 1047, 18 Stat 193, 193 (later codified at 28
U S C §791 (1911) Id In 1948 the predecessor law 1028 U S.C. §2462 made nonsubstantive changes in phrasing
Id
123 Underthe Supreme Court’s holding in City of Milwaukee v Illinois, 451 US. 304, 317 ( 1981)(CWA),
the federal common law of nuisance over interstate waters is replaced by the 1972 Clean Water Act, a
comprehensive, regulatory statutory scheme addressing the same concerns Compare Waste Industries, 734 F.2d at
167 (RCRA)(suggesting Section 7003 of RCRA liberalizes common law nuisance remedies)
i24 It is probably more accurate to describe the historic beginnings of this distinction as relating to
monetary and non-monetary relief, rather than legal or equitable relief, since courts of equity and law could both
order monetary relief, and the SupTeme Court in 1838 declared, in that circumstance, that “The courts of law and
equity have concurrent jurisdiction; and the complainants having elected to resort to equity were as subject to be
barred by the statute [ of limitations] in the one court as in the other In such cases the courts of equity act in
obedience to the statutes of limitation, from which they are no more exempt than courts of law” Bank of the United
Statesv Daniel, 37US 32, 56(1838).
125 United States v Hobbs, 736 F Supp 1406, 1410 (E.D.Va. 1990), aff ’d, 947 F 2d 941 (4th Cir. 1991),
cert denied, 119 L Ed 2d 200, 112 S Ct 2274 (I 992)(CWA §404) See also, Powell Duffryn, 913 E .2d at 73-75
and Woodbury, 29 ERC at 1944 (CWA §404), Contra Federal Election Commission v Wi/hams, 104 F 3d 237, 240,
1995 U S App LEXIS 33537 (9th Cir 1996)(”Wdhiams”)(Election law case), Telluride, 884 F Supp 404, 409-10
(D Col 1995)(CWA §404)(distinguishing Woodbury) and United States v Windward Properties, mc, 821 F Supp
690, 693 (N.D.Ga 1993)(”Windward’)(CWA §404), analyzed below
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construction in favor of the government.” 26 In short, the federal statute of limitations applies
only to penalty claims, and not to injunctive relief ) 27
This background, however, has not prevented two district courts from recently ruling in
the Telluride and Windward wetlands cases that 28 U.S.C. §2462 also bars injunctive claims
after five years have passed.’ 28 Both held that a civil penalty statute of limitations should be
construed as directly applicable to claims for injunctive relief, with Telluride citing precedent
relied upon by Windward, to the effect that
The majority of courts that have considered the question, including the United
States Supreme Court, have held that when legal and equitable relief are available
concurrently (i.e., when an action at law or equity could be brought on the same
facts), “equity will withhold its relief. . where the applicable statute of
limitations would bar the concurrent legal remedy.” 29
These two wetlands cases have misapplied precedent.’ 3 ° Occasionally, the federal courts
have objected to being used as courts of second resort. For instance, in Cope v. Anderson
(“Cope”), the Supreme Court held that diversity claims should not allow the federal courts to be
used as failback courts of equity, and that the federal judiciary would not undercut the
completely preclusive effect of a State statute of limitations in State courts by allowing the same
126 Badaracco v Commissioner, 464 U S 386, 391 (l984)(quoting El Dupont Nemours & Co v Davis,
264 U S 456, 462 (1924))
127 See also Shanley, 10 Pace Env. L Rev. at 32 1-23 (arguing the same in relation to RCRA and CWA
claims)
‘ 28 See Telluride, 884 F.Supp at 409-10 and Windward, 821 F.Supp at 693 The Telluride court did not
assert that the law itself required this result, but the Windward court stated flatly that “the limitations period
provided by §2462 applies to plaintiffs request for both legal and equitable relief” Windward, 821 F Supp. at
693
129 821 F Supp at 693, quotIng Cope v Anderson, 331 U S. 461,464 (1947). Accord, Telluride, 884 U.S.
at 409-10. This formulation of the law was developed for cases in which separate courts of equity and courts of law
could provide the same remedy. Compare, e g, Daniel, 37 U S at 56
As has a majority of the 9th Circuit Williams panel in its 1996 rulmg, 1996 U.S. App LEXIS 33537, *6
(“FEC argues that §2462 does not apply to actions for injunctive relief. This assertion runs directly contrary to the
Supreme Court’s holding in Cope, which states that ‘equity will withhold its relief in such a case where the
applicable statute of limitations would bar the concurrent legal remedy ‘ In other words, because the claim for
injunctwe relief IS connected to the claim for legal relief, the statute of limitations applies to both “)
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claim to be retried in federal court.’ 3 ’ When the federal courts were not being used for a second
bite at the same apple, however, the Supreme Court has been more hospitable to hosting
equitable claims without reference to statute of limitation cutoffs, even if the parties had already
faced off in State court.’ 32 Since the initial case had been brought in State court, the Cope ruling
was influenced by issues of federalism, comity, and judicial economy ) 33
For many reasons, no Supreme Court case holds that a federal statute of limitation,
applicable by its terms only to monetary actions, should apply as well to injunctive relief. First,
it would frustrate the equitable purposes of the federal laws being enforced to extend the federal
statute of limitations beyond its plain language;’ 34 second, when federal remedies clearly include
non-monetary relief, there is no need to uphold the completely preclusive effect of a monetarily-
based statute of limitations over monetary-only claims (as can occur in certain State actions);
third, there is no possibility under an initial federal claim that the courts of the United States are
an inappropriate forum; fourth, limiting injunctive relief would result in a narrow application of
remedial statutes in violation of relevant case law;’ 35 and, finally, to apply 28 U.S.C. §2462 to
131 “ [ I]t is only the scope of the relief sought and the multitude ofparties sued which give equity
concurrent jurisdiction to enforce the legal obligation here asserted And equity will withhold its relief in such a
case where the applicable statute of limitations would bar the concurrent legal remedy.” [ Emphasis supplied] Cope,
331 U.s at463-64
132 See Holmberg v Albrecht, 327 U S 392, 393-96 (1946)(providing a federal equitable forum in the
presence of a State statute of limitations but in the absence of a State cause of action) The Supreme Court had
earlier ruled that federal equitable remedies were available to State claimants, despite the arguable applicability of a
State statute of limitations that would appear to bar both State and federal claims, so long as federal “equity
jurisdiction is exclusive and is not exercised in aid or support of a legal right” available under State law and subject
to the State statute of limitations Russell v Todd, 309 U S. 280, 289 (1940)
133 Cope, 331 U.S. at 463-68 No federalist considerations apply to Clean Water Act or RCRA cases,
however, where Federal courts are being used in their primary role as interpreters and implementers of national
legislation
“The Congress hereby declares that it is the policy of the United States that there should be no
discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining
shorelines, or which may affect natural resources belonging to, appertaining to, or under the exclusive
management authority of the United States “ Section 311 (b)( I) of the CWA, 33 U S.C § 1321 (b)( 1), “The
objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters” Section 101(a) ofthe Clean Water Act, 33 U S C §1251(a), “The Congress hereby declares itto be the
natonal policy of the United States that, wherever feasible, the generation of hazardous waste is to be reduced or
eliminated as expeditiously as possible Waste that is nevertheless generated should be treated, stored, or disposed
of so as to minimize the present and future threat to human health and the environment.” Section 1003(b) of RCRA,
42USC §6902(b)
United States v Republic Steel Corp. 362 U S 482, 491 (1960)( ”We read the 1899 Act charitably in
light of the purpose to be served The philosophy of the statement of Mr Justice Holmes in New Jersey v New
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both injunctive and penalty cases would render its qualifying language meaningless, in violation
of the rule of statutory construction to give meaning to every word in a statute) 36
And in EPA cases the courts are asked not to undercut the effect of the federal statute of
limitations, but to honor both the limitations inherent in 28 U.S.C. §2462 and uphold the
legislative intent of Congress in passing the federal environmental laws) 37 As a recent Clean Air
Act district court decision concluded in similar circumstances, “One should hesitate to apply the
holdings of Cope and Russell to the situation presented here. Although plaintiffs in those two
actions sought a species of equitable relief, neither case is remotely similar to an action for
injunctive relief by a federal agency. Moreover, neither case addresses the particular statutory
language at issue
Windward is willfully wayward (and Telluride, too) to assert that 28 U.S.C. §2462
applies directly to claims for injunctive relief) 39 As the D.C. Circuit’s 3M’s analysis
demonstrates,’ 4 ° that interpretation conflicts with the Wilcox foundation of the law. The 1830
Supreme Court excluded nuisance, the predecessor to federal injunctive relief, from its holding
York, 283 U S 336, 342, that ‘A river is more than an amenity, it is a treasure,’ forbids a narrow, cramped reading
either of 13 or of l0.”)(Refuse Act), Tcherepnin v Knighi, 389 U.s 332, 336 (l967)(” [ W}e are guided by the
familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its
purposes “)(Securities Exchange Act of 1934), Williams v Califano, 590 F 2d 1332, 1334(5th Cir 1979)(Social
Security Act), Houghton, 863 F 2d at 1128-29 (Civil RICO), and In Re Sullivan County, 165 Bankr. 60, 78 (Bankr
Ct N H I 994)(Bankruptcy Code)
‘ 36 See e g, Westwood Pharmaceuticals, Inc v National Fuel Gas Distribution Corp, 964 F 2d 85, 89 (2d
Cir 1992), 3 C Sands, Sutherlands Statutes and Statutory Construction § 60.01-60.O5 (4th ed 1973)
i37 See Section 101(a) of the CWA and United States v ALCOA, 824 F. Supp 640, 645 (E D. Tex
I 993)(”ALCOA”)(Holding, in a cause of action accrual context, “The CWA is entitled to a broad construction to
implement its purpose “), Section 311(b) of the CWA, and Waste Industries, 734 F 2d at 165 (“Congress expressly
intended that [ RCRA] close loopholes in environmental protection “)
i38 Campbell Soup, 1997 U.S Dist LEXIS 3211, at *8*9
139 Telluride distinguishes adverse precedent limiting the applicability of 28 U.S.C §2462 to “cases in
which an equitable remedy was the only remedy at issue” and making “no reference to cases in which legal and
equitable relief are sought in the same complaint .“ 884 F Supp at 410 Since one of those distinguishable
precedents, Woodbury, was also a wetlands case under Section 404 of the Clean Water Act, the logical implication
of Telluride ‘5 analysis is Section 404 plaintiffs should avoid seeking civil penalties if they intend to preserve claims
for Injunctive relief that reach back further than five years. This conclusion finds no support in the basic purposes
of a statute of limitations, and the liveliness of an injunctive claim is certainly not dependent whether civil penalties
are sought in the same complaint. Telluride’s analysis of the federal statute of limitations has elsewhere been
termed “incomplete, if not incorrect” Lm, 23 Ecology L.Q at 749.
‘ 40 3M l7F3dat 1458.
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that a statute of limitations runs from a single, fixed moment.’ 4 ’ Windward and, especially,
Telluride never noticed Wilcox ‘s nuisance nuance.’ 42 Further, the Telluride court’s reading of
Cope misinterpreted the intent of the Supreme Court’s holding, ignored the weight of case law
and basic rules of statutory construction, and overlooked the relevant statutory history of 28
U.S.C. §2462. The majority of cases have it right: 28 U.S.C. §2462 applies only to civil penalty
claims.
The remaining question is whether, in the case of subsurface oil seeps, claims for
injunctive relief are affected by the interplay of continuing violation doctrine and the federal
statute of limitations. The answer is they are not.
If a statute, such as Section 309(b) of the Clean Water Act, provides only for prospective
injunctive relief, then active misconduct must be occurring, or threatening to occur, at the time of
the enforcement action before equity can attach.’ 43 And in that case, there is no concern over a
completely preclusionary statute of limitations.’ 44 If there are ongoing adverse effects from a
past violation, and a statute such as Section 3008(a) of RCRA provides for remedial injunctive
authority, then no limitations defense can be successfully asserted against use of the law, since
for statutory purposes, the need for remediation remains, and the legislative injunctive remedy
applies. Consequently, where the government seeks RCRA injunctive relief against a person
responsible for the subsurface discharge of oil, that claim cannot be defeated by the federal
statute of limitations.’ 45
Effect of the Statute on Civil Penalty Claims
28 U.S.C. §2462 may still apply to civil penalty claims under the Clean Water Act and
the Resource Conservation and Recovery Act, in just the straightforward way discussed in the
first paragraph of this Section. It is possible for a federal plaintiff to delay prosecution of a civil
penalty claim long enough to be barred, or partly barred, by the statute of limitations, since under
Section 301 of the Clean Water Act and Section 3008(g) of RCRA, each day of violation, or each
Wilcox, 29 U S at 181
i42 “The government’s attempted analogy of the filling of a wetlands to a public nuisance without any
reference to case law in the statute of limitations context is unhelpful.” Telluride, 884 U S at 408 n. I
“ See Gwallney I, 484 U S at 58-67
See Section IV for a discussion of the special case of wetlands enforcement under the CWA
i45 This is equally true where a federal court is invoking its inherent equitable powers to provide an
appropriate injunctive remedy See notes 173-78 and accompanying text in Section VI
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violation, is a severable offense for purposes of civil penalty assessment) 46 Even if a violation
continues by a person’s failure to perform an affirmative duty, such as a reporting requirement,
the statute of limitations accrues anew, severably, for each day on which the legal duty is
ignored) 47
Consequently, EPA or citizen plaintiffs may wish to allege the existence of a continuing
subsurface oil discharge or hazardous waste disposal violation in order to avoid application of the
statute of limitations to a civil penalty claim) 48 Wilcox established that the accrual of such a
claim, and therefore the running of a statute of limitations, is measured “when the cause of action
anses, not the time when the degree of injury, more or less, is made manifest.” 49 But if a civil
penalty violation is held to “continue,” Wilcox does not directly answer the question of whether
to apply a statute of limitations to the starting point or to the end point of the long-running
violation.
A continuing violation approach will work well if, as has happened in “pattern or
practice” cases,’ 5 ° a court holds that the clock does not begin to run until the end point -- the
most recent occurrence of a continuing violation -- is reached. But if a court finds, instead, that
the starting point of the “continuing” offense extends further than five years into the past, and
holds that the claim accrues at its starting point, the whole civil penalty claim will be struck as
146 Gwaltney 11, 890 F.2d at 696 (“Under the Clean Water Act, civil penalties attach as of the date a pennit
violation occurs Liability is fixed by the happening of an event .. that occurred in the past.”) and 698, Tyson
Foods, 897 F 2d at 1139-40, and, Section 3008(g) of RCRA (“Each day of violation shall. constitute a separate
violation “)
i47 Although the Environmental Appeals Board recently went through an extended analysis finding
continuing violations to defeat a statute of limitations defense in a no-permit RCRA case, the posture of the case did
not present the question of whether or not violations would have been found more than five years before the
complaint was filed. Harmon, slip op at 21 n 22 (“ [ 1]n ruling on whether a cause of action for each of the
violations alleged in this case is time barred, we do not need to decide whether a penalty could have been assessed
for the entire period of violation, including that period more than five years prior to the filing of the initial
complaint “) There are hints, however, that the EAB would find severability and therefore not try to extend a
penalty period beyond the five year statute of limitations See Harmon, slip op at 37 n 34 (reJecting a de facto
“immunity” defense based on statute of limitations and continuing violations) and In re Ridgway (rejectmg a
“claim-splitting” resjudicata defense in the context of a continuing violation analysis)
148 Prospective injunctive reliefjurisdiction may be sought under Section 309(b) of the CWA, on the
theory that violations are ongoing at the time the complaint is filed
149 Wilcox, 29 U S at 177 (published argument of prevailing party).
150 Seen. 105
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stale, no matter when the end point occurs) 5 ’ There are, therefore, dangers in persuading a court
that a civil penalty claim “continues,” because the argument invites an “all or nothing” liability
ruling. Recent EPA cases have demonstrated this risk.’ 52
But an all or nothing approach is inconsistent with the statutes. Ultimately, the weakness
of “continuing violation” doctrin& 53 in the face of the inherently severable, multiple violations
statutory approach prevents the interposition of the statute of limitations from eviscerating an
entire CWA or RCRA civil penalty oil seep claim, so long as any day of violation occurred
within five years of the filing of a complaint -- no matter when violations may have
commenced.’ 54 And this approach is supported by case law) 55
The most that the statute of limitations can do is cut off those parts of a case that are more
than five years old. The federal plaintiff’s hope in this circumstance is to toll the statute of
limitations.
Tolling the Statute
Courts have often exercised their equitable powers to suspend, or toll, the operation of a
statute of limitations. As the Supreme Court stated over fifty years ago,
Traditionally and for good reasons, statutes of limitation are not controlling measures of
equitable relief . .. [ A] suit in equity may lie though a comparable cause of action at law
would be barred... [ F]raudulent conduct on the part of the defendant may have
prevented the plaintiff from being diligent and may make it unfair to bar appeal to equity
because of mere lapse of time. Equity will not lend itself to such fraud and historically
has relieved from it. It bars a defendant from setting up such a fraudulent defense, as it
Telluride, 884 F Supp. at 406-08
i52 Telluride, 884 F Supp. at 407-08, accord, HWS, slip op. at 42 The level of risk also depends on the
court’s application of 28 U.S C. §2462 If applicable only to civil penalty claims, see Powell Dufflyn, 913 F 2d 64,
injunctive claims can survive, if applied to both penalty and injunctive relief, all claims fail See Telluride, 884 F
Supp at 406-10
i53 See generally Section IV
The confusion by the Sasser court, see Section IV, has particularly acute effects in this context.
155 See Gwaliney II, 890 F 2d at 696 (CWA), Tyson Foods, 897 F.2d at 1138-39 (CWA), In re R:dgway
(CWA), HWS, slip op at 42-43 (RCRA), and In re Globe Aero, slip op at 33-35 (RCRA)
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interposes against other forms of fraud . . .. This equitable doctrine is read into every
federal statute of limitation.’ 56
Several major equitable doctrines can be invoked to toll a statute of limitations, including
running the statute from the time the harm first becomes manifest (the “discovery of damages”
doctrine); from the time the injured party learns of the harm following concealment by the
defendant (the “fraudulent concealment” doctrine); and, from the time the injured party discovers
the harm (the “discovery” doctrine). Any of the doctrines may apply to oil seep enforcement
cases, but the discovery of damages doctrine appears most promising.
The discovery of damage rule, also known as the latent injury rule, has been adopted by a
majority of States.’ 57 As interpreted by the D.C. Circuit, that rule “has only been applied to
remedial, civil claims,” but not government enforcement cases taken for the purpose of
punishment rather than for “injuries or damages.” 158 Fortunately for EPA’s enforcement
purposes, the Supreme Court has ruled in that the nature of Section 311 penalties are civil and
remedial) 59 The payment of any civil penalty under Section 311 to the Oil Spill Liability Trust
Fund, which is used for mitigation and cleanup purposes, reinforces the remedial nature of
Section 311 of the Clean Water Act ) 6 °
A plaintiff reasonably asserting a “discovery-of-damages” tolling argument cannot be
accusing of sleeping on his rights while entitled to sue, since the harm often does not become
apparent, and therefore established, until the limitations period has passed. The “leaking of an
underground storage tank or the spread of saltwater disposed via underground injection from oil
and gas operations” have been termed “inherently unknowable harms” that can toll a statute of
limitations) 6 ’ This argument appears to be the strongest available tolling argument in cases of
‘ 56 Holmberg, 327 U.s at 396-97
157 Note, The Fairness and Constitutionality of Statutes of Limitations for Toxic Tort Suits, 96 HARVARD
L. REV 1683 (1983).
158 3M, 17 F 3d at 1460 and 1461 n 14 This distinction has been criticized as “misplaced” by Theis, 24 N
Ky L Rev at 41.
United States v Ward, 448 U S 242, 249-51 (1980)
160 “Penalties paid pursuant to section 311 of the [ CWA] shall be deposited m the Oil Spill Liability
Trust Fund created under §509 of the Internal Revenue Code of 1986 (26 U.S.C 9509)” Section 4304 of OPA,
PubL 101-380, tit IV, §4304, 104 Stat. 484
161 Lin, 23 Ecology L Q at 757 See also William B Johnson, Annotation, Application of Statute of
Limitations in Private Tori Actions Based on Injury to Persons or Property Caused by Underground Flow of
Contaminants, II A L.R. 5th 438, 449 (1993)
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subsurface oil seeps brought under Section 301 and 309 of the Clean Water Act, or Sections
3004 and 3008 of RCRA.
The Supreme Court, in describing what has become the basis of the fraudulent
concealment doctrine, has held that the statute of limitations should not run if the injury suffered
“has been concealed, or is of such character as to conceal itself.” 62 Underground leaks of oil, for
purposes of tolling arguments under the same CWA and RCRA provisions, are inherently self-
concealing. There is a strong factual basis to toll the statute of limitations under this standard, as
well. One circuit court recently concluded that for the concealment doctrine to apply, a plaintiff
must prove “fraudulent conduct by the defendant resulting in concealment of the operative facts,
failure of the plaintiff to discover the operative facts that are the basis of its cause, and due
diligence by the plaintiff until discovery of those facts.” 63 This test may be harder to meet if
applied, since it requires a demonstration of fraudulent behavior by the unlawful discharger.
While RCRA and CWA Section 301(a) cases may benefit from these two tolling
doctrines, Section 311 penalty claims, which require emergence unto an adjoining shoreline or
navigable water for liability to attach, attach so late that there is no need for statute of limitations
arguments to apply.
162 Bail i v Glover, 88 U S 342, 349-50 (1875)
163 Wi/hams, 1996 U S App LEXIS 33537, *8 See also United States v Firestone Tire & Rubber Co,
518F Supp 1021, 1036 (NDOhio 1981)
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Although the discovery doctrine was rejected by the D.C. Circuit in 3M under a different
environmental statute, it was nonetheless adopted by a district court in a subsequent Clean
Water Act wetlands case. That subsequent court reasoned,
It would have been practically impossible for the plaintiff to have discovered the alleged
violations of the defendant on its own . .. To hold that the statute begins to run when
violations occur, as opposed to when they are discovered, would impede, if not
foreclose, the remedial benefits of the statute.
To find that accrual begins at the date of the violation would seriously
undermine the EPA’s enforcement efforts. The court thus concludes that the discovery
rule should apply in this case
i64 The 3M case did not involve pollution discharge, but self-reporting violations under the Toxic
Substances Control Act, 15 U S C. §2601 elseq (TSCA) (In a reporting violation case, a discovery of the
violation can be inherently more difficult than in a pollution discharge case, since EPA suffers from the absence of
information rather than potentially benefitting from evidence of violation.) The D C Circuit rejected the “discovery
of violation” tolling doctrine even in this self-reporting matter, holding that
An agency may experience problems in detecting statutory violations because its enforcement
effort is not sufficiently funded, or because the agency has not devoted an adequate number of
trained personnel to the task, or because the agency’s enforcement program is ill-designed or
inefficient, or because the nature of the statute makes it difficult to uncover violations, or because
some combination of these factors and others .. We seriously doubt that conducting
administrative or judicial heanngs to determine whether an agency’s enforcement branch
adequately lived up to its responsibilities would be a workable or sensible method of adminstering
any statute of limitations. Nor do we understand how any of this relates to the reasons why we
have a statute of limitations in penalty cases An agency’s failure to detect violations, for
whatever reasons, does not avoid the problems of faded memories, lost witnesses and discarded
documents in penalty actions brought decades after alleged violations are finally discovered
Most important, nothing in the language of §2462 even arguably makes the running of the
limitations period turn on the degree of difficulty an agency experiences in detecting violations
17 F 3d at 1461 Criticized, Theis, 24 N. Ky L Rev, at 43-44 Significantly, citing improved certification
procedures instituted by the Agency as a result of the case before it, the court rejected EPA’s claim that 3M’s
violations were “inherently undiscoverable “ 3M, 17 F 3d at 1461 n 15. That qualification, and the court’s
recognition that the rejected discovery of violation tolling doctrine has “nothing whatever to do with” a discovery of
damages rule for “hidden injuries or illnesses”, id at 1460, narrows the scope of 3M to this one tolling argument
The DC Circuit ruling was followed in a 2-1 9th Circuit panel ruling in Williams, 1996 U S App. LEXIS 33537,
*7 (Criticized by Fletcher, J., dissenting, at 1996 U S App LEXIS 33537, *11, as “neither the law of our circuit
nor directly on point, nor does it deal with the statute involved in this case.”) But see, Powell Duffryn, 913 F 2d at
75 (Statute does not run until DMRs are filed), Hobbs, 736 F Supp. at 1409-10 (Statute does not run until receipt of
inspection report)(CWA §404), Windward, 821 F Supp at 693-96 (Statute does not run until government knows or
should have known of violation)(CWA §404), and, Un ited States v Advance Machine Co. 547 F. Supp 1085,
1090-91 (D Minn 1982)(Consumer Product Safety Act case)
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This conclusion is left undisturbed by [ 3M] . [ That] court, in fact conceded
that the discovery rule can be applied where the violations are “inherently
undiscoverable.” As explained above, Clean Water Act cases are very difficult to detect.
Without self-reporting and the discovery rule, enforcement would be virtually
impossible. In contrast to the TOSCA situation in 3M, no simple procedural measure
can improve the Agency’s ability to discover the type of violation that occurred in this
case i65
Subterranean oil releases are even more difficult for the Agency to detect than wetland violations
occurring in remote, but at least aboveground, areas. Even when oil may emerge, its presence is
not necessarily obvious to EPA personnel absent self-reporting by the violator or a passerby. As
one writer has noted,
The problem of inconspicuous injuries or of harms that are difficult to discover is
especially common where statutorily created federal environmental actions are
concerned. These actions are designed to vindicate public, rather than private, rights and
the plaintiff is usually the government or a citizen-plaintiff who represents groups of
citizens, if not society as a whole. Violation of a federal environmental statute may lead
to no discoverable harm at all, and even when the harm is discoverable, it may be diffuse
and not readily traced to its origin )
In all material respects, the Agency’s can qualify for the discovery of damages tolling rule
through its inability to either detect the latent harm engendered by a release to the environment in
violation of Section 3004 of RCRA, or to groundwater hydrologically connected to a surface
water in possible violation of Section 30 1(a) of the CWA, or to such water quality protected
groundwater in violation of Section 311 (b)(3) of the CWA.
OPA Statutory Bar
There is an additional disability that can disqualify older claims under Section 31 1(b)(3),
if they are subject to a specific nonretroactivity rule of the Oil Pollution Act of 1990. This
provision states that “Nothing in this Act shall apply to.. . penalties that were incurred
before the date of enactment of this Act. . . and shall be adjudicated pursuant to the law
applicable on the date pnor to the date of the enactment of this Act.” 167 In other words, pre-OPA
(pre-August 18, 1990) events are subject to pre-OPA civil penalty enforcement remedies. Since
165 United States v Matenal Service Corporation, 1996 U.S. Dist LEXIS 14471 (N D I I I 1996), at 7 and
* 11_* 12 (citations omitted)
166 Lin, 23 Ecology L Q at 760
i67 Section 6001(d) of OPA, 33 U SC §2751(d)
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the 1990 law first established EPA’s oil spill civil penalty authorities,’ 68 application of this
provision could effectively deny EPA its oil spill penalty claim, even if the federal statute of
limitations is tolled and does not apply.
VI. Availability of Injunctive Relief
The availability of injunctive relief, certain wetlands decisions notwithstanding, is
determined by the various legislative grants of authority to the courts under applicable
environmental laws or the court’s own, inherent equitable authorities. The three relevant statutes
all have materially different provisions in this regard. Further, injunctive relief available in
citizen suits is not always the same as that in cases brought by the federal government.
Compliance order authority, which is a more limited power than injunctive relief, is available
only as a federal agency remedy.
Section 311 of the Clean Water Act
There are no injunctive judicial remedies available under Section 311 of the Clean Water
Act, except upon a showing of imminent and substantial endangerment under Section 311(e).
There also is no administrative compliance order authority other than remedial authority set forth
in Sections 311(c) and (c) ) 69 Section 311(b), the regulatory subsection, is a penalty-only statute
that does not provide compliance authorities. Only the United States can go to court seeking
relief under Section 311(c) or (e) of the Clean Water Act.
Sections 309 and 505 of the Clean Water Act
When making an judicial injunctive relief claim under Section 309(b) of the Clean Water
Act, the federal plaintiffs must first recognize that the subsection appears to provide prospective-
only injunctive relief in order to redress unpermitted discharge violations of Section 301(a) of the
Act.
The Administrator is authorized to commence a civil action for appropriate relief,
including a permanent or temporary injunction, [ whenever, on the basis of any
168 See Memorandum from Ephraim S King, OGC, to Lisa Friedman, OGC, “EPA Authority to Seek Court
Imposed Civil Penalties Under Section 311(b)(6)(B) of the Clean Water Act,” November 19, 1984 (referencing the
1979 EPA/CO MOU as support for the proposition that then 31 1(b)(6)(B) “does not apply to oil discharges”)(”King
Memorandum”).
i69 Both provisions are beyond the scope of this analysis, If these sections apply to a subsurface discharge,
however, their availability would be most similar to the text’s discussion of the remedial authority available under
RCRA, set forth below
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information available to him, the Administrator finds that any person is in violation of
any condition or limitation which implements (section 301)] 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 restrain such violation and to requtre compliance. 170 [ Emphasis
supplied.]
As the Supreme Court noted in Gwaltney L if Section 309(b) directly authorized EPA to seek
remedial injunctions for a wholly past violation with continuing ill effect, the italicized language
would have read more like “who has violated or is in violation,” as does Section 3008(a) of
RCRA, that statute’s analogous provision. When the subject of the enforcement action is a
wholly past violation with conttnutng ill effects, the Clean Water Act fails to provide the Agency
with the direct authority to seek remedial injunctive relief through clear legislative language) 72
In government cases, Clean Water Act courts asserting remediation authonty, such as
requiring soil or sediment cleanup, are better served by an expansive use of their extra-statutory,
equitable authority (referenced in Section 309(b)) to provide “appropriate relief.’” 73 l’his broad
grant of authonty brings to bear the full palette of equitable powers available to Article III
courts. i These may include the authority to issue remedial cleanup orders in the presence of
170 Section 309(b) of the CWA (bracketed material from Section 30 1(a) of the Act).
484 U.S. at 57 n.2.
i72 There is precatory language in Section 101 of the CWA, 33 U SC § 1251, “Congressional Declaration
of Goals and Policy,” that “The objective of this chapter is to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters” (Emphasis supplied) The Supreme Court explicitly rejected an
argument that the present-tense language of Section 309(a), as incorporated into Section 309(b), provided the basis
for “wholly past” penalty cases in either Section 309(d)(EPA’s enforcement authority) or Section 505 (the citizen
enforcement authority) Gwaliney 1,484 U S. at 58, citing Tull v United States, 481 U S 412, 425 (1987)
173 Section 309(b) of the Clean Water Act, 33 U.S C § 1319(b)
174 See Sen Rep 92-4 14, 92d Cong 1st Sess 63-64, reprinted in, Congressional Research Service of the
Library of congress, 2 A Legislative Hisiory of the Water Pollution Control Act Amendments of 1972, at 1481-82
C’In writing the enforcement procedures involving the Federal Government the Committee drew extensively upon
the existing provisions of the Refuse Act of 1899 Under the Refuse Act the Federal government is not
constrained in any way from acting against violators The Committee continues that authority in this Act “);
Compare Weinberger it Romero-Barcelo, 456 U.S 305, 320 (1982)(”Rather than requiring a district court to issue
an injunction for any and all statutory violations, the [ Clean Water Act] permits the district court to order that relief
it considers necessary to secure prompt compliance with the Act That relief can include, but is not hmited to, an
order of immediate cessation.”) and Republic Steel, 362 U S at 491-92 (finding restoration as an inherent injunctive
remedy under the 1899 Refuse Act, based upon its legislative purpose)
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ongoing point source violations.’ 75 Section 505 of the CWA, authorizing citizen suits, does not
refer to the district courts’ power to grant “appropriate relief,” 76 and the Supreme Court’s
analysis in Gwaltney I limiting citizen standing strongly implies that such remedial powers are
beyond the reach of the courts in CWA citizen suits.
The present-tense construction of Section 3 09(a) and (b)’ 77 and the consequent,
constricting Gwaltney I citizen standing rule also indicate that the statute does not enhance
preexisting judicial remedial powers. Nor does the statute appear to preempt or restrict these
authorities: The Supreme Court that in Gwaltney I found the “to be in violation” language of
Section 505 of the Clean Water Act as authorizing only claims for prospective relief did not
repudiate the Clean Water Act remediation decisions that were based upon the “appropriate
relief’ powers of the federal courts provided by Section 309(b).’ 78
It is less likely that such inherent remediation authority reposes in Agency personnel,
however, since the Executive Branch has not inherited the same common law powers as the
judiciary.’ 79 Prospective-only compliance authority applies whenever EPA issues a compliance
order under Section 3 09(a) of the CWA. There must be a present finding that the person
receiving the executive command “is in violation” of, in this case, Section 301(a)’s prohibition
175 United States v Outboard Marine Corp, 549 F Supp 1036, 1043-44 (N.D. Ill 1982)(”The
Administrator is authorized to seek ‘appropriate relief, including a permanent or temporary injunction, for any
violation for which he is authorized to issue a compliance order.’ This language is broad enough to include cleanup
orders “)
i76 “The district courts shall have jurisdiction, without regard to the amount in controversy or the
citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under
section 1319(d) of this title” Section 505(a) of the CWA, 33 U S C § 1365(a)
i77 “The Administrator is authorized to commence a civil action for appropriate relief, including a
permanent or temporary injunction, for any violation for which he is authorized to issue a compliance order under
subsection (a) of this section . . .“ Id “Whenever. . . the Administrator finds that any person is in violation of
[ section 301] . . he shall issue an order requiring such person to comply with such section or requirement. . .
Section 309(a)(3) of the Clean Water Act, 33 U SC §1319(a)(3)(emphasis supplied)
178 Compare United States v Cumberland Farms of Connecticut, mc, 826 F 2d 1151, 1164 (1st Cir
1987)(invoking broad equitable powers of the federal courts under Romero-Barcelo, 456 U S 305 and Republic
Steel, 362 U S at 492), cert denied, 484 U.S 1061 (1988)(CWA §404) and Outboard Marine, 549 F Supp at
1043-44
179 Compare Cumberland Farms, 826 F.2d at 1164 (relying upon powers of the federal courts) and
Romero-Barcelo, 456 U S at 320 (referencing powers of courts to do equity). But see Outboard Marine, 549
F Supp at 1043-44 (“The Administrator is authorized to seek ‘appropriate relief, including a permanent or
temporary injunction, for any violation for which he is authorized to issue a compliance order.’ This language is
broad enough to include cleanup orders “)
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against unlawful discharges from a point source. A unilateral compliance order requiring
remediation of a subsurface oil spill, upon its enforcement, would be more vulnerable to a legal
challenge than orders under other statutes with clearer remedial authority ) 80
Sections 3008 and 7002 of RCRA
As the Supreme Court itself noted, one prong of RCRA’s citizen suit section, Section
7002(a)(l)(B), which authorizes courts to issue remedial injunctions in instances of imminent
and substantial endangerment, contrasts with the prospective-only orientation of the citizen suit
provision of the Clean Water Act.’ 8 ’ RCRA also uses both past and present tense injunctive
authority in Section 3008(a), the Congressional grant of EPA’s enforcement authority for non-
endangerment, hazardous waste disposal violations, stating:
[ W]henever on the basis of any information the Administrator determines that any
person has violated or is in violation of any requirement of this subchapter, the
Administrator may issue an order. for any past or current violation, requiring
compliance immediately or within a specified time period, or. . . the Administrator may
commence a civil action in the United States district court in the district in which the
violation occurred for appropriate relief, including a temporary or permanent injunction.
[ Emphasis supplied.]
Courts that have analyzed RCRA’s equitable reach have concluded that a great part of the
intent and effect of the legislation is to remediate and not simply prevent environmental
depradations) 82 Numerous RCRA courts have held, often in endangerment cases, that the
ongoing migration of subsurface oil represents a “continuing violation” of the illegal disposal
180 Coni pare, e g, Section 3008(a) of RCRA (authorizing compliance orders for past violations), Section
7003 of RCRA (authorizi g, upon the showing of an imminent and substantial endangerment to health or the
environmement, any necessary administrative order), Section 311(c) of the CWA (authorizing the government’s
removal, or directing of a removal, of a discharge), and, Section 3 11(e) of the CWA (authorizing, upon the showing
of an imminent and substantial endangerment to the public health and welfare of the United States, any necessary
administrative order)
Gwaliney 1, 484 U S at 57 n.2 And one prong does not RCR.A citizen plaintiffs who are not alleging
an imminent and substantial endangerment as a result of a regulatory violation face language functionally identical
to that faced by CWA citizen plaintiffs, and are similarly limited to prospective-only injunctive relief Compare
Section 7002(a)(l)(A) of RCRA to Section 505(a)(l) of the Clean Water Act
182 See, e g, United States v Solvents Recovery Sert’,ce, 496 F Supp 1127, 1136-38 (D Conn 1980)(”The
enactment of RCRA in 1976 is evidence of the strong federal interest in preventing and abating incidents of
groundwater pollution caused by the disposal of hazardous waste “)
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prohibition of RCRA for purposes of injunctive relief) 83 These cases rely upon the legislative
purposes of RCRA,’ the definition of “disposal” in Section 1004(3) of RCRA,’ 85 and upon a
textual analysis of EPA’s enforcement authorities. 186 Even these cases, however, require a
showing of causation and do not extend equitable liability to a successor landowner. 187 Given the
judicial authorities clearly provided by the plain language of Section 3008(a), the findings of
“continuing violations” seems unnecessary to establish equitable jurisdiction.’ 88 RCRA
compliance order authority, also set forth in Section 3008(a), uses the same standard as that
described above.
Summary Tables
The first table below summarizes the reach of regulatory, injunctive remedies available
under the Clean Water Act and RCRA. The second table summarizes the same remedies
available to citizen plaintiffs.
U.S. Injunctive Remedies
Statute
Discharge “wholly past”?
Injunctive
Relief?
Subject of 1
injunction
Injunctive claim period
CWA 3I1
NA
No
NA
NA
CWA § 301(a)!
3 09(d)
Yes
Maybe
Pollutant
source
Potentially indefinite
No
Yes
Discharger
Dunng active spill event
RCRA §3008(a) t
NA
Yes
Environment
Indefinite
183 See, e g, Price, 523 F Supp at 1071-73, Waste Industries, mc, 734 F 2d at 164-65; United States v
Conservation Chemical Co, 619 F Supp 162, 200 (W D. Mo. 1985); Inmont, 584 F Supp. at 1435-36; and, United
States v Hardage, 18 ERC at 1695
184 See Waste Industries, 734 F.2d at 163-67 and Price, 523 F Supp at 1070-7 1.
185 Waste Industries, mc, 734 F 2d at 164
186 Id at 164-65.
187 Compare, e g, Beazer Materials, 833 F. Supp. at 656 (previous owner can be reached for injunctive
relief claim).
i88 See Section V.
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* Upon determination that discharged substance is a RCRA hazardous waste.
Citizen Injunctive Remedies
Statute
Discharge “wholly past”?
Injunctive
Relief’)
Subject of 1
injunction
Injunctive claim period
CWA §505 ( 30l
violation only)
Yes
No
NA
NA
No
Yes
Discharger
During active spill event
RCRA §7002—{A)
Yes
No
NA
NA
No
Yes
Environment
During disposal event
RCRA §7002—(B)
NA
Yes
Environment
Indefinite
VII. Civil Penalty Claim Period
The federal statute of limitations applies to subsurface discharges of oil that reach a water
of the United States. Pursuant to the statute of limitations, there is a five year period in which an
administrative or judicial civil penalty claim can remain viable under any available regulatory
theory. As discussed in Section III, the five year period begins at the time the violation is
technically prosecutable and, while this date can be delayed by using a favorable statutory
liability theory such as Section 311, or by applying a valid tolling doctrine, it cannot be extended
indefinitely by “continuing violation” arguments. 189 Certain wetlands opinions notwithstanding,
continuing violations doctrine is probably not sustainable in a civil penalty context, although
wetlands case law provides Agency legal staff with a good faith basis for asserting the contrary.
In the case of Section 311, with rare exceptions, the statute of limitations begins to run
when a reportable quantity of oil reaches a navigable water of the United States. i 90 In the case of
Section 301, absent tolling, it runs when the discharged oil inevitably would reach the water of
i89 The one exception may be to a continuing “pattern or practice” violation, where the courts follow the
rule adopted by the Supreme Court in Havens Realty, 455 U S at 1380-81 and the Third Circuit in Houghton, 863
F2dat 1130 Seen. 105
i90 See Wilcox, 29 U S. at 18 1(”When might this action have been instituted, is the question; for from that
time the statute must run “), United States v Lindsay, 346 U S. at 569 (“a right accrues when it comes into
existence”), and 3M, 17 F 3d at 1460 (28 U S C §2462 does not run until “the factual and legal prerequisites for
filing suit are in place”), Developments, 63 HARV L REV at 1200 (“The statutory period may begin either when
the defendant commits his wrong or when substantial harm matures. . . . [ WJhere considerable time intervenes
the courts have generally looked to the substantive cause of action on which the suit is based “)
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the United States. In many cases, this will be contemporaneous with the escape of the oil.
Under RCRA, absent tolling, the clock starts when a person land disposes oil, a solid waste, at
the time containment is first lost. Frequently under Section 301(a) and RCRA, this will have
occurred more than five years before the oil spill is viewed by or reported to the government.
The effect of each statute is examined more closely below.
Section 311(b) (3) of the Clean Water Act
Under the relevant statute of limitations case law establishing accrual of a claini, the
government’s civil penalty claim under Section 311(b)(3) for the seepage of subsurface oil
remains viable for five years from the date the oil is observed emerging into or upon a navigable
water of the United States. No tolling of the statute of limitations or continuing violation theory
is needed to maintain the viability of the claim for this period, since the claim itself does not arise
until the oil emerges from underground.’ 9 ’
There is only one circumstance that can result in an exception to this rule. If the initial
release to groundwater does result in a water quality standard violation as described in 40 C.F.R.
§ 110.3 at the time the oil enters the groundwater, and the groundwater is so connected to a
surface water that it can itself be considered a water of the United States,’ 92 then the Section
311 (b)(3) cause of action runs from the moment of the entry into the protected groundwater.
Depending on the geology surrounding the event, that can occur at or just after the time of the
initial loss of containment, or significantly later. If the initial release creating such a
groundwater quality standard violation occurred in the period between August 18, 1990, and five
years before filing of the Agency action (and even if the federal statute of limitations is tolled),
days in violation relate not to the observed emergent oil, but to the particular days in which oil
was determined to have entered into the protected groundwater.
And even though the United States can make a tolling argument to keep its case alive in
the exceptional, groundwater jurisdiction-based Section 311 (b)(3) violation, every Section 311
case brought by EPA will be dismissed if the originating subterranean event occurred before
OPA’s passage on August 18, 1990. Before that date, the right of the Agency (although not the
Coast Guard) to make a claim under Section 311 (b)(3) is barred by operation of Section 6001(d)
of OPA: “Nothing in this Act shall apply to any. . . penalties that were incurred. . . before the
date of enactment of this Act. . . and shall be adjudicated pursuant to the law applicable on the
191 Given the D C Circuit’s rejection of the “discovery” rule in 3M, 17 F.3d at 1460-63, it is uncertain that
the statute of limitations will toll and extend the five year claim period after the oil emerges and reaches a water of
the United States or its adjoining shoreline
192 See n. 70
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date prior to the date of the enactment of this Act.” 93 Under pre-OPA law, EPA considered
itself without authority to take oil spill penalty cases.’ 94
If EPA decides to seek Section 311 civil penalties under this exceptional circumstance, its
better arguments are that the federal statute of limitations is tolled under either the discovery of
damages doctrine or a fraudulent concealment doctrine. The D.C. Circuit’s 3M decision did not
reach the discovery of damages argument. 195 In the case of a subsurface seep, the government
may contend that it could not have slept on its rights when the harm to waters of the United
States did not become apparent until the oil surfaced from its subterranean course. As noted
above, the concealment doctrine may be applied because a subsurface violation conceals itself) 96
Sections 309 and 505 of the Clean Water Act
Unlike a Section 3 I (b)(3) case, which requires some indication of possible harm before
a civil penalty claim accrues, unpermitted discharge cases under Sections 309(d) and 505(a) are
predicated directly upon violator misconduct.’ 97 Once the discharge of a pollutant leaves a point
source and is certain to reach a water of the United States, the cause of action has been perfected,
and the five year statute of limitations, until tolled, begins to run. But in subterranean discharge
cases, this moment can be difficult or impossible to pinpoint, even if local groundwater qualifies
under case law’ 98 as a water of the United States.
Section 6001(d) of OPA, 33 U S C §2751(d). Under the applicable interagency agreement between
EPA and the U S. Coast Guard on the implementation of pre-OPA Section 311, only the Coast Guard had the
authority to prosecute against persons spilling oil in violation of Section 31 1(b)(3), EPA, however, retained
authority to prosecute in cases of hazardous substance spills. Superseded EPA/CG MOU, published at 44 Fed.Reg
50,785 (August 29, 1979)
194 See King Memorandum (referencing the 1979 EPA/CO MOU as support for the proposition that then
311 (b)(6)(B) “does not apply to oil discharges”), EPA did maintain hazardous substance spill authority under pre-
OPA Section 311 Id
195 Compare Ward, 448 U S at 249-51 (Section 311 penalties are civil and remedial, not punitive) and the
requirement under Section 4304 of OPA, 104 Stat 484, §4304, that oil civil penalties be paid to a special trust fund
created under 26 U.S.C. §9609
196 The government may be able to argue that the breach of a spiller’s notification duty under the criminal
provisions of Section 311(b)(5) of the Clean Water Act can establish fraudulent concealment by only a
preponderance of the evidence
See Section III
198 See cases cited in n 70
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In the absence of an immediate impact on groundwater, the violation can occur at the
time of the point source discharge itself, if that is equivalent to a point of no return.’ 99 If the
discharger itself is unaware of the discharge, the violation occurs instantaneously with the loss of
containment of the oil, since no action will be undertaken to prevent it from ultimately reaching a
water of the United States. If the discharger is aware of the discharge, then the point of no return
-- the moment of violation -- will differ case by case, depending if the physical possibilities
remain to prevent the oil from reaching a water of the Umted States. If there is an immediate
impact on local groundwater that qualifies under case law as a water of the United States, then
the five year civil penalty claim period begins at the time of the point source discharge.
Because Section 301(a) regulates persons and not environmental results, days in violation
in all cases ultimately relate back to the days of unpermitted discharge from the discharger’s
point source, rather than the days on which the oil may enter a water of the United States. 20 ° In
many cases, this will accelerate the end of the five year limitations period.
Under an unpermitted discharge theory, a federal plaintiff may be able to argue a
discovery of damages theory to toll the statute of limitations. But if the violator was aware at the
time of the release of the discharge from the point source, and properly notified the government
in publicly available records, then this tolling doctrine is unavailable.
Sections 3008 and 7002 of RCRA
Because under Section 3004 of RCRA an unlawful disposal occurs at the moment that the
liquid hazardous waste escapes its subsurface containment, the civil penalty claim period begins
to run immediately. A discovery of damages theory may be applicable under RCRA, although
since the protected resource, the environment, is so immediately affected, a federal plaintiff may
face more judicial skepticism than it would under the Clean Water Act.
199 Seen. 72
200 To illustrate this concern, compare two hypotheticals In the first, a person discharges a barrel of oil
each day for ten days from an unpermitted, aboveground point source, The oil pools in a depression, and does not
reach a water of the United States until a large rainstorm draws all ten barrels into a nearby creek in a one day event
In the second case, the same person discharges a barrel of oil for one day, where it reaches a shallower depression
A series of small rains results in ten days of more minor discharges to the same creek before all the oil is washed
away In both cases the initial discharge of oil to the depressed area will certainly result in an eventual discharge to
the creek If the person’s daily misconduct is commensurate with his unpermitted discharge liability, he will face a
civil penalty ten times greater in the first instance If the the vagaries of the weather control this liability, he will
face one tenth the civil penalty in the first instance In the 1972 CWA amendments, Congress was clearly fixing
individuals with responsibility for their conduct, and turning away from outcome-based stream segment
enforcement Both the law and equity dictate that the events in the first instance merit the greater penalty.
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Summary Table
The table provided below summarizes outcomes under the available regulatory causes of
action, assuming that (1) an underground loss of oil containment occurred on January 1, 1997;
there were no water quality standards that applied at that site to any groundwater (hydrologically
connected to a surface water) that may have been present; (2) the released oil became certain to
reach surface water on February 1, 1997, despite any best efforts to prevent it; (3) the oil
qualifies as a hazardous waste under RCRA; and, (4) the oil emerged and caused a sheen upon a
surface water January 1, 2000:
Civil Penalty Claim Period
Statute used
Involved
groundwater
Action Accrues
Violation
Discovered
Statute Tolled
Last day to sue
CWA
§31 l(b)(7)
Not applicable
January 2000
January 2000
No
January 2005
CWA § 309 and
505
Yes
January 1997*
January 2000
Yes
January 2005
No
February 1997
No
Jan or Feb 2002
RCRA 3008(g)
and 7002(a)( 1)
Not applicable
January 1997
January 2000
Yes
January 2005
No
January 2002
*This analysis also applies in the case of a Section 31 l(b)(3)/(b)(7) event in which the subsurface spill was
immediately violated water quality standards in groundwater that qualifies as a water of the United States under case
law
VIII. Government Transaction Costs
In any decision to take an enforcement action, government staff must weigh the potential
benefits of a case against its potential costs. With respect to the benefits, this requires evaluating
a goal that is intangible, such as deterrence, or difficult to measure, such as environmental or
human health protection, and measuring it against a litigation cost that is unknown, if not
speculative (especially when a finding of liability requires an extensive physical investigation).
Simplifying either side of this equation benefits government enforcement decisionmaking, but
reducing litigation costs also promotes more efficient enforcement. This section of the analysis
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explores how to evaluate government regulatory options on the basis of their investigatory and
litigation costs. 20 ’
Developing Information to Establish Causation
When subsurface oil emerges upon a surface water, mere observation generally will not
suffice to determine who is liable for civil penalties for that event. An investigation is required.
The scope of the investigation will be determined, in part, by which of the three theories of
liability is followed and they, in turn, will determine the investigatory costs involved.
Under Section 311(b) of the Clean Water Act, a civil-penalty only law, the investigator
must determine who initially lost containment of the oil and on which days the oil is reaching a
surface water or an adjoining shoreline. Almost without exception, 202 the days in violation are
the days upon which new oil is contributed to the surface water, resulting in a violation of 40
C.F.R. §110.3. Uncovering all this information may be a simple as preparing and reviewing the
response to a request for information under Section 308 of the Clean Water Act, 33 U.S.C.
§ 131 8;203 it may be as complex as gaining access to several different properties and conducting
201 Given the potential for attorneys fees awards under Section 505(d) of the Clean Water Act, 33 U S.C.
§ 1365(d) and Section 7002(e) of RCRA, 42 U.S.C §6972(e), which both allow a court to award fees and costs to
“any prevailing or substantially prevailing party,” calculations in citizen suits are comparable to any decision to take
a case for a set fee or a contingency fee, and are therefore not analyzed in this Section In addition, citizen plamtiffs
do not have the benefit of statutory information-gathering authorities provided to the federal government
202 But see Section 311 groundwater water quality based violation discussion in Section VI
203 Information gathering authority under Section 308(a) is quite broad
“Whenever required to carry out the objective of this chapter, including but not limited to
carrying out [ Section 311] (A) the Administrator shall require the owner or operator of any
point source to (I)establish and maintain such records, (ii) make such reports, (iii) install, use,
and maintain such monitormg equipment or methods (iv) sample such effluents (in accordance
with such methods, at such locations, at such mtervals, and in such manner as the Administrator
shall prescribe), and (v) provide such other information as he may reasonably require; and (B) the
Administrator or his authorized representative (including an authorized contractor acting as a
representative of the Admmistrator), upon presentation of his credentials-- (I) shall have a right of
entry to, upon, or through any premises in which an effluent source is located or in which 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 monitoring 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.”
Unlike the general authority of Section 308, the only information gathering provision set forth in the CWA relating
specifically to spills, Section 311(m), is not enforceable through Section 309 of the CWA Consequently, Section
308 provides the best CWA investigatory authority for oil seep enforcement and all other purposes.
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geological and hydrological studies, and following up with a multi-party, complex Section 308
information request.
Under Sections 301 and 309 of the Clean Water Act, the civil penalty investigator must
also determine, using the same information-gathering authorities, precisely what underground
point source the oil was discharged through, and what days the discharges occurred. This can
raise costs exponentially, since any one facility can have innumerable potential point sources,
and developing information that can pinpoint exactly when a years-old (or decades-old) series of
discharges occurred can be very difficult, if not simply impossible.
Under Section 3008(g) of RCRA, the penalty investigator must determine both who
initially lost containment of the oil, and when the disposal event occurred, using the authority of
Section 3007(a) of RCRA, 42 U.S.C. §6927(c). This often may require geological and
hydrological studies as well as ordinary site inspections and information requests. The
investigator will also have to determine whether the oil is a RCRA hazardous waste.
Injunctive relief or compliance order investigatory costs under either Section 309 of the
Clean Water Act or Section 3008 of RCRA are likely to be substantial. Under the CWA, the
government must determine the point source origin of the discharge, and establish an appropriate
means to prevent further discharges. Under RCRA, the more ambitious remediation scheme
requires a government inquiry into the nature of the waste and the extent of environmental harm
as well as identifying appropriate cleanup methods. 204 In most cases, these efforts will be
correspondingly more costly. All injunctive remedy development will require the support of
expert technical staff, whether government staff or contractors.
Enforcement Costs
The easier the government’s burden of proof, the lower its litigation costs. The more
defenses that are available to a responsible party, the higher the government’s costs.
In the civil penalty realm, the easiest proofs are under the Section 311 theory. Use of this
approach normally avoids the need to demonstrate the day or days in which the underground oil
breach occurred; it also avoids the need to litigate over statute of limitations issues, since the
cause of action arises upon the emergence of the oil. The highest costs are likely to be associated
with an unpermitted discharge theory under the CWA, which does face those issues, as well as
the extra requirement of an involved water of the United States is unique to this theory of the
case. The cost of a RCRA unlawful disposal claim, which would benefit from the easy proof of
contamination of the “environment,” but still face potential statute of limitation defenses and
204 A cleanup remedy may be sought under Section 309(b) of the CWA (citing Outboard Marine, 549
F Supp at 1043-44), but RCRA statutory remedial authority is more direct
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hazardous waste classification and “days in violation” proofs, would fall somewhere in between,
although RCRA civil penalty enforcement costs are more likely to approximate Section 30 1(a) of
the CWA than Section 311(b).
Judicial injunctive relief under Section 309(b), of the Clean Water Act or Section 3008(a)
of RCRA has a high transaction cost, but purchases a higher degree of environmental protection.
The costs of establishing necessary remediation under RCRA (or the CWA, if available) will be
higher than the costs of establishing preventive measures under a more conventional CWA
unpermitted discharge case.
CWA Section 309(a) compliance orders, which can be issued unilaterally by program
personnel, incur the lowest Agency costs. RCRA 3008(a) orders, which require a hazardous
waste determination, are somewhat more expensive. Neither, however, achieves the
comprehensiveness or level of finality associated with court-ordered injunctive relief. Since
these orders are not final agency action for purposes of the Administrative Procedure Act, 205 they
are not in any way proof as to the existence of an underlying violation, and district courts
entertaining requests for injunctive relief will make their decisions de novo. 2 ° 6
IX. Conclusions
At its outset, this paper posed basic questions, such as “what is the violation,” -- and,
therefore, when and where is the violation -- and how do the continuing violation and statute of
limitation doctrines apply to extend or limit civil and injunctive claims in a regulatory,
nonemergency context? These issues are raised with particular force in the circumstances of
subsurface oil seeps for several reasons: the usually major time delay between the origin of a
subsurface event and its effect on the surface environment, the critical importance of statute of
limitations law in this extreme factual circumstance, the need to compare the usefulness of
several different statutory schemes, and the apparent failure of typical oil seep facts to harmonize
with the assumptions inherent in the daily, civil penalty approaches adopted by Congress. These
205 See, e g, Hoffman Homes, inc v EPA, 902 F.2d 567, 569 (7th Cir I 990)(Congress “chose not to make
a [ CWA] compliance order judicially reviewable unless the EPA decides to bring a civil suit to enforce it “)(CWA
§404), CompareAMOCO Oil Co v United States, 1997 US Dist. LEXIS 4082, *14 (D Col March 28, 1997)(”The
CWA provides the best comparison from which this court can discern a legislative intent to preclude [ RCRA] pre-
enforcement review “)(RCRA §3008(h))
206 See, e g, United States v Cumberland Farms of Connecticut, mc, 647 F Supp at 1180, Compare
United Slates v Reilly Tar & Chemical Corp. 606 F.Supp 412, 421 n 5 (D Minn l985)(”Reilly Tar has a right to a
de novo determination of the appropriateness and cost-effectiveness of the government’s remedy It would be
peculiar, indeed, to conclude that the government could now avoid [ such review] by simply issuing an
administrative order on the eve of trial “)(CERCLA § 106).
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are fundamental issues, and the fact that they have often remained unexamined, or even avoided,
is responsible for an unsettled or even fictional quality to some of the legal analysis present in
reported cases and in the law reviews.
The failure to examine when a violation actually occurs has promoted uncertainty
throughout Clean Water Act law under Section 30 1(a) of the Act, not only in instances of
subsurface oil seeps and wetlands cases, but also in determining, for civil penalty and statute of
limitations purposes, how many days a discharger has been in violation of the law, 207 and in
distinguishing unpermitted discharges from permit violations in any given situation. 208 Section
III furnishes starting points for analyses of subjects in these related areas.
“Continuing Violation” Theory and the Statute of Limitations
Remoteness between the originating subterranean loss of containment and the ultimate
emergence of oil into a surface water invites use of a theory of “continuing violation” to bridge
any delay between the originating incident and its discovery. Any delay at all can threaten the
availability of injunctive relief under certain legal theories, and a delay of more than five years
can raise statute of limitations problems. One writer has noted a connection between “continuing
violation” doctrine and statute of limitation tolling law, concluding that
Given courts’ reluctance to apply the discovery [ tolling] rule outside the context of
difficult-to-discover injuries, the continuing violations doctrine may have to serve as its
functional equivalent for difficult-to-discover violations. Application of the continuing
violations doctrine in such cases addresses the same fundamental problem as the
discovery rule: ensuring fairness to plaintiffs who will not easily become aware of an
available cause of action 209
207 See discussion in 11 200, which illustrates how determining when a violation occurs can affect a “days
in violation” analysis
208 In cases of oil orCWA hazardous substance discharges, making this distinction determines whether
Section 311 jurisdiction is present at all Under the jurisdictional test established by Section 311 (a)(2) of the Act,
NPDES permitted discharges as well as permit violations are excluded, so long as they are “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], and subject to a condition in such permit, and continuous or anticipated
intermittent discharges from a point source, identified in a permit or a permit application under [ Section 402], which
are caused by events occurring within the scope of relevant operating or treatment systems” Section 311 (a)(2)
(B),(C) of the Clean Water Act, 33 U S.C § 1321 (a)(2)(B),(C).
209 Lin, 23 Ecology L Q at 758
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The continuing violation concept is used in Clean Water Act wetlands cases to circumvent both
problems. 2 1 °
But it is clear that the “continuing violations” doctrine as applied to EPA’s strict liability
statutes relies almost entirely, in the case of CWA severable civil penalty wetlands claims, upon
misstatements of law or upon legal fictions. And in RCRA injunctive cases, it is invoked as a
misnomer. To sustain the doctrine despite its drawbacks, 21 ’ judges in Clean Water Act wetlands
civil penalty cases either read Section 301(a) of the Act to say something it doesn’t, 212 refer to
precedents that themselves contain no relevant analyses, 213 or, at most, offer internally flawed
rationalizations. 214 Although their motives are pure -- to preserve significant environmental
resources arid to prevent wrongdoers to profit from their wrong -- their means are not. 215 On the
other hand, RCRA judges requiring site remediation under Section 3008(a) have carelessly
slapped the label of “continuing violations” on their exercise of a legislatively-granted remedial
injunctive power, 216 although properly avoiding its use in the civil penalty context. 2 ’ 7
When there are subsurface oil seep penalty claims, however, it should be relatively easy
for plaintiffs to toll the statute of limitations. The nature of the violation conceals itself from the
2i0 See, e g, Sasser, 990 F 2d at 129.
2ii These include case law, beginning with Wilcox in 1830, indicating that the statute of limitations begins
to run at the start, not the end, of a continuing penalty violation, that RCRA continumg violation theory is confined,
per Waste Industries, 734 F.2d at 164, to injunctive claims; and, that CWA civil penalty claims, per Tyson Foods,
897 F.2d at 1138-39, and Gwaltney II, 890 F 2d at 696, occur severably on a day-by-day basis
212 See, e g, In re Rueth Development Company, supra n 80, slip op. at 3 (“Section 301 of the Clean Water
Act states that each day that these matters [ of unpermitted fill] are not rectified results in a violation of the Act “)
2i3 See, e g, Reaves, 923 F. Supp 1530, and Cumberland Farms, 647 F Supp 1166
214 See, e g, analysis of the Sasser and Woodbury opinions in n 94.
2i5 The irony is that wetlands courts may have other, more legitimate bases for remedial jurisdiction that
are being overlooked See Theis, N Ky L Rev at 17-24 (proposing resuspension and redeposit arguments,
regulatory definitional arguments, and statutory purposes arguments) See also, Cumberland Farms, 826 F.2d at
1164, and accompanying discussion in Section VI analyzing residual authorities of Clean Water Act courts to do
justice, notwithstanding Gwaltney I, under Romero-Barcelo and Outboard Marine
216 See, e g, Waste Industries, 734 F.2d at 164-65 and Price, 523 F Supp. at 107 1-72, Section 3008(a) of
RCRA provides that “whenever on the basis of any information the Administrator determines that any person has
violated any requirement of this subchapter the Administrator may commence a civil action in . . United
States district court . for appropriate relief.
2i7 See generally, cases cited in notes 87-90
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view of the government and adversely affected citizens, and may even conceal itself from the
discharger. Consequently, judges are more likely to deny a statute of limitations defense and,
consequently, have less need to draft the “continuing violation” theory into the service of equity.
Section V establishes that the federal statute of limitations, 28 U.S.C. §2462, does not
apply to claims for injunctive relief in oil seep cases. But a further inquiry is required to
determine the best option for pleading a case, since each statute differs in its equitable
authorities.
Comparing Injunctive and Compliance Options
In the injunction/compliance order area, RCRA seems clearly superior to the Clean Water
Act options, so long as the discharged substance is a “hazardous waste.” Section 311(b) of the
Clean Water Act has no injunctive authorities. The Clean Water Act citizen suit provision,
Section 505, authorizes only prospective relief. 218 Section 309(b) of that Act also has explicit
prospective authority relating to the origins of the discharge, but seems to refer to other, inherent
remedial judicial powers,which may be called upon to justify a CWA remedial injunction. 219
This rarely-employed CWA legal approach has much less chance of success, however, than an
ordinary RCRA disposal remediation claim, since a CWA plaintiff must rely upon a sympathetic
and self-confident judge exercising his equitable powers to the constitutional limits, rather than
upon a dutiful judge simply citing to an explicit statutory authorization. Section 3008(a) of
RCRA directly authorizes remedial injunctions on behalf of the United States. 22 ° Even RCRA
citizen plaintiffs under Section 7002 of that Act may seek remedial relief, if they are alleging an
imminent and substantial endangerment; otherwise, they may request only prospective injunctive
relief. 22 ’
Section 311(b) of the Clean Water Act has no compliance order authority. 222 Section
309(a) of that Act allows the Agency to issue an order requiring compliance with the general
discharge prohibition of Section 30 1(a) whenever a person “is in violation” of the unauthorized
218 See Gwaltney /and discussion in Section VI.
219 See analysis in Section VI.
220 Seen 216.
22i Seen l I and accompanying text
222 Compare Sections 311(c) and(e), which provide for removal oversight authority, and endangerment
order authority, respectively
Attorney Work ProductfFOLA ExemptfDo Not Disclose
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58
discharge prohibition. 223 To make a finding of such violation, EPA would have to identify the
originating point source and confirm that it was still discharging oil in order to prevent further
discharges. Section 3008(a) of RCRA provides more if a citizen (or the government)
demonstrates endangerment by a solid waste or disposal of a hazardous waste; it then has direct
statutory authority requiring a violator to both remediate and prevent its disposals. 224
Comparing Penalty Options
Each of the three statutes provide similar levels ofjudicial civil penalties: $25,000 per
day for oil seep violations occurring before January 30, 1997, and $27,500 per day thereafter. 225
For administrative penalty purposes in major penalty cases, RCRA may provide the greatest
advantages if the substance discharged is a hazardous waste, since the statute has no assessment
cap and allows EPA to seek the same level of penalties administratively as judicially. 226 Section
311 is a distant second, since Class I civil penalties under Section 311 (b)(6) do not provide for
third party commenter rights, unlike the Class I procedures set forth in Section 309(g)(2) of the
Clean Water Act. 227 (In these smaller administrative penalty cases, the Clean Water Act
provisions allow for non-Administrative Procedure Act proceedings, which are inherently less
costly than those mandated to use 40 CFR Part 22.228) Although, as noted in Section II, the law
requires an election of penalty remedies between Sections 309 and Section 311 of the Clean
223 Section 309(a)(3) of the Clean Water Act, 33 U.S C § 13 19(a)(3)
224 “ [ W]henever on the basis of any information the Administrator determines that any person has violated
or is in violation of any requirement of this subchapter, the Administrator may issue an order. . requiring
compliance immediately or within a specified time period “ Section 3008(a)(I) of RCRA, 42 U S C.
§6928(a)(l) Unlawful disposal of a solid waste is prohibited by Section 3004(d) of RCRA,a violation of the same
subchapter, and oil is a “solid waste” See n. 8.
225 See notes 29-31 and accompanying text
226 RCRA Section 3008(a)(3) provides, in relevant part, that “Any order issued pursuant to this subsection
shall state with reasonable specificity the nature of the violation Any penalty assessed in the order shall not
exceed $25,000 per day of noncompliance for each violation of a requirement of this subchapter In assessing such
a penalty, the Administrator shall take into account the seriousness of the violation and any good faith efforts to
comply with applicable requirements.” 42 U S C §6928(a)(3) RCRA per day administrative penalties are
significantly higher than CWA administrative penalties, which allow only for a statutory base maximum penalty of
$10,000 per day See Sections 309(g)(2), 33 U S C § 131 9(g)(2), and 311 (b)(6)(B), 33 U.s c § 1321 (b)(6)(B)
227 Per day or per violation penalty amounts are the same under both causes of action, and the chronic
nature of subsurface seeps will enable a Section 311 case to allege multiple days of violation Statutory civil
penalty assessment factors set forth in Section 309(g)(3)(for unpermitted discharge cases) and Section 31 1(b)(8)(for
spill cases) are similar enough m practice not to favor one course over the other
228 Since 1991, EPA has used proposed 40 CFR Part 28 for Section 309(g) and Section 311(b) Class I
penalty proceedings Closure times under these procedures have been much faster than under 40 CFR Part 22.
Attorney Work ProductfFOIA ExemptfDo Not Disclose
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59
Water Act for the same event, there is no legislative bar to a federal plaintiff seeking penalties
under either section of the CWA and Section 3008(a) of the RCRA. EPA may seek such
duplicative penalties administratively or judicially by combining either Section 301(a) or Section
311(b) claims with any RCRA §3004(d) hazardous waste claim; 229 citizen plaintiffs may seek
only judicial claims under a combined CWA Section 301(a)IRCRA Section 3004(d) approach.
Differences can arise between programs when measuring available civil penalty five-year
claim periods, based on differing applications of claim accrual and any viable statute of
limitations defenses. This comparison, in turn, leads to an examination of investigative and
litigation transaction costs under the three potential causes of action.
Of the three governmental enforcement possibilities discussed in this paper, Section
31 1(b)(3) of the Clean Water Act is easily the best and least expensive option for subsurface oil
seep judicial civil penalty cases. Ironically, it is the best choice because it uses an old-fashioned
liability scheme: To be applied, it requires at least the possibility of environmental harm, such as
an oil sheen. Consequently, a Section 31 1(b)(3) penalty claim cannot be perfected until each oil
seep has emerged into a navigable water of the United States and the violation becomes, literally,
visible. The invisible originating event -- the subterranean release of oil -- is extremely unlikely
to result in any immediate Section 311 (b)(3) liability, and therefore is just as unlikely to begin an
early running of the federal statute of limitations. The anti-retroactivity provision of OPA is also
avoided, since the event that perfects the legal claim occurs at the time the seep can be
witnessed. 23 ° Without Section 311 penalty liability immediately attaching to the originating
event, there is no need for investigation into the difficult question of on which days the
subterranean spill occurred.
In the administrative civil penalty arena , EPA must choose between Section 3008(a) of
RCRA and Section 311(b) of the Clean Water Act, with Section 309(g) trailing the field.
Administrative cases will be more costly to litigate under RCRA than Section 311(b), but EPA
can also demand a higher penalty amount. The calculation in each case will vary according to its
facts.
229 EPA’s ability to seek joint administrative penalties under both Section 311(b) of the CWA and Section
3008(a) of RCRA would result in an action brought under 40 CFR Part 22, the sole RCRA forum, with commenter
rights allowed pursuant to Section 31 1(b)(6)(C), 33 U S C §1321(b)(6)(C) One day of violation under this
approach would allow a claim for up to $35,000 (up to $25,000 under RCRA, and up to $10,000 under Section
311) Since continuing violation doctrine is unlikely to succeed in these types of cases, a multimedia enforcement
case would effectively boost EPA’s potential penalty claim from a $10,000 maximum to a $35,000 maximum,
before applying any inflation adjustments pursuant to the DCIA
230 If, for some reason, a court rules that the federal statute of limitations begins to run on a Section
311(b)(3) violation at the moment that oil escapes its underground containment, the government appears to enjoy a
solid argument for tolling under a “discovery of damages” rule See Section V
Attorney Work ProductfFOlA Exempt/Do Not Disclose
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60
Citizen Options
Citizens, of course, have only judicial enforcement options, and these are limited to
unpermitted discharges under Sections 301(a) and 505(a)(l) of the Clean Water Act and unlawful
disposal claims under Sections 3004(d) and 7002(a)(1) of RCRA. The most cost-effective
prosecutions -- Section 311(b) judicial penalty claims and RCRA administrative penalty actions -
- are the exclusive domain of the Environmental Protection Agency.
Under Gwaltney I, a failure by a Clean Water Act citizen to allege the likelihood of
ongoing discharges from a point source results in the failure of subject matter jurisdiction.
Consequently, in the typical oil subsurface seepage case, citizens can expect difficulties in
maintaining a cause of action for violations of Section 301(a) of the Clean Water Act, if only
because of the proof problems inherent in this type of case. That leaves citizen suits authorized
by Section 7002 of RCRA. Citizen plaintiffs will have a wider scope of relief under Section
7002(a)(l)(A) of RCRA than under Section 505 of the Clean Water Act. They will have access
to more extensive relief without hazardous substance proofs, and more secure legal standing, if
they can demonstrate an endangerment claim under Clause (B). Days of violation in civil
penalty claims will be difficult to prove under either statute.
Summary Tables
The tables below (which assume that the oil discharged is a RCRA hazardous waste)
summarize a number of the issues raised under the three regulatory statutes:
Government Judicial Options
Statute
Penalty case
transaction costs
Injunctive relief
Penalty Claim
period
Injunctive
Availability
CWA §31 1(b)
Low
None
Five years
No
CWA
§ 30 1/309
High
Prospective,
possibly remedial
Minimal
During active
discharge
RCRA 3008
High
Prospective and
remedial
Minimal
Indefinite
Government Administrative Options
Attorney Work Product/FOIA Exempt/Do Not Disclose
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61
Statute
Highest penalty
authority
Compliance 1
authority
Penalty proofs 1
[
Compliance
findings
CWA §309(a)f(g)
$IOK daily/$125K
aggregate
Prospective
Extremely Difficult
Extremely Difficult
CWA §311(b)(6)
$lOKdaily/$125K
aggregate
NA
Easy
NA
RCRA §3008(a)
$25K daily
Prospective and
remedial
Difficult
Difficult
Citizen Enforcement Options
Statute
Penalty case
transaction costs
Injunctive relief
Penalty claim
period
Injunctive
availability
CWA §505
High
Prospective only
Minimal
During active
discharge
RCRA
§7002(a)(1)(A)
High
Prospective only
Minimal
During oil
migratory period
RCRA
§7002(a)(l )(B)
High
Prospective and
remedial
Minimal
Indefinite
Attorney Work ProductlFOlA EiemptfDo Not Disclose
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MEMORANDUM
TO: Robert Kenney
FROM: Elliott Milhollin
RE: Summary of David Drelich’s paper
DATE: August 12, 1997
David Drelich’s paper, When Subsurface Oil Seeps into Navigable Waters Legal Issues. Regulatory
Options , presents his research on available legal theories for subsurface oil seep cases. It excludes CERCLA
and section 311(c) and (e) of the CWA, and concentrates instead on legal theories based on statutes under
ORE The paper attempts to identify the best ways to frame subsurface seepage regulatory enforcement
complaints in order to defeat defenses based on the inevitable time lag between the occurrence of the seep and
the entrance of the seep into a protected resource. In doing so, the paper addresses injunctive relief, civil
damages, and civil penalties calculations
Drelich stresses the importance of factual determinations to the development of legal theones m oil
seep cases The determination by a court of when the violation actually occurred is of critical importance and
should influence your decision to use one of the following statutes applicable to oil seep caseS’
I Section 30 1(a) CWA - unpermitted discharge theory.
2 Section 31 1(b)(3) CWA - spill prohibition
3 Section 309(a) CWA - authorizing compliance orders for unpenmtted discharges of oil
under section 301(a)CWA
4 Section 3004 RCRA - prohibition on unlawful disposal of hazardous waste
5. Section 3008(a) RCRA - authorizing compliance order for the unlawful disposal of
hazardous waste
6 Section 7002 RCRA - provides for citizen relief
Drelich first argues that EPA should cease to use the “continuing violation” theory in oil seep cases
This theory argues that oil seeps continue to violate applicable law, rather than only violating applicable law
at a single moment in tune (e.g when the oil entered the protected resource) Successful use of this theory
has allowed EPA to circumvent defenses based on statute of limitations, increases the maximum civil penalty
claim, and helps to establish the basis for injunctive relief However, recent case law suggests that it is not
viable in federal environmental cases
Drelich then stresses the unportance of the federal statute of limitations in oil seep cases Under 28
U.S C § 2462, the enforcement of fines, penalties or forfeitures under federal law is barred unless
commenced within five years from the date when the claim first accrued. It does not affect claims of
injunctive relief This statute poses a threat to the successful litigation of many oil seep cases because m
many cases, the oil began to enter the protected resource more than five years before the litigation began In
such cases, Drelich argues that several techniques may be used to suspend, or toll, the statute of lmutatiôns
The “discovery of damages” tollmg argument, which argues that the statute should be run from the time the
harm first becomes manifest, is the most promising
Drelich describes the likelihood of obtaining injunctive relief under each statute, pointing out that the
federal government is much more likely to obtain injunctive relief in oil seep cases than private citizens under
most of the applicable statutes However, citizens may use RCRA § 7002 to obtain indefinite injunctive
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relief
Determination of the civil penalty claim period in oil seep cases is governed by the statute of
limitations, which bars civil penalty claims more than five years old Determination of when the statute of
limitations begins to run under each statute is thus essential in choosing which of the applicable statutes to
use in a given case Under section 311, the statute of limitations begins to run when a reportable quantity of
oil reaches a navigable water of the Umted States. Under section 301, it runs when the discharged oil would
inevitably reach the water of the United States. Under the relevant RCRA statutes, the statute of limitations
begins to run when a containment of disposed oil is lost Due to the slow nature of oil spills to make
themselves apparent, section 30 land RCRA statute of limitations claims will usually begin to have run more
than five years before the oil spill is discovered Section 311 claims are thus less susceptible to statute of
limitations defenses
Finally, Drelich examines the various statutes in light of transaction costs to the government Section
311 cases are usually the least expensive to prove, as they avoid the need to show when the breach occurred
and can avoid litigating statute of limitations issues The highest costs would be in section 30 icases, which
need to litigate both issues as well as whether the water involved is a navigable water of the United
States RCRA enforcement costs fall somewhere in between these two, as RCRA avoids the need to show
when the breach occurred, but still faces litigation over statute of limitations issues
Drelich concludes with a senes of charts describing the various merits of each of these statutes in oil
seep cases He argues that the applicable RCRA statutes are far better at obtaining injunctive relief than are
those of the CWA Forjudicial civil penalty cases, he argues that section 311(b)(3) is by far the best choice,
as it avoids the statute of limitations problems posed by the other statutes, and avoids the expense of
determimng when the underground spill occurred For administrative (EPA) civil penalty cases, its a toss-up
between RCRA § 3008(a) and section 311(b) of the CWA The RCRA cases are more expensive to litigate,
but provide higher penalty limits Citizen suits are best litigated under RCRA § 7002
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CONF!uE v
CONFIDENTIAL- -NOT FOR RELEASE
MEMORANDUM
From: Loan Phan
To: Toni Bandrowicz
Date: 9/24/97
Re: Part 112 research question
Ouestion :
Does EPA have any guidance, policy, opinion, etc., on when oil facilities, due to their location,
“could reasonably be expected to discharge oil”?
Answers :
I gathered EPA “guidance” on this issue from the following so.zrces
1) March 26, 1976 Federal Register notice (40 FR. 12657) which sets forth various
amendments to the SPCC regulations (see attachment) Specifically, 40 CFR §112 1 (d) was
amended to clarify EPA’s interpretation of the phrase “due to their location.”
Some owners and operators of oil facilities had argued that the exemption considerations
under § 112.1 (d) should be interpreted to allow consideration of factors other than geographic
location, such as manmade structures or equipment designed to prevent or contain spills EPA
clearly stated that:
such an interpretation is incorrect Geographic location (i.e., proximity to water or
shorelines, land contour, drainage, etc) is to be the sole factor in making the
aforementioned determination. Manmade features, such as drainage control structures and
dikes, are not to be used in concluding there is no reasonable expectation that a discharge
will reach navigable waters.
Therefore, § 112.1(d) was amended to read:
This determination 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, equipment or other structures which may serve to restrain, hinder,
contain, or otherwise prevent a discharge of oil from reaching navigable waters.
2) Region IV manual, entitled “Spill Prevention, Control, and Countermeasures (SPCC)
Information Guide.” The information in the manual mirrors language from the preamble to he
March 26, 1976 FR notice:
Reasonability is determined on the basis of the location of the facility in relation to
a stream, ditch, or storm sewer; the volume of material likely to be spilled,
drainage patterns, and soil conditions. The presence of manmade structures that
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would inhibit the flow of oil is not considered when making the determination
3) Case law research: I researched the environmental law database on Lexis and found
several administrative decisions on the question mentioned above (see attachments). The cases
confirm the policy described in the FR notice and the Region IV manual.
Again, manmade structures designed to contain or prevent spills are not to be considered
in making the determination. In a 1976 administrative opinion on SPCC plans, the EPA
administrator reiterated that “both 40 CFR § 112 1 (b) and 112.1 (d)(4) restrict consideration of
whether or not a facility could reasonably be expected to discharge oil to navigable waters to the
question of its [ the facility’s] location,” even though § 112.3 (a) omits mention of location
((emphasis added) See In the Matter of Central Florida Pipeline Corporation, 1976 NPDES
LEXIS 20, *2 (citing In the Matter of Marathon Oil Company, 1975 NPDES LEXIS 5)). In that
particular case, Central Florida Pipeline Corporation disputed EPA’s determination that the
company was not exempt from developing and implementing an SPCC plan, the company argued
that no weight was accorded in EPA’s determination to the existence of dikes and other man-
made features
Reiterating the statute’s requirement that only geographic location is to be considered, the
Administrator added: “Even where existing man-made features make a spill of oil into navigable
waters highly unlikely, an SPCC plan will at a minimum, assure proper maintenance and use of
such features. And it is entirely appropriate for a distinction to be made between permanent
geographic features and features which are man-made and thus likely to be far less assuredly
permanent.” (Central Florida Pipeline at *2). Therefore, it is appropriate to ignore man-made
features
The determination, however, that a facility, due to its location, could reasonably be
expected to discharge oil, cannot just be a conclusory statement on the part of EPA officers The
determination must be supported by factual determinations regarding the facility’s geographic
location: terrain, distance from navigable waters (above or below ground), etc.
Thus, in In the Matter of City of Akron, (1978 NPDES LEXIS 30) “conclusionary”
testimony was held insufficient to prove the City of Akron’s violation of the SPCC plan
requirement. The EPA’s witness testified that in his experience, a hundred yards from the river
was generally within the distance that one might expect oil to reach the water in the event of an
oil spill; however, the witness did not know whether the property was located in a flood plain or
not. Noting that the witness appeared to have been acting on a presumption that spills can
reasonably be expected from any tank located 100 feet from a river, the judicial officer held that,
“In the absence of such a presumption in the regulations, the witness should have described what
it was about this particular piece of property that made him conclude that a spill.., could
reasonably be expected to occur (e.g, the property sloped down to the river) “(City of Ak,.on at
* 5).
Note, however, that in In the Matter of Miners Advocacy Council (1992 NPDES LEXIS
15), a case in which the requirement to develop a SPCC plan was an NPDES permit condition,
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the AU apparently accepted the Region’s conclusion that “because most placer miners are
located near rivers or streams it is reasonable to expect that discharges of fuel could enter waters
of the United States.” (*16) The AU fUrther indicated that where there was such a “reasonable
basis,” it was up to the facility to challenge that conclusion
In sum, there is no formal EPA policy or guidance interpreting § 112(d) Case law,
however, suggests that the agency, when making determinations of “reasonability,” should, at the
least, cite specific facts attesting to the facility’s geographic location
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CO F ENTIAL
MEMORANDUM
Fr: Loan Phan
To: Toni Bandrowicz
Date: 11/06/97
Subject: Section 311 Jurisdiction over Local, State, and Federal Entities: Agency
Guidance and Case Law
Section 31 lof the Clean Water Act’ (“the Act”), enacted in 1970, prohibits the discharge
of oil or hazardous substances into navigable waters of the United States Section 311 (j) requires
the President, by delegating authority to the U.S. EPA, to promulgate regulations establishing
procedures to prevent the discharge of oil and hazardous substances EPA has issued such
regulations in 40 C.F.R. Part 112, establishing requirements for the development and
implementation of Oil Spill Prevention Control and Countermeasure plans ( “SPCC plan” ) by
non-transportation related facilities
The Act underwent various amendments during the first few years after its enactment, and
many questi ,ns were raised about the Act’s jurisdictional scope and statutory definitions. One
often raised question is whether the SPCC plan regulations can be applied to local, state, and
federal facilities for enforcement purposes. That is, are federal, state, and local facilities to be
considered “owner [ s] or operator [ s]” under section 31 1 (j), such that EPA may take administrative
enforcement actions against these parties?
This question has been definitively answered in EPA legal opinions and in several federal
judicial opinions. In sum, the answer is unequivocably “yes,” federal, state, and local facilities are
“owner [ s] or operator [ sJ,” thus subjecting them to section 311’s jurisdiction. The conclusion is
based on statutoiy interpretation and the legislative history of the Act. This memo surveys the
legal opinions and case law.
General Counsel opinion
In an April 25, 1975 opinion directed to all the Regions, 2 the General Counsel concluded
that “ onshore and offshore facilities, including those owned or operated by local, state, and
federal entities, are subject to section 311 and the SPCC Plan regulations”
As section 311 only applies to an “owner or operator,” the section’s jurisdiction over
‘33 U.S.C. §1321
2 Associate General Counsel, Water, Office of Enforcement and General Counsel, April
25, 1975 Also attached to the opinion were U S Coast Guard Commandant Instructions
supporting the General Counsel opinion (On file with Tonia Bandrowicz at U.S EPA Region 1).
OPTIQNAL FORM 99(7-90)
FAX TRANSMITTAL
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local, state, and federal entities turns upon the definition of “person “ Section 311 (a)(7) defines
“person” to include “an individual, firm, corporation, association, and a partnership.” Section
502(5), however, outlined in a set of general definitions that applies throughout the Act, defines
person to mean “an individual, corporation, partnership, association, Stale, municipality,
commission, or political subdivision of a State, or any interstate body.” 5
Are the two sections’ definitions in conflict then’? The General Counsel concluded that,
because the Section 311 (a)(7) definition is “inclusive and open-ended rather than restrictive,”
there is no conflict between it and the Section 502(5) definition, and therefore no reason why the
latter definition should not apply. Moreover, the broader definition in Section 5 02(5) is also
consistent with the breadth of the Section 311 definitions of onshore and offshore facility, and
with the congressional policy expressed in Section 311(b)(1), that “there should be no discharge
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.” 6 Thus, Section 311 (j) applies to
local and state entities.
A .ugh the federal government is not explicitly included within the Section 5 02(5)
definition oi “person,” the General Counsel further concluded that “there is ample reason to
believe that it too is subject to Section 31 1(j).” The above-mentioned policy of Section
311(b)(1), the broad definitions of onshore and offshore facilities, and the overall purposes of the
Act, and of Section 311(j) in particular, all support this conclusion. In addition, Section 313
provides that federal facilities “shall comply with Federal, State, interstate, and local requirements
respecting control and abatement of pollution to the same extent that any person is subject to
such requirements. . . .“ For example, just as federal facilities are subject to federally-issued
As defined by section 311 (a)(6), “owner or operator” means “. . . (B) in the case of an
onshore facility, and an offshore facility, any person owning or operating such . . facility. . .
(emphasis added).
‘ 33 U.S.C. § 1362(5). Section 502(5) was added to the Act by the 1972 Amendments,
while Section 31 1(a)(7) derives from the 1970 enactment.
Id. (emphasis added). In 1990, the Oil Pollution Act again substantially revised Section
311. Although the OPA did not modif y the definition of “person,” or “owner or operator,” a
separate definition of “person” in the OPA was broadened, and also includes states and
municipalities within its reach.
6 33 U.S.C. § 1321(b)(1) (emphasis added).
“Federal facilities pollution control” provisions, 33 U.S C §1323 (emphasis added).
2
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Section 402 they should also be subject to SPCC plan requirements under Section
31 1 ( j). 9
Moreover, there is no indication in the legislative histories of the 1970 Clean Water Act
and the 1972 Amendments that Congress meant to exclude federal, state and local entities. Thus
the General Counsel directed that “those Regions which are not already doing so should ensure
that all local, state, and federal facilities are in compliance” with the SPCC regulations
Federal Case Law
The challenge to Section 311’s jurisdiction over local, state, and federal facilities was first
raised in United States v. City of New This was an action to recover civil penalties
assessed by the U.S. Coast Guard against the City of New York ( “the City” ) for discharges of
oil into the navigable waters of the United States in violation of Section 311 The City moved to
dismiss the complaint, on the grounds that the City is not an “owner, operator or person” as
defined by Section 311(a) and thus cannot be assessed a civil penalty.
The court, inter eting the defin tion of “person” in Section 31 1(a)(7),” concluded that, if
municipalities such as the City were not included within the statutory definition of “persons”, then
“other portions of [ 3 11] would be rendered superfluous.” Section 311 defines “vessel” very
broadly, including “every description of watercraft,” and only exempts “public vessels” not
engaged in commerce from potential liability.’ 2 “It would make no sense,” concluded the court,
8 pollutant discharge elimination system” (NPDES) provisions,
33 U S.C. §1342.
Note, however, that EPA has a policy against penalizing or instituting judicial action
against federal facilities See “Federal Facilities Compliance Strategy,” (“Yellow Book”),
November 1988.
10 481 F.Supp. 4 (S.D.N.Y. 1979).
‘ The court did not even cite the general definition in Section 502(5) of the Act.
Apparently, the court found Section 31 1(a)(7)’s definitions broad enough on its own to include
the City in its reach. Although Section 311 (a)(7) does not specifically include municipalities
within its definition of “persons” potentially liable under the Act, the court concluded that it does
not specifically exclude such entities either:
Indeed, (t)he word “includes” is usually a term of enlargement, and not of limitation..
It therefore conveys the conclusion that there are other items includable, though not
specifically enumerated by the statutes Id. at 6.
12 For statutory interpretation of the phrase “engaged in commerce,” as described in
Section 311(a)(3) and (4), see Port of Portland v Water Quality Insurance Syndicate, 796 F 2d
3
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“to exempt municipally-owned vessels that are not used in commerce if the municipalities,
themselves, were not ‘persons’ within the meaning of [ §31 1(a)(7)]”
This conclusion is supported in United Stares v. Massachusetts Bay Transportation
Authority,’ 3 wherein the court held that the labor union, as a political subdivision of the state, is
also included in the statutory reach of the Section 31 1(a)(7) and Section 502(5) definitions The
court in Massachusetts Bay Transportation Authority also noted that, if the labor union is not a
“person” subject to Section 31 l’s prohibition against discharges of oil, then neither can it be a
person subject to Section 311’s requirement that the responsible party notify the government of
any discharge. “No possible reason suggests itself for exempting states, municipalities, and the
like from this duty to notify. Nor is there any general policy in the act to exempt them from
penalties.” 4
Furthermore, including local, state, and federal entities within the statutory definition
would also accord with legislative intent “The expressed Congressional poLicy that there be no
discharges of oil is absolute on its face . . There are no qualifications or exemptions suggested
in the foregoing statement of policy “s Similarly, in defining the terms used in the Act, Congress
chose “language of sweeping inclusivt iess “16
The legislative history of the definitional sections of the Act also supports the broad
construction of the statute As noted in City of New York, the House of Representatives’ version
of the Act specifically excluded federal or state-owned facilities from liability for oil discharges 17
These exclusions were subsequently deleted by the Joint Conference Committee ‘ Although no
specific reason was given for this deletion, notes the court, “it cannot be assumed that it was
without significance.” Thus, Congress ultimately decided that federal or state-owned facilities
would not be excluded from liability from oil discharges
1188, 1188-91 (9th Cir. 1986) (finding that “there is no question that municipalities engage in
activities which may cause them liability under the [ Act] “).
‘ 614 F.2d 27 (1st Cir. 1980)
‘ Id. at28
15 City of New York, 481 F Supp. at 6 (quoting United States v Buntin, 11 E.R.C. 1061
(MD. Tenn. 1976).
16 Id.
‘ Id at 7 (citing H.Rep.No. 91-127, 91st Cong, 2d Sess, Reprinted in 1970 U S Code
Cong & AdminNews, pp 2691, 2702-03),
‘ Id (citing Coaf Report No 9 1-940, 91st Cong, 2d Sess, Reprinted in 1970 U.s
Code Cong & Admin News, pp. 2724-25).
4
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Attorney-Client Privileged/Attorney Work Product/ OIA Exempt 3-13
DRAFT
MEMORAND1Th1
FROM: Lisa K. Friedman
Associate General Counsel
Solid Waste and Emergency Response Legal Office (2366)
TO: Barry Breen, Director
Office of Site Remediation Enforcement (2271A)
Office of Enforcement and Compliance Assurance
SUBJECT: Historic Discharges under Clean Water Act Section 311
Background
You have asked that I provide a legal opinion on the issue
of whether EPA has the authority under section 311 of the Clean
Water Act (“CWA”) to clean up “historic discharges” of oil to
navigable waters. Barry Breen, “Cleanup of Historic Discharges
under Section 311 of the Clean Water Act and the Oil Pollution
Act of 1990’ (Memorandum to Lisa Friedman) (May 2, 1997) . As you
indicate in that request, a law clerk formerly with my office
prepared a legal opinion on this issue in the summer of 1996.
In addition, given the complexities involved in interpreting
the relationship between CWA section 311 and the Oil Pollution
Act (“OPA”), this matter has been a subject of much discussion
prior to and since that time among OECA, OGC, and regional
program and counsel/enforcement staff. More specifically, EPA
staff has discussed whether OPA section 1020, which limits the
applicability the OPA to “an incident occurring after the date of
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the enactment of this Act,” would prohibit EPA from conducting a
removal action or issue an administrative order under CWA section
311 to clean up a “historic discharge” of oil, i.e. , one that has
occurred and/or been discovered after enactment of OPA but may
have started (either by actual discharge to navigable waters or
by a release to the environment (but not surface waters or
adjoining shorelines)) prior to OPA enactment.
Issue
May EPA conduct a removal action or issue an administrative
order in accordance with CWA sections 311(c) or (e) to clean up a
discharge of oil which occurs after enactment of the OPA but may
have originated prior to that date (August 18, 1990), i.e. , a
“historic discharge”?
Conclusion
Our reading of the relevant provisions of the CWA and the
OPA and the statutory purposes of both statutes indicate that it
is irrelevant, for the purposes of removal and order authority
under CWA section 311, whether a lihistoric discharge constitutes
an “incident” under the OPA. Instead, we believe that EPA has
the authority to conduct removal actions or issue administrative
orders under CWA sections 311(c) and (e) whenever there has been
a discharge or threat of discharge of oil which satisfies the
relevant statutory criteria set forth in either CWA section 311
provision. Moreover, even if the occurrence of an OPA “incident”
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was necessary for the conduct of a removal action or issuance of
an order under section 311, we believe that a number of
reasonable arguments can be made as to why a “historic discharge”
(as described in this memorandum) falls within the definition of
“incident” in the OPA.
Statement
I. Statutory Language
A. The Clean Water Act
The Clean Water Act, 33 U.S.C. § 1251 seq. , was
established “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters”. 33 U.S.C.
§ 1251(a); United States v. Hobbs , 736 F.Supp. 1406, 1409 (E.D.
Va. 1990) . To achieve that purpose, Congress declared a “national
goal that the discharge of pollutants into navigable waters be
eliminated... •1 33 U.S.C. § 1251(a) (1)
One linchpin of the CWA’s scheme is found in section 301(a),
which prohibits the discharge of pollutants into the waters of
the United States by any person except in accordance with
provisions of the Act. 33 U.S.C. § 1311(a) . For most
dischargers, such compliance is achieved by obtaining and
adhering to the terms of a National Pollution Discharge
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Elimination System permit. EPA v. California ex rel. State
Water Resources Control oard , 426 U.S. 200, 205 (1976)
Another linchpin underlying the CWA scheme can be found in
section 311. In CWA section 311(b), Congress declared that
it is the policy of the United States that there should be
no discharges’ of 0112 or hazardous substances 3 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 activiites under the Outer
Countinental Shelf Land Act or the Deepwater Port Act of
1974, or which may affect natural resources belonging to,
appertaining ot, or under the exclusive management authority
of the United States (including resources under the
Magnuson-Stevens Fishery Conservation and Management Act.
33 U.S. C. § 1321(b) (1)
To address those discharges of oil or hazardous substances
which do occur, Congress provided the President 4 with broad
authority under section 311(c) and (e) to conduct removal actions
1 With certain specified exclusions, Congress defined the
term “discharge” to “include, but is not limited to, any
spilling, leakin, pumping, pouring, emitting, emptying, or
dumping... •1 33 U.S.C. § 1321 (a) (2)
2 Under section 311 the term “oil” is defined to mean “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.” 33 U.S.C. § 1321(a) (1)
Pursuant to CWA section 31]. (b) (2) (A), EPA has promugated a
rule which desigates a number of chemicals, other than oil, as
“hazardous substances” under section 311. 40 CFR Part 116.
4 The President delegated his authority under CWA section 311
to conduct removal actions and issue administrative orders within
the inland zone to the EPA Administrator. Executive Order 12777,
§ 3 and 6, 56 Fed. Reg. 54757 (Oct. 22, 1991)
4
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or issue administrative orders for the clean up of discharges or
threats of discharges of oil and hazardous substances to
navigable waters, adjoining shorelines, the exclusive economic
zone, or natural resources belonging to the United States. 33
U.S.C. § 1321 (c) and (e) . CWA section 311(c) (1) (A) requires
the President to:
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; (ii) on the adjoining shorelines to
the navigable waters; (iii) intor or on the waters of the
exclusive economic zone; or (iv) that may affect natural
resourfes belonging to, appertaining to, or under the
exclusive management authority of the United States.
33 U.S.C. § 1321(c) (1) (A) (i) - (iv)
Section 311(c) (1) (B) of the CW.A provides (in relevant part)
that:
tn carrying out this paragraph, the President may--(i)
remove or arrange for the removal of a discharge [ of oil or
a hazardous substance], 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 [ of oil or a hazardous substance]
33 U.S.C. § 1321(c) (1) (3) (i) - (ii) . In situations where such
a discharge or the threat of such a discharge “is of such a size
Each time the term “navigable waters” is found in this
opinion, it is also meant to include adjoining shorelines to the
navigable waters, the waters of the exclusive economic zone, or
natural resources belonging to, appertaining to, or under the
exclusive management authority of the United States. 33 U.S.C. §
1321(c) (1) (A) (i) - (iv)
S
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or character as to be a substantial threat to public health or
welfare,” CWA section 311(c) (2) (A) provides that “the President
shall direct all Federal, State, and private actions to remove
the discharge or to mitigate or prevent the threat of the
discharge.” 33 U.S.C. § 1321(c) (2) (A)
Section 311(e) (1), entitled “Orders Protecting Public
Health,” provides that:
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 nonliving natural resouces
under the jurisdiction or control of the United Staes,
because of an actural or threatened discharge of oil or a
hazardous substance from a vessel or facility 6 in violation
of [ section 311(b)], the President may...(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.
33 U.S.C. § 1321(e) (1) (3)
B. The Oil Pollution Act
In response to a number of major oil spills, including the
Exxon Valdez spill in Prince William Sound, Congress enacted the
Oil Pollution Act (“OPA”) on August 18, 1990. See General
6 The term “facility” is not defined in CWA section 311.
However, Congress defined “onshore facility” to mean “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 [ .1” 33 U.S.C.
§ 1321 (a) (11). 33 U.S.C. § 1321 (a) (11) (definition of offshore
facility)
6
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Electric Co . v. ‘ U.S. Dept. of Comnierce , 128 F.3d 767, 769 (D.C.
Cir. 1997). In addition to expanding the President’s authority
to respond to oil spills by amending CWA section 311, the OPA
also amended a number of other completely independent statutes,
such as the Deepwater Port Act, the Intervention on the High Seas
Act, the Ports and Waterways Safety Act, the National Driver
Register Act of 1982, the Trans-Alaska Pipeline Authorization
Act, the Outer Continental Shelf Lands Act, the Internal Revenue
Code, and various shipping and vessel provisions contained in
Title 46 of the U.S. Code. [ cites Of the ten titles of law that
Congress enacted in Public Law 101-380, only Titles I, V 1 VI, and
VII were codified in Chapter 40 of Title 33 of the U.S. Code. 33
U.S.C. § 270]. - 2761.
Title I of the OPA established new standards relating to,
among other things, liability for oil spills, natural resource
damage, cost recovery, financial responsibility, uses of the Oil
Spill Liability Trust Fund, and litigation. 33 U.S.C. § 2701 -
2719. At the end of Title I, Congress enacted an effective date
provision (section 1020) that states:
7
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This Act shall apply to an incident 7 occurring after
the date of the enactment of this Act.
P.L. 101-380, 104 Stat. 484, § 1020 (included as a note following
33 U.S.C. § 2701) . Thus, under section 1020 and the applicable
provisions of Title I, a responsible party 8 for a vessel or a
facility 9 from which oil is discharged, or which poses a
substantial threat of discharge, into or upon the navigable
waters is liable for removal costs and damages (including natural
resource damages) that result from such an “incident” occurring
after OPA enactment (August 18, 1990) . 33 U.S.C. § 2702, 2704,
2706.
OPA section 1001(14) defines “incident” as “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.” 33
U.S.C. § 2701(14) (1996)
8 OPA section 1001(32) defines “responsible party” in
relation to vessels, onshore, and offshore facilities. For
“onshore facilities (other than a pipeline) [ ,1” the term
“responsible party” means “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, orSS
permit.” 33 U.S.C. § 2701(32) (B)
“Facility” is defined in OPA section 1001(9) to mean: “any
structure, group of structures, equipment, or device (other tfian
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.” 33 U.S.C. § 2701(9)
8
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Argument
Because Congress amended CWA section 311(c) and (e) to their
current versions by enacting the CPA,’° it could be argued that
Congress intended CPA definitions and restrictions to apply to
those sections of the CWA. Most relevant for purposes of this
opinion, it may be suggested that Congress intended that the
authority provided to the President in CWA section 311(c) and Ce)
be limited by the effective date language in CPA section 1020.
However, we believe that neither the text, structure, purpose,
nor legislative history of CWA section 311 supports the
application of OPA section 1020 to CWA section 311. Instead, we
believe a reasonable argument can be made that OPA section 1020’s
use of the term “ [ tihis Act” does not refer to CWA sections
311(c) or Ce) and, as such, the provision does not restrict EPA’S
authority to respond (by way of a removal action or issuance of
an administrative order) to historic discharges of oil.
I. Statutory Language
First, CWA section 311 nowhere mentions the requirement of
an CPA “incident” to trigger federal removal or administrative
order authority under subsections Cc) and (e). Instead the plain
language of these provisions only requires a “discharge,” “threat
of discharge,” or “a substantial threat of discharge” of oil or
‘° OPA sections 4201(a) and 4306.
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hazardous substances -- and not an OPA “incident” -- as a
prerequisite to conducting a removal action or issuing an
administrative order. 33 U.S.C. § 1321(c) and (e) . To read
section CWA 311 and OPA section 1020 such that an OPA “incident”
must occur rather than a “discharge” or “threat of discharge” of
oil before EPA could take a removal action or issue an
administrative order would run afoul of the maxim of statutory
construction that “ [ tihe plain meaning of legislation should be
conclusive, except in the ‘rare cases [ in which] the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters.’” United States v. Ron
Pair Ent. , 489 U.S. 235, 242 (1989), quoting Griffin v. Oceanic
Contractors. Inc. , 458 U.S. 564, 571 (1982). 11
Second, CWA section 311 provides for removal authority with
respect to discharges not only of oil, but also of “hazardous
11 Indeed, our review of the legislative history of OPA
indicates that a reading which suggests that CWA section removal
authority is limited to responding to an OPA “incident” would be
in conflict with the intent of the drafters. The OPA Conference
Report discussion which elucidates the OPA amendments to CWA
section 311(c) and (e) provides no suggestion that Congress
intended that removal or order authority under section 311 should
be premised upon the occurrence of an “incident.” Instead, the
Conferees from the thirteen different House and Senate Committees
which drafted these amendments to CWA section 311(c) and (e)
speak only of how the amendments were meant to broaden the scope
of the President’s authority to address “discharges” and “threats
of discharges” of oil and hazardous substances. H.R. Rep. 101-
653, 101st Cong. 2d Sess., 145 - 146 and 155 (August 1, 1990)
10
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substances.” 33 U.S.C. § 1321(c) (1) & (2), (e)(1). In enacting
section 311, Congress made it clear that it was United States
policy “that there should be no discharge of oil or hazardous
substances into or upon the navigable waters of the United
States... .“ 33 U.S.C. § 1321(b) (1) (emphasis supplied) . If
Congress had intended sections 311(c) and (e) to be triggered
only by an CPA “incident” -- a term which only pertains to oil--,
the references to “hazardous substances” in those sections would
be rendered meaningless. Such an interpretation would violate the
“elementary canon of construction that a statute should be
interpreted so as not to render one part inoperative.” Colautti
v. Franklin , 439 U.S. 379, 392 (1979) . Alternatively, if these
sections are subjected to the extremely strained reading that an
OPA “incident” is required only in the case of Q.i.1 discharges,
the perverse result would obtain that the CPA in fact limits
federal authority to remove oil discharges not fitting the
definition of “incident,’ 1 while leaving untouched authority to
remove or order the removal of discharges of CWA-identified
“hazardous substances” that might qualify as “historic.”
Third, despite the amendment of CWA section 311 by the OPA,
we do not believe that Congress intended that “ [ tihis Act” under
OPA section 1020 to include section 311 of the CWA. In fact,
nowhere does Congress state an intention to subsume any part of
11
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C A section 311 removal or order authority within the OPA. Had
Congress intended to incorporate the sections of CWA relating to
removal authority within the OPA, it could easily have done so by
repealing those sections and including their current versions
within the OPA. Instead, the statutory language contained in OPA
sections 4201(a) and 4306 has been codified as part of CWA
section 311. 33 U.S.C. § 1321(c) and (e).
Moreover, the CWA generally and section 311 in particular
operate under their own set of definitions separate from those
under the OPA. 33 U.S.C. §S 1321(a), 1362. While in enacting
the OPA, Congress adopted many of the same definitions contained
in CWA section 311, some of the same terms (such as “oil”) are
defined differently, and certain definitions included in OPA
(such as “incident” and “facility”) are not part of the CWA
section 311 definitional provisions. Compare 33 U.S.C. § 1321 (a)
with 33 U.S.C. § 2701; H.R. Rep. 101-653, 101st Cong., 2d
Sess., 101 (Aug. 1, 1990) (conferees explain differences and
similarities between the section 311 and OPA section 1001
definitions)
In enacting the OPA, Congress did provide that for purposes
of CWA section 311(c) the term “responsible party” would have the
same meaning as it does under OPA section 1001. 33 U.S.C.
12
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§ 1321(c) (6) . However, our read of this provision (which would
be redundant if Congress had intended a wholesale importation of
OPA definitions into CWA section), together with the differences
found in the definitional sections themselves, suggests that
Congress did not intend that section 311 would be subsumed under
the :imitations and definitions contained in Title I of OPA and
thus become part of “ [ t]his Act” for purposes of CPA section
1020. 12
II. Statutory Purpasea and Legislative History
12 Although this opinion does not directly address the issue
of whether the Oil Spill Liability Trust Fund, 26 U.S.C. 9509,
may be used to conduct CWA section 311 removal actions for
“historic discharges”, we believe that the relevant provisions of
CWA section 311, the Internal Revenue Code, and OPA Title I
support the position that the Agency may exercise removal
authority to address such discharges without the prerequisite of
an OPA “incident.” For example, CWA section 311( 5) authorizes
the use of the Trust Fund to carry out section 311© and other 311
subsections as they “apply to discharges. and substantial threats
of discharges , of oil.” 33 U.S.C. § 1321(s). Section 1012(a) of
OPA Title I specifies that the Trust Fund may be used for the
implementation, administration, and enforcement of CWA section
3ll @ with respect to “prevention, removal, and enforcement
related to oiLdischarges. ” 33 U.S.C. § 2712 (a) (5). also 26
U.S.C. § 9509(c) (1) (D) (Internal Revenue Code provision which
authorizes use of the Trust Fund to carry out various subsections
of CWA section 311, including subsection (c), with respect to
prevention, removal, and enforcement related to oil discharge
( as defined in such section ) (emphasis supplied) . Each of these
provisions’ use of the term “discharge” as opposed to “incident”
is an indication of Congress’ intent not to restrict CWA section
311 removal or administrative order authority through application
of OPA section 1020.
13
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Engrafting the requirement of an OPA “incident” upon CWA
section 311 would be inconsistent with the purposes of both Acts.
As described by the Supreme Court, the major purpose of the CWA
“was to establish a comprehensive long-range policy for the
elimination of water pollution.” City of Milwaukee v. Illinois
and Michigan , 451 U.S. 304, 318 (1981) . Section 311, however,
left certain gaps with regard to the federal government’s
authority to remove and prevent oil spills:
The OPA was enacted in 1990 in the wake of the nation’s
largest oil spill in history--the 11 million gallon
spill from the Exxon Valdez in Prince William Sound,
Alaska. The OPA amended, expanded, and strengthened
the requirements of pre-existing statutes that
addressed oil spill cleanup, liability and
compensation. Before the OPA, the Federal Water
Pollution Control Act (“FWPCA”) authorized, but did not
require , federal removal of oil spill and approval of
oil spill response plans. The OPA amended the FWPCA to
require such efforts and to expand the oversight and
cleanup responsibilities of the federal government.
U.S . v. Conoco. Inc. , 916 F.Supp. 581 (E.D. La. 1996) (notes
omitted) (emphasis supplied)
Thus a major purpose of the OPA was to expand federal
removal authority, in the wake of the Exxon Valdez, to better
respond to catastrophic oil spills. H.R. Rep. No. 101-653, 101st
Cong. 2d Sess., 145 - 146 (Aug. 1, 1990); S. Rep. No. 101-94,.
101st Cong. 2d Sess., 2 - 3 (July 28, 1989); 135 Cong. Rec.
14
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H7954, 7963 (1989) (remarks of Rep. Anderson) - However, reading
CWA section 311 to require an OPA “incident” would have the
perverse effect of improving the federal government’s ability to
handle catastrophic tanker spills which occur after OPA enactment
at the expense of the government’s ability to remove discharges
or prevent and mitigate threatened discharges of oil not meeting
the definition of “incident.” Such a limitation of federal
removal authority would run contrary to both the clearly
expressed purpose of the CWA “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters”, 33 U.S.C. § 1251(a), and the policy expressed in section
311(b) “that there be no discharges of oil or hazardous
substances into or upon the navigable waters of the United
States... .“) . 33 U.S.C. § 1321(b) (1).
Whether or not there must be an “incident” before EPA can
exercise removal or order authority under CWA section 311
depends, in part, on the meaning of “ [ tihis Act” as contained in
OPA section 1020 (“ [ tlhis Act shall apply to an iricident....”).
As evidenced by the statutory language and purposes and the
legislative history of CWA section 311 and the OPA, the meaning
of “ [ t]his Act” is ambiguous at best. In such situations, we
believe that the Courts will provide deference to EPA’s position
15
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that the term “this Act” does not apply to CWA section 311.
Chevron USA. Inc . V. NRDC , 467 U.s. 837, 842-44 (1984)
Section 1020 originated in a House bill which provided that
“ this title [ Title I -- “Oil Pollution Liability and
Compensation”] shall apply with respect to an incident occurring
after the date of enactment of this Act.” H.R. 1465, 101st
Cong., 1st Sess., § 110 (Mar. 16, 1989), reprinted in The
Environmental Law Reporter, QjJ . Pollution Deskbook , 496
(1991) (emphasis supplied) . The elements contained in Title I of
this House bill almost mirrored the issues addressed in the
enacted version of the OPA Title I, i.e. , it dealt with
liability, financial responsibility, uses of the fund, claims
procedure, litigation, H.R. 1465, 101st Cong. 1st Sess., §
1(b) (Mar. 16, 1989), reprinted in Environmental Law Reporter,
i1 Pollution Deskbook , 483 (1991) . On the other hand, all
revisions to CWA section 311 pertaining to removal and order
authority were contained in other titles of the House bill as it
progressed through the legislative process. [ cites]
When H.R. 1465 was reported out of the Committee on Public
Works and Transportation, the “Effective Date” section, which was
now section 111, still referred to “this title.” H.R. Rep. No.
101-242, Part 1, 101st Cong. 1st Session, 15 (Sept. 18, 1989),
and the Committee Report discusses section 111 as only applying
16
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to Title I. at 38. Even when the Committee on Merchant
Marine and Fisheries reported on H.R. 1465 and had modified its
proposed “Effective Date” section (section 110) to replace the
term “this title” with “this Act,” the Committee report still
discusses this provision as applying to Title I. H.R. Rep. No.
101-242, Part 2, 101st Cong. 1st Sess. 14 and 72 (sept. 18,
1989) (Committee Report states that “ [ p]rovisions set forth in
Title I shall apply with respect to an incident occurring only
after the date of the enactment of this Act.. . .“)
The Conference Report indicates that the Senate bill had no
comparable effective date provision and that the Conferees
decided to adopt the modified House bill language. H.R. Rep. No.
101-653, 101st Cong. 2d Sess. 122 (Aug. 1, 1990) . However, the
Conference Report merely repeats the words of section 1020 as
enacted and provides no indication that Congress intended that
the term “ [ tihis Act” was meant to apply to CWA section 311 or
any of the other statutes that the OPA amended.
In addition, the legislative history reflects the fact that
at different stages of the Congressional process, the House had
contemplated establishing separate effective dates for those
separate titles within the Act which contained provisions
strengthening CWA section 311. For example, H.R. 1465 at one
17
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time contained separate effective date provisions for Titles II
and IV. H.R. Rep. t Io. 101-242, Part 1, 101st Cong. 1st Sess. 50
(Sept. 18, 1989); H.R. Rep. 101-242, Part 2, 101st Cong. 1st
Sess. 17 (Sept. 18, 1989) . However, Congress enacted neither of
these effective date provisions, and the Conferees specifically
rejected the effective date provision for Title II because it
contained an “erroneous cross-reference” to the Internal Revenue
Code. H.R. Rep. 101-653, 101st Cong. 2d Sess. 125 (Aug. 1,
1990) . Nowhere in this legislative history is there a suggestion
that Congress intended section 1020 to act as a substitute for
these other effective date provisions, which were rejected, or
that the “incident” limitation within that provision was meant to
restrict the President’s authority under section 311. ‘
The ambiguity of what Congress meant by the use of the term
“ [ tihis Act” in section 1020 is also reflected in the differing
‘ We also note that the House debate on H.R. 1465 was
structured so that each OPA Title, together with their proffered
amendments, was discussed separately on the floor. See 135 Cong.
Rec. H7954-7978 (Nov. 2, 1989) reprinted in The Environmental Law
Reporter, Qjl Pollution ] Jeskbook , 310 - 357 (Title I); 357 - 359
(Title II); 359 - 360 (Title III); 360 - 384 (Title IV); 383 -
384 (Title V); 384 - 386 (Title VI); 386 (Title VI); 386 - 389
(Title VII); and 389 - 395 (Title VIII) (1991) . One way to read
this separate debate for each OPA Title is that Congress intended
section 1020, which is part of Title I, to apply only to Title I.
This is supported by an early discussion of the effective date
provision on the House floor. 135 Cong. Rec. H7898, 7904 (Nov. 1,
1989) (“ [ p]rovisiOflS set forth in title I apply with respect to
an incident occurring only after the date of enactment of this
Act 1l)
18
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manner in which the provision has been codified. For example,
the publishers of the United States Code Annotated codified OPA
section 1020 as a note to section 1001, and in doing so stated
that “(t]his Act” “probably refers to Title I of Pub. L. 101-380
which enacted this subchapter.” 33 U.S.C.A. § 2701 (1997) (note
on “Effective Date”) . This reading would tend to support the
position that section 1020 only applies to Title I of the OPA.
On the other hand, while those who codified the OPA into the
United States Code also included section 1020 as a note to
definitional provisions of section 1001, they did not suggest
that “ [ t]his Act” refers only to Title I of the OPA; instead,
these codifiers in discussing the term simply listed all of the
provisions that were enacted by way of the OPA, including those
sections that amended other statutes. 33 U.S.C. § 2701
(1994) (notes on “Effective Date” and “Short Title”)
C. Case Law
1though there are no court opinions that directly address
the issue of whether section 1020 limits the President’s
authority to respond to “historic discharges” of oil from onshore
facilities, our review of case law suggests that the issue is
still open to debate and that the Courts may grant deference to
EPA’s position for the reasons outlined above. In Intertanko v.
Lowry , 947 F.Supp. 1484 (W.D. Wash. 1996), a trade association
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challenged a set of Washington State regulations that established
tanker operational requirements to prevent tanker oil spills in
Puget Sound. j at 1488 - 89. The State of Washington argued
that such state requirements were permissible under the
nonpreemptiori provision of OPA section 1018, which states, in
part, that ‘ [ n]othing in this Act. . .shall affect or be
constructed or interpreted as preempting, the authority of any
State. . .from imposing additional liability or requirements”
pertaining to oil discharges or removal activities. 33 U.s.c.
§ 2718 (a) (emphasis supplied) . Intertanko had argued that this
provision (evidenced by its placement in Title I) did not apply
to oil spill prevention standards such as the one the State had
promulgated. Intertanko , 947 F.Supp., at 1491 - 92.
However, the Court rejected this argument, interpreted the
term “this Act” broadly, and read the savings provision in
section 1018 such that it did allow states to issue standards to
prevent discharge of oil from tankers. .I. at 1492. This aspect
of the Court’s decision, however, is premised, in part, upon the
fact that the statutory language of section 1018 authorizes
states to issue standards for “removal” which the Court noted was
enacted as part of OPA Title tV. j Thus, the Court found that
because the nonpreemption language in section 1018 specifically
preserved state rights concerning OPA Title IV removal
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activities, the same language must be read to also preserve state
authority for other OPA Title IV provisions, Le. , prevention.
At first blush, this opinion would tend to support the
position that the term “this Act” in section 1020 should be read
broadly such that the “incident” limitation would apply to CWA
section 311 as it was amended by CPA Title IV. However, although
the Court read the term “this Act” broadly for purposes of OPA
section 1018, the opinion’s relevance to interpreting “this Act”
in CPA section 1020 may be limited fcr a variety of reasons.
First, as indicated above, the Court premised its reading of
section 1018 as being applicable to all parts of the OPA, in
part, on the fact that the nonpreemption statutory language
already included a reference to at least one Title IV issue - -
removal activities. In contrast, CPA section 1020 makes no
mention of any of the Title IV provisions which amended section
311 or to any of the pertinent section 311 language, such as
“discharge.” If Congress had intended to ensure that the
effective date language in section 1020 applied to sections 311©
and (e) of the CWA, then it certainly could have included the
14 Intertanko’s appeal of the district court’s decision is
currently pending before the Ninth Circuit. Intertanko v. Lowry ,
Mo. 97-35010 (9th Cir. 1997)
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terms “discharge” and “threat of discharge” together with the
term “incident” in the statutory language.
Moreover, the latertanko Court found support for its broad
reading of the section 1018 nonpreemption language in OPA’s
legislative history, which to the Court demonstrated that
Congress “placed a high priority on reducing the threat of oil
pollution. • .“ j at 1493. As indicated above, we believe that
reading section 1020 to limit the President’s removal authority
to “incidents” occurring after OPA enactment would be contrary to
the legislative purposes that underlie the amendments to CWA
section 311.
Although the Court did not directly address the issue, the
opinion in General Electric v. U.S. Dept. of Commerce , 128 F.3d
767 (D.C. Cir. 1997) (hereafter “ G.E . V. Commerce”), suggests a
reading of “this Act” in OPA section 1020 that is similar to our
own. In this case, petitioners challenged regulations pertaining
to the process for assessing natural resource damage which
results from a discharge of oil. The National Oceanic and
Atmospheric Administration had promulgated these regulations in
accordance with OPA section 1006(e). G.E . v. Commerce , 128 F.3d
at 770.
In the introductory text of the opinion, the Court notes
that OPA amended CWA section 311(c) (1) so that it “directs the
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President, who has since delegated his authority to the
Environmental Protection Agency and the Coast Guard, to remove
spilled oil.” .1th However, in discussing the Oil Pollution Act
itself, the Court cites only to those portions of the United
States Code in which Title I of the OPA, together with other
miscellaneous provisions of the “Act” that did not amend other
statutes, appear. j . at 769 (“ [ p]rior to the Oil Pollution Act
of 1990, Pub.L. No. 101-380, 104 Stat. 486 (codified at 33 U.S_C.
§S 2701-20, 2731-37, 2751-53, 2761 (1994) (“OPA”)”) . Although
this parenthetical in the Court’s opinion may not be all that
significant in supporting the position that the term “this Act”
in OPA section 1020 does not include CWA section 311, it should
be noted that in discussing CERCLA, the Court’s citation to that
Act states that it is “codified as amended in scattered sections
of the U.S.C.” Certainly if the Court had regarded the OPA to
mean more than Title I and the other miscellaneous provisions
codified in 33 U.S.C. § 2701 seq. , it could have easily cited
to the “scattered sections of the U.S.C.” wherein other statutes
were amended by provisions in the OPA.
Finally, In re.Energy Cooperative. Inc , 1995 U.S. Dist.
LEXIS 7545 (N.D.Ill. 1995), concerned contribution and indemnity
claims by Ed, a chapter 7 debtor, for environmental damage at a
facility most recently operated by Ed, but previously operated
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by ARCO. Among ECI’s claims was one for contribution under OPA
section 2709. ARCO argued that had any spill occurred during
ARCO’s operations, which had terminated prior to OPA’s enactment
date, it could not have constituted an “incident” under CPA
section 1020. In denying ARCO’s motion to dismiss this claim,
the court stated that:
Whether ECI can recover under OPA based on this theory
[ that ARCO can be liable under OPA for its actions up to
1976] is not presently before us. Rather we are limited to
the issue of whether ECI has stated a claim under OPA.
Construing the statute broadly, OPA does not appear to
preclude the possibility that ARCO may be sued for
contribution as a responsible third party for incidents
occurring after 1990 .
.Ld at *20 (emphasis supplied). Although the language used by
the court is not strong, the court clearly refused to rule out
liability under OPA for post-1990 “incidents” arising from pre-
1976 activities.’ 5
‘ In Ballard Shipping Co . v. Beach Shellfish , 32 F.3d 623
(1st Cir. 1994), a group of shellfish dealers brought federal and
state law claims against Ballard Shipping to recover economic
losses resulting from the discharge of 300,000 gallons of oil
into Narrangansett Bay, Rhode Island. The spill resulting from a
tanker running aground on June 23, 1989. j at 624. Although
the opinion is mainly one that pertains to matters of federal
preemption of state law 1 the Court cites to OPA section 1020 and
states in an aside that the Oil Pollution Act does not apply to
the case. Because this opinion, however, dealt solely with aoil
tanker spill that occurred on one day in 1989, we believe it has
little relevance to the issue relating to “historic discharges”
of oil from onshore facilities that may span the dividing line
between pre- and post-OPA enactment. It should be noted,
however, that in a manner consistent with the D.C. Circuit’s
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II. “ Historic Discharges” As “Incidents” Un&er OPA Section
1D 2 Q
Even if a court were to hold that OPA section 1020 limits
the President’s authority under CWA section 311 to conduct
removal actions or to issue administrative orders only in
response to an OPA “incident,” we believe that EPA can still take
such actions to clean up “historic discharges” because the Agency
can make reasonable arguments that an “incident” has occurred.
First, even when oil has been released to the environment and/or
discharged to navigable waters prior to August 18, 1990, if any
discharge or threat of discharge of oil (from the same onshore
facility) to navigable waters occurs after the date of OPA
enactment, EPA would certainly have removal and order authority
under CWA section 311 because there has been an ‘ T incident” and
the criterion under OPA section 1020 has been met.
In such a situation, EPA would be responding to the post-OPA
incident but in the process of cleaning up that oil discharge,
the Agency may also be removing oil that may have been discharged
from the facility prior to August 18, 1990. In such situations,
opinion in G.E . v. Commerce, see text above, at 14 - 16, the
First Circuit cites only those OPA provisions codified in 33
U.S.C. 2701 seq. , and not those provisions amending other
statutes, when it discusses Congress’ enactment of the OPA.
Ballard Shippin , 32 F.3d at 630 (“Congress has recently enacted
the Oil Pollution Act, 33 U.S.C. § 2701 q.. .
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the burden would be on the responsible party to demonstrate that
EPA did not have the authority to remove any of the oil that had
been discharged prior to OPA enactment or that the harm that
resulted from the pre—OPA discharge was divisible from the harm
that resulted from the post-OPA discharge. See United States v.
Freter , 31 F.3d 783, 788-89 (9th Cir. 1994) (defendant bears the
burden of proving that its liability is limited because some
portion of the release falls within the ‘federa11y permitted
release exception” established under CERCLA section 104 (b) (3))
United States v. Monsanto Co. , 858 F.2d 160, 172 (4th Cir.
1988) (burden of proving divisibility in a CERCLA action is on the
defendant); In re Acushnet River & New Bedford Harbor , 722
F.Supp. 893, 897 (D. Mass. 1989) (burden is on the defendant in a
CERCIJA action to show that the injury is divisible).
In the alternative, for those “historic discharge”
situations where an oil discharge to navigable waters has been
first discovered only after OPA enactment, EPA could argue that
an OPA “incident” has occurred in accordance with section 1020
and that the authority to conduct a removal or issue an
administrative order under CWA section 311 is available. Under
this theory, an “incident” under OPA section 1001(14) has
occurred when a discharge of oil to navigable waters is
discovered and that discovery takes place after OPA enactment
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(even though releases of oil to the environment -- including
discharges to navigable water - - from the same onshore facility
may have occurred prior to August 18, 1990).
This argument appears to be consistent with the pre-OPA
opinion in Ouaker State Corp . v. U.S. Coast Guard , 681 F.Supp.
280, 285 (W.D. Pa. 1985) . In this case, the Coast Guard sought
to recover oil removal costs from Quaker State Corporation.
Quaker State had leased property (from the U.S. Forest Service)
on which was located a containment pit used at an oil production
operation that the company abandoned in 1978. j . at 281 - 83.
Even though the Court concluded that “some discharge predated”
the government’s discovery of oil in the stream in 1985, the
Court held that Quaker State was not liable as an “owner or
operator” under CWA section 311(f) because the “initial
discharge” did not occur when the company still occupied the site
as late as 1978 and because the government had failed to show
that Quaker owned or operated the facility at the time the
discharge to navigable waters was discovered. I L at 284 - 85.
16
16 At the same time, however, the Court rejected the
company’s argument that the government would first have to sue
the “owner or operator” at the time of the 1985 discharge, i.e. ,
the U.S. Forest Service, as a predicate to pursuing Quaker State
as a culpable third party. at 286. Thus, the Court granted
the government’s petition to amend its complaint to sue the
company directly as a liable third party in accordance with CWA
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The Court’s opinion ties “owner or operator” liability under
CWA section 311 to the time when a discharge of oil is
discovered. As such, we believe that the opinion is consistent
with the view that a “historic discharge” of oil may qualify as a
post-OPA enactment “incident” if any discharge or threat of
discharge to navigable waters resulting from an occurrence or a
series of occurrences is discovered after August 18, 1990. Just
as “owner or operator” liability is linked to the time the
discharge is discovered under the Ouaker State OpifliOfli the
timing of an OPA “incident” under section 1020 may be premised
upon the date the discharge is discovered. Moreover, the Coast
Guard has read the Cuaker State opinion broadly as support for
its position that, under OPA, if the date of initial discharge is
unknown, the date of discovery of the discharge is the date of
the CPA “incident.’ t Capt. Mark O’Hara, The Prerequisites: An OPA
Incident (Oct. 23, 1995)
Finally, EPA could argue that given the ambiguity of the
statutory language used in the definition of the term “incident”
in OPA section 1001(14), it is reasonable to argue that an entire
“series of occurrences having the same origin,” 33 U.S.C. §
2701(14), -- even if some of the occurrences within a series took
place prior to OPA enactment -- which result in a discharge or
section 311(g) . 1th at 286 - 87.
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threat of discharge constitute an OPA incident. There is no clear
indication in OPA as to what Congress meant by the phrase “series
of occurrences” within the OPA definition of “incident.” How
close in time does each of the “occurrences” have to be to
qualify as a “series”? The answer may be relatively easy in
reviewing facts relating to oil tankers colliding in coastal
waters or hitting a barrier reef, but the answer is much more
difficult as to what constitutes a “series of occurrences” in the
context of an onshore facility that has stored and/or produced
oil over many years (and may now be abandoned) . Although the
ability to argue that both pre- and post-OPA occurrences having
the same origin qualify as a “series of occurrences” that
constitute an OPA “incident” will vary with the facts of any
particular “historic discharge” case, we believe that such a
reading is consistent with the “intent of the Conferees that.
entire series of events resulting in the spill of oil compromises
one “incident.” H.R. Rep. No. 101-653, 101st Cong. 2d Sass. 102
(Aug. 1, 1990) (emphasis supplied)
If you wish to discuss any issues discussed in this opinion,
please contact me, Earl Salo, or Andy Gordon of my office.
CC: David Lopez
Robert Kenney
Regional Counsels
Waste Management Divisions, Regs. I - 10
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NPFC Brochure
http://www.uscg.rniLliq npfcfbrochure.htm
Location I Background Organization Mission I INRDA I Claims I
Cost Recovery I COFRs f Case Management I OSLTF I
Guidance Materials
Location
The Center is located in Arlington, Virginia, just outside Washington, D.C.
National Pollution Funds Center
U.S. Coast Guard
4200 Wilson Boulevard, Suite 1000
Arlington, Virginia 22203-1 804
(703) 235-4700
This publication is intended solely to promote the public’s general understanding of the National Pollution Funds
Center, its mission, and responsibilities. The publication is neither a legal document nor is it intended to have any
legal consequences. It does not establish and is not intended to establish any legal duties or responsibilities on
the part of the National Pollution Funds Center, the U.S. Coast Guard, or the United States Government.
Background
The Oil Pollution Act of 1990 (OPA 90) addresses the wide ranging problems associated with
preventing, responding to, and paying for oil pollution. It does so by creating a comprehensive
prevention, response, liability, and compensation regime for dealing with vessel and
facility-caused oil pollution in our navigable waters.
OPA 90 greatly increases Federal oversight of oil transportation while providing for greater
environmental safeguards by: setting new requirements for vessel construction, crew licensing
and manning; mandating contingency planning; enhancing Federal response capability;
The National Pollution
Funds Center
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and manning, mandating contingency planning, enhancing Federal response capability,
broadening enforcement authority, increasing penalties, creating a new research and
development program, increasing potential liabilities, and significantly increasing financial
responsibility requirements. The Oil Spill Liability Trust Fund (OSLTF or “the Fund”) has been
established to cover certain removal costs and damages. OPA 90 and appropriate delegations
have assigned the administration of the OSLTF to the U S. Coast Guard On February 20,
1991, the National Pollution Funds Center (NPFC) was commissioned to perform this function
as an independent Headquarters unit reporting directly to the Chief of Staff of the Coast
Guard
Organization
There are seven work areas in the NPFC.
• Case Management
• Claims Adjudication
• Customer Service
• Financial Management
• Information Resource Management
• Legal
• Vessel Certification
Mission
The NPFC is the fiduciary agent for the Oil Spill Liability Trust Fund and the portion of
Superfund accessible to the U S Coast Guard (The Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) established a national “Superfund” for
response/remediation of hazardous waste incidents) Both are federally-managed funds that
distinctly support liability and compensation regimes pertaining to pollution from oil or
hazardous substances, respectively The NPFC, in accordance with OPA 90 and other
pertinent laws and regulations, executes programs to accomplish the following five principal
objectives
• Provide funding to permit timely removal actions,
• Provide funding to initiate Natural Resource Damage Assessments (oil only),
• Compensate claimants who demonstrate that certain damages were caused by oil
pollution,
• Recover from Responsible Parties pollution costs and damages incurred by the Fund,
and
• Certify the financial responsibility of vessel owners and operators
When an oil or hazardous substance spill occurs in U.S navigable waters, or there is a
substantial threat of such a spill, the Responsible Party is expected to respond promptly In
any case, the Federal On-Scene Coordinators (FOSCs) need funds immediately to respond
directly to or to monitor the Responsible Parties’ actions The NPFC provides these funds 24
hours a day
Initiate Natural Resource Damage Assessments
For oil spills potentially affecting natural resources, the Natural Resource Trustees may need
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For oil spills potentially affecting natural resources, the Natural Resource Trustees may need
immediate funds to initiate an assessment of damage to such resources. Procedures have
been established that allow the Trustees, acting through a Lead Federal Trustee, to access
OSLTF funds
The purposes of initiation are to scope the extent of the natural resource damage caused by
the discharge of oil in order to decide what type of assessment is warranted and to preserve
evidence which would support the assessment. The complexity of the tasks will be a function
of the scope and complexity of the discharge and likely injuries
Claims
The Fund may be used to pay certain claims for uncompensated removal costs and damages
resulting from an oil pollution incident This enables parties damaged by an oil pollution
incident to obtain payment without having to wait through years of litigation Two principal
criteria are
Incident-specific actions
All claims must be for costs or damages that resulted from a particular oil pollution incident
Use of the Fund as a last resort
Generally, all claims must be presented to the Responsible Party first
For mystery spills and claims not paid by a Responsible Party, claims may be submitted to the
NPFC for consideration for uncompensated removal costs as well as for
• Damages to natural resources,
• Damages to real/personal property;
• Loss of subsistence use of natural resources;
• Net loss of revenues of Federal, State, or Local government;
• Loss of profit/earning capacity; or
• Net costs of a State or Local government for increased public services
Procedures for filing claims against the Fund are contained in 33 Code of Federal Regulations
Part 136
Recovery Of Costs
An underlying principle of OPA 90 is to reduce the probability of oil spill incidents from
occurring Congress hoped to motivate the potentially Responsible Parties to act more
carefully, by holding them strictly liable for costs and damages resulting from their oil spills
Such motivation is encouraged through enforcement of cost recovery and prompt fulfillment of
damage claims established under OPA 90
It is the goal of the NPFC to ensure that parties responsible for oil pollution or the substantial
threat of oil pollution are accurately identified, all removal costs and damages are accurately
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threat of oil pollution are accurately identified, all removal costs and damages are accurately
documented and submitted in a timely manner, and such costs are paid by the Responsible
Party
Vessel Certificates Of Financial Responsibility
OPA 90 substantially increased the scope and limits of liability for vessel owners and
operators. Operators of U.S. and foreign-flag vessels are generally prohibited from operating
in U S waters without first demonstrating the financial ability to pay for pollution damages The
NPFC is responsible for issuing Certificates of Financial Responsibility (COFRs) in
accordance with OPA 90 and CERCLA A vessel over 300 gross tons may not lawfully operate
in the navigable waters of the U S without a valid COFR COFRs are required for vessels of
any size when 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 Coast Guard and Customs
Service field units enforce this requirement. Currently, over 20,000 vessels carry valid COFR5
Case Management Concept
The NPFC assigns a Case Officer to manage the Fund-related aspects o each incident (OPA
90 declnes an incident as “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.”) The Case Officer is a member of a case team, which
also includes
• A Lawyer,
• A Claims Specialist,
• A Financial Manager,
• An Insurance Examiner, and
• Other Specialists, as needed.
The Case Team is part of the National Response System, which consists of Federal, State
and Local agencies. The Case Team works closely with the Federal On-Scene Coordinator
and members of the response community to support their efforts as necessary The Case
Team manages the fund-related aspects of the case to ensure effective cost recovery, prompt
claims processing, and resolution of other related financial issues.
The Oil Spill Liability Trust Fund
Origin Of The Fund
OPA 90 generally consolidated the liability and compensation regimes of prior federal oil
pollution laws and merged the funds supporting those regimes into the OSLTF Those prior
laws included
• Federal Water Pollution Control Act,
• Trans-Alaska Pipeline Authorization Act,
• Deepwater Port Act, and
• Outer Continental Shelf Lands Act
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Outer ContinentJ Shelf Lands Act.
OPA also has made two important changes to the previous funds, by increasing both the size
and, generally, the uses of the OSLTF beyond the scope of the previous funds
1 Size increased to one billion dollars
2 Uses increased to include.
• Access to the Fund by the States,
• Payments to Federal, State, and indian Tribe trustees to carry out natural resource
damage assessments and restorations, and
• Payment of claims for unccmpertsated removal costs and damages
Revenues
The OSLTF receives revenue from four primary sources.
• Taxes initially, an oil tax (5 a barrel on domestically produced or imported oil) was
collected from the oil industry The tax, when authorized by Congress, is suspc. ied
when the Fund reaches one billion dollars but may be reinstated if the Fund falls below
one billion d,llars
• Interest on Fund Principal. Most of the unused balance in the Fund accrues interest in
U.S Treasury investments
• Cost Recovery from Responsible Parties The person(s) responsible for oil spills are
liable for costs and damages Monies recovered are used to replenish the Fund
• Penalties. In addition to paying cleanup costs, responsible parties may incur civil
penalties Payments for penalties are depos ted into the Fund
Fund Uses
The OSLTF is used to cover a variety of needs and provides payment of.
• Removal costs (including costs of monitoring removal actions and abating substantial
threat) consistent with the National Contingency Plan (NCP),
• Costs incurred by the Trustees for Natural Resource Damage Assessments and
developing and implementing plans to restore, rehabilitate, replace or acquire equivalent
natural resources consistent with the NCP;
• Claims for uncompensated removal costs consistent with the NCP and for
uncompensated damages; and
• Federal administrative and operational costs, including R&D
Emergency Fund
To ensure rapid and effective response to oil spills, the President has been given the authority
to make available, without further Congressional appropriations, up to $50,000,000 each year
to fund removal activities and to initiate natural resource damage assessments Money
available in the Emergency Fund also includes a carryover from prior years The Emergency
Fund may be used for the following
Removal Actions
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• Containing and removing oil from water and shorelines;
• Preventing or minimizing oil pollution where there is a substantial threat of discharge,
and
• Taking other related actions to minimize the damage to public health and welfare
Removal Costs/Services
• Contract services (e g , cleanup contractors and administrative support),
• Salaries for government personnel not normally available for oil spill responses, and for
temporary government employees hired for the duration of the spill response,
• Equipment used in removals;
• Chemical testing required to identify the type and source of oil, and
• Proper disposal of recovered oil and oily debris
Principal Fund
The Principal Fund (exclusive of the Emergency Fund) can be used to pay claims without
further appropriation, and may be used for other actions when Congress appropriates the
funds Such additional actions include.
• Federal administrative, operational, and personnel costs,
• Natural resource damage assessments and restoration, and
• Research and development
NPFC Guidance Materials
Technical Operating Procedures
• The NPFC has created Technical Operating Procedures (TOPs) which serve as internal
Coast Guard guidelines to Fund users operating as, or in support of, the Federal
On-Scene Coordinator They provide an efficient means of compiling material by
providing formats, forms, and instructions for the submission of documentation and cost
recovery.
• The Removal Cost TOPs provides clear standards for determining what costs are valid
removal costs for oil discharges or substantial threats of oil discharges to the extend
possible
• The Resource Documentation TOPs contains information developed to assist the FOSC
in documenting and reporting resources associated with a removal activity
• The State Access TOPs describes the procedures for State Access to the OSLTF,
including requirements for documenting expenses, investigation requirements, and how
to submit documentation for reimbursement
• The Natural Resource “Initiate” TOPs provides the Lead Trustee, and the trustees
working with the Lead Trustee, with the information necessary to receive funding to
initiate an assessment of natural resources damages Topics addressed are the
incident-specific Authorization and Obligation of Funds Agreement, the scope of
activities eligible for funding as “initiation activities”, and the resource documentation
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activities eligible for funding as “initiation activities”, and the resource documentation
and reporting requirements.
These TOPs serve the NPFC’s efforts to recover costs from the RP for removal activities
required in response to an oil pollution incident or hazardous substance release.
Outreach Initiatives/Publications
The NPFC has implemented an ambitious outreach program to meet the demands of its
various customers in the environmental response and maritime communities These customers
include USCG and EPA pollution response personnel, other government agencies; Federal,
State, Indian natural resource Trustees, the marit me industry, fishing vessel community;
international organizations; and the genera! public. The outreach program is designed to
provide NPFC customers with information on:
• NPFC missions and functions,
• The various ways to access the OSLTF;
• Specific requirements for cost documentation to support cost recovery efforts,
• The process for submitting a claim to NPFC,
• Who is eligible for compensation;
• Information on owner and operator fnancial responsibilities and limits of liability under
OPA, and
• Gerterat clarification of Title I of the law
Two key objectives of the program are to 1) provide our customers with the information they
need to do things right the first time, and 2) improve access to funds required for emergency
response to pollution incidents by ensuring that the environmental response and maritime
communities have the necessary training and knowledge required to readily access funds
necessary to carry out their missions.
Program accomplishments include the following:
• A Claimant’s lnformation Guide which was developed and distributed for use by
individuals who have sustained damages as the result of an oil pollution incident A
Spanish version was developed for Spanish-speaking claimants,
• A Fund Access Reference Guide provides comprehensive information to Coast Guard
and EPA FOSCs, natural resource damage Trustees, the States, and other fund users
on procedures to access the Fund,
• A Fiscal Year Annual Report, and
• Certificates of Financial Responsibility (COFR) field guidance and video.
NPFC Regulations Projects
Financial Responsibility for Water Pollution (Vessels)
This controversial regulation was published as an Interim Rule in the July 1, 1995 Federal
Register (59 FR 342 O) A Final Regutatory Impact Analysis was also made available The
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Interim Rule established three compliance periods depending on the type of vessel
Self-propelled tank vessels were required to demonstrate financial responsibility by December
28, 1994, tank barges before July 1, 1995, and all other vessels, as their old Certificates of
Financial Responsibility expire, beginning December 28. 1994 The Interim Rule’s comment
period closed on September 29, 1994 Over 60 comments were received A Final Rule was
published on March 7, 1996.
Claims Under OPA 90
The Interim Rule published August 12, 1992 (57 FR 36314). A Final Rule has not been
published.
For more information on any of the publications, or for an updated status of the NPFC
regulations projects, please contact:
Director (Cs)
National Pollution Funds Center
U.S. Coast Guard
4200 Wilson Blvd, Suite 1000
Arlington, Virginia 22203-1 804
(703) 235-4700
07/24/98 130651
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Points of Contact
http://www.uscg.mil/hq/npfc/poc.htm
Senior Management
Director
Deputy Director
(703) 235-4700
(703) 235-4700
Division Chiefs
Case Management
Financial Management
Vessel Certification
Claims
Legal
Information Technology
Services
Customer Services
CAPT Joseph Bridger
Mr. Darrell W. Neily
Mr. Edmund C.
Armstrong
Ms. Linda Burdette
CAPT Derek A. Capizzi
Mr. George A. Cognet
CAPT Wayne Hamilton
Case Management Teams
Team I
Responsible for CGD8 (CGD denotes Coast Guard
Regional
and EPA Regions IV (Mississippi and Alabama only), VI,
CDR Liston Jackson
and
(703) 235-4770 VII. Includes: Texa. New Mexico, Louisiana, Mississippi,
Arkansas,Oklahoma, Alabama, Missouri, Kansas,
Nebraska, Iowa.
NPFC Points of
Contact
ION U
4
1/ ie —-
: t ‘‘ . 1 I
f f FUN NG A:- ’
I I
‘‘ : \t L % 11
/ .. . :::•::•:: . . . :. . . .:
0 47
Senior
Management
Case Management
Teams
Mr. Daniel F. Sheehan
Ms. Jan Lane
(703) 235-4738
(703) 235-4741
(703) 235-4812
(703) 235-4801
(703) 235-4790
(703) 235-4730
(703) 235-4713
1 üt 2
)7249 13:17:4(
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Points of Contact
http llwww uscg mil/hqlnpfclpoc I
Team 2
Regional Manage Responsible for CGD5, CGD7, and EPA Regions II
r (Virgin Islands),
CDR William Grawe and IV(excluding Mississippi and Alabama) Includes
Virgin Islands,
(703) 235-4771 Puerto Rico, Florida, Georgia, South Carolina,
Tennessee, North Carolina,
Kentucky, West Virginia, MSO Hampton Roads, MSO
Huntington. WV
Team 3
Responsible for CGDII, CGD13, CGD14, CGD17, and
Regional Manager Regions
CDR Patrick Ryan VIII, IX, and X Includes Arizona, California, Nevada, Utah,
Colorado,
(703) 235-4765 North Dakota, South Dakota, Hawaii, Guam, American
Samoa
Wyoming, Montana, Idaho, Washington, Oregon, Alaska,
Team 4
Regiona/ Manager Responsible for CGD1, CGD9, and EPA Regions I, II, Ill
and V
CDR Tom Tansey Includes Minnesota, Michigan, Wisconsin, Illinois,
Indiana, Ohio,
(703) 235-4371 NewYork,Verrnont, New Hampshire, New Jersey,
Connecticut, Rhode
Island, Massachusetts, Maine, Pennsylvania, Maryland,
Delaware,
Virginia(excluding MSO Hampton Roads)
07/24/98 3 i7
2cf2
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Technical Operating Procedures http://www.uscg.mil/hq/npfc/tops
Technical Operating
Procedures
- --..- .-- -
The Technical Operating Procedures
(TOPs) serve as Coast Guard guidance
for various Fund users. They provide an
efficient and effective means to compile
and submit material by providing
formatting, forms and other
instructions to submit documentation with
successful results. These TOPs below are
excerpted in total from the NPFC User
Reference Guide:
__________________ Note: Some of these TOPs are in draft
form and should be used only for
guidance.
Link here to retrieve the NPFC’s cost
documentation (5136 series) forms.
t ?iON
/
J
tEAN R
.
JL 4
ST ES CO
I of 1
0724 98 13:5
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United States Coast Guard
MARINE SAFETY MANUA.L
Marine Environmental Protection
Volume IX
COMDTINST M16000.14
-------
National Pollution Funds
Center
4200 Wilson Blvd
Suite 1000 For Details, Contact:
Arlington, VA 22203-1804 Mr. Jeff Fredel
Phone (703) 235-4700 NPFC (cv)
Fax (703) 235-4808 Phone (703) 235-4813
National Pollution Funds Center News Release
“COAST GUARD ANNOUNCES COFR INFORMATION NOW AVAILABLE ON THE WORLD
WIDE WEB”
Washington — The U.S. Coast Guard National Pollution Funds Center (“NPFC”) announced today
that information concerning Certificates of Financial Responsibility (“COFRs”) (water pollution) is
now available on the World Wide Web (“ WWW”). The NPFC has created a database which contains
information on over 18,000 vessels which currently hold COFRs. This database, updated daily (M-F),
will provide the user with such information as vessel type, gross tonnage, COFR number, effective and
expiration dates of its Certificate, and the name of the COFR applicant. The user will only need to
enter the vessel’s name or a portion of the name.
Vessel operators who intend to use U.S. waters are required, by the Oil Pollution Act of 1990 and
Superfund, to prearrange evidence which demonstrates their ability to pay removal costs and certain
other damages resulting from an oil or hazardous substance spill. The required amounts of prearranged
financial responsibility depend upon the vessel’s type and size. When the vessel complies with the
requirements for financial responsibility, a COFR is issued.
The web site can be visited by typing its address: http://www.cofr.npfc.gov or by visiting the NPFC’s
homepage: http://www.uscg.mil/hq/npfc/npfc.htm. The web site was created in response to requests
from the public to have this type of information available electronically. It also contains downloadabl
versions of the COFR application form and the COFR regulations as well as some frequently asked
questions. In the past, to obtain this information, one would have had to contact the NPFC directly
during their business hours. This new capability now allows people to access the information when
convenient for them.
For additional information contact Mr. Jeff Fredel at (703) 235- 4813.
For Ininediate Release: June 1, 1998
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Marine Environmental Protection:
COMDTINST M16000.14
U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 1 - Authorities and Responsibilities
The statutes noted in this Chapter are divided into three sections:
(1) International Conventions
(2) United States Domestic Legislation
(3) International Agreements
Statutory provisions passed by Congress come from various
sources. These include ratification of multinational treaties or
conventions which articulate broad international standards, smaller
bilateral or multilateral agreements which usually address more
specific topics and the largest section, domestic issues considered
important to the national good.
All statutes are codified in the U.S. Code. Most statutes affecting
the Coast Guard’s Marine Environmental Protection program are
found in 33 and 46 U.S. Code (U.S.C.).
Regulations are promulgated by Executive Branch agencies charged
with the enforcement of statutes. Generally, before any regulation is
imposed, the public has the opportunity to comment on all proposed
regulations. Regulations are found in’ the Code of Federal
Regulations. Most Coast Guard marine environmental protection
program regulations are found in Title 33 and Title 46, Code of
Federal Regulations (CFR).
This Chapter provides an overview of the statutes (legislation) from
which the authority and responsibility for Coast Guard action is
based. All authority comes from statutes passed by Congress.
1-i
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Section 1 A
U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 1 - Authorities and Responsibilities - Table of Contents
International Conventions
I A I MARPOL 73/78-International Convention for Prevention of
Pollution from Ships, 1973, as Modified by the 1978 Protocol Relating
Thereto 1-4
Organization and Content
Authority and Responsibilities
MARPOL Annexes
Recent Amendments to MARPOL
New Annexes
Marine Environment Protection Committee
I A 2 London Convention - 1972 Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter 1-10
lAla
lAib
1 Ale
lAid
I Ale
I Aif
1-4
1-5
1-6
1-9
1-9
1-10
1
A2 a
Covered Substances
1-10
1
A 2 b
Authority
and Responsibilities
1-10
1 A 3 OPRC - International Convention on Oil Pollution Preparedness,
Response and Cooperation, 1990 1-1 1
I A 4 ICLL - International Load Line Convention of 1966 1-1 1
I
A 4 a
Overview and Organization
1-1 1
lA4b
Applicability
1-12
I
A 4 c
Authonty and Responsibilities
1-12
I A 5 SOLAS - 1974 International Convention for the Safety of Life
at Sea 1-12
I A 5 a Authority and Responsibilities 1-13
Chapter 1
Authorities and Responsibilities
1—i
Marine Environmental Protection:
COMDTINST M16000.14
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 1 - Authorities and Responsibilities - Table of Contents
I A 6 Cartegna Convention - Convention for the Protection and
Development of the Marine Environment of the Wider
Caribbean Region 1-14
1 A 6 a Convention Overview 1-14
I A 6 b Protocol Concerning Cooperation in Combating Oil
Spills in the Wider Caribbean Region 1-14
1 A6 c Contingency Plan Based on the Protocol 1-15
1 A 6 d Responsibilities 1-15
1 A 7 Salvage Convention - International Convention on
Salvage, 1989 1-16
1 A 8 Intervention Convention - International Convention Relating to
Intervention on the High Seas in Cases of Oil Pollution
Casualties, 1969 1-17
1 A 9 CLC Convention - International Convention on Civil Liability
for Oil Pollution Damage, 1969 1-18
I A 10 Fund Convention - International Convention on the Establishment
of an International Fund for Compensation for Oil Pollution
Damage, 1971 1-19
1 A 11 Early Notification - Convention on Early Notification of a
Nuclear Incident 1-21
Section 1.B United States Domestic Legislation 1-23
I B 1 OPA 90 - Oil Pollution Act of 1990 1-23
1 B 1 a OPA 90 Amendments to the FWPCA 1-24
I B 2 FWPCA - Federal Water Pollution Control Act 1-25
I B 2 a Authority and Responsibilities Within the National
Response System 1-25
I B 2 b Authority and Responsibilities for Pollution
Prevention and Response 1-27
1 B 3 CERCLA - Comprehensive Environmental Response,
Compensation and Liability Act 1-27
1 B 3 a Access to the Superfund 1-28
Marine Environmental Protection:
COMDTINST M16000.14
1—ui
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U.S. Coast Guard Marine Safety Manual, Vol. LX
Chapter 1 - Authorities and Responsibilities - Table of Contents
I B 3 b Coast Guard Authority and Responsibilities
Under IHSA 1-28
I B 4 RCRA - Resource Conservation and Recovery Act 1-28
1 B 4 a Responsibilities for Handling Solid Wastes 1-29
1 B 4 b Responsibilities for Handling Hazardous Wastes 1-29
1 B 4 c Responsibilities for Underground Storage Tanks 1-29
1 B 5 HMTA - Hazardous Materials Transportation Act of 1974 1-30
I B 6 Refuse Act - The Rivers and Harbors Act of 1899 1-30
1 B 7 Abandoned Barge Act of 1992 1-31
1 B 8 Clean Air Act 1-31
I B 8 a Major Provisions 1-31
I B 8 b State Implementation Plans 1-32
I B 8 c Authority and Responsibilities 1-32
I B 9 PWSA - Ports and Waterways Safety Act of 1972 1-33
1 B 9 a Authority and Responsibilities 1-33
I B 10 PTSA - Port and Tanker Safety Act of 1978. 1-33
I B ii Clean Vessel Act of 1992 1-33
I B 11 a Authority and Responsibilities 1-34
1 B 12 MPRSA - Marine Protection, Research, and Sanctuaries Act
of 1972 1-34
I B 12 a Authority 1-35
I B 12 b Dumping Restrictions 1-35
I B 12 c Responsibilities 1-35
1 B 12 d Ocean Dumping Ban Act of 1988 1-36
I B 12 e National Marine Sanctuaries 1-36
1 B 12 f Oceans Act of 1992 1-36
I B 12 g The Shore Protection Act of 1988 1-37
I B 12 h Permit Program 1-37
I B 13 NANPCA - Nonindigenous Aquatic Nuisance Prevention and Control
Actof 1990 1-38
Marine Environmental Protection:
COMDTINST M16000.14
I -iv
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 1 - Authorities and Responsibilities - Table of Contents
1 B 13 a Authority and Responsibilities 1-39
I B 14 Deepwater Port Act of 1974 1-40
1 B 15 IHSA - Intervention on the High Seas Act of 1974 1-40
1 B 16 ESA - Endangered Species Act of 1973 1-40
1 B 16 a Responsibilities 1-41
I B 17 NEPA - The National Environmental Policy Act of 1970 1-41
1 B 17 a Overview of the EIS Process 1-41
I B 17 b Responsibilities 1-42
1 B 17 c Categorical Exclusions 1-43
1 B 18 OSH Act - Occupational Safety and Health Act of 1970 1-43
I B 18 a Overview 1-44
1 B 18 b Impact on Planning and Response 1-44
I B 19 APPS - Act to Prevent Pollution from Ships of 1980 1-44
I B 19 a Authority and Responsibilities Under Annex I 1-45
1 B 19 b Authority and Responsibilities Under Annex II 1-45
1 B 19 c Authority and Responsibilities Under Annex V 1-45
1 B 19 d MPPRCA - Marine Plastic Pollution Research and
Control Act of 1987 1-46
1 B 20 Oil Terminal and Oil Tanker Environmental Oversight and Monitonng
Act of 1990 1-47
1 B 20 a Overview 1-47
1 B 20 b Authority and Responsibilities 1-47
Section 1.C International Agreements 1-49
1 C 1 Bilateral Agreement Between the United States and Mexico 1-49
I C I a Agreement Overview 1-50
I C 1 b Contents of the Agreement 1-50
I C 1 c Responsibilities 1-50
Marine Environmental Protection:
COMDTINST M16000.14
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U.S. Coast Guard Marine Safety Manual, Vol. 1X
Chapter 1 - Authorities and Responsibilities - Table of Contents
Marine Environmental Protection:
COMDT INST M16000.14
1 C 2 Bilateral Agreement Between the United States and Canada i- SO
I C 2 a Agreement Overview 1-51
I C 2 b Contents of the Agreement i-SI
1 C 2 c Responsibilities 1-51
I C 3 Bilateral Agreement Between the Russian Federation and the United
States 1-51
1 C 3 a Agreement Overview 1-52
I C 3 b Responsibilities 1-52
1-vi
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 2 - Prevention
Pollution prevention issues are under the purview of the Office of Compliance (G-MOC)
Marine Environmental Protection.
COMDTINST M16000.14
Chapter 2
Prevention
2-I
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 3 - Enforcement
Pollution investigation issues are under the purview of the Office of Investigations and Analysis
(G-MOA)
Marine Environmental Protection:
COMDTINST M16000.14
Chapter 3
Enforcement
3-1
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 4 - Preparedness
Marine Environmental Protection:
COMDTINST M16000.14
A key Marine Safety mission, Preparedness is a process intended to
ensure response capability and organization for prompt and effective
response to discharges or substantial threat of discharges of oil and
releases of hazardous substances, thereby minimizing the impacts.
The Oil Pollution Act of 1990 (OPA) established Preparedness as a
cornerstone of effective pollution response. Based on identified
risks, response resource needs are identified, plans are developed
and personnel are trained in their response roles. The plans are
tested in exercises and real time pollution events, and are revised as
appropriate, based on the lessons learned, thereby continuously
improving preparedness. (See Sections 311 (c)(1) and 502(7) of the
Clean Water Act).
Preparedness must be achieved at a variety of levels in the National
Response System (NRS) for effective response. Local needs and
capabilities must be coordinated effectively with those at the
overlying levels. Incident reviews and evaluations of drills such as
Preparedness for Response Exercise Program (PREP) exercises pay
particular attention to the implementation of Area Contingency
Plans (ACPs), Facility Response Plans (FRPs) and Vessel Response
Plans (VRPs). PREP exercises help evaluate how well the plans
were implemented and determine areas in which they can be
improved.
Each turn of the planning, training, exercise and revision cycle
serves to fine-tune Preparedness. Throughout this chapter, the
reader should remain aware of the interrelationships of its sections
and the need for feedback or lessons learned to be incorporated into
the planning process.
NOTE
Preparedness is an
iterative and dynamic
process involving a cycle
of contingency planning,
training, exercising and
evaluating.
4-i
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Section 4.A
U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 4 - Preparedness - Table of Contents
Planning 44
4 A I Federal Response Plan 4-i
4 A 2 National Contingency Plan 4-3
4 A 2 a National Response Team (NRT) 4-3
4 A 3 International Agreements and Joint Contingency Plans 4-3
4 A 4 RRTs arid Regional Contingency Plans 4-4
4 A 4 a Regional Response Team 4-5
4 A 5 Area Contingency Plan 4-6
4 A 5 a Area Committee/Area Committee Responsibilities 4-7
4 A 5 b Area Contingency Plans 4-10
4 A 6 Facility Response Plans, Vessel Response Plans, and Shipboard
Emergency Response Plans 4-15
4 A 6 a General 4-15
4 A 6 b Facility Response Plan (FRP) Receipt and Review 4-16
4 A 6 c One-plan/Integrated Contingency Plans 4-21
4 A 6 d Vessel Response Plan Review (VRP) 4-22
4 A 6 e Shipboard Oil Pollution Emergency Plans (SOPEP) 4-23
4 A 6 f Waivers and Alternative Means of Compliance 4-24
4 A 6 g One Time Port Visit Not Covered by an Approved
Response Plan 4-26
4 A 6 h Facility Response Plan Enforcement Policy 4-26
4 A 6 i Vessel Response Plan Enforcement Policy 4-28
Marine Environmental Protection:
COMDTINST M16000 14
ht 4;
•Prépa red ness
4-il
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U.S. Coast Guard Marine Safety Manual, Vol. LX
Chapter 4 - Preparedness - Table of Contents
4 A 6j Shipboard Oil Pollution Emergency Plans Enforcement
Policy 4-30
4 A 6 k Captain of the Port Orders 4-31
4 A 6 1 Oil Spill Removal Organization (OSRO) 4-32
4 A 7 Spills of National Significance (SONS) 4-33
4 A 7 a Spills of National Significance Protocol 4-34
4 A 8 Distnct Response Group (DRG)tDistnct Response Advisory Team
(DRAT) 4-34
4 A 8 a Distnct Response Group 4-34
4 A 8 b District Response Advisory Team (DRAT) 4-36
4 A 9 Database Support 4-37
4 A 9 a General 4-37
4 A 9 b SPEARS as a Planning Tool 4-38
Section 4.B Exercises 4-39
4 B I Preparedness for Response Exercise Program (PREP) 4-39
4 B 2 Credit for PREP Exercises 4-40
4 B 2 a External Exercise Credit 4-40
4 B 2 1 , Government-Initiated Unannounced Exercise Credit 4-41
4 B 2 c Internal Exercise Credit 4-41
4 B 3 Area Exercises 4-42
4 B 3 a Government-Led Area Exercises 4-42
4 B 3 b Industry-Led Exercises 4-50
4 B 3 c Internal PREP Exercises 4-51
4 B 3 d Government-Initiated Unannounced Exercises 4-51
4 B 4 Exercise Review 4-53
Marine Environmental Protection:
COMDTINST M16000 14
4 - ui
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Section 4.C
Section ID
Appendix 4-A
U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 4 - Preparedness - Table of Contents
Incident Review 4-54
4 C 1 Incident-Specific Preparedness Review 4-54
4 C 1 a General 4-54
4 C 1 b ISPR Team 4-55
4 C I c ISPR Report 4-57
Training & Education Programs 4-59
4 D 1 Marine Environmental Protection Industry Training (M1EPIT) 4-59
4 D I a MEPIT Program 4-59
4 D I b Apphcant Background 4-60
4 D I c Internship 4-60
4 D 2 Direct Commission Environmental Manager (DCEM) 4-61
4 D 2 a Participants 4-61
4 D 2 b Eligibility Requirements 4-61
4 D 3 Environmental Management Post Graduate Training 4-63
Recommended Procedures for Conducting Comprehensive Reviews
of Facility Response Plans 4-A-i
Marine Environmental Protection:
COMDTINST M16000 14
4-iv
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 4 - Preparedness
(4) Vessels are required to include a list of geographic areas
within a COTP zone in which the vessel intends to
handle, store or transport oil The identification of
these areas establishes a set of self-imposed operating
parameters that apply to that vessel and the identified
response resources that were evaluated for applicability
based on that information This list of geographic areas
within a COTP zone does not constitute a waiver
Where a plan preparer fails to identify any specific
geographic areas, the plan is reviewed for the
appropriateness of the response resources for the entire
COTP zone
4.A.6.g. One Time Port Visit Not Covered by an Approved
Response Plan
(1) A vessel may be authonzed a one voyage port visit to a
port not covered by their response plan, as outlined in
33 CFR 155 1025(e) COTPs should establish a log to
ensure that vessels that choose this option are not
allowed to reenter the COTP zone until they have an
approved VRP for that COTP zone
(2) Before any oil transfer can occur from a vessel
requesting a one time port visit the vessel owner or
operator must accomplish four things (1) provide the
COTP certification that they have contracted with the
necessary resources to respond to a worst case
discharge, (2) certify in writing that a response plan
meeting the regulatory requirements or a SOPEP
approved by the flag state is onboard, (3) operate in full
compliance with the submitted response plan, and (4)
receive interim operating authonzation from the COTP
4.A.6.h. Facility Response Plan Enforcement Policy
(1) Civil penalty violation reports and orders to cease
operations will be initiated against “significant and
substantial harm” MTR facilities, as classified by 33
CFR 154 1015(c) and defined in 33 CFR 154 1020 that
Marine Environmental Protection:
COMDTINST M16000.14
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U.S. Coast Guard Marine Safety Manual. Vol. IX
Chapter 4 - Preparedness
are either handling, storing, or transporting oil and do
not have approved response plans or have not received
authorization for continued operation pending approval
of their plans In this respect, a broad literal
interpretation of handling, storing, or transporting oil
should be used, but only for the portion of the facility
for which the Coast Guard requires response plans
Civil penalties will also be imtiated against “substantial
harm” facilities handling, storing, or transporting oil that
have not submitted a response plan to the COTP
“Substantial harm” facilities do not need response plan
approval by the COTP Mobile MTR facilities only
need the response plan while conducting a transfer with
a vessel with a total oil capacity of 250 barrels or more
(2) If an MTR facility (1) has not submitted a response plan
as required or (2) is a “significant and substantial harm”
facility operating without an approved FRP or
authorization to operate under a submitted plan as
previously described, the following actions are to be
taken
• The facility shall be ordered to cease operations
For a complex facility, this order will only apply to
that MTR section over which the Coast Guard
exercises junsdiction
• All transfer lines to and from the waterfront shall be
made gas-free and product free
• The facility’s letter of adequacy shall be revoked
• For each day the facility is in violation of the
regulations, a report of violation (ROV) shall be
submitted citing 33 CFR 154 1025
(3) As was mentioned earlier, federal facilities are not
exempt from the provisions of OPA 90 or the
requirements of 33 CFR part 154 COTPs should
advise federal facility managers or operators of the need
to submit plans and advise them of the plan’s review
status and/or non-receipt, but should not initiate civil
penalty actions against the facility Each federal agency
Marine Environmental Protection:
COMDTINST M16000 14
NOTE
“Substantial harm” facilities
do not need response plan
approval by the COTP
Mobile MTR facilities only
need the response plan
while conducting a transfer
with a vessel with a total oil
capacity of 250 barrels or
more
4-27
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 4 - Preparedness
will take its own enforcement actions against facilities
that are failing to comply with the requirements
4.A.6.i. Vessel Response Plan Enforcement Policy
(1) The law is clear on what action must be taken in cases
where (1) no response plan has been submitted as
required, or (2) the vessel is operating without an
approved response plan, or (3) without authorization to
continue operations under a submitted plan As stated
in 33 CFR 155 1025(b), the vessel is not permitted to
transfer, transport, handle, store, or lighter oil
(2) To assist units in determining the status of vessel plans,
plan data is entered into MSIS Information on the
VRP status can be found in the “VFLD” product The
data fields are set up with the identification number
being the \TRP control number, the issue date being the
date the plan was submitted, the expiration date being
the date the authorization letter expires, and the status
being “in process” which indicates the plan is being
reviewed, “valid” for approved plans, and “expired” for
invalid plans
(3) During vessel boardings, field personnel shall determine
whether the sections of vessel response plans required
by 33 CFR 155 1030(i) are carried on board oil tank
vessels In particular, check the accuracy of the
notification information contained in the geographic
specific appendix for that port Field offices should also
ensure that the vessel is operating in compliance with
any operational restriction identified in the plan and that
the required drills and training are being conducted
(4) The vessel checks should be made by field offices during
pollution prevention compliance visits on U S and
foreign flag tank vessels during bulk liquid transfers,
annual tank vessel exams, letter of compliance
examinations, and inspections for certification or mid-
period inspections, as appropriate Field offices should
not make a special examination to check for the
presence of a response plan
Marine Environmental Protection:
COMDTINST M16000.14
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U.S. Coast Guard Marine Safety Manual, Vol. LX
Chapter 4 - Preparedness
(5) Field offices shall submit reports of violations for those
vessels handling, storing, or transporting oil and found
without response plans during routine examinations or
inspections If the vessel owner or operator purports to
have submitted a response plan to Commandant (G-
MOR-2), confirm this with Commandant (G-MOC-2),
but still initiate civil penalty action for failure to carry
the proper sections of the response plan on board
(6) Some common enforcement scenarios for vessels
without approved response plans and the appropriate
COTP actions are
• Oil vessel laden or in ballast with cargo residue en
route to U S port Deny entry to the port and
process a ROV citing 33 CFR 155 1025 if the vessel
is within U S jurisdiction
• Oil-laden vessels discovered in port Unit should
shut down any cargo operations being undertaken
and detain vessel in port until it has an approved
plan or authorization to operate under a submitted
plan A unit may allow a one time port visit after
imposing any situation-specific pollution prevention
measures deemed necessary by the COTP and allow
cargo operations to proceed In all cases, the unit
should process a ROV citing 33 CFR 155 1025
• Unladen vessel, discovered in port, anticipating
cargo operations (1) if gas-free, deny authorization
to load cargo until plan requirements are met, (2) if
in ballast with cargo residue, authorize to load cargo
after the conditions for a one time port visit are met
or after imposing any situation-specific pollution
prevention measures deemed necessary by the
COTP In the second situation, the unit should
process a ROV citing 33 CFR 155 1025
• Vessel has an approved plan or the authorization to
operate pending approval of the vessel’s plan, but it
does not have the response plan sections required by
33 CFR 155 1030(i) on board This required
Marine Environmental Protection
COMDTINST M16000 14
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 4 - Preparedness
NOTE
MSIS does not indicate what
COTP zone are included in a
plan
information may include the geographic specific
information for the zone in which the vessel is
located Vessels without the appropriate response
plan sections on board can be allowed to complete
their present transfer operation only after the vessel
owner or operator meets the requirements for a one
voyage port visit as outlined in 33 CFR
155 1025(e) Generally, the preferred enforcement
action is to issue a letter of warning by the COTP or
the Officer in Charge of Marine inspections (OCMI)
as appropriate The operator should also be issued a
requirement to correct the deficiency pnor to the
next U S port visit or transfer operation in the
navigable waters, adjoining shorelines, or the
exclusive economic zone of the United States
These vessels will normally be allowed to complete
their present transfer operation A deficiency will be
noted in MSIS for these vessels While a civil
penalty action will not normally be initiated, if a
vessel makes a return visit, amving or departing
with oil cargo or cargo residue, to the same COTP
zone without a response plan, or makes calls to
multiple U S COTP zones without the required
sections on board, the COTP or OCMI should
initiate civil penalty proceedings and prohibit the
vessel from engaging in cargo operations until the
required plan sections are on board
(7) Umts should apply the guidance in the Marine Safety
Manual, Volume I, Section 4 D 2 c (3) regarding
Letters of Undertaking and Surety Bonds, when ROVs
are initiated
4.A.6.j.
Shipboard Oil Pollution Emergency Plans
Enforcement Policy
Marine Environmental Protettion
COMDTINST M16000.14
(1) In accordance with 33 CFR 151 27, all new and existing
vessels must have on board an approved SOPEP after
April 4, 1995, when operating in the navigable waters of
the United States
4-30
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 4 -Pr p -edness
NOTE
SOPEPs are in the working
language of the master and
L0fflce of the vessel
(2) Vessel checks should be made by field offices during
pollution prevention compliance visits on U S and
foreign flag vessels, annual tank and freight vessel
exams, letter of compliance examinations, and
inspections for certification or mid-period inspections,
as appropriate Field offices should not make a special
examination to check for the presence of a SOPEP
(3) As was mentioned earlier, an approved plan is required
for the issuance of an IOPP Certificate Evidence of a
valid IOPP in MSIS can be considered satisfactory
evidence that a vessel’s SOPEP has been approved
While MSIS may indicate the vessel has a valid IOPP,
field units should check that the vessel has an approved
SOPEP on board during a vessel boarding SOPEPs are
in the working language of the master and officers of
the vessel
(4) Enforcement for situations where a vessel does not have
a copy of the approved SOPEP on board should mirror
those followed for a vessel which fails to have adequate
oil transfer procedures
(5) Vessels which have not submitted or do not yet have an
approved SOPEP should be treated in the same manner
as those without an approved vessel response plan and
the same conditions for allowing a transfer apply An
ROV shall be processed against U S flag vessels for
failure to have a SOPEP For foreign flag vessels, an
ROV shall be processed and notification of the
deficiency shall be made to the flag state
4.A.6.k.
Captain of the Port Orders
The Coast Guard will generally not issue COTP orders under 33
CFR 160 111 or 33 CFR 160 113 to vessels and facilities solely for
being out of compliance with the response plan requirements
Rather, COTP units should take the appropriate enforcement action
for vessels and facilities without response plans and should pursue
Class I administrative civil penalties, prescnbed in COMDT1NST
16200 3 (series)
Marine Environmental Protection:
COMDTINST M16000.14
4-31
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U.S. Coast Guard Marine Safety Manual, Vol. LX
Chapter 5 - Response - Table of Contents
Section 5.A National Response System 5-i
Overview
Oil Spill Response Policy and Operations
S A 2 a National Response Policy
5 A 2 b Responsible Party Response Policy
5 A 2 c Role of On-Scene Coordinator
5 A 2 d Notice of Federal Interest
5 A 2 e Designating the Source
5 A 2 f Notice of Federal Assumption
5 A 2 g Administrative Order Under FWPCA
5 A 2 h Response Operations
5 A 3 Spill of National Significance (SONS)
5 A 3 a Spill of National Sigmficance Protocol
5 A 4 Hazardous Matenals SpiLl Response Policy and Operations
5 A 4 a Discovery or Notification
5 A 4 b Preliminary Assessment and Initiation of Action
5 A 4 c Containment, Countermeasures, and Cleanup
5 A 4 d Disposal
5 A 4 e Documentation and CERCLA Cost Recovery
5 A 4 f Admrnistrative Order Under CERCLA
Marine Environmental Protection:
COMDTINST M16000.14
SAl
5A2
5-1
5-4
5-4
5-5
5-7
5-10
5-13
5-17
5-18
5-18
5-27
5-27
5-27
5-28
5-28
5-36
5-40
5-42
5-44
Chapter 5
Response
5-i
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 5 - Response - Table of Contents
5 A 5 Worker Health and Safety 5-44
5 A 5 a General 5-44
5 A 5 b Need for Training 5-45
5 A 5 c Cleanup Workers 5-45
SA5d SafetyRoles 5-45
5 A 6 Response Checksheet 5-46
5 A 6 a Checksheet Guide 5-46
5 A 7 Intervention Guidelines 5-46
5 A 7 a Legal Authonty 5-46
5 A 7 b Intervention Conditions 5-47
5 A 7 c Intervention on U S Internal Waters and Territonal Seas 5-50
5 A 8 Assistance to Foreign Governments 5-54
5 A 8 a Coast Guard Assistance 5-54
5 A 8 b Multiagency Assistance 5-64
Section 5.B Funding and Logistics 5-68
5 B I Purpose 5-68
5 B 2 National Pollution Funds Center (NPFC) 5-68
5 B 2 a The National Pollution Funds Center 5-68
5 B 3 Oil Spillsllncident Specific Funding 5-69
5 B 3 a Prerequisites and Costs Paid 5-69
5 B 4 Oil Spill Liability Trust Fund (OSLTF) 5-70
5 B 5 CERCLAJ Superfund 5-70
5 B 6 Case Teams 5-71
5 B 7 NPFC User Reference Guide 5-71
5 B 7 a Reference Guide Overview 5-71
5 B 8 Cost Data 5-73
S B 8 a Coast Guard Rates 5-73
Marine Environmental Protection:
COMDTINST M16000 14
5-li
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 5 - Response - Table of Contents
5B8b
5B8
5 B 9 Civilian
5B9a
5B9b
5 B 10 Logistics
5 B 10 a
5B lOb
SB 10 c
U S Navy Supervisor of Salvage (SIJPSALV) Rates
Federal On-Scene Coordinator (FOSC) Financial
Management Checklist
and Reimbursable Overtime
General
OSC Approval
5-75
Logistics Considerations 5-75
Logistics Areas
OSC Efforts
5-76
5-77
5-73
5-73
5-73
5-73
5-74
Section 5.C Support Resources 5-78
5 C 1 Special Forces
S C 1 a National Strike Force (NSF)
5 C 1 b EPA Environmental Response Team (ERT)
5 C I c U S Navy Supervisor of Salvage
5 C I d U S Coast Guard Manne Safety Center Salvage Team
5 C 2 Scientific Support Coordinators (SSCs)
5 C 3 Pre-Positioned Oil Spill Response Equipment
5 C 3 a Coast Guard Pre-Positioned Equipment
5 C 3 b NSFCC Responsibilities
5 C 3 c Equipment Storage and Maintenance
5C3d Training
5 C 3 e Use of Government Equipment
5 C 4 District Response Groups (DRGS) and Distnct Response
Advisory Teams (DRATS)
5 C 4 a General
5 C S Aviation Support
5 C 5 a General
Marine Environmental Protection:
COMDTINST M16000.14
5-78
5-78
5-85
5-85
5-87
5-88
5-89
5-89
5-90
5-92
5-92
5-92
5-92
5-92
5-94
5-94
5-ui
-------
Intervention by Aircraft
Surveillance by Aircraft
5-95
5-95
5-96
5-96
5-96
5-97
5-97
5-97
5-98
5-98
5-98
5-98
U.S. Coast Guard Marine Safety Mani.ial, Vol. IX
Chapter 5 - Response - Table of Contents
5C5b
5C5c
5 C 6 Volunteers
5 C 6 a Volunteer Assistance
5 C 6 b Volunteer Participation
5 C 7 Spill Planning, Exercise, and Response System (SPEARS)
S C 7 a General
5 C 7 b SPEARS Components
5 C 8 National Response Resource Inventoiy (RR1)
5 C 8 a General
5 C 9 Other Government Resources
5 C 9 a Other Agencies
Appendix 5-A OSC Oil Pollution Incident Checksheet and FOSC Financial
Management Checklists (Oil and HAZMAT) 5-A-i
Marine Environmental Protection:
COMDTINST M1600014
5-iv
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 5 - Response
to cover expenses, and
• take whatever actions are needed to ensure a proper
cleanup
In these cases the Notice of Federal Assumption should state
specifically what activities or resources the OSLTF will pay for
5.A.2.g. Administrative Order Under FWPCA
The Oil Pollution Act of 1990 amended the Federal Water Pollution
Control Act and provided more authority to FOSCs to direct the
removal actions in response to discharges of oil or FWPCA
hazardous substances Under 33 U S C 1321 (c) and (e), an FOSC
may now issue orders to responsible parties to ensure effective and
immediate removal of a discharge or the mitigation or prevention of
substantial threat of a discharge of oil or a FWPCA hazardous
substance An FOSC may also issue administrative orders “that may
be necessary to protect public health and welfare”
Guidance on the issuance and enforcement of administrative orders
under the authonty of 33 U SC 1321 (c) and (e) is being
developed FOSCs needing to issue an administrative order under
the FWPCA can contact (G-MOR-3) for intenm guidance and
examples
5.A.2.h. Response Operations
Appendix E to the National Contingency Plan (NCP), available in a
“pocket” edition, outlines several steps in responding to an oil
discharge Among them are
• Discovery or Notification,
• Preliminary Assessment and Initiation of Action,
• Patterns of Response,
• Disposal, and
• Documentation and Cost Recovery
SAMPLE NOTICE OF FEDERAL ASSUMPTION FOR
AN OIL POLLUTION INCIDENT
Marine Environmental Protection:
COMDTINST M16000.14
5-18
-------
U.S. Coast Guard Marine Safety Manual, Vol. IX
Chapter 6 - External Cooperation and Coordination - Table of Contents
Section 6.A
Section 6.B
International 6-1
6 A I Introduction 6-I
6 A 2 Coast Guard’ s Rote in International Environmental Protection 6-i
6 A 3 International Maritime Organization 6-2
6 A 3 a Participation in IMO 6-3
6 A 4 International Oil Pollution Compensation Fund (IOPC Fund) 6-4
6 A 5 Arctic Environmental Protection Strategy (AEPS) 6-5
6 A 6 South Pacific Regional Environmental Program (SPREP) 6-6
6 A 7 International Tanker Owners Pollution Federation
Limited (ITOPF) 6-7
6 A 8 International Salvage Union (ISU) 6-8
6 A 9 International Group of Protection and Indemnity
Clubs (P&I Clubs) 6-10
Assistance Requests from Foreign Governments 6-11
6 A 10
Domestic 614
6 B I Coastal Zone Management Act 6-14
6 B 2 Environmental Protection Agency! Coast Guard Memorandum
of Understanding on CERCLA 6-14
Marine Environmental Protection:
COMDTINST M16000.14
Chapter 6
External Cooperation and
Coordination
6-i
-------
Section S.C
6-15
6-15
U.S. Coast Guard Marine Safety Manual, Vol. LX
Chap ter 6 - External Cooperation and Coordination - Table of Contents
6 B 3 Manne Protection Research, and Sanctuaries Act of 1972
6 B 4 State Coordination
6 B 5 Coast Guard Membership in State Task Forces, Spill Cleanup
Cooperatives, and Similar Organizations 6-16
6 B 6 Citizens Advisory Groups 6- 16
6 B 7 Coast Guard Auxiliary 6-16
Education and Outreach 6-19
6 C 1 Strategies to Achieve Compliance Through Education
and Outreach 6- 19
6 C I a Compliance Through Education and Outreach 6-19
6 C 2 SEA PARTNERS Campaign 6-24
6C2a SEAPARTNERS 6-24
6 C 2 b Objectives 6-25
6 C 2 c Program Specifics 6-25
Appendix 6-A SEA PARTNERS Guidelines 6-A-i
Marine Environmental Protection:
COMDTJNST M16000.14
6-il
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U.S. Coast Guard Marine Safety Manual, Vol. IX
abandoned barge, 1-31
Abandoned Baige Act, 1-31
AC, 1-26, 4-1, 4-3, 4-5, 4-6, 4-7, 4-8, 4-9, 4-10, 4-
11,4-12, 4-45, 5-1, 5-34, 6-17
ACP, 1-26, 4-i, 4-1, 4-4, 4-6, 4-7, 4-8, 4-9, 4-10,
4-11, 4-12, 4-13, 4-14, 4-15, 4-23, 4-34, 4-39,
4-46, 4-5 1, 4-54, 4-56, 4-57, 5-4, 5-5, 5-6, 5-7,
5-20, 5-21, 5-22, 5-23, 5-25, 5-34, 5-72, 5-77,
5-80, 5-81, 5-93, 5-94
Act to Prevent Pollution from Ships, See APPS
administrative order, 5-12, 5-18, 5-29, 5-36, 5-40,
5-44, 5-45
AEPS, 6-5
Agency for Toxic Substances and Disease Registry,
See ATSDR
aircraft, 1-10, 1-34, 4-4, 4-14, 4-34, 4-35, 5-20, 5-
28, 5-76, 5-92, 5-94, 5-95
AMAP, 6-5, 6-6
AIvIPD, 4-52
Animal and Plant Health Inspection Service,
See APHIS
Annex I, See MARPOL Annex I
Annex 11, See MARPOL Annex H
Annex III, See MARPOL Annex III
Annex IV, See MARPOL Annex IV
Annex V, See MARPOL Annex V
Annex VI, See MARPOL Annex VI
APHIS, 1-46
APPS, 1-6, 1-8, 1-44, 1-46, 1-47
Arctic Environmental Protection Strategy, See AEPS
Arctic Monitoring and Assessment Program,
See A AP
Area Committee, See AC
Area Contingency Plan, See ACP
assistance to foreign governments, 1-23, 5-55, 5-59,
5-64,6-11
ASTM, 1-39
ATSDR, 5-46, 5-78, 5-99, 5-100
Auxiliary, 6-16, 6-17, 6-18
average most probable discharge, See AMPD
ballast water, 1-39
CAA, 1-31, 1-32, 1-33
CAFF,6-6
CAMEO, 5-97
Canada, 1-50, 4-3, 6-5
Caribbean, 1-14, 1-15, 4-5, 5-79
Cartegna Convention, 1-14
categoncal exclusions, 1-43
Marine Environmental Protection:
COMDTINST M16000. 14
CERCLA, 1-26, 1-27, 1-28, 1-30, 4-36, 5-2, 5-7,
5-30, 5-3 1, 5-32, 5-33, 5-36, 5-37, 5-43, 5-44,
5-45, 5-47, 5-53, 5-54, 5-68, 5-7 1, 5-72, 5-94, 6-
14
Chemical Hazards Response Information System,
See CHRIS
CHRIS, 5-30, 5-85
civil penalties, 1-31, 4-31
civilian overtime, 5-73
CLC, 1-18, 1-19, 6-10
Clean Air Act, See CAA
Clean Vessel Act, 1-33
Clean Water Act, See CWA
Coast Guard equipment, 5-56, 5-77, 6-13
coastal spill, 5-20
Coastal Zone Management Act, See CZMA
Comprehensive Environmental Response,
Compensation and Liability Act, See CERCLA
Computer-Aided Management of Emergency
Operations, See CAMEO
Conservation of Arctic Flora and Fauna, See CAFF
Contract Regarding an Interim Supplement to
Tanker Liability for Oit Pollution, See CRISTAL
Convention for the Protection and Development of
the Marine Environment of the Wider Caribbean
Region, See Cartegna Convention
Convention on Early Notification of a Nuclear
Incident, See Early Notification
Convention on the Prevention of Manne Pollution by
Dumping of Wastes and Other Matter,
See London Convention
COTP order, 4-31
Council on Environmental Quality, 1-41
COW, 1-6
CRISTAL, 6-8, 6-1 1
crude oil washing, See COW
CWA, 1-25, 4-1
CZMA, 6-14
DCEM. 4.59, 4-61
Deepwater Port Act, See DPA
Department of State, See DOS
designate the source, 5-13, 5-15
Direct Commission Environmental Manager,
See DCEM
disposal. 1-9, 1-10, 1-28, 1-29, 1-46, 4-4, 4-8, 4-14,
4-33, 5-2, 5-23, 5-25, 5-40, 5-50, 5-85, 6-10
District Response Advisory Team, See DRAT
Distnct Response Groups, See DRG
DOS, 1-28, 1-35, 1-49, 5-47, 5-55, 5-60, 6-2, 6-11
1
-------
U.S. Coast Guard Marine Safety Manual, Vol. IX
Index
DPA, 1-40
DRAT, 4-34, 4-35, 4-36, 4-37, 5-34, 5-92, 5-93, 5-
94
DRG, 1-27, 4-34, 4-35, 4-36, 4-37, 5-92, 5-93, 5-94
EA, 1-42, 1-43
Early Notification, 1-21
EDS, 5-101
EERU, 5-85
EEZ, 1-25, 1-46, 4-30, 54, 5-6, 5-68, 5-69
E IS, 1-41, 1-43
Emergency Prevention, Prepaxedness and Response,
See EPPR
emergency ship salvage material, See ESSM
Emergency Support Functions, See ESF
EMS, 5-101
Endangered Species Act, See ESA
Environmental Assessment, See EA
Environmental Data Service, See EDS
environmental emergency response unit, See EERU
environmental impact statement, See E IS
environmental monitoring and support, See EMS
Environmental Photographic Interpretation Center,
See EPIC
Environmental Protection Agency, See EPA
environmental response team, See ERT
EPA, 1-10, 1-25, 1-26, 1-28, 1-29, 1-30, 1-31, 1-32,
1-35, 1-36, 1-38, 1-42, 4-1, 4-3, 4-4, 4-5, 4-7, 4-
21, 4-22, 4-39, 4-60, 5-7, 5-20, 5-2 1, 5-24, 5-28,
5-29, 5-35, 5-36, 5-38, 5-40, 5-41, 5-42, 5-43, 5-
44,
5-46, 5-47, 5-66, 5-69, 5-70, 5-71, 5-72, 5-73,
5-78, 5-79, 5-85, 5-97, 5-99, 5-100, 5-101, 6-14,
6-22
EPIC, 5-10 1
EPPR, 6 -5
ERT, 5-41, 5-85
ESA, 1-40, 4-13, 5-89
ESF, 4-1, 4-2
ESSM, 5-90, 5-9 1, 5-92
Exclusive Economic Zone, See EEZ
exercises, 1-25, 144, 4-i, 4-27, 4-37, 4-38, 4-39,
440, 4-41, 4-42, 4-44, 4-45, 446, 4-47, 4-50,
4-51, 4-52, 4-53, 5-78, 5-79, 5-80, 5-81, 5-91,
5-97, 6-17
facility response plan, See FRP
FCO, 4-1
federal coordinating officer, See FCO
Federal Emergency Management Agency, See
FEMA
Marine Environmental Protection:
COMDTINST M16000.14
federal facility, 4-27
Federal On-Scene Coordinator, See FOSC
federal response plan, 4-21
Federal Water Pollution Control Act, See FWPCA
FEMA, 4-1, 5-39
finding of no significant impact, See FONSI
FONSI, 1-42
FOSC, 5-1, 5-18, 5-44, 5-70, 5-71, 5-72, 5-73, 5-95
FOSC Financial Management Checklist, 5-72, 5-73,
5-A-5, 5-A-12
FRP, 1-25, 4-1, 4-2, 4-15, 4-16, 4-19, 4-24, 4-27,
4-32, 4-50, 4-54, 5-5
Fund Convention, 1-19, 1-20, 6-4
FWPCA, 1-8, 1-24, 1-25, 1-26, 1-27, 1-28, 1-30,
1-32, 146, 4-7, 4-10, 4-13, 4-15, 4-16, 4-32, 5-1,
5-2, 5-4, 5-11, 5-12, 5-18, 5-19, 5-21, 5-26, 5-42,
5-43, 547, 5-53, 5-54, 5-78
G-Cl, 5-52, 5-56, 5-60, 5-62, 5-63, 5-64
government equipment, 5-92
Group V oils, 4-19, 4-20
hazardous material, 1-10, 1-26, 1-28, 1-30, 1-33,
1-51, 4-2, 4-37, 4-60, 5-27, 5-50, 5-88, 5-97, 5-99,
6-5
Hazardous Materials Transportation Act, See HJvfl’A
hazardous substance, 1-24, 1-25, 1-26, 1-27, 1-28,
1-29, 1-30, 143, 1-52, 4-i, 4-3, 4-6, 4-7, 4-8, 4-9,
4-11,4-13,4-22,4-35, 5-1, 5-2, 5-3, 5-4, 5-5, 5-6,
5-7, 5-18, 5-28, 5-30, 5-31, 5-33, 5-34, 5-36, 5-38,
5-39, 5-40, 5-41, 5-43, 5-44, 546, 5-48, 5-53,
5-68, 5-70, 5-71, 5-72, 5-77, 5-84, 5-94, 5-97, 6-7
HAZMAT, 5-27, 5-28, 5-29, 5-30, 5-34, 5-40, 5-46
HMTA, 1-5, 1-8, 1-30
IAEA, 1-21, 1-22
ICLL, 1-11, 1-13
ICS, 4-6, 4-9, 4-10, 4-11, 4-12, 4-34, 5-7, 5-27
IHSA, 1-17, 1-28, 1-40, 5-2, 5-19, 5-47, 5-53, 5-54
IMO, 1-3, 1-4, 1-5, 1-8, 1-9, 1-10, 1-15, 1-28, 5-52,
5-55, 5-65, 6-2, 6-3, 6-7, 6-12
Incident Command System, See ICS
Jncidcnt-Specific Preparedness Review, See ISPR
inland spill, 5-20
International Atomic Energy Agency, See IAEA
International Convention for the Prevention of
Pollution from Ships, See MARPOL
International Convention for the Safety of Life at
Sea, See SOLAS
International Convention on Civil Liability for Oil
Pollution Damage, See CLC
a
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Index
International Convention on Oil Pollution
Preparedness, Response and Cooperation,
See OPRC
International Convention on the Establishment of the
International Fund for Compensation for Oil
Pollution Damage, See Fund Convention
International Group of Protection and Indemnity
Clubs, See P&I
international law, 1-1, 1-2, 1-3, 1-17
International Load Line Convention, See ICLL
International Mantime Organization, See lMO
International Oil Pollution Compensation Fund,
See IOPC Fund
International Oil Pollution Prevention,
See IOPP Certificate
International Salvage Union, See ISU
International Tanker Owners Pollution Federation,
See ITOPF
intervention, 1-28, 5-2, 5-55, 5-95
Intervention Convention, 1-17, 5-47, 5-53, 5-54
Intervention on the High Seas Act, See 11 -ISA
IOPC Fund, 6-4, 6-7, 6-8, 6-11
IOPP certificate, 1-7, 1-45, 4-24
ISPR, 4-54, 4-55, 4-56, 4-57, 5-27
ISU, 6-8, 6-9, 6-10
ITOPF, 5-56, 5-65, 6-7, 6-11, 6-12
JCP, 1-14, 1-49 1-50, 1-51, 1-52, 4-3
joint contingency plan, See JCP
Joint Preparedness Team, See JPT
Joint Response Center, See JRC
Joint Response Team, See JRT
JPT, 1-49
JRC, 1-49, 1-51, 1-52
JRT, 1-49, 1-51, 1-52
LEPC, 4-7, 4-8, 5-34
letter of adequacy, See LOA
Level “D”, 5-34
Liability for Oil Pollution, See TOVALOP
LOA, 4-27
Local Emergency Planning Committee, See LEPC
local response team, 5-97
London Convention, 1-10, 1-34, 5-50
LRT, 5-97
Manne Environment Protection Committee,
See MEPC
Marine Environmental Protection Industiy Training,
See MEPIT
Manne Plastic Pollution Research and Control Act,
See MPPRCA
Manne Protection, Research, and Sanctuaries Act,
See MPRSA
Manne Safety Information System, See MSIS
manne sanitation device, See MSD
marine transportation-related, See MTR facility
MARPOL, 1-4, 1-5, 1-6, 1-7, 1-8, 1-9, 1-10, 1-30,
1-44, 1-45, 1-46, 1-47,4-16
MARPOL Annex I, 1-4, 1-5, 1-6, 1-7, 1-8, 1-30,
1-45, 4-16
MARPOL Annex H, 1-7, 1-8, 1-30, 1-45
MARPOL Annex I II, 1-5, 1-8, 1-30
MARPOL Annex IV, 1-5, 1-8
MARPOL Annex V, 1-9, 1-45, 1-46, 1-47
MARPOL Annex VI, 1-9
MEPC, 1-4, 1-10, 6-2
MEPIT, 4-59, 4-60
Mexico, 1-14, 1-38, 1-49, 1-50, 4-3
Minerals Management Service, See MMS
MIvIS, 1-25, 4-2 1, 4-39
MPPRCA, 1-9, 1-46, 1-47
MPRSA, 1-10, 1-34, 1-35, 1-36, 1-37, 6-15
MSD, 1-33
MSIS, 1-33, 4-17, 4-19, 4-2 1, 4-23, 4-24, 4-28, 4-30,
4-31, 5-26, 5-98
MTR facility, 4-26, 4-27
NANPCA, 1-38
National Contingency Plan, See NCP
National Environmental Policy Act, See NEPA
National Environmental Satellite Service, See NESS
National Incident Commander, See NIC
National Incident Task Force, See NITF
National Marine Fishenes Service, See NMFS
National Manne Sanctuanes, 1-36, 6-15
National Oceanic and Atmospheric Administration,
See NOAA
National Oil and Hazardous Substances Pollution
Contingency Plan, See NCP
National Pollution Funds Center, See NPFC
National Response Center, See NRC
national response system, See NRS
National Response Team, See NRT
National Stnke Force, See NSF
National Strike Force Coordination Center,
See NSFCC
Natural Resource Damage Assessment, See NRDA
navigable waters, 1-7, 1-25, 1-30, 1-31, 1-33, 1-45,
1-46, 4-23, 4-30, 5-2, 5-4, 5-6, 5-20, 5-39, 5-47,
5-53, 5-68
navigation and vessel inspection circular, See NVIC
Marine Lnvironmental Protection:
COMDTINST M16000.14
3
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Index
NCP, 1-24, 1-25, 1-26, 1-27, 1-44, 4-1, 4-2, 4-3, 4-4,
4-5, 4-9, 4-10, 5-2, 5-4, 5-5, 5-6, 5-7, 5-9, 5-18,
5-21, 5-24, 5-27, 5-28, 5-65, 5-69, 5-70, 5-98
NEPA, 1-41, 1-42, 1-43
NESS, 5-100
NIC, 4-3 3, 5-27
NITF, 4-34, 5-27
NLS, 1-5, 1-7
NMFS, 1-41, 5-100
NMSA, 1-36
NOAA, 1-35, 1-37, 1-38, 4-1 1, 4-37, 5-29, 5-52,
5-66, 5-76, 5-88, 5-97, 5-100, 6-14, 6-22
Nomndigenous Aquatic Nuisance Prevention and
Control Act, See NANPCA
Notice of Federal Assumption, 5-17, 5-18
Notice of Federal Interest, 5-10, 5-11, 5-17
noxious liquid substance, See NLS
NPFC, 4-2, 4-14, 4-37, 4-45, 5-13, 5-14, 5-15, 5-16,
5-43, 5-68, 5-70, 5-7 1, 5-72, 5-73, 5-74, 6-14,
6-15, 6-18
NPFC User Reference Guide, 5-71
NRC, 1-26, 5-20, 5-28, 5-61, 5-84
NRDA, 4-13, 4-14, 5-68, 5-72
NRS, 4-i, 4-3, 5-1, 5-7
NRT, 1-25, 1-26, 1-50, 4-3, 4-5, 4-6, 4-12, 4-21,
4-33, 5-1, 5-7, 5-27, 5-52, 5-55, 5-64
NSF, 1-24, 4-9, 4-35, 4-37, 4-5 1, 4-60, 5-34, 5-56,
5-62, 5-72, 5-78, 5-79, 5-80, 5-8 1, 5-82, 5-83,
5-84, 5-9 1, 5-92, 5-93, 6-13
NSFCC, 4-9, 4-35, 4-37, 4-44, 4-45, 4-46, 4-49,
4-5 1, 5-79, 5-80, 5-84, 5-90, 5-91, 5-92, 5-93,
5-94, 5-98, 5-99
nuclear accident, 1-21
NVIC, 1-7
Occupational Safety and Health Act, See OSH Act
Occupational Safety and Health Administration,
See OSHA
Ocean Dumping Ban Act, See ODBA
Oceans Act, 1-36
ODBA, 1-34, 1-36
Oil Pollution Act of 1990, See OPA 90
Oil Spill Liability Trust Fund, See OSLTF
oil spill removal organization, See OSRO
Oil Terminal and Oil Tanker Environmental
Oversight and Momtonng Act, 1-47
On-Scene Coordinator, 1-26
OPA, See OPA 90
OPA 90, 1-23, 1-24, 1-25, 1-26, 1-27, 1-47, 4-i, 4-3,
4-7, 4-8, 4-10, 4-15, 4-16, 4-17, 4-18, 4-20. 4-24,
4-27, 4-32, 4-34, 4-39, 5-1, 5-4, 5-5, 5-6, 5-12,
5-13, 5-14, 5-16, 5-18, 5-68, 5-69, 5-71, 5-72,
5-78, 5-80, 5-98, 6-15, 6-16
OPRC, 1-11
OSC, 1-26, 1-49, 1-51, 1-52, 4-2, 4-3, 4-4, 4-6, 4-7,
4-8, 4-11, 4-13, 4-20, 4-33, 4-34, 4-36, 4-44, 4-45,
4-50, 4-5 1, 4-57, 4-59, 5-1, 5-3, 5-4, 5-5, 5-6,
5-7, 5-9, 5-10, 5-11, 5-12, 5-13, 5-15, 5-16, 5-17,
5-19, 5-20, 5-21, 5-22, 5-23, 5-24, 5-25, 5-26,
5-27, 5-28, 5-29, 5-30, 5-3 1, 5-32, 5-33, 5-35,
5-36, 5-37, 5-38, 5-39, 5-40, 5-41, 5-42, 5-46,
5-53, 5-59, 5-73, 5-74, 5-76, 5-77, 5-78, 5-79,
5-82, 5-83, 5-84, 5-85, 5-87, 5-88, 5-89, 5-90,
5-92, 5-93, 5-94, 5-95, 5-96
OSC Oil Pollution Incident Checksheet, 5-A-i
OSH Act, 1-43, 1-44
OSHA, 1-43, 4-22, 5-9, 5-28, 5-41, 5-45, 5-46
OSL1’F, 4-36,5-7,5-9,5-11,5-12,5-18,5-26,5-47,
5-68, 5-69, 5-70, 5-71, 5-94
OSRO, 1-24, 4-32, 4-33, 4-40, 4-52
P&I, 6-10
PAME, 6-5
PIAT, 5-72, 5-78, 5-79, 5-83
PLLS, 4-47, 4-49, 4-50, 4-57
Pollution Lessons Learned System, See PLLS
pollution prevention compliance, See PPC
POLREP, 5-9, 5-26, 5-28, 5-72
Port and Tanker Safety Act, See PTSA
Ports and Waterways Safety Act, See PWSA
PPC, 4-28, 4-31
pre-positioned equipment, 5-90, 5-93, 5-94
PREP, 1-25, 4-i, 4-39, 4-40, 4-41, 4-42, 4-43, 4-44,
4-45,4-46,4-47, 4-49, 4-5 1, 4-52, 4-57, 6-17
Preparedness for Response Exercise Program,
See PREP
Protection of the Arctic Manne Environment,
See PAME
PTSA, 1-33
public information assist team, See PEAT
public outreach, 6-19, 6-20, 6-21, 6-22, 6-23, 6-24,
6-26
PWSA, 1-32, 1-33
RCP, 1-26, 4-4, 4-5, 4-10, 5-6, 5-9, 5-21, 5-25, 5-90,
6-6
RCRA, 1-28, 1-29, 4-22, 5-2, 5-40, 5-41, 5-43
Refuse Act, 1-30
Regional Citizens’ Advisor)’ Council, 1-48
Regional Contingency Plan, See RCP
Regional Response Team, See RRT
Marine Environmental Protection:
COMDTINST M16000.14
4
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U.S. Coast Guard Marine Safety Manual, Vol. IX
Index - ______
Remedial Project Manager, See RPM
report of violation, See ROV
Reports, 4-12, 5-26, 5-57
Reserve Unit, 5-79, 5-80
Resource Conservation and Recovety Act, See
RCRA
response resource mventory, See RRI
Responsible Party, 4-15, 5-1, 5-2, 5-5, 5-6, 5-7, 5-10,
5-13, 5-15, 5-16, 5-22, 5-23, 5-26, 5-36, 5-40, 5-
43
review approval leUer, 4-A-19
review letter noting deficiencies, 4-A-20
reviews of facility response plans, 4-A-I
Rivers and Harbors Act, 1-30
ROy, 4-27, 4-29, 4-31
RPM, 4-3, 4-6, 5-40
RRI, 5-98
RRT, 1-26, 4-3, 4-5, 4-6, 4-7, 4-9, 4-12, 4-33, 4-45,
5-1, 5-9, 5-23, 5-25, 5.27, 5-30, 5-41, 5-46, 5-51,
5-53, 5-54, 5-79, 5-81, 5-100, 5-101
Russian Federation, 1-5 1, 4-3, 6-5
safety and occupational health, 1-43, 5-45
Safety of Life at Sea, See SOLAS
salvage, 1-16, 4-4, 4-14, 5-49, 5-54, 5-86, 5-87, 5-
88, 6-8, 6-9, 6-10, 6-11
Salvage Convention, 1-16, 6-9
Salvage Team, 5-87, 5-88
scientific support coordinators, See SSC
SEA PARTNERS, 6-24, 6-25, 6-26
SERC, 4-7, 4-8
Shipboard Oil Pollution Emergency Plans,
See SOPEP
Shore Protection Act, See SPA
significant and substantial harm, 4-16, 4-18, 4-19,
4-25, 4-26, 4-27
SIP, 1-33
SOLAS, 1-4, 1-12, 1-13
SONS, 4-33, 4-34, 5- !, 5-27, 5-80
SOPEP, 1-6, 1-7, 145, 4-16, 4.23, 4-24, 4-26, 4-30,
4-31
South Pacific Regional Environmental Program,
See SPREG
SPA, 1-34, 1-37, 6-15
Marine Environmental Protection:
COMDTINST M16000.14
SPCC, 4-21
SPEARS, 4-37, 4-38, 4-45, 5-2 1, 5-22, 5-24, 5-30,
5-85, 5-97
Spill of National Significance, See SONS
Spill Planning, Exercise, and Response System,
See SPEARS
SPREP, 6-6, 6-7
SSC, 5-88, 5-89, 5-90
standard rates, 5-59, 5-70
State Department, See DOS
State Emergency Response Commission, See SERC
state implementation plan, See SIP
Stnke Team, See NSF
substantial harm, 4-13, 4-16, 4-18, 4-19, 4-25, 4-26,
4-27
substantial threat, 4-i, 4-6, 4-8, 4-10, 4-13, 4-14,
4-3 3, 4-34, 5-2, 5-3, 5-4, 5-5, 5-6, 5-8, 5-17, 5-18,
5-22, 5-28, 5-30, 5-3 1, 5-33, 5-49, 5-53, 5-68, 5.
69
Superfund, See CERCLA
SUPSALV, 5-65, 5-73, 5-85, 5-86, 5-87, 5-90
Tanker Owners Voluntary Agreement Concerning
Liability for Oil Pollution, See TOVALOP
TOVALOP, 6-7, 6-10
training, 143, 4-i, 4-18, 4-28, 4-33, 4-36, 4-37, 4-
46, 4-59, 4-60, 4-63, 5-6, 5-28, 5-3 3, 5-45, 5-46,
5-55, 5-63, 5-7 1, 5-77, 5.79, 5-81, 5-82, 5-83, 5-
90,
5-91, 5-92, 5-96, 5-97, 6-7, 6-11, 6-17
U S Army Corps of Engineers, See VCS
U S Navy Supervisor of Salvage, See SUPSALV
USACE, 1-10, 1-35
vapor control system, See VCS
VCS, 1-32
Vessel File List of Documents, See VFLD
vessel response plan, See VRP
VFLD, 4-23, 4-28
volunteers, 4-14, 5-77, 5-96, 5-97
VRP, 4-15, 4-22, 4-23, 4-24, 4-26, 4-28, 4-31, 4-50,
4-54, 5-6
\VCD, 1-24, 4-8, 4-10, 4-18, 4-19, 4-20, 4-26, 4-33,
5-6, 5-22, 5-93
worst case discharge, See WCD
5
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ENCL. (1) to COMDTNOTE 5600
b
Transportation
Transformation
U.S. Department of Transportation
Operating Administration: United States Coast Guard
Title: Ticketing as a Simplified Process for Civil Penalty Violation Cases
NPR Category: Improving Customer Service
Problem and Analysis:
All civil penalty cases, no matter how snmll , were part of the same multi-level review process.
The process began with a Report of Violation by an investigating Marine Safety Officer and
ended with a Coast Guard (USCO) hearing officer penalty assessment. During the civil penalty
process, a hearing officer assesses a penalty amount after review of the case. The alleged
violator then has the option of either a written rebuttal or a hewing on the penalty amount
Closure of these cases typically takes from four months to a year. This process wa s time
consuming and a good candidate for reinvention.
Reinvention:
USCG created a more streamlined method of enforcing minor violations of pollution regulations.
USCO began a pilot project in Charleston, Long Beach, and Galveston to test a new enforcement
method with Marine Safety Officers issuing “Notices of Violation” (NOV) or “tickets” to alleged
violators for cmall violations of pollution prevention regulations. The alleged violators then pay
the proposed penalty within 30 days to close the case. If they prefer to contest the NOV, they
have the option of following the normal civil penalty assessment process.
Results:
For cases where the violation is clear and the violator accepts the penalty, the ticketing process
dramatically streamlines the present civil penalty assessment process by elimin2ting numerous
additional steps. Within 30 days of the violations being issued, 64 percent of the alleged
violators paid their tickets; within 45 days, 87 percent of the alleged violators paid their tickets.
The feedback from the industry and the public has been extremely positive. Charleston, Long
Beach, and Galveston area industry representatives, agents, and shippers have requested
expansion of this procedure to other areas under USCG purview. USCG has reduced the time
and costs involved in the civil penalty hearing process and major oil compan es report significant
savings in legal administrative costs needed to resolve these matters.
-------
ENCL. (1) to CC IDTN0IE 5600
Governmentwide Applicability:
Automating and streamlining the process for minor civil penalty violations has applicability for
any Federal regulatory agency.
Barriers:
USCO’s chief counsel office had initial concerns about the legal ramifications of
this proposed change to the current civil penalty process. Counsel worked with
program staff to ensure the public’s legal rights were protected under the
streamlined penalty process.
The Marine Safety software system had to be modified to streamline and improve
data capture, information processing, and documentation. The USCG also
designed a statistical program to trac key measures of effectiveness and
developed an automated collections process to further streamline o ccr
involvement
Contact Fersoa, Address, and Telephone:
Yvonne Hcffr r
U.S. Deparunent ofTrasportation
USCG HeadquarteTs
2100 Street,S.W.
W hington, D.C. 20593-0001
Telepho : (202) 267-0970
Fax: (202) 267.6$ 13
U& Department
of Transportation
United States
Coast Guard
2lOOSeCOfldSt SW
Wasl ingtOfl DC 20593
Ott icial Business
Penally for Private Use $300
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K
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1?
/ I —
L 1 / U
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Outreach Guides for the Federal Oil
Pollution Prevention Regulation
February 1998
Contents
o Introduction and Background to the Oil Pollution Prevention Regulation
o List of Acronyms and Glossary Relating to Oil Pollution Prevention
o SPCC Requirements and Pollution Prevention Practices for Bulk Storage
Facilities
o SPCC Requirements and Pollution Prevention Practices for Oil Production,
Drilling and Workover Facilities
O SPCC Requirements and Pollution Prevention Practices for Electrical Utilities
o SPCC Requirements and Pollution Prevention Practices for Mines and Quarnes
o SPCC Requirements and Pollution Prevention Practices for Vehicle Service
Facilities
o SPCC Requirements and Pollution Prevention Practices for Farms and Ranches
o SPCC Requirements and Pollution Prevention Practices for Facilities
Conducting Large Volume Transfer Operations
o Facrlity Response Planning
o Oil Spill Notification, Response, and Recovery
o What to Expect During an SPCC/FRP Inspection
O Sample Spill Prevention Control and Countermeasure Plan and Sample
Containment Volume Calculations
o Who’s Who: Federal Agency Roles and Responsibilities for Oil Spill Prevention
and Response
o Other Regulatory Programs Relating to Oil Pollution Prevention
o Resource Document for Outreach Assistance to EPA’s Oil Program
An ,.O.nidCø ,’ 1r
20 Cai fomIa SI, San Francisco, CA 94111
Phone: (415) 399-0140 Fax: (415) 399 .0299
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i . U
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U5/06/94 13:36 ‘ 2U226u6993 EPA—UE—A IR t JQU2
I I UNITED STATES ENVIRONMENTAL PROTEtTJON AGENCY
WASHINGTON, D.C. 20460
HAY 031294
OFFICE OF ENOtEMEUT
SUBJECT: Clarification of Oil Pollution Act Responsibilities
Among ORE, OSRE, and OC in the New Enforcement
Organization
FROM: Scott C. Fulton s CT,cZZ..._
Deputy Assistant Administrator for Enforcement
TO: Robert Van Heuve].en, Director-Designate
Office of Regulatory Enforcement, OECA
Bruce N. Diamond, Director-Designate
Office of Site Remediation Enforcement, OECA
Elaine Stanley, Director-Designate
Office of Compliance, OLCA
I understand that there is some confusion over interpreting
the OPA decision recorded on page 5 of Steve Herman’s November
30, 1993, memorandum entitled, “Enforcement Reorganization:
Progress Report.” This memorandum is intended to clarify that
OPA division of responsibility among ORE, OSRE, and OC by
providing more specifics.
The Office of Regulatory Enforcement will have the
responsibility for all Section 311 administrative penalty
actions, whether under Section 311(b) (3) or section 311(j). That
office will also carry OECA’s role in judicial referrals for
civil violations of both section 311(b) (3) and Section 311(j).
ORE will have the new office’s responsibility for policies and
guidances associated with these enforcement actions, such as
penalty policies 1 ORE shall be OECA’s point of contact with
other government agencies, such as the Department of Justice,
the Coast Guard, and the states, in these areas.
The Office of Site Remediation Enforcement will have the
OECA responsibility for EPA ’s section 311(c) and (e) response
orders, section 311(e) referrals, and any civil penalty cases
alleging the violations of those orders. OSRE will carry OECA’s
role in the development and issuance of guidances and policies
associated with Section 311(c) and (e) activities, such as the
development of any model orders that OECA may reconmend for
Regional use. OSRE shall be OECA’s point of contact with othet
Printed on Recycled Paper
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—2—
government agencies, State and federal, for Section 311(c) and
Ce) activities.
Any cost recovery claims on behalf of the Coast Guard that
relate exclusively to Section 31 1(c) or (a) activities will be
handled by OSRE. The coordination of any natural resource damage
trustee claims relating exclusively to section 3 1 1(c) or (e)
activities will be the responsibility of OSRE; all other tnstee
claims will be coordinated by ORE.
In any judicial action in which both Section 31 1 (c) or (e)
claims are raised together with Section 31 1(b) (3) or Section
311(j) claims, each office will have OECA authority for its part
of the joint case.
As noted in the Assistant Mministrator’s memorandum, the
Office of Compliance “will take the lead on monitoring for
compliance with requirements regarding the development of spill
plans.” This compliance monitoring responsibility extends to all
Section 311(j) plans, whether under the SP eC or the spill
response program. DC will also take the lead for inspection
guidance and inspection related issues. C C will set national
compliance and, with ORE and OSRE, enforcement OPA priorities.
Finally, CC will participate in regulatory development pertaining
to OPA compliance issues.
I hope this more complete explanation will answer any
questions that may have been raised by the early, brief
description of responsibilities.
cc: Steven Herman
Henry Longest, OSWER
Deputy Regional Administratrs
John Cruden, DCJ
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0Th ENFORCEMENT CONTACTS
* Indicates Primary Contacts Updated 9/9/98
REGION 1
J.F.K. Federal Building
Boston, MA 02203
*Donald Grant (SEW)
311 Enforcement Coordinator
Water- Technical
Office of Environmental
Stewardship
Phone: (617) 565-3280
Fax: (617) 565-1141/3335
*Tonj Bandrowicz ( gEL)
Legal Regulatory
Office of Environmental Stewardship
Phone: (617) 565-3316
Fax: (617) 565-1141/3335
Dennisses Valdés, Chief (HER)
Emergency Response
Office of Site Remediation
and Restoration
Phone: (617) 573-5715
Fax: (617) 573-9662
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REGION 2
2890 Woodbridge Avenue
Edison, NJ 08837-3679
Christopher Jimenez, MS-211
On-Scene Coordinator
Oil Program Team
Response and Prevention Branch
Emergency and Remedial
Response Division
Phone: (732) 906-6847
Fax: (732) 321-4425
Michael Hodanish, MS-211
On-Scene Coordinator
Oil Program Team
Response and Prevention Branch
Emergency and Remedial
Response Division
Phone: (732) 321-4372
Fax: (732) 321-4425
*Doug Kodama, MS-211
Team Leader
Oil Program Team
Response and Prevention Branch
Emergency and Remedial
Response Division
Phone: (732) 906-6905
Fax: (732) 321-4425
Steve Touw, MS-211
On-Scene Coordinator
Oil Program Team
Response and Prevention Branch
Emergency and Remedial
Response Division
Phone:(732) 906-6900
Fax: (732) 321-4425
Office of Regional Counsel
290 Broadway, 16th Floor
New York, NY 10007-1866
*Timothy C. Murphy, 2ORC\WGL
Phone: (212) 637-3236
Fax: (212) 637-3202
2
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REGION 3
1650 Arch Street
Philadelphia, PA 19103-2029
*Karen Melvin, Chief (3HS32)
Removal Enforcement & Oil Sec.
Removal Branch
Haz. Site Cleanup Division
Phone: (215) 814-3275
Fax: (215) 814-3254
Linda Ziegler (3HS32)
FRP Coordinator
Removal Enforcement & Oil Sec.
Removal Branch
Haz. Site Cleanup Division
Phone: (215) 814-3277
Fax: (215) 814-3254
Regina Starkey (3HS32)
SPCC Coordinator
Removal Enforcement & Oil Sec.
Removal Branch
Haz. Site Cleanup Division
Phone: (215) 814-3292
Fax: (215) 814-3254
*Danjel Isales (3RC22)
Office of Regional Counsel
Phone: (215) 814-2647
Fax: (215) 814-2603
303 Methodist Building
Wheeling, WV 26003
Paula Curtin (3HS32)
Spill Enforcement Coordinator
Removal Enforcement & Oil Sec.
Phone: (304) 234-0256
Fax: (304) 234-0259
3
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REGION 4
6]. Forsyth Street
Atlanta, GA 30303
*Matthew B. Monsees
On-Scene Coordinator/
OPA Enforcement Coordinator
Oil Section/ERRB
Emergency Response/Removal Br.
AFC 11th Floor
Phone: (404) 562-8749
Fax: (404) 562-8699
Carol Monell, Section Chief
Oil Section/EREB
Emergency Response/Removal Br.
AFC 11th Floor
Phone: (404) 562-8719
Fax: (404) 562-8699
Bob Rosen
On-Scene Coordinator
SPCC/FRP Coordinator
Oil Section/ERRB
Emergency Response/Removal Br.
AFC 11th Floor
Phone: (404) 562-8761
Fax: (404) 562-8699
George Starr
Enforcement Specialist Asst.
Oil Section/ERRB
Emergency Response/Removal Br.
AFC 11th Floor
Phone: (404) 562-8768
Fax: (404) 562-8699
*Marja J. Cottrell
Associate Regional Counsel
Environmental Accountability
Division
AFC 13th Floor
Phone: (404) 562-9560
Fax: (404) 562-9486
4
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REGION 5
77 West Jackson Blvd.
Chicago, IL 60604
*Beverly Kush, SE-5J
Oil Planning & Response
Section
Emergency Response Branch
Superfund Division
Phone: (312) 353-8200
Fax: (312) 353-9176
Barb Carr, SE-5J
SPCC Coordinator
Oil Planning & Response
Section
Emergency Response Branch
Superfund Division
Phone: (312) 886-7187
Fax: (312) 353-9176
Beth Henning, SE-5J
Oil Planning & Response
Section
Emergency Response Branch
Superfund Division
Phone: (312) 886-5892
Fax: (312) 353-9176
*Jeff Cox, C-14J
Office of Regional Counsel
Phone: (312) 353-3112
Fax: (312) 886-0747
Pad ta Klejwa, C-14J
Office of Regional Counsel
Phone: (312) 353-8917
Fax: (312) 886-0747
5
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REGION 6
1445 Ross Avenue
Dallas, TX 75202-2733
*Roger C. Hartuxig (6SF-RP)
Enforcement Coordinator
Preparedness & Prevention Team
Response & Prevention Branch
Superfund Division
Phone: (214) 665-8561
Fax: (214) 665-7447
Jimmy Graham (6SF-RP)
Preparedness & Prevention Team
Response & Prevention Branch
Superfund Division
Phone: (214) 665-2272
Fax: (214) 665-7447
Ky Nichols (6SF-RP)
Preparedness & Prevention Team
Response & Prevention Branch
Superfund Division
Phone: (214) 665-6783
Fax: (214) 665-7447
Jim Staves, Leader (6SF-RP)
Preparedness & Prevention Team
Response & Prevention Branch
Superfund Division
Phone: (214) 665-6485
Fax: (214) 665-7447
*Mjchael C. Barra (6SF-DL)
Senior Attorney
Litigation & Support Branch
Superfund Division
Phone: (214) 665-2143
Fax: (214) 665-6460
Amy McGee (6SF-DL)
Attorney
Litigation & Support Branch
Superfund Division
Phone: (214) 665-8063
Fax: (214) 665-6460
Paul Wendel (6SF-OL)
Attorney
Litigation & Support Branch
Superfund Division
Phone: (214) 665-2136
Fax: (214) 665-6460
6
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REGION 7
726 Minnesota Avenue
Kansas City, Kansas 66101
*Bob Webber
Environmental Engineer
NPDES & Facilities
Management Branch
Water, Wetlands & Pesticides
Division
Phone: (913) 551-7251
Fax: (913) 551-7765
Scott Hayes
On-Scene Coordinator (SPCC)
SUPR/Emergency Response &
Removal Branch
Phone: (913) 551-7670
Fax: (913) 551-7948
Julie Van Horn
Assistant Regional Counsel
Multimedia Branch
Office of Regional Counsel
Phone: (913) 551-7889
Fax: (913) 551-7925
*LaSandra Pearl
Assistant Regional Counsel
Superfund Branch
Office of Regional Counsel
Phone: (913) 551-7157
Fax: (913) 551-7925
Denise Roberts
Assistant Regional Counsel
Superfund Branch
Office of Regional Counsel
Phone: (913) 551-1349
Fax: (913) 551-7925
7
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REGION 8
999 18th Street, Suite 500
Denver, CO 80202-2405
*Jane Nakad, BENF-T
Enforcement Specialist
Office of Enforcement,
Compliance & Enviro. Justice
Technical Enforcement Program
Phone: (303) 312-6202
Fax: (303) 312-6409
*Jim Eppers, 8ENF-L
Enforcement Attorney
Phone: (303) 312-6893
Fax: (303) 312-6953
Martha Wolf, BEPR-ER
SPCC/FRP
Emergency Response Program
Ecosystems Protection &
Remediation Office
Phone: (303) 312-6839
Fax: (303) 312-6962
David Golden, 8ENF-T
Enforcement Specialist
Technical Enforcement Program
Phone: (303) 312-6501
Fax: (303) 312-6409/6826
*Elyana Sutin, 8ENF-L
Senior Enforcement Attorney
Office of Enforcement,
Compliance & Enviro. Justice
Legal Enforcement Program
Phone:(303) 312-6899
Fax: (303) 312-6953
8
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REGION 9
75 Hawthorne Street
San Francisco, CA 94105
*Miche].le Rogow, SFD-l-4 Bill Robberson, SFD-1-4
Oil Team Team Leader, Oil Team
Superfund Division Superfund Division
Phone: (415) 744-2335 Phone: (415) 744-2337
Fax: (415) 744-1916 Fax: (415) 744-1916
Terry Brubaker, Chief, SFD-8 Steve Calanog, SFD-l-4
Office of Emergency Response Oil Team
Superfund Division Superfund Division
Phone:(415) 744-2293 Phone:(415) 744-2327
Fax: (415) 744-1916 Fax: (415) 744-1916
*Laurje Williams, ORC-3
Office of Regional Counsel
Phone: (415) 744-1387
Fax: (415) 744-1041
9
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REGION 10
1200 Sixth Avenue
Seattle, WA 98101
*Chrjs Field, Program Manager
Environmental Cleanup Unit 1
Office of Enviro. Cleanup
Phone: (206) 553-1674
Fax: (206) 553-0124/0175
*Kejth Cohon, SO-iSS
Off ice of Regional Counsel
Phone: (206) 553-2149
Fax: (206) 553-0163
Jeff Kopf, SO-155
Office of Regional Counsel
Phone: (206) 553-1477
Fax: (206) 553-0163
Car]. Ritz, ECL-116
On-Scene Coordinator
Environmental Cleanup Unit 1
Off ice of Enviro. Cleanup
Phone: (206) 553-1671
Fax: (206) 553-0124/0175
Michael Sibley, ECL-116
On-Scene Coordinator
ERSC Unit 1
Office of Enviro. Cleanup
Phone: (206) 553-1886
Fax: (206) 553-0124/0175
*Matt Carr
OSC--CERCLA & OPA
Phone: (907) 271-3616
Fax: (907) 271-3424
ALASKA OPERATIONS OFFICE
222 West 7th Avenue, No. 19
Anchorage, Alaska 99513-7588
Mark Ryan
Special Counsel
Office of Regional Counsel
Phone: (208) 378-5768
Fax: (208) 378-5744
IDAHO OPERATIONS OFFICE
1435 North Orchard Street
Boise, ID 83706
10
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HEADQUARTERS
401 M Street, S.W.
Washington, DC 20460
*Dan Chadwick (2223A)
OECA/Off ice of Compliance
Manufacturing, Energy, &
Transportation Division
Phone: (202) 564-7054
Fax: (202) 564-0039
*Bob Keriney (2273A)
OECA/Office of Site
Remediation Enforcement
Policy & Program Evaluation
Division
Phone: (202) 564-5127
Fax: (202) 564-0074
* sdy Gordon (2366)
Office of General Counsel
Phone: (202) 260-3596
Fax: (202) 260-0584
*Davjd Drelich (2243A)
OECA/Office of Regulatory
Enforcement
Water Enforcement Division
Phone: (202) 564-2949
Fax: (202) 564-0054
Amy Legare (2272A)
OECA/Office of Site
Remediation Enforcement
Regional Support Division
Phone: (202) 564-4256
Fax: (202) 501-0269
*Dana Stalcup (5203G)
OSWER/Oi l Program Center
Phone: (703) 603-8735
Fax: (703) 603-9116
Janet Weiner (5203G)
OSWER/Oil Program Center
Phone: (703) 603-8717
Fax: (703) 603-9116
11
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Copyright (c) 1991 Environmental Law Institute(R). Reprinted with
permission from ELR(R) - The Environmental Law Reporter(R) .
ANALYSIS 01 ’ THE OIL POLLUTION ACT
The Oil Pollution Act of 1990: Its Provisions, Intent, and Effects
by Russell V. Randle
3
T jl Pollution Act of 1990’ became law on August
18, 1990, and so concluded the legislative response
to the Luon Vaidez oil spill of March 1989. The Valdez
spill, with its dramatic television footage of a huge and
grotesque environmental disaster, was the “Pearl Harbor”
of the U.S. environmental movement It galvanized public
support behind legislation to assure that future oil spills are
minimized, that effective responses are made to those that
do occur, and that those responsible pay for the damages
and are subject to severe penalties.
It is impossible to understand the Oil Pollution Act of
1990 without frequently referring to the VaLdez spill and
other oil tanker accidents that occurred in 1989 and 1990.2
Congress plainly intended that these should not be repeated,
as almost any page of the legislative debates makes clear.
It would be a mistake, however, to view the Oil Pollution
Act as a response only to these incidents. Congress had
been working for almost 15 years to consolidate and ra-
tionalize oil spill response mechanisms under various fed-
eral laws, including §311 of the Federal Water Pollution
Control Act (the Clean Water Act). 3 the Deepwater Port
Act of 1974, the Trans-Alaska Pipeline Authorization Act
of 1973 (‘l’APAA),’ the Outer Continental Shelf Lands Act
Amendments of 1978 (OCSLA), 6 as well as to harmonize
these oil spill mechanisms with state laws, international
conventions, and other federal environmental law, espe-
cially the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 (CERCLA or Super-
fund).’ several occasions, one House or the other passed
a comprehensive oil spill bill, and in 1986 both Houses did,
only to have the bills die in the conference committee
because the conferees were unable to resolve political and
philosophical differences over preemption of state law by
federal standards and the relationship between the federal
standards and international conventions.
Mr. Randle is a partner with Patton, Boggs & Blow in Washington, D C.
His practice includes hazardous waste, air and water pollution, toxic
substances, environmental impact analysis, and environmental liability in
real estate transactions. Mr. Randle graduated from Princeton University
and Yale Law School. where he was an editor of thc Yale Law Journal.
1. 33 U Sc §12701-2761, tQ4Stat. 484, ELR STAT OttPou_00l-034.
2. These incidents tncludc the Mega Borg fire and explosion in the
Gulf of Mcxico in the summer of 1990. the American Trader spill
of about 400,000 gallons of oil near the southern California coast
in February 1990, and a rash of incidents in late June 1989
3 33 U S C §1321, ELR STAT FWPCAO39 Section 311 wasinitially
cnacted in 1970 as the Water Quality Improvement Act of 1970,
largely in response to the oil cpu 1 from an oil production platform
off thc coast of Santa Barbara, California, in January 1969 It was
incorporated into the Fcdcral Water Pollution Control Act of 1972,
Pub L No 92-500, 86 Stat 816, and amended also to address
hazardous substances It was amended in 1978 to resolve a lawsuit
concerning hazardous substance spill reporting and responses to it
It had not been matcnally amended until the Oil Spill Act was
passcd
4 33 USC §11501-1524
5 43 USC §l1651-I S5
6 43 USC §11331-1374
7 42 U S C § 960I-9675. ELR STAT CERCLA 007-075
In 1980, Congress came close to passing comprehensive
oil spill provisions as part of CERCLA, only to have those
provisions omitted in the lame duck session that finally
enacted CERCLA. The omission of those provisions was
attacked on the floors of both the House and Senate as an
important deficiency in CERCLA. 9 Instead of oil spill pro-
visions, CERCLA contained a petroleum exclusion to make
clear that oil spills were to be governed by a different
statutory scheme. That result has complicated liability issues
in Superfund cleanups, and is especially ironic, because the
liability provisions in §107 of CERCLA are patterned on
the oil spill liability provisions of §311 of the Clean Water
Act.
To understand and interpret the new oil spill legislation,
passed unanimously in both Houses, readers must examine
Congress’ unmistakable purpose of preventing future Val-
dez-style disasters, as well as CERCLA and cases interpret-
ing it, for the meaning and function of much of the new
statutory language.
The main elements of the Oil Pollution Act are the fol-
lowing:
(1) a comprehensive federal liability scheme,
addressing all discharges of oil to navigable waters,
the exclusive economic zone, iOand shorelines;
(2) a single, unified federal fund, called the Oil
Spill Liability Trust Fund, to pay for the cleanup
and other costs of federal oil spill response author-
ized at $1 billion, far higher than any of the other
funds previously authorized;
(3) stronger federal authority to order removal
action or to conduct the removal action itself;
(4) drastically revised spill prevention control
and countei-rneasure plan requirements for onshore
facilities, offshore facilities, and vessels;
(5) tougher criminal penalties;
(6) higher civil penalties for spills of oil and for
spills of hazardous substances;
(7) tighter standards and reviews for licensing
tank vessel personnel, and for equipment and op-
erations of tank vessels, including the requirement
of double hulls;
(8) no preemption of state laws and an endorse-
ment of the United States’ participation in an inter-
national oil spill liability and compensation
scheme, and
(9) several provisions pertinent to Prince Wil-
liam Sound, to Alaska, and to other portions of the
United States
The Act conlpnses nine titles. Title I (Oil Pollution Lia-
bility and Conipensation) contains the definitions used in
the Act, establishes the liability scheme for oil spills, pro -
9 8cr, e ç thc cirrecpondcnce from Sen torc Robert Stafford (R-Vt)
4 nd Jconin i .indlph (D-\V Va ) to Rcrrcscntacive James Florun
(D-”J J . Li ‘ ci nvr t1tsroay or n w CourncitcNsIvE ENvlRo ’
ML nAl Cosu’ I \SATIOU AND L 1ADII.rry ACT or 1980, 97th Cong. 2d
Se ’ c (1983i r,’r:nted at Scnal No 97-14, at 774-75
8 See, eg, S 2799, passed by the Senate on September 28, 1986, and
II R 2005, pasced by the House on October 8, 1976
10 See i,ifra notc 17 and accompanying tc 5t
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4
OIL POLLUTION DESKBOOK
vides the mechanisms for recovery from the Oil Spill Li-
ability Trust Fund and from responsible parties, and estab-
lishes financial responsibility requirements. Title U (Con-
forming Amendments) makes conforming changes in the
intervention on the High Seas Ac t , tt the Clean Water Act,,
the Deepwaler Port Act, and OCSLA. Thie HI (International
Oil Pollution Prevention and Removal) expresses the sense
of Congress regarding future participation in international
oil spill prevention and removal regimes and directs the
Secretary of State to review international agreements and
treaties and to negotiate agreements with Canada regarding
oil spills on the Great Lakes, Lake Champlain, and Puget
Sound.
Title IV (Prevention and Removal) has three subtitles.
Subtitle A (Prevention) provides for the review of infor-
mation contained in the National Driver Register’ 2 for is-
suing licenses, certificates of registry, and merchant mari-
ner’s documents; provides for the suspension and revocation
of those documents for alcohol and drug abuse incidents;
and establishes prevention measures, which include man-
ning standards for foreign and domestic tank vessels, the
requirement for a study on tanker navigation safety stand-
ards, and the establishment of double hull requirements for
tank vessels. Subtitle B (Removal) provides federal removal
authority and requirements for the national planning and
response system. Subtitle C (Penalties and Miscellaneous)
strengthens the civil and criminal penalties available to the
government under the Act.
Title V (Prince William Sound Provisions) contains sev-
eral provisions designed specifically to avoid future spills
in Prince William Sound. Title VI contains miscellaneous
provisions. Title VII provides for art oil pollution research
and development program. Title VIII contains provisions
dealing with the Trans-Alaska Pipeline System and oil spills
in the Arctic Ocean. Title IX transfers funds from the several
preexisting federal oil spill funds into the single fund es-
tablished by this Act.
Liability Provisions
Title I of the Oil Pollution Act contains the liability provi-
sions. The provisions are modeled closely on those of CER-
CLA and of §311 of the Clean Water Act, and show the
influence of nearly a decade of CERCLA litigation. Com-
pared with §3 11, however, the Oil Pollution Act makes it
easier for the government to establish liability against a
party responsible for causing or contributing to an oil dis-
charge or to a substantial threat of an oil discharge.
Standard of Liability and Responsible Parties
Section 1002(a) of the Act provides:
Notwithstanding any other provision or rule of law, each
responsible party for a vcssel or a facility from which oil
is discharged, or which poses a substantial threat of a
discharge of oil, into or upon the navigable waters or
adjoining shorelines or the exclusive economic zone is
liable for removal costs and damages under the Act
The Act defines “responsible parties” in §1001(32). For
ii 33USC. I486.
12. £ee23VSC *401 note
vessels, the responsible parties are the persons owning the
vessel, operating it, or chartering it by demise. ’ 3 For onshore
facilities, the responsible parties are the owners and opera-
tors. ‘ 4 For offshore facilities, the definition is complicated
by the requirements for offshore leasing under OCSLA or
state law, but includes persons leasing the area in which
the facility is located, the permittee of the area in which
the facility is located, or the holder of a right of use or
easement for the area in which the facility is located.
licensees of deepwater ports and persons owning or oper-
ating a pipeline are also responsible persons. 16
The definitions of “vessels” and “onshore and offshore
facilities” closely follow the definitions in §311 of the Clean
Water Act and § 101 of CERCLA. Simply stated, a facility
is defined as anything that stands still, or anything that
moves, except a vessel, which is separately defined. For
practical purposes, almost any location from which oil is
discharged and from which oil may reach surface waters
in the United States or the exclusive economic zone is
included in these definitions.
The conferees eliminated provisions in the House’s ver-
sion of the bill that would have made the owner of the cargo
secondarily liable for the removal costs incurred as a result
of the spill. This liability was capped at 50 percent of these
costs, and the other responsible parties had to pay their
shares before this secondary liability provision became ef-
fective. The House’s provision, if adopted, would have
created a new class of liable parties under the Oil Pollution
Act, similar to “generator” liability under CERCLA. Its
elimination shows that Congress did not want the Oil Pol-
lution Act to follow that controversial aspect of CERCLA.”
Rather, the conferees followed the Senate’s version of the
bill, stating in §1001(17) that “liable” and “liability” shall
be construed as the standard of liability that obtains under
§311 of the Clean Water Act. ‘ The courts have repeatedly
determined that this standard—which is the CERCLA
standard—provides for strict, joint, and several liability. 20
The conferees made an additional change to try to assure
that the Oil Pollution Act meshed with CERCLA. They
modified the Clean Water Act’s broad definition of “oil”
to exclude fractions of oil that are specifically designated
as hazardous substances under §101(14) of CERCLA. 2 ’
That section incorporates the following toxic, hazardous,
or priority pollutants, wastes, or substances under other
environmental statutes:
§100l(32)(A), ELR STAT Ott. Pou.. 004.
001 (32)(B), ELR Smi OIL Pou. 004
§t001(32)(C). ELR STAT OIL POLL 004.
§1001(32)(D), (E), ELR S T OIL Pou . 004
Thc c clusuvc economic zone is thc zone contiguous to the tcmtonat
sea, extending 200 miles from shore. Proclamation No 5030 (Mar.
10, 1983),reprin red in 19 3 US CODECONG &AOMiN NEWS A18-29
18 Nonetheless, slate laws may in some cases permit claims against
cargo owncrs
19 The House version of what became § 1002(a) had cxpbciily provided
that such liability would be cinci, joint, and several among the
rrsçioicible pasties The difference bctwccn this version and the
Sc,i.,ic ‘-r’iori is probably not significant
20 Ti,ia lri ,,kuin, Inc v United Staics, 12 Cl Ct 178, 180. 17 ELR
210(11 I9 7), United States v M)V Big Sam, 681 F2d 432, 12
ELR 2(1994 5th Cir), relt’g denied. 693 F2d 451 (5th Cir 1982),
c ci i denied, 462 U ‘. 1132, 13 ELR 20226 ( 19R3), Burgess v MN
Tamano, 564 F 2d I b (1st Cit ), cerl denied, 435 US 941 (1977)
21 § 1001(23), ELR STAT OIL Pou_ 004
13
14
15
16
17.
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ANALYSH Ut tnt. tJa.n.n.i.,vzj,.n’, in.. s
• hazardousairpoliutantsunder lI2oftheClean
AirA*
• to dcorprioritypollutantsunder §3olorbanrd-
oussubstancesunder l3ll oftheCleanWaterAct
• imminently hazardous chemical substances un-
der §7 of the Toxic Substances Control Act;
• hazardous wastes under the Resource Conserva-
tion and Recovery Act (RCRA); and
• hazardous substances designated under §102 of
This language may be ambiguous, however, because crude
oil naturally contains such substances as benzene that are
listed hazardous substances. This overlap has created inter-
pretive problems under the comparable language in CER-
CLA. Where the government has proceeded under CER-
CIA, the petroleum exclusion has not been a successful
defense except where the material has been crude oil or a
newly refined fraction, such as gasoline. Congress appears
to have changed this provision and to have deleted the
secondary liability for cargo owners in an effort to assure
that CERCLA or the Oil Pollution Act, not both, are applied
to spills. Congress wants oil spills—including crude oil and
refined product —to be addressed under the Oil Pollution
Act and hazardous substance releases under CERCLA. (For
spills of contaminated oils, for example, used oils, the gov-
ernment may have a choice.) Because the procedures and
funding mechanisms under CERCLA and the Oil Pollution
Act have important differences, the division is sensible.
Whether the courts will extend this distinction to private
party cases brought under both statutes is unclear.
Defenses and Exclusions to Liability
The defenses and exclusions to liability provided by the Oil
Pollution Act are more limited than those under §311 of
the Clean Water Act and under §107(b) of CERCLA. Sec-
tion 1003(a) of the Oil Pollution Act exonerates the respon-
sible party from liability imposed by §1002 if that party
proves by a preponderance of the evidence that the incident
resulted solely from ( I) an act of God; (2) an act of war;
(3) an act or omission of a third party, other than an em-
ployee, agent, or party in a contractual relationship with the
responsible party; or (4) some combination of (1), (2), or
(3).
The statute’s definition of “act of God” 27 is identical to
CERCLA’s. An act of God for these purposes “means
an unanticipated grave natural disaster or other natural phe-
nomenon of an exceptional, inevitable, and irresistible char-
acter the effects of which could not have been prevented
or avoided by the exercise of dire care and foresight.” Thus,
bad weather, such as seasonal hurricanes, or earthquakes
in areas where earthquakes are common, probably will not
constitute an act of God defence “Act of war” is not defined
22. 42U SC. §7412, ELR STAT CAA 014
23. 25 U.s C. §2 O6. ELR STAT TSCA Oi l
24 42 U SC **6901-6992k, ELR STAT RCRA 001-050
25 42 USC §9601(14),ELR S iA T CERCLA 007
26 Wilshire Wesiwooct A%st,&c v Ati,ni,c Richl9eld Corp , 881 F2d
801, 19 ELR 21313 9rh C a umfl9 United States v Wade, 577 F
Supp 1321, 14 ELR 20096 j 7 I ) N ;9i 13)
27 § 100 1 (1), ELR SrAT Otr Poa fl i
28 CERCLA. §101 (l), 42 U S C 5 96Ci() FIR STAT CERCLA 007
under this statute, nor under CERCL% or the a Water
Act Congress likely had in mind the sinking of a vessel
by a hostile foreign power.
The statutory language setting forth the act of a third-party
defense is also virtually the same as that of CERCLA and
§311 of the Clean Water Act. The responsible party must
establish by a preponderance of the evidence that it (I)
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 (2) took pre-
cautions against foreseeable acts or omissions of any such
third party and the foreseeable consequences of those acts
or omissions. ‘
The Oil Pollution Act, however, omits an important Clean
Water Act defense. Under §31 l(f)(IXC) of the Clean Water
Act, “negligence on the part of the United States Govern-
ment” is a complete defense if the discharge resulted solely
from that cause. That defense had considerable importance
where the U.S. Coast Guard was responsible for maintaining
aids to navigation, and where other agencies were respon-
sible for publishing navigational charts, maintaining chan-
nel depths, and forecasting the weather,
The Oil Pollution Act excludes from its liability provi-
sions three kinds of discharges: (I) discharges allowed by
a permit issued under federal, state, or local law; (2) from
a public vessel; or (3) from an onshore facility that is subject
to TAPAA. 3° The exclusion for discharges permitted by
federal, state, or local permits is similar in concept to the
“federally permitted release” definition found in § 101(10)
of CERCLA and to similar language found in §31 l(a)(2)
of the Clean Water Act defining “discharge;” however, the
scope of the Oil Pollution Act’s exclusion is different. The
exclusion for federally permitted discharges was added in
1978 to §311 of the Clean Water Act to settle litigation
challenging the Environmental Protection Agency’s
(EPA’s) hazardous substance release reporting definitions.
Section 311 excludes not only discharges in compliance
with a permit, but also discharges that might be charac-
terized as bypasses or upsets, or that might be violations
of the permit conditions. It states:
discharges resulting from circumstances identified and
reviewed and made a part of the public record with
respect to a pennit issued or modified under section 402
[ the National Pollutant Discharge Elimination System
(NPDES) permit provision), and subject to a conditiofr
in such permit; and
continuous or anticipated intermittent discharges from a
point source, identified in a permit application under
section 402 of this Act, which are caused by events
occurring within the scope of relevant operating or treat-
ment systems.
Virtually identical language appears in §101(]O)(13) and
(C) of CERCLA.
These CERCLA and Clean Water Act exclusions left the
regulation ofpoint source discharges under the Clean Water
Act to permits issued under the NPJDES and to the federal
or state authorities issutng such permits. Thus, bypasses
and upsets, or other NPDES violations resulting in the
discharge of such regulated pollutants as cr1 arid grcace,
were to be reported pursuant to the aprropn n c NPDES
29 §1003(a)(3), ELR STAr Oni Pot I 005 -
30 § 1 002 (e ), El _It STAT OIL POLL 005
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6
OIL POLLUTION DESKBOOK
regulations and permit provisions, not under §311 reporting
requirements. Additionally, the cleanup and remedial pro-
visions of §311 and CERCLA could not be invoked against
private parties to address such discharges, even though
e forcement action could be taken under §309 of the Clean
Water Act for discharges that violated NPDES require-
ments.
The Oil Pollution Act does not include these provisions
for such circumstances as bypasses or upsets, or for viola-
tions by discharges or parameters addressed in permit con-
ditions. Instead, the new statute simply excludes discharges
“permitted by a permit issued under Federal, State, or local
law.” Thus, if an NPDES point source suffers a bypass,
upset, or violation that results in the discharge of oil that
exceeds permit conditions, 3 ’ the discharger will probably
be responsible for removal costs under the Oil Pollution
Act. In one respect, however, the statutory language is
broader than the §311 and CERCLA exclusions because it
mentions “local” permits. Since no discharge to navigable
waters may take place from a point source without an
NPDES permit, the only potential discharges addressed by
local permits would appear to be discharges to publicly
owned treatment works pursuant to a pretreatment permit.
In Clean Water Act cases under §309, the Department
of Justice has sought and obtained environmental assess-
ment, remediation, and environmental restoration from al-
leged violators. 32 Its authority to do so for oil discharges
is enhanced by this change. However, its authority to do
so for hazardous substances and conventional pollutant dis-
charges is undercut by the absence of an equivalent change
in CERCLA and other Clean Water Act provisions.
Like §311 of the Clean Water Act, the Oil Pollution Act
does not cover discharges from public vessels, except where
the vessel is engaged in commerce. Discharges from on-
shore facilities subject to TAPAA are also excluded from
coverage, leaving to TAPAA the regulation and enforce-
ment of requirements against such installations.
Recoverable Removal Costs and Damages
Section 1002(b) defines the removal costs and damages that
can be recovered from responsible parties. With one change.
“remove” and “removal” are defined under § 1001(30) the
same as they are under §311 (a)(8) of the Clean Water Act.
The change is to include containment of oil or hazardous
substances, as well as the actual cleanup. “Remove” and
“removal” are defined differently in CERCLA than they
are in Clean Water Act and the Oil Pollution Act.
“Removal costs” is also separately defined by the Oil
Pollution Act 33 to make clear that costs incurred to respond
to substantial threats of discharge of oil are also recoverable,
as are the costs to prevent, minimize, or mitigate oil pol-
lution from such a discharge. Curiously, the definitions of
31. Some NPDES pcrmits contain bypass or upset provisions so that
these would not constitute NPDES violations. Good legal practice
is to incorporate such provisions explicitly into permits where poc-
sible The new Oil Pollution Act makes it even more Important for
dicchargcrs to obtain such provisions if they bclicvc bypa ccs ir
upsets are likely to occur.
32 See. e g. 55 Fed Reg 32320 (Aug 8, 1990) (proposed cctilcmrnt
of Clean Water Act case including cleanup provisions for contimi-
natcd &cd ,nicnls at IJSX’s Gary. Indiana, steel mill)
“remove” and “removal”Jncludc removal of hazardous
substances, but “removal costs” is defined to address only
oil discharges. Congress meant to address only oil dis-
charges in the liability provisions, leaving to CERCLA the
recovery of such costs for hazardous substances.
Recoverable removal costs for the federal and state gov-
ernments, and for Indian tribes, are those incurred under
§311(c), (d), (e), or (1) of the Clean Water Act, the Inter-
vention on the High Seas Act, or stale law. The Clean
Water Act provisions authorize the federal government to
take removal actions for oil or hazardous substances dis-
charged or threatened to be discharged to navigable waters
or shorelines, to respond to marine disasters creating a
substantial threat of a pollution hazard, and to initiate legal
action to abate such threats.
Recoverable removal costs for any other person, presum-
ably including individuals, other governmental entities (e.g.,
municipalities), corporations, etc., are “any removal costs
incurred by any person for acts taken by the person which
are consistent with the National Contingency Plan.” 3 ’ This
language follows the language in §107(a)(4)(B) of CER-
CLA, which has been construed to allow private-party ac-
tions for response costs under CERCLA. This right of
action fills a gap in §311, which, providing no equivalent
right of recovery, leaves private claimants for removal costs
to their rights under common law and admiralty law.
The damages provisions make clear that such private
actions are intended to be included, as are actions by state
and local governments. Recoverable damages are grouped
in six categories, several of which appear to overlap:
(1) natural resource damages;
(2) damages to real and personal property, in-
cludrng loss of use of such property;
(3) loss of subsistence use of natural resources;
(4) loss of tax and other revenues;
(5) loss of profits or earning capacity; and
(6) increased costs of public services.
Three of these classes of damages from oil discharges—
natural resource damages, loss of tax revenue, and increased
cost of public services—are recoverable only by govern-
mental entities. Natural resource damages are recoverable
by four classes of natural resource trustee: federal, state,
foreign government, or Indian tribes. Loss of tax and other
forms of governmental revenue are recoverable by the
United States, the states, and political subdivisions of states.
The increased cost of public services (including such items
as fire protection) caused by an oil discharge, are recover-
able by the same claimants. Presumably, by excluding po-
litical subdivisions from the claimants that can recover
natural resource damages, Congress meant to limit natural
resource claims to properly designated trustees.”
Thu other three classes of damages for oil discharges over-
lap, and are recoverable by private claimants as well as by
34 33 USC §*147l-I487
35 §l002(b)(I)(B), FLR STAT Ott Pou. .. 005.
36 Walls v Wa ic Rc ources Corp.761 F2d 311, 15 ELR 20438(6th
Cir 1985)
37 The situation under CERCLA may be different, since at least two
courts have allowed cities to plead natural resource damage claims
S ee City of New York v Ex on, 633 F Supp 609, 618, 16 ELR
20S50, 20t 54 (S D NY 1986), Town of Boonton v. Drew Chcm.
Corp, 621 F Supp 663,16 ELR 20328 (DNJ. 1985)
33 §100 1(3 I) ELR S’AT On Pou. 004
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ANALYSIS OF THE OIL POLLIT ION ACT
governments. The owner or lessor of personal or real property
may recover damages for nj n7 to such property or economic
loss from its de uction. Any claimant may recover for loss
of suheisencc use of natural resources 5 regardless of the
ownership or m n gement of such resources. LikeWiSe, any
claimant may recover for damages equal to the loss of profits
or impairment of earning capacity caused by the injury, loss,
crdes ruction of real or personal property or natural resources.
Until now, claimants for these Idnds of damages had to rely
on common law and admiralty for recovery.
The claims for damages, as opposed to removal costs,
are likely to be subject to a jury thai. The United States
contends that claims for response costs under CERCLA are
equitable in nature and thus not subject to a claim for jury
trial under the Seventh Amendment. That argument has
prevailed where the issue has arisen under CERCLA. ‘
Presumably, the United States will take the same position
concerning removal costs, and the courts likely will follow
it.
With respect to damages claims, however, there is divided
case authority under CERCLA holding that claims for natu-
ral resource damages are subject to a jury trial. 39 Because
the claims for monetary losses, loss of income, and other
elements of damage are so similar to traditional common
law claims, the Seventh Amendment arguments for jury
trial are strong.
Designed to provide strong incentive for the prompt pay-
ment of meritorious claims, § 1005 of the Oil Pollution Act
governs interest on claims. Responsible parties (or their
guarantors) are liable to claimants for interest from the 30th
day after the claim is presented to the day it is paid. The
rate is pegged to a rate published by the Federal Reserve;
that is, the average of the highest rate for short-term (i.e.,
180 day or less) commercial and finance company paper
for the days the claim is pending. Periods of time may be
excluded from the interest calculation where the payment
is delayed for reasons beyond the control of the responsible
party, or where the responsible party has made an offer that
is greater than or equal to the amount the claimant ultimately
receives.
Liability Limitations
Section 1004 of the Oil Pollution Act, like § 107(c) of
CERCLA and §311(f) of the Clean Water Act, contains
liability limitations. ° The liability limits apply to all re-
moval costs and damages under § 1002. This may be of
limited use to responsible parties, however, because the Oil
Pollution Act does not preempt state law remedies.
The tonnage liability limits of §1004(a) for tankers are
eight times higher than those of §311. The liability limits
for vessels are divided between limits for tank vessels and
for all other vessels. Limits are also set for onshore and
38. See, e g. United States v Wade. 653 F Supp II • 14 ELR 20437
(ED Pa 1984)
39 In rc Acushnct River and New I3cdford Harbor Procecdings rc
AIkgcdPCB Poliution.712F Supp 994 19ELR2 1198(D Mass
19)19) Rut tee United States v \ iik, 653 F Supp II, 14 ELR
20437 (CD Pa 19S4)
40 Both Houccc narrowly defeated efforts u’ delete liibiltty limitations
from the bill The liability limits in lOO-3(.i) ere taken from the
Houcc bill, and were somewhat higher than thoce provided by the
Senate version Liability for the cargo owncrs wa.s dropped from
the I-ioucc hilt however
offshore facilities and deepwater ports, and a method is
provided for determining the limit for mobile offshore drill-
ing units. The limits are to be adjusted for inflation every
three years, based on the consumer price index. ‘
The limits for tank vessels are set at the greater of (I)
$1,200 pergross ton or(2) $10 million if the vessel exceeds
3,000 gross tons. If the vessel is less than 3,000 gross tons,
the limit is $2 million. For nontank vessels, liability is
limited to $600 per gross ton or $500,000, whichever is
greater. The lower limits are based on the lesser threat these
other vessels pose to the environment.
Liability for offshore facilities is limited to the total of
“all removal costs plus $75,000,000.” Notwithstanding
these liability limits and the defenses available under the
statute, the owner or operator of an offshore Outer Conti-
nental Shelf (OCS) facility or a vessel carrying oil as cargo
from such a facility shall be liable for all costs incurred by
the federal, state, or local government as a result of a
discharge or substantial threat of a discharge.’ 2
For onshore facilities and deepwater ports, liability is
limited to $350 million. The liability for classes or categories
of onshore facilities can be adjusted downward by regulation
based on size, throughput, storage capacity, proximity to
sensitive areas, type of oil handled, history of discharges,
and other factors deemed relevant to risk. The limit may
be set as low as $8 million.
The provision for onshore facilities increases the limita-
tion by seven times over §311 (f)(2) of the Clean Water Act,
but changes the bases for reducing such limits. Previously,
the statute limited such changes to installations storing less
than 1,000 barrels of oil; now, no capacity limit exists. The
Secretary or Administrator may make multiple classifica-
tions of onshore facilities, each with its own liability limi-
tation, provided that the regulation considers such factors
as prior history, environmentally sensitive areas, through-
put, and size of the facility.
These liability limits do not apply if the incident was
proximately caused by (I) gross negligence or willful mis-
conduct or (2) a violation of an applicable federal safety,
construction, or operating regulation. Liability is thus un-
limited for such discharges. Moreover, where such gross
negligence, willful misconduct, or a violation occurs, the
limited defenses provided in §1003(a)_—act of God, act of
war, or act of an unrelated third party—are also lost to the
responsible party. These provisions closely follow both
§311 of the Clean Water Act and §l07(c)(2) of CERCLA.
In addition, these liabIlity limits do not apply if the re-
sponsible person fails or refuses to (I) report the incident
as required by law, (2) cooperate with a responsible official
in connection with removal activities; or (3) comply, without
sufficient cause, with an administrative or judicial order
issued under §311(c) or (e) or the Intervention on the High
Seas Act. As discussed in connection with removal author-
ity, the Act follows CERCLA §106 concerning administra-
tive orders and sanctions for failing to obey them The
w.i lvcr of the liability limit assures that cnforcerncrtt of the
removal orders is not undercut by the limit.
41 §1004(d)(4), ELR STAT On. P;LL 1)05
42 § I 004(c)(3), ELR STAT OIL Pot t 005
43 §1004(d)(l), ELR STAT OiL Pot I 005
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S
OIL POLLUTION DESKBOO
Claims Against, and Financial Responsibility of
Guarantors and Responsible Parties
The Oil Pollution Act departs from both CERCLA and the
Clean Water Act in the procedures it establishes for claims
against responsible parties. These procedures make very
clear that the Oil Spill Liability Trust Fund is the fund of
last resort to pay claims under the Act. Instead, the respon-
sible parties and their guarantors are the primary insurers
against claims for removal costs and oil discharge damages.
Section 1014 has no counterpart in CERCLA, the Clean
Water Act, or other major federal environmental statutes.
This provision requires that where possible and appropriate,
the federal government designate the source or sources of
the discharge or threat of discharge. The responsible party
(or parties) and the guarantor, if known, are to be immedi-
ately notified of that designation.
The designated party or guarantor has five days after
receiving notification to deny such a designation. ‘ If no
such denial is made, the designated party is to advertise the
designation within 15 days of its receipt and to explain the
procedures for submitting claims to the designated party.
Otherwise, the federal government will advertise this in-
fot-mation at the designated party’s expense. Such adver-
tising is to continue for at least 30 days.
If the federal government is unable to designate a respon-
sible party, or if both the responsible party and the guarantor
designated deny the designation, or if the vessel causing
the discharge is a public vessel, the federal government
must advertise the procedures for submitting claims related
to such discharge to the Fund.
The responsible parties’ role as primary insurers against
oil spill damages and removal costs is also shown by several
other provisions. Consistent with both CERCLA and §311
of the Clean Water Act, §1010 does not bar indemnification,
hold harmless, and insurance agreements, but rather makes
clear that they do not operate to transfer liability from
responsible parties.
Section 1016 requires that responsible parties for any
vessel over 300 gross tons, using any place subject to the
jurisdiction of the United States, establish and maintain
evidence of financial responsibility up to the maximum
liability limitation applicable to the vessel. Likewise, vessels
using the exclusive economic zone to lighter or transship
oil destined for a place subject to the jurisdiction of the
United States must also demonstrate such financial respon-
sibility. Offshore facilities must also obtain evidence of
financial r’esponsibtlity.
The financial responsibility provisions are similar to those
in §311, but the liability limits and thus financial respon-
sibility to be shown have been dramatically increased. Simi-
lar to the enforcement provisions for financial responsibility
under §311, vessels that violate the financial responsibility
provision may be denied access to U S. ports and waters,
seized, det uned, forfeited, and sold.
A major part of the financial responsibility provisions is
the designation f a guarantor in the United States subject
to U.S. jun¼d lcl ion Tue Oil Pollution Act makes clear that
claimants may procced directly against the guarantor, and
the guarantor may assert the responsible party’s defenses
against the claimant; as well as the defense that the discharge
was caused by the responsible party’s willful misconduct.
In defending against claims submitted to it, the guarantor
may not invoke other defenses it may have in an action
against the responsible party.
The practice under § 1016 is consistent with the procedural
requirements of §311 of the Clean Water Act. Indeed, this
provision expressly provides for the continuation of current
financial responsibility regulations under other law, until
new regulations are promulgated. Nonetheless, until regu-
lations are issued, the current financial responsibility dem-
onstration will often be inadequate to assure that sufficient
resources are available for the cleanup and for compensation
of damages under the new law.
Section 1015 subrogates those paying removal costs and
damages to all the rights, claims, and causes of action the
claimant had under any law for such money. The party
paying such claims, or a responsible party that has denied
liability, may begin a contribution action against other liable
or potentially liable parties pursuant to § 1009. The contri-
bution claims brought pursuant to §1009 may be based on
the Oil Pollution Act, but may include any other law, in-
cluding state law. Contribution claims must be filed within
three years of (1) payment of a claim or (2) entry of a
judgment or judicially approved settlement against the re-
sponsible party. 4 ’
The inclusion of a contribution provision is consistent
with CERCLA. Likewise, case law under §311 provides
for contribution against other liable parties. Unlike CER-
CLA, however, which directs the courts to use equitable
factors to allocate responsibility and to apply federal law,
§1009 provides no guidance about the factors to be applied
in apportioning liability and allows both state and federal
law to be applied. Additionally, CERCLA provides that
where a party resolves its liability to the state or federal
government in a judicially approved settlement or an ad-
ministrative settlement, the contribution actions against the
settling party are cut off. 47 There is no equivalent provision
in the Oil Pollution Act. Consequently, though multi-party
cases are less frequent in the oil spill context than under
CERCLA, settlements of multi-party cases under the Oil
Pollution Act may be more difficult because of unanswered
legal questions about contribution.
Under § 1002(d) where a responsible party contends that
the discharge resulted solely from the act or omission of
an unrelated third party, the responsible party must pay the
claims and is then subrogated to the rights of the claimants
and the Fund to bring a contribution action against the liable
party. This provision follows §31 I(g) of the Clean Water
Act.
Litigation, Jurisdiction, and Statutes of Limit ation
Regulations issued under the Oil Pollution Act are reviewed
only in the U S. Court of Appeak for the District of Co-
lumbia, 18 and challenges to these regulations must be filed
45 §1017(0(3). (4), ELR STAT OIL Poij (ItO
46 United States v Bear Mannc Scrvs . 09 F Supp 710. II ELR
20659 (ED La 1980)
47 § 113(1)(2), ELR STAT CERCLA 039
1 P1cc ni exciticive venue me e”icw c,f re u1.eiinnc in the 0 C Circuit
44 Presumably, the designation iii not come as a surpnce to the
rtcponsiblc party if tJ)c reporting rcquircmcnts of §311 have bc n
complied with
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ANALYSIS OF THE OIL POLLUTION ACT
9
within 90 days of their promulgation. Because these regu-
lafions may not be challenged in a subsequent civil or
criminal enforcement action, high priority is placed on
promptly resolving such challenges.
Claims for removal costs and damages may be filed in
U.S. district court or in state courts of competent jurisdic-
tion. Claimants may choose from many possible venues for
actions filed in district court: any district (1) in which the
discharge occurred, or where damage or injury was suffered,
or (2) in which the defendant resides, may be found, has
its principal office, or has appointed an agent for service
of process.
Damage claims must be filed within three years of when
damages from the discharge are reasonably discoverable
with the exercise of due care, or for natural resources, within
three years after completion of the natural resource damage
assessment. Claims for removal costs must be filed within
three years after completion of the removal action.
These limitation periods are consistent with the periods
provided under §113(g) of CERCLA for removal actions,
although the CERCLA provision is more intricate. Experi-
ence under CERCLA suggests that there is no agreed-upon
cutoff date for completion of a removal action, so the limi-
tations issue may be more ambiguous than the language of
the Oil Pollution Act suggests.
The Clean Water Act does not provide a statute of limi-
tations. The case law for recovery of removal costs under
§311 suggests that cost-recovery actions may be initiated
as late as six years after the incident, on the theory that the
government’s claim is one sounding in contract, for which
there is a six-year statute of limitations under 28 U.S.C.
§2415. Thus, under the new statute, the leisurely proc-
essing of cases that sometimes occurred under §311 will
bar the government’s claims under the new statute of limi-
tations.
The Oil Pollution Act makes clear in two places that its
provisions, unlike CERCLA’s, are not retroactive. A sav-
ings provision in § 1017 states that nothing in this title shall
apply to incidents that occurred prior to enactment, leaving
such claims to be tried under the law as it stood at the time
of the incident. This same principle is stated in positive
terms in § 1020, which applies the Act to incidents occurring
after the date of enactment. Section 6001 has similar lan-
guage. Thus, the Act applies only to oil discharges occurring
after August 18, 1990.
Natural Resource Damages
The Oil Pollution Act, like §311(f) of the Clean Water Act
and §107(f) of CERCLA, provides for the assessment and
recovery of natural resource damages. Section 1006 estab-
lishes elaborate requirements for the assessment and recov-
ery of natural resource damages under § 1002(a), and for
the trustees who assert claims on behalf of the United S,ires,
states, Indian tnbes, and foreign governments. These entities
m-t tach rccover natural resource damages for rccotlrcLc
belonging to, managed by, controlled by, or appcrta ni1g
to such entity “Natural resources” is not defined tinder
was not done under the Clean Water Act, though it is the rule under
the Clean Air Act, RCRA, and CERCLA
49 United States v Dac Rim Fi’hcr-y Co, 794 F2d 1392. 16 ELR
20793 (9th Cir 1986)
§311; the Oil Pollution Act’s definition closely follows
CERCLA’s.
The Act requires designation of the trustees and notifi-
cation of the federal government of which trustees arc
authorized for the states, Indian tribes, and foreign govern-
ments. Trustees axe to assess natural resource damages and
to devise and implement plans for the restoration, rehabili-
tation, replacement, or acquisition of natural resources
equivalent to those destroyed or damaged in an oil spill.
The federal trustees are authorized, if reimbursed, to assist
states and Indian tribes in such assessments and plans. Plans
must be subjected to notice and comment rulemalcing.
Both the Oil Pollution Act and CERCLA appear to assume
that some resources clearly belong to a state, some to the
United States, and some to Indian tribes. As lengthy disputes
over western water rights indicate, however, that assumption
is mistaken. Confusion over which resources are the duty
of which trustee to defend may impair the resolution of
natural resource damage claims under this Act, as it has
under CERCLA.
Congress was very conscious of natural resource damages
as a result of the Valdez spill. It intended that the neW ’
statute, in determining damages, reflect the public’s dismay
at the low values assigned to the deaths of creatures such
as the sea otters killed in the Valdez spill. The legislative
history of § 1006(d), which sets forth the measure of dam-
ages, intended the Oil Pollution Act to follow the D.C.
Circuit’s construction of the similar language in CER-
CLA. 3 ’ The replacement cost of the resource, not its market
value, was to be the primary yardstick for assessing natural
resource damages under the Oil Pollution Act.
The measure of damages provided in § 1006(d) includes
(1) the cost of restoring, replacing, rehabilitating, oracquir-
ing the equivalent of, the damaged natural resources; (2)
the diminution in value of those natural resources pending
restoration; and (3) the reasonable cost of assessing those
damages. The plan devised and approved by the trustee is
to be the basis for determining the cost of restoration and
otherefforts under(1). Thus, the plan may function similarly
to CERCLA’s remedial investigation and feasibility study,
but instead of determining remedy, here the emphasis will
be on restoration.
The Conference Report and the debates make clear that
restoration of damaged resources is the preferred alternative.
The acquisition of equivalent resources “should be chosen
only when the other alternatives are not possible, or when
the cost of those alternatives would, in the judgment of the
trustee, be grossly disproportionate to the value of the re-
sources involved.” 52 Equivalent resources, according to the
Conference Report, arc those th.it “the trustee determines
are comparable to the injured resources. Equivalent re-
sources should be acquired to enhance ihe recovery, pro-
ditctivity, and survival of the ecosystem affected by a dis-
charge, preferably in proximity to the affected arezi.” 55
50 Compare Oil Pollution Act §iOOl(20), ELR STAT OIL POLL 004,
with CERCLA 10l(i6). ELR STAT CERCLA 007
Si Ohio v Department of Tnteriiir, 880 F 2d 432, 19 ELR 21099 (DC
Cir i989) Judge Wjld, writing br the court, reversed :hu’ .c regu-
i iions because the measure of d rn.gcs .ic inadrqii.i’r uT ier CuR-
CLA, in iargc pars because the di,nu’tition in v ltic f ..iturai re-
source’; was too hcasily restncteii to in.irket value’
52 Ii R C0NF Rn’ No 653, i0lst Cong , 2d Scss 108 (tO’ O)
53 1(1
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10
OIL POLLUTION DESKBOOK
New natural resource damage regulations are to be prom-
ulgated by August 1992, and a citizen suit provision is
included to assure that judicial action can be brought to
compel the timely promulgation of these regulations. The
regulations, if followed by the trustee in making the natural
resource damage assessments, will create a rebuttable pre-
sumption in favor of those assessments.
As in CERCLA and §311 of the Clean Water Act, the
money recovered for natural resource damnges is to be used
only to pay for restoration work, for the cost of the assess-
ment, and for the diminution in value. The money is to be
kept in a special interest-bearing account to assure its avail-
ability to the trustee.
Section 1011 requires the federal government to consult
with affected natural resource trustees about removal ac-
tions, and with the governors of affected states when re-
moval actions are completed. These consultations are to
assure that the effects on natural resources of removal ac-
tions are properly balanced with the needs for removal.
The Oil Spill Liability Trust Fund
The Oil Pollution Act consolidates overlapping federal oil
spill liability funds and strengthens the resulting fund so
that adequate federal resources will be available to respond
to spills as large as the Valdez spill and for damages. At
the time of the Valdez spill, the Clean Water Act revolving
fund for oil spills had less than $7 million. The Vatdez
cleanup costs have exceeded $1 billion and are likely to
exceed $2 billion.
Financing the Oil Spill liability Trus Fund
Congress first passed oil spill liability trust fund provisions
in 1986, which were codified in § 4611 and 9509 of the
Internal Revenue Code. Congress amended these provisions
in 1989 as part of the Budget Reconciliation Act, and taxes
began to be collected under them in 1990.
Under §4611, a tax of five cents per barrel is levied on
crude oil received at U.S. refineries or on petroleum prod-
ucts imported to, consumed in, or warehoused in the United
States.” Earlier versions of §4611 had made the effective
date of the tax contingent on passage of “qualif ’ing legis-
lation.” The amended version made the tax effective after
December 31, 1989, and until December 31, 1994. ’ Col-
lections of the tax are to be suspended after the unobligated
balance of the Fund reaches $1 billion, as long as the
unobligated balance stays above that level.”
In addition to tax revenues received under §4611, the
funds in the Deepwater Port Liability Fund and Offshore
Oil Pollution Compensation Fund as of January 1, 1990,
were transferred into the Oil Spill Liability Trust Fund.
54. The House bill had povided a stringent senes of civil penalties for
causing natural resource damages, but these wcrt deleted by the
Conference Conirmilcc with link comment. Thc committee may
havc bclicved that Ihcy would overlap with the stringent new civil
and criminal pinai;ics already provided in the bill
55 I R C §461 tia -(c
56 Id §46 11( 0(l)
57 Id. §46ll(f)(2)
58 The transfer was made by §9509(b)(3) and (4) of the Internal Reve-
nue Code, also amended by the Budget Reconciliation Act of 1989,
Pub L No 101-239, §17 1fl (m (3), 7505(d)(2) The Dccpwatcr
Recoveries of removal costs, damages, and penalties under
the Oil Pollution Act and §311 of the Clean Water Act arc
now credited to the new Oil Spill Liability Trust Fund.
The Fund is given borrowing authority of up to $500 millio’
from the Treasury, to be repaid with interest from the reve
nues collected for the Fund through taxes and other means.
Uses of the Oil Spill Liability Trust Fund
Section 1012 enumerates the permissible uses of the Fund
and lays out procedural requirements for the proper obli-
gation of funds and processing of claims against it. Section
1012 must be read in conjunction with both §6002 of the
Act (which requires that, with some exceptions, money in
the Fund not be spent unless it is appropriated by Congress)
and §9509 of the Internal Revenue Code (which also im-
poses restrictions on the use and management of money in
the Fund and on claims procedures).
Section 1012(a) lists five permissible uses for Fund
money:
(I) The payment of removal costs, including
federal and state expenses of monitoring removal
efforts (presumably private removal efforts). These
removal costs must be consistent with the National
Contingency Plan (NCP).
(2) The costs incurred by natural resource trus-
tees for natural resource damage assessments and
for the implementation of restoration plans.
(3) The removal costs and natural resource dam-
ages incurred as a result of discharge of oil from a
foreign offshore unit. 61
(4) The payment of uncompensated removal
costs and damages as defined by the Act.
(5) The payment of federal administrative, op-
erational, and personnel costs of $25 million per
year for Coast Guard enforcement of the Act; $30
million per year for establishment and operation of
the National Response System under the Act, in-
cluding the cost of buying and prepositioning
equipment; and $27,250,000 for research and de-
velopment efforts under Title VII of the Act.
For the Fund to pay for items (1) to (4). a determination
must be made that the expenses were incurred consistent
with the NCP. In this respect, the Oil Spill Liability Trust
Fund differs from the Hazardous Substance Superfund un-
der § ill of CERCLA, which contains no consistency re-
quirement. Additionally, CERCLA’s liability provisions al-
low recoveiy of federal or state response costs that are “not
inconsistent with” the NCP, language that has been inter-
preted to shift the burden of proof to ihe person contesting
Port Liability Fund was established by § 18(f) of the Dccpwatcr Port
Act of 1974, 33 U SC §1517(f), the Offshore Oil Pollution Com-
pensation Fund was established by §302 of OCSLA
Liabilities and funds in the Clean Water Act Fund under §311(k)
were also transferred to the new Fund by virtue of §2002 of the
Act Titlc H of the Oil Pollution Act also amcnded the [ ntervcniion
on the High Seas Act. 33 U S C l486, the Dccpwaicr Port Act
OCSLA, and 3 II of the Ckan Wairr Act to conform to the ne
Fund rcqun-cmcnLs
59 1 R C § 509(b)(2), (5)
60 Id §9509(d)
61. This provision would address spills from offshore nI platforms
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ANALYSIS OF THE OIL POLLUTION ACT
U
sucii consistency.’ 2 Conference Report is silent about
whether this difference between the Oil Pollution Act and
CERCLA is intended to impose a higher standard on federal
and stale removal cost claims than CERCLA imposes.
Section 1012(aXl) makes the “monitoring” removal
costs recoverable as removal costs. These monitoring costs
may prove similar in practice to “oversight costs” under
§104(a) of CERCLA, where a responsible party agrees to
undertake the remedial investigation and feasibility study
on condition that it reimburse the government for the cost
of hiring an oversight contractor.
Claims Procedures Under the Thist Fund
Sections 1012 and 1013 lay out some of the procedures for
asserting claims for damages and removal costs under the
Fund.
The Fund functions as an insurer of last resort for third
parties damaged by oil spills. Under §1013, claimants must
first seek compensation from the responsible party or par-
ties.’2 Only after the responsible party has denied liability,
or the claim has been pending without resolution before the
responsible party for more than 90 days without resolution,
may such claims be presented o the Fund. Alternatively,
litigation may be commenced, but no claim can be approved
by the Fund while litigation is pending to recover the same
costs.
The Fund’s role as a clearinghouse for claims, similar to
the uninsured motorists fund some states have, is empha-
sized by §1012(d). It allows uncompensated damages and
removal costs to be presented to the Fund ‘where full and
adequate compensation is unavailable,” presumably be-
cause of liability limitations or the insolvency of the re
sponsible party. If the Fund pays a claim for removal costs
and damages, the United States is subrogated under § 1012(f)
to all the rights the claimant has against the responsible
party.
Several additional conditions apply to the payment of
claims by the Fund. First, the removal costs and damages
claimed must not have resulted from the gross negligence
or willful misconduct of the claimant. Second, funds to
implement plans to restore, rehabilitate, or replace natural
resources must be incurred pursuant to a plan approved
under §1006. The only exception is in emergencies to pre-
vent irreversible losses, or to prevent or reduce continuing
dangers to natural resources.
It seems likely that significant restrictions, based on the
consistency language of the statute, will be placed on re-
similar to the 1980 blowout at the Ixioc I platform in Mexican
waters, which resulted itt thc contamination of beaches in Texas
62. United Staics v. South Carolina Recycling & Dispocal, Inc 653 F
Supp. 984, 17 ELR 20843 (D S C. 1985). Untied States v North-
eastern Pharmaceutical & Chem Co., 579 F Supp. 823, 4 CLR
20212 (WD Mo 1984), aff’d. 810 F2d 726, 17 ELR 20603 (fTh
Cir. 1986).
63. Under § 10 13(b)(1), ELR STAT OLPOu.008, claims may bc pre-
sented first to the Fund in four cases ( 1) where the Precident n, ’
advertised that the responsible parties havc dented liability, or the
source is a public vessel, or the source . unknown, (2) by the
governor of a statc for staic removal conic. by 4 US claiiiiini
where the source of th: discharge is a lorcigi sIf hore unit, or (4)
by a responsible party under §1008 (i e • nnr entitled to a defrn’.e
to liability under §1003 or to a liability limitation under l004)
‘Where a liability limit is involved, only the csccsc paid beyond bc
liability limit is recoverable.
coveiy of claims for private removal costs from the Fund.
This has certainly been the experience under CERCLA.
These restrictions, if imposed, would likely appear in the
revised NCP.
Section 9509 of the Internal Revenue Code imposes ad-
ditional limitations on payment of claims from the Fund,
limitations that may become important if another spill like
the Valdez occurs or if Congress limits appropriations under
§6002 of the Act for budgetingreasons. Claims filed against
the Fund can be paid only from the Fund, not from any
other federal source.” Additionally, if the Fund has insuf-
ficient money to ay all claims, the order of filing determines
which are paid. Thus, valid claims are paid in full in the
order they are filed; there is no pro rata reduction of all
valid claims. This provision makes prompt filing of claims
imperative.
States may obtain up to $250,000 from the Fund in emer-
gencies without first presenting the claim to the responsible
party. States are encouraged by §1012(d) to execute coop-
erative agreements with the federal government to facilitate
such advance payments; otherwise, a request from the gov-
ernor will be necessary.
Section 1012(h) provides for separate periods of limita-
tions, which are not entirely consistent with those provided
for litigation under §1017(f). For removal costs, litigation
must be commenced within three years after the completion
of the removal action. However, in presenting claims for
removal costs to the Fund, the limitation is six years after
the completion of the removal action. Presumably, this
difference encourages the presentation of claims first to
responsible parties, and to litigate such claims first rather
than present them to the Fund. Nonetheless, if the Fund
pays a claim that is more than three years old, its subrogation
rights will be worth very little. The limitation period for
damages claims is three years after the loss was discovered;
for natural resource damages, the limitation period is three
years after completion of the natural resources damage
assessment. These periods are consistent with the limitations
for litigation under the Act.
Federal Removal Authority, Civil Penalties, and
Treble Damages
Two major criticisms of the handling of the Exxon Vafdez
disaster, and of other oil spill cleanup efforts, have been
the unclear federal removal authority under the Clean Water
Act and the slowness and weakness of federal response to
inadequate private removal efforts. Penalties for violations
of federal orders under §311 have also been unclear. The
new statute increases federal authority and clarifies that
substanrial penalties can be imposed for the violation of
orders to conduct removal actions.
Under §311(c), before its amendment by the Oil Pollution
Act, the President was authorized to respond to discharges
and threats of discharge of oil and hazardous substances;
r also set out requirements for the NCP. Section 311(d)
, iiihonzed the removal and destruction of vessels discliarg-
nil or hazardous substances or posing a substantial hre rt
-t ’d\ch trge. Section 311(e) authorized suit by the Untted
6-4 1 Rn’ 9509(l). (2) Though ihc Fund has borrowing authority. it
ipn .Jrcnt!v cannot be compelled to borrow to pay claims
65 id t9509(c)(3)
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12
OIL POLLUTION DESKBOOK
States for injunctive relief to abate an imminent and sub-
stantial threat to the public health or welfare because of an
actual or threatened discharge of oil or hazardous sub-
stances
Section 4201 of the Oil Pollution Act replaces §311(c)
and (d) of the Clean Water Act with a provision that com-
bines language from both the House and Senate bills. Unlike
the earlierversion of 3 11 (c)(1), which authorized the Presi-
dent to act, the new version requires his action to ensure
“effective and immediate removal of a discharge, and miti-
gation or prevention of a substantial threat of discharge.”
Such action may include federal removal action, directing
or monitoring state, local, or private removal actions, and
the removal, and destruction, if necessary, of the vessel
causing the discharge or threat of discharge. The new
§311(c)(1) corresponds to the old §311(c)(1) and (d), but
makes removal action mandatory. The new language might
be the basis for citizen suits seeking an injunction mandamus
to compel federal removal action.
The new §311 (c)(2) makes the mandatory nature of re-
moval action clear. The President “shall direct all federal,
state and private actions to remove the discharge or to
mitigate or prevent the threat of discharge” where the dis-
charge or threat of it is a substantial threat to public health
or welfare. To make such action more feasible, the govern-
ment may take these actions without regard to any provision
of law governing contracting procedures or employment of
personnel by the federal government.
Section 311 (c)(4) includes a new immunity provision for
persons taking removal actions consistent with the NCP or
under federal orders. The Conference Committee empha-
sized that this immunity is broader than that in the House
bill. The House bill would have extended such immunity
from damages only to those acting under federal order.
The new immunity does not extend to responsible parties,
CERCLA response actions, personal injury or wrongful
death, or gross negligence or willful misconduct. Similar
to §119 of CERCLA, this provision immunizes response
action contractors from strict liability under federal law for
actions taken to clean up National Priority List sites.
New enforcement powers assure that federal orders to
conduct removal actions are carried out, and that refusals
to do so are severely punished. Section 4301 of the Oil
Pollution Act amends §311(b) by adding elaborate admin-
istrative and civil penalty provisions.
Under the amended §311(b), any responsible party, whb
“without sufficient cause, fails to properly carry out removal
of the discharge” under a federal order shall be subject to
a civil penalty of up to $25,000 per day of violation or an
amount up to three times the costs incurred by the Oil Spill
Liability Trust Fund as a result of such failure. This language
is very similar to that of § 106(b)(l) and 107(c)(3) of
CERCLA. Presumably, EPA’s administrative order guid-
ance will be adapted to the new provision and CERCLA
precedents used to interpret the new language.
Contingency Planning and SPCC Plans
Another criticism of the Es von Vaidez and other cleanups
has hcen the uncoordinated, unrealistic, and overlapping
nature of many oil spill contingency plans. According to
the National Response Team Report about the Valdez dis-
aster in March 1989, many problems that plagued the
cleanup should have been apparent from drills, but if they
were., no corrective actions were taken.
The new statute drastically revises contingency p1annin ’
and readiness requirements from the national level to t t
individual vessel and facility level. Although §4202 of tL
new statute keeps §311 (j)(1), it adds an extremely elaborate
system of contingency planning, consisting of a national
response unit (NRU), Coast Guard strike teams, Coast
Guard district response groups, area committees, area con-
tingency plans, and individual vessel and facility response
plans. New §311(d) of the Clean Water Act contains the
former §311 (c)(2), concerning the NCP and adds several
requirements, including the establishment of a fish and
wildlife response plan, a worst-case discharge response
plan, and a revised schedule identifying dispersants, other
chemicals, and other spill-mitigating devices and sub-
stances. This latter requirement may prove critical to efforts
to use biological methods to respond to spills, as was done
in the Mega Borg situation. Unless such biological meth-
ods are approved under the NCP, efforts to use them may
continue to face obstacles.
The NCP is to be amended to incorporate the necessary
statutory changes by August 1991. If EPA’s lengthy delays
in promulgating amendments to the NCP under CERCLA
are any indication, the Coast Guard or EPA, whichever is
responsible for amending the NCP for oil, will have con-
siderable difficulty in timely revising the plan. Unfortu-
nately for those who must comply with it, the latter com-
pliance deadlines are not delayed under the statute if the
NCP is not revised on time.
The heart of the contingency planning requirements b
low the national level is §311(j) of the Clean Water Aci,
as newly revised by the Oil Pollution Act. Under the prior
version of the Clean Water Act, §311(j)(1) provided in
general terms for the development of local and regional oil
and hazardous substance removal contingency plans. Ad-
ditionally, §311(j)(l) provided for vessel and facility in-
spections and contingency planning requirements. Viola-
tions of these requirements could be punished by a fine of
up to $5,000 per violation under §311(j)(2).
Under the amended §31 l(j)( 2 ), the Coast Guard must
establish the NRU in Elizabeth City, North Carolina (the
site of a major Coast Guard air station). The NRU is to
maintain a comprehensive, computerized inventory of oil
spill removal resources, equipment, and personnel available
worldwide and within areas designated for area contingency
plans. The list is available to the public, so that the location
of emergency equipment is known in time to be of help.
as it was not in the Valdez situation.
The NRU will also coordinate both private and public
personnel and equipment in responding to discharges or
threats of them, and serve as a clearinghouse and repository
for information and area contingency plans. The Conference
Committee noted that both the House and Senate bills con-
temnplated the active involvement of private response re-
sources and personnel, and it cited the Pctroleum Industry
Response Organization—now known as the Marine Spil’
Response Organization (MSRO)—cet up by a consortiu
of oil companies to rcspoiid to oil spills, as in :xample oi
organizations with sshich the NRU should work Dcspite
the heavy federal emphasis in the removal provisions, the
66 See supra noic 2
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ANALYSIS OF THE OIL POLLUTION ACT
private sector is still the primary cleanup resource. The
conferees expect the federal government to avoid duplicat-
ing private personnel and equipment. Private concerns will
have powerful financial incentives to avoid duplication by
contracting with cooperative ventures such as MSRO.
In addition to the Coast Guard strike teams (formerly
strike forces), §31 I(jX3) establishes Coast Guard district
response groups for each of the 10 Coast Guard districts in
the United States. These response groups consist of Coast
Guard personnel and equipment within each port in the
district, any additional prepositioned equipment, and a dis-
trict advisory staff. These groups are to review area con-
tingency plans and to provide assistance in removal efforts
when required by the federal on-scene coordinator.
Under §31 1(j)(4), the President shall designate areas for
preparation of area contingency plans (ACPs). The Presi-
dent is to make such designations in February 1991, and to
ensure that in such designations all navigable waters, ad-
joining shorelines, and the waters of the exclusive economic
zone are subject to an ACP. The area committee has until
February 1992 to prepare and submit the ACP for approval,
and by August 1992, the Coast Guard shall review the ACPs
and correct deficiencies.
Area committees, consisting of qualified federal, state,
and local officials appointed to the task and working under
the federal on-scene coordinator shall prepare the ACPs. In
an effort to redress the failings at places like Prince William
Sound, area plans must meet the following standards:
(1) be adequate to remove a worst-case dis-
charge;
(2) describe areas of special environmental or
economic importance (presumably, including im-
portant fishing grounds, fish hatcheries, and major
beaches) especially vulnerable to damage from a
discharge;
(3) describe in detail the responsibilities of the
governmental agencies and the vessel or facility
owner or operator in responding to a discharge;
(4) list available equipment and personnel, in-
cluding firefighting equipment and dispersants;
(5) have expedited procedures for approval of
the use of dispersants (at Valdez, three critical days
were lost at the beginning of the spill because of the
confusion over how to obtain such approvals);
(6) describe how the plan relates to the NCP, to
other ACPs, and to facility and vessel plans (the
Valdez plans overlapped, creating much confu-
sion); and
(7) be updated periodically
The most wide-ranging requirement in the new statute is
for vessel and facility response plans under new §311 (j)(5).
Although there have been requirements for spill prevention,
control, and countermeasure (SPCC) plans at facilities since
1973, 67 the new requirements are far more elaborate and
make compliance potentially far more expensive. New pen-
alty provisions also make noncompliance more costly
By August 1992, the Coast Ga ird or EPA must promul-
gate regulations governing tank scsscl and facility rcsponsc
p t ans By February 1993. these plans •irc to be prepared
and submitted for approval. Facilities or vessels that do not
submit a plan may not continue to handle, store, or transport
oil after February 1993. Unless the plan is approved by
February 1995. the vessel or facility may not handle, store,
or transport oil.
The determination of tank vessels and offshore facilities
subject to these requirements is clear. Onshore facilities
must prepare plans:
(1) if they handle, transport, or store oil or haz-
ardous substances; and
(2) if the onshore facility, “because of its loca-
tion, could reasonably be expected to cause sub-
stantial harm to the environment by discharging
into or on the navigable waters, adjoining shore-
lines, or the exclusive economic zone.”
Under this definition, almost any onshore facility that
could discharge oil to a storm drain or storm sewer may
need to prepare a response plan. The broad Clean Water
Act definition of navigable waters includes intermittent
streams and dry washes in the western part of the country
that contain water only a few times a year.
For vessels and facilities, including hazardous substance
storage facilities, that meet this requirement, the statute
requires that the response plan meet the following criteria:
(1) be consistent with the NCP and ACP;
(2) identify the individual at the facility with full
authority to implement the plan and require imme-
diate communication between that individual and
appropriate federal and state officials and cleanup
contractors;
(3) identify and assure by contract (or other
means acceptable under the regulation) the avail-
ability of private personnel and equipment neces-
sary to remove the worst-case discharge, and to
mitigate and prevent discharges (or substantial
threats of discharge, including fires); and
(4) describe the training, equipment testing, pe-
riodic unannounced drills, and response actions to
be carried out to prevent or mitigate discharges or
substantial threats of discharge.
Facilities must update these plans periodically to reflect
changes in operations and lessons learned from drills and
tests
The Conference Report suggests that the Coast Guard or
EPA should strongly consider the practicality of these re-
quirements in reviewing SPCC plans. The statute requires
that equipment and contract personnel be available to the
“maximum extent practicable,” language the Conference
Committee interprets to require consideration of techno-
logical limits on oil spill removal, and the practical and
technical limits of the response capabilities of individual
owners and operators. Use of cooperative organizations for
spiii response may be the most practical alternative for
iu.iry npcrations
Tht. situtory language indicates that all onshore facilities
will he cqii cd to prepare and submit response plans The
Conference R( pnrt, however, takes a less inclusive ap-
proach li suggests ihat the Coast Guard (or EPA) can
exempt classes of facilities at least from governmental rc-
67 () cr R pi 112 (1989) (promulgaicd by 38 FccI Peg 34165 (D cc
ii, 1973))
68 CWA, §3i 1(j)(5)(E), CLR STAT FWPCA 039
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14
OIL POLLUTION DESKBOOK
view if not from submission so that the approval system is
not overloaded. This flexibility will be essential to timely
compliance with the statute. Unless most small onshore
facilities axe exempted, it is unlikely that the Coast Guard
or A will have the resources to review and approve all
the plans within the two-year deadline the statute imposes.
During the pendency of an application, an onshore facility
may operate, provided it assures by contract that it has
adequate cleanup resourceslor a worst-case spill, and pro-
vided it operates in accordance with the plan, including its
training, testing, and drill requirements. This interim status
will last no longer than two years; ‘ after that time, facilities
must shut down rather than operate without an approved
plan.
The response plan requirements overlap substantially
with similar contingency plan and reporting requirements
under the Emergency Planning and Community Right-to-
Know Act (SARA Title ffl), °RCRA, and CERCLA. The
Conference Report makes clear that the new contingency
plan requirements do not supersede or supplant require-
ments under these other statutes, but rather that overlapping
statutory requirements should be carefully harmonized with
them to avoid confusion in an emergency.
Penalties
Before passage of the Oil Pollution Act, the penalties avail-
able to the federal government under §311 to punish un-
permitted discharges of oil and hazardous substances had
not been significantly amended since the early 1970s. Given
the damages inflicted by the Valdez spill. the available
penalties looked too weak, especially in comparison with
other portions of the Clean Water Act and other environ-
mental statutes.
Administrative Penalties
The new administrative penalty mechanism in §311(b)(6)
is nearly identical to that in §309(g) of the Clean Water
Act, which allows EPA to seek administrative penalties of
up to $10,000 per violation. For Class I penalties, the maxi-
mum penalty is $25,000, and proceedings are informal. For
Class I I penalties, the alleged violator has the right to a
hearing before an administrative law judge, and the maxi-
mum penalty is $125,000. The public may participate in a
Class H penalty proceeding, as it can under §309(g).
Administrative penalties may bc assessed against the
owner, operator, or person in charge of any facility or vessel
from which oil or a hazardous substance is discharged.
Additionally, administrative penalties may be assessed for
violations of SPCC regulations under §31 1(j).
Civil Penalties
Section 3l1(b)(7) includes a new civil penalty provision
that makes any owner, operator, or per nn in charge of a
facility from which oil or h izarcioi’ iH i.nce arc dis-
charged in violation of the Clean W.iter ‘\ct subject to a
civil penalty. The penalty is either: (1) $25,000 per day of
such discharge; or (2) $1,000 per barrel of oil discharged
or per unit of the reportable quantity of the hazardou.
substance discharged.
Under the latter formulation, if 1,000 barrels of oil are
spilled, a penalty of up to $1 million could be assessed.
Likewise, for a hazardous substance for which the reportable
quantity is 100 pounds, a spill of 10,000 pounds would
subject the spiller to a civil penalty of up to $100,000. This
volumetric raniring for penalties drastically increases the
potential exposure of those causing or suffering spills. In-
creased exposure places a premium on the proper handling
of oil and hazardous substances. It may also lead to problems
of calculation similar to those courts are now confronting
in sentencing drug offenders, where the weight of the con-
trolled substance involved is often heavily disputed.
Where a discharge occurs because of gross negligence
or willful misconduct, the penalty amount is increased to
$3,000 per barrel of oil or unit of reportable quantity spilled.
While there is a lower limit of $100,000 on such penalties,
the upper limit is open-ended, being based on $3,000 times
the number of barrels or units of reportable quantity. A
person’s exposure in such case could move rapidly into the
million-dollar range for a spill of less than 350 barrels of
oil, or a lesser quantity of many hazardous substances.
For a failure to properly conduct a removal action ordered
under the Oil Pollution Act or Clean Water Act, or for a
failure to comply with such an order, the court may assess
a civil penalty of up to $25,000 per day. Alternatively
treble damages may be collected. For a failure to compi
with SPCC and other regulations under §311 (j), the court
may now assess a civil penalty of up to $25,000 per day.
These civil penalties conform §311 to other civil and
administrative penalties available under §309 of the Clean
Water Act for other violations of the Act. The case law and
procedural rules developed under §309 of the Clean Water
Act will largely govern proceedings under the new provi-
sions.
A civil penalty of up to $25,000 per day is also provided
for violations of the financial responsibility regulations un-
der the Oil Pollution Act. These penalties may be assessed
by the administrative agency, and unlike the other admin-
istrative penalties, they have no upper limit. Additionally,
for violations of the financial responsibility regulations, the
government is authorized to seek an injunction to terminate
the violator’s operations.
Criminal Penalties
Severe criminal penalties are available to punish §311 vio-
lators. This change was accomplished simply by amending
§309(c) to make criminal penalties of the Clean Water Act
apply to discharges in violation of 3 I l(b)(3). For negligent
violations, penalties are a $25,000 fine and one year of
imprisonment. For knowing violations, the fine is $50,000
and a term of imprisonment not to exceed three years For
‘knov ing endangerment,” a violation that places anothe
person in imminent danger of death or serious bodily injury.
the fine is $250,000 for an individual, $1 million for au
organization, and a term of impnsonmcnt of not more than
15 years. Each day of a discharge is a separate offense,
penalties double for repeat offenses.
These criminal penalties may create difficult issues for
69 This “inucnm stanis” diffcrs from “unicorn status i’idcr thc 1976
vcrsion of RCRA, whcrc thcrc was no nmc limit on buy. tong
facility could rcmajn in intcnm status
70 42 U SC §111001-11050. ELR STAT EPCRA 001-012
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ANALYSIS OFTB OIL POLLUTION ACT
is
prosecutors under the self-incrimination provisions of the
ifth Amendment. Under §311(bX5), self-reporting of re-
ases is mandatory, and such notification may not be used
n any prosecution against the person reporting the spill
except in a prosecution for false statement or perjury. This
provision has been amended to apply only to natural persons,
and to strike the statutory requirement that information
obtained by exploitation of the notice not be used in a
prosecution against a person making the notification. Be-
cause corporations, however, have no Fifth Amendment
right against self-incrimination, this provision appears to
extend its protection no further than already required by
the Fifth Amendment. Depending on the particular facts,
and the subsequent developments of case law under the
Fifth Amendment, this statutory language may not go as
far as the Fifth Amendment requires, especially with respect
to information developed by exploring the notification.
Until the 1990 amendments, the only criminal charge that
could be brought for discharges to navigable waters was
for discharging without a permit. The amendments give
prosecutors much more to work with, and raise the stakes
in criminal proceedings. The combination of mandatory
self-reporting for persons causing a spill and the possibility
that such reports may lead to criminal prosecutions is likely
to result in new case law about the scope of the Fifth
Amendment privilege against compelled testimony and
about the scope of the statutory counterpart in §311(b)(5).
Moreover, the prospect of criminal prosecution for negligent
discharges of oil will place a premium on dil gent training
rid operations in the oil industry.
Vessel Personnel, Equipment, and Construction
Standards
The impact of the Exxon Valdez disaster is reflected through-
out the Oil Pollution Act, but nowhere more clearly than
in its amendments to the navigation laws. Unlike Title I of
the Act (which is a free-standing statute modeled largely
on CERCLA and §311 of the Clean Water Act) and unlike
the removal provisions, contingency planning, and penalty
provisions (which amend §311 of the Clean Water Act),
the vessel manning, equipment, and construction standards
are imposed through amendments to numerous provisions
of the navigation laws in Title 46 of the United States Code.
Personnel Provisions
The personnel provisions largely reflect the public’s per-
ceptions that alcohol problems, coupled with chronic Un-
derstaffing on tankers, contributed to the Euon Valdez
disaster. Consequently, § 4101 through 4104 change the
requirements for issuing and revoking licenses and certifi-
cates for merchant manners in order to make information
about an applicant’s alcohol and drug problems available
to the licensing authorities. Thus, §4101 amends 46 U.s C.
“ 7 101 and 7302 to require that an applicant for a license,
pniicable, make available any information about drunk
dris”ng from the National Drivers Registry and about prior
criminal rtcords, the applicant must also submit to drug
and alcohol testing Section 4102 amends several provisions
to provide for a five-year term (instead of an indefinite
term) for licenses and certificates These changes will re-
quire periodic license renewals, rctcctrng of licenses for
drug and alcohol abuse, and rechecking for criminal records
and drunk driving convictions.
Section 4103 makes it easier for the Secretary of Trans-
portation (i.e., the Coast Guard) to suspend, revoke, and
terminate licenses and certificates for drug and alcohol
abuse, negligence, misconduct, or incompetence. These in-
clude violations of safety and operating standards. Section
4105 allows the licensing authorities access to the National
Driver Register for the purpose of reviewing applicants’
driving records.
Section 4104 amends 46 U.S.C. §8101 to provide a means
whereby a vessel’s two most senior licensed officers may
relieve the captain if he is operating the vessel under the
influence of drugs or alcohol. This relief requires prompt
reporting to the Coast Guard of the incident and an appro-
priate entry in the ship’s log.
In addition to these changes to address personnel integrity
and competence, the statute requires that standards be set
for vessel manning, for both U.S. and foreign flag vessels.
Section 4114 addresses U.S. flag vessels. It requires that
rules be promulgated that define the conditions under which,
and waters in which, vessels may operate with the autopilot
engaged or engine room unattended. One of the issues in
the Valdez case was the use of the autopilot on the bridge,
and its attendance by a crew member who was apparently
not properly licensed for his duty.
Additionally, §4114 amends 46 U.S.C. §8104 by adding
a new subsection (r), which provides:
On a tanker, a licensed individual or seaman may not be
pcrmiued 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 drill. In this subsection,
“work” includes any administrative duties associated
with the vessel, whether performed on board the vessel
or onshore.
Another claim advanced in the debates over the Oil Pollution
Act was that tanker companies had steadily reduced the
number of crew on tankers, and had encouraged or required
crew members to work too many hours of overtime, leading
to an exhausted crew and avoidable mistakes.
With respect to the overall number of the crew on a
tanker, §4114 amends 46 U.S.C. §8 101, the vessel comple-
ment provision of the navigation title, which requires that
the Coast Guard set the complement of a vessel at a level
necessary for safe operation. A special requirement for
tanker complements now requires that in setting the tank
vessel complement, the Coast Guard “shall consider the
navigation, cargo handling, and maintenance functions of
that vessel for protection of life, property, and the environ-
ment.” Additionally, a new training requirement is imposed
in 46 U S.C. §9 101 for instruct ion in vessel maintenance
functions.
These changes will likely resuU i cr better trained, better
rested, and unimpaired crews operating U.S. tank vessels.
These changes will alco impose costs on the maritime in-
dustry, which Congrccc views as acceptable but which will
further increase he dicparity in operating costs between
U S arid foreign fl.ig . c
Although U S flag vcss I” handle the shipment of Alas-
kan oil and the coactal trjcte n petroleum products as a
result of the Jones Act, ‘inst cradc oil and most refined
7! 46 USC §R83
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16
OIL POLLUTION DESKBOOK
petroleum products imported into the United States are
cairied in foreign flag vessels. Section 4106 amends 46
U.S.C. §9101 to require the Coast Guard to evaluate the
vessel manning, training, qualification, and watchkeeping
requirements of foreign countries that license tankers op..
crating in U.S. waters or at a port or place subject to U.S.
jurisdiction. These evaluations are to take place periodically,
or whenever a vessel casualty involving a vessel flagged
by that foreign countiy occurs. The purpose of the evalu-
ations is to determine if the foreign counixy’s standards for
licensing and certifying personnel are at least the equivalent
of U.S. standards, and that those standards are being en-
forced.
If it is determined that the standards are not equivalent
to U.S. standards or are not being enforced, vessels flagged
by that foreign country will be prohibited from entering
U.S. waters. Conditional entry of such vessels may be per-
mitted after that time, provided the vessel is shown to be
safe and not a threat to the environment, or provided such
entry is necessary for the safety of the vessel or individuals
on the vessel.
Section 4106 amends 46 U.S.C. §6101(a) to require that
both U.S. and foreign flag tank vessels report marine casu-
alties causing significant harm to the environment. This
applies to foreign vessels suffering a casualty in U.S. waters
or in the exclusive economic zone.
Vessel Equipment and Construction Standards
One of the most debated aspects of the Oil Pollution Act
was the need for and effectiveness of tanker double hulls
in preventing or reducing oil spills from groundings, colli-
sions, and other vessel casualties. The proponents of double
hulls contended that if the Exxon Valdez had had a double
hull instead of protectively located ballast tanks, far less
oil would have been released. Opponents contended that a
double hull would have increased the chances that the Va!-
dez would have sunk, losing all of its cargo instead of the
20 percent it did.
In addition to arguments about the efficacy of the double
hulls in vessel accidents, the dispute concerned whether
and how these vessel standards would mesh with interna-
tional tanker safety and design standards. Prior efforts to
mandate double hulls under the Port arid Tanker Safety Act
of 1978 resulted in negotiation by the United States of a
variety of new tanker safety standards under international
conventions, including the protective placement of segre-
gated ballast tanks, but not double hull requirements in
those agreements.
Efforts in the Senate to mandate a double hull requirement
for all tankers lost quite narrowly The House vcrs on con-
tained a double hull provision to be phased in over 15 years.
Both versions required that newly constructed tankers have
double hulls.
The final legislation contains a complicdted compromise
provision in §4115: all newly constructed tank vessels must
have double hulls; existing single hull I inkers must be
phased out beginning in 1995. arid by 2010, all e ’&s over
5,000 gross tons with single hulk will be proh:hi;e! from
operating until they are conveiled to double hulls
Newly built tank vessels of less than 5,000 gross tons
are not required to have double hulls if they have a double
containment system that the Secretary determines is equally
safe. By 2015, all vessels under 5,000 gross tons must b
equipped with a double hull or equally effective doub
containment system.
The most significant exception to the double hull require-
ment is for vessels unloading oil in bulk at a deepwater
port or in an approved lightering zone, which must be more
than 60 miles from shore. The existing requirements gov-
erning lightering operations (i.e., the offshore unloading of
crude oil from a large ocean-going tanker to a series of
smaller, coastwise tankers) were tightened so that the de-
livering and receiving vessels must demonstrate financial
responsibility, have a proper SPCC plan and equipment
under §311(j) of the Clean Water Act, and after 2015,
operate in compliance with the construction standards. As
a practical matter, the receiving vessel will have to comply
earlier with construction standards under other provisions
in order to deliver the oil to onshore ports.
In addition to these tanker construction standards, § 4 109
and 4110 impose two other equipment standards on vessels.
Under §4109, the Coast Guard will issue standards for the
minimum plating thickness of tank vessels; vessels more
than 30 years old are to be subject to periodic gauging of
plate thickness. Under §4110, by August 1991, regulations
must establish minimum standards for overfill warning, oil
tank level, and oil pressure monitoring devices, and both
U.S. flag vessels and foreign vessels calling to U.S. ports
or working in the exclusive economic zone shall install
these devices. The application of the standards to foreign
vessels is limited under the statute by the requirement th
the provisions be consistent with general principles of in
ternational law. In practice, these standards are not likely
to require extremely costly devices for use on foreign vessels
unless international standards also require them.
In addition to these equipment standards, §4116 imposes
several operating requirements concerning the use of pilots
in Prince William Sound and Puget Sound, the use of two
escort vessels in Puget Sound, and that in certain waters
(to be defined by regulation) two persons (i e., the captain
and a pilot) are required to be on the bridge to navigate the
vessel. Section 4118 requires additional regulations to as-
sure that vessels are properly equipped with radio equipment
to receive marine safety warnings and to communicate with
the Coast Guard.
Sections 4111 to 4113, and 4117 require studies to be
conducted on existing tanker navigation safety standards,
modifying dredges for use in the removal of discharges, the
usc of liners to prevent leaking at onshore facilities, and the
feasibility of a maritime oil pollution prevention program.
State and International Standards
The Oil Pollution Act is remarkable for what it does not
say about state and international standards. The pnmary
political issues with respect to state law and international
standards were whether federal standards would preempt
inconsistent stale law and whether the United States woii
enter into an international convention that woiikl supcrseO
both federal law and inconcistcnt stile 1 ’v.
The House bill had provided st. ’utorv .iuthority to im-
plement two 1984 international agrcenicntc—the Inierna-
tional Convention on Civil Liability for Oil Pollution Dan-
72 33 USC § 1221-l232
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ANALYSIS OF THE OIL POLLIJTION ACT
17
age. and the International Convention on the Establishment
oian International Fund for Compensation for Oil Pollution
Damage—and implementation of these agreements was
subject to the Senate’s ratifying the conventions. The Sen-
ate, however, was opposed to the House provisions because
ti’e conventions would have preempted state law and would
have required less stringent measures to prevent spills than
would have been the case under the Oil Pollution Act. The
Senate was adamant on these points and the resulting corn-
promise in §3001 merely expressed the sense of Congress
that participation in an international regime for oil spill
prevention, cleanup, and compensation would serve the best
interests of the United States.
Since 1975, the preemption issue had been the other
primary obstacle to passing comprehensive oil spill legis-
lation. Predictably, the Senate was against the preemption
of state law and the House was for it. The proponents of
preemption argued that uniformity in federal law in the
transportation sector was extremely important, especially
in maritime and international matters such as these. No
useful purpose was served by such duplicative state laws,
they argued, and their existence would confuse and slow
cleanup and compensation.”
Opponents of preemption argued that the 24 states that
have oil pollution liability and compensation laws had not
hindered cleanup or compensation. Moreover, victims of
oil spills needed some way to get beyond the limits in
federal law to be compensated for their damages. 74
In the 10 1st Congress, the Senate again refused to preempt
state law. In a floor vote, the House reversed its position
from prior years, and agreed not to preempt state law,
although the committee versions of the bill would have
provided for preemption of state law.
California has already enacted more stringent laws; other
states, as they seek to raise money to address oil spill cleanup
problems in state waters, are likely to do so too.
The savings provision in §6001 of the new act makes
clear that remedies under admiralty and maritime law, and
the admiralty jurisdiction of the U.S. district courts, remain
unchanged. Thus, another body of law—admiralty—is also
available to remedy damage claims resulting from oil spill
damages.
Regional and Miscellaneous Provisions
The Oil Pollution Act contains many provisions addressing
regional problems. The most important of these are in Titles
Vand VIII, concerning Prince William Sound and amend -
73 Proponents of preemption cited Ra ’y i’. Atlantic Richfield Co., 435
US 151, 8 ELR 20255 (1978), in which the Court held that the
State of Washington could not imposc more stringent navigation
requirements (state-licensed pilots, size restrictions, tug escorts)
than were permitted under the federal Port and Waterway Safety
Act of 1972 and regulations issued under It. The Court held that
requirements for state.licensed pilots were partially preempted, that
design and equipment standards were cnurcly preempted, but that
in thc .ih cnce of federal regulations, tug escort provisions were not
prceniptt-d SlIme of the state provisions defended there arc now
Wnhicn into the ( Dl ‘nlIution Act c provisions for Puget Sound
74 The opponents ol orrenlption cited Astciv s’ American Wareri .’ay
Operotorr, Inc. 411 (iS 325,3 ELR 20632 (1973), in which the
Court held thai ih. Fcdcral %Vatcr Quality Act of 1970 dad not
preempt Flonda’s Oil Spill Prcvcn ion and Pollution Control Act
The flord ct iuie imposed uinanciil responsibility rcquireincnis
on termin ,,l . and vcssels, and rcquved that containment gear and
other rqu pn1enI be maintained by chips and terminals
ments to TAPAA. Additionally, there are two unrelated
provisions barring oil and gas drilling off the Outer Banks
of North Carolina for a period of time, 75 and the unitization
of certain offshore drilling off Louisiana’s shores. Title
VII of the statute establishes an oil pollution research and
development program.
Aloskan ProvLs ions
Title V of the statute contains seven sections pertaining to
tanker operations in Prince William Sound. These provi-
sions:
(1) establish and fund the Prince William Sound
Oil Spill Recovery Institute to carry out research
and programs relating to the Exxon Valdez spill;”
(2) establish environmental monitoring and
oversight programs for oil terminal and tanker op-
erations in Prince William Sound; 7 ’
(3) provide for the installation and operation of
an automated navigational light on Bligh Reef in
the Sound, where the Exxon Valdez ran aground; 79
(4) require the Coast Guard to upgrade the exist-
ing vessel traffic service system at the Port of
Valdez;
(5) impose additional spill response plan re-
quirements on vessels and terminals operating in
the Sound, beyond the requirements of §311 (j) of
the Clean Water Act;’ 1
(6) prohibit the Exxon Valdez and other vessels
that have spilled more than one million gallons of
oil into the marine environment after March 22,
1989, from operating iii the Sound. tZ
Title VIII amends TAPAA to bring its liability and other
provisions into conformity with the Oil Pollution Act. The
Trans-Alaska Pipeline System (TAPS) is exempted from
the Oil Pollution Act’s liability scheme. Instead, an amend-
ment to §204(a)(2)ofTAPAA raises the amount of damages
from $50 million to $350 million, for which holders of the
pipeline right-of-way may be held strictly liable. Additional
amendments make clear that the TAPAA liability standards
apply until TAPS oil is loaded aboard a vessel, while any
subsequent discharge from the vessel is governed by the
Oil Pollution Act.
The TAPS Liability Fund under §204(c) is repealed, and
once enough money is reserved to pay existing claims, the
remaining money is to be paid into the Oil Spill Liability
Trust Fund. Sect ion 8103 requires a comprehensive review
of TAPS for compliance with appi cahle laws
Section 8202 makes substantial civil penalty changes in
TAPAA. It adds a new §207 to TAPAA, which allows the
Department of the Interior to assess civil pcn.ilties for oil
75 §6003, ELR STAT OIL POLL 027
76 §6004, ELR STAT OIL Pou , 027
77 §5001, ELR STAT Cii POlL 02D
78 §5002, ELR SrAT Ci PoLL 02
79 §5003, EL ( r,sr Cii Poi I 12 6
HO §5004, ELR Sr,cr Cii. Poi L
H I §5005, ELR SThT Oci. Pot i. 026
82 5007. £LR STAT OIL Pot i P26 These proriclo. ‘c ‘ ‘ ii
purcu.Lni to the aulhon7 . .lii’n in 5OO6. ELR SiAr ().i } )i’ i2i
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18
OIL POLLUTION DESKBOOK
discharges in transit to TAPS or through it Not only are
the persons responsible for the pipeline responsible for
penalties arising from such spills, but so are the owners of
the oil spilled. This liability is joint, several, and strict The
penalty amount, like that under the amended §311 of the
Clean Water Act, is $1,000 per barrel of oil discharged.
Limited defenses like those found in §311 are prescribed:
if the discharge resulted solely from an act of God, an act
of war, cran act of a third party beyond the control of liable
persons. Civil penalties may not be assessed under both
this statute and the Clean Waler Act for the same discharge.
Qffrhore Drilling Prowsions
There are anurnber of provisions concerning offshore drilling.
Section 8201 clarifies the Department of the Interior’s author-
ity to immediately a civil penalties under §24(c) of
OCSIA for any violation presenting a serious threat to health,
safety, or the environment The penalty amount is increased
to $20,000, to be adjusted for inflation every three years.
Section 6003 adds provisions concerning oil and gas
drilling off the Outer Banks of North Carolina. The presence
of this provision in the statute results primarily because
Rep. Walter Jones, Chairman of the House Merchant Marine
and Fisheries Committee, represents the North Carolina
district containing the Outer Banks.
This provision embodies portions of H.R. 3861, the Outer
Banks Protection Act, in order to address proposals made
by Mobil Oil and others to drill an exploratory well 40
miles off of Cape Hatteras, North Carolina. The Secretary
of the Interior is prohibited from conducting a lease sale,
issuing any new leases, approving any new exploration plan
or development or production plan, approving any applica-
tion for a permit to drill, or permitting any drilling for oil
or gas under OCSLA off North Carolina.
The prohibitions remain in force until the later of Sep-
tember 1991 or 45 days of continuous session of Congress
after submission of a written report from the Secretary about
such drilling proposals. The Secretary, in the Secretary’s
report, must certify that the environmental information
available (including certain information specified under
§6003(d)) is sufficient to carry out his responsibilities under
OCSLA. The Secretary must explain any differences be-
twecn his report and the findings and recommendations of
the Environmental Sciences Review Board, an independent
task force established under §6003(e).
The Environmental Sciences Review Board is established
to assess the adequacy of available oceanographic, ecologi-
cal, and socioeconomic information for the Secretary to
carry out his duties under OCSLA. If the Board finds that
the information is insufficient, it recommends what addi-
tional information is needed. The Board is likely to represent
a strong North Carolina perspective, since its three mem-
bers—aJl scientists—are chosen in part by the governor of
North Carolina.
President Bush singled out this provision as an unfortit-
nate addition to the statute when he signed the bill on August
18,1990, about two weeks after tim Iraqi invasion of Kuwait
Section 6004 affects offshore drilling off Louisiana.
Added on the Senate floor by the Louisiana members, the
provision governs drilling and production already underway
rather than banning new exploration. It amends §5 of OC-
SLA to prevent, through cooperative development of an
area, harmful effects from uncoordinated (and excessively
fast) development of a common hydrocarbon-bearing area
that straddles the boundary between stale and federal con-
trol. The division between stare and federal responsibility
created a situation where there were strong short-term in-
centives to develop and produce the field in a way that did
not maximize the recovery of oil arid gas.
Research and Development Provisions
Title V I I of the Act establishes a comprehensive interagency
oil pollution research and development program. Section
700 1(a) establishes an interagency coordinating committee
to coordinate the federal research and development program
for oil pollution prevention, mitigation, cleanup, and effects.
The committee comprises members from the Departments
of the Interior, Energy, Commerce, Defense, and Transpor-
tation, as well as EPA, the National Air and Space Admini-
stration, and the Federal Emergency Management Agency.
The interagency committee is to devise a comprehensive
plan by February 1991 to determine each agency’s role, to
assess the current state of knowledge as well as significant
research gaps (especially in cleanup technology), and to
establish research priorities. The resulting program is to (I)
help develop and evaluate innovative oil pollution preven-
tion and cleanup technology, including biological methods
of cleanup; (2) improve monitoring, evaluation, and mod-
eling of the short- and long-term effects of oil spills; and
(3) improve and demonstrate better oil spill response meth-
ods, including demonstration programs in the Ports of Los
Angeles, New York, and New Orleans.
The bill also authorizes other research efforts. Annual
funding of up to $27,250,000 is authorized from the Oil
Spill Liability Trust Fund, although such sums must be
appropriated through the normal appropriations process.
Conclusion
The Oil Pollution Act of 1990 is a comprehensive and
thorough effort to resolve the difficult political issues that
had hobbled effective oil spill prevention and cleanup efforts
under the previous uncoordinated legal regime. Its ambi-
tious goals will requtre a substantial increase in resources
expended by the federal government and the regulated com-
munity. It reni.uris to be seen whether these efforts wilE
actually improve water quality and reduce the amount of
oil spilled, but the Oil Pollution Act provides a solid legal
foundation from which to accomplish those goals
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09/01/98 10:45 202 260 8046
EPA OGC
10- 1
ENVIRONMENTAL LAW REPORTER
NEWS & ANALYSIS
21 ..R 10605
Copyright (c) 1991 Environmental Law Institute(R). Reprinted with
Permission from ELR(R) - The Environmental Law Reporter(R) .
ARTICLES
Federal Implementation of the Oil Pollution Act of 1990
by Charles Openchowsid
Editors ‘Summary: The Oil Pollution Act (OPA) is undergoing implemerao4on.
Responsi billtyfor carrying out this n westfederal environmental statute, which
strengthens federal response authorities, increases civil penally and liability
lim1Ls , mandates an expanded regulatorj program for contingency planning
andpr ntio; and creates a $1 billion damages compensatfonfiut4 1., divided
among several executive branch agencies. As the author points out;, the process
of implementing the OPA will redefine the scope and power of these agencies.
The author discusses the executive agencies to which Congress under the
OPA, assigned over 50 athnlnlsrratlve duties and responsibilities. The author
then explores how jurisdictional responsibilities will be divided among the
agencles and how previous implementations of other environmental statutes
may serve as models for rules promulgated under the OPA. The author aLso
analyzes the revision of the National Contingency Plan mandated by the OPA,
assesses key terminology and new enforcement authorities under the OFA,
and concludes with the OPA ‘s relation to pending International oil spill pro-
tocoL ,
T he American 7)ader The Mega Borg. The Exxon Val-
der. These rtamPs evoke vivid images of dead wildlifcj
fouled beaches and fires raging out of control To the
American peopLe, these names have become Inextricably
linked to the enormous environmental risks associated with
handling the rivers of petroleum needed to fuel everyday
life. And In anticipation of the next big spill, they higjllight
fears of what could happen in a worst-case scenario if a
supertanker actually lost its entire cargo in coastal waters.
The incidents associated with these names figured promi-
nently in shaping the Oil Pollution Act of 1990 (OPA).’
But, in addition to the influence of these specific events,
the CPA embodies over a decade of efforts by Congress to
revamp existing laws governing spills of oil and hazardous
substances into the nation’s waters. 2 The result is legislation
that strengthens federal response authorities, increases civil
Mt. Openchowald is an attorney in the Office of Ocncgal Counsel, U.S.
Environmental Protection Agency. The views expressed In this Article
are those of the author and do not necessarily represent the views of any
federal a eocy.
1. 33 U.S.C. *02701-2761. .R Sr4ii:r. On.. Poti. 001.034.
2. The OPA mirrors the general jurisdictional scope of the Federal
Water Pollution Control Act (FWPCA) , 33 U.S.C. 111251-1387,
R STAT. FWPCA 001-071: both cover discharges of oil and
hazardous substances into “navigable waters,” a term that has been
intexpreted under the FWPCA to extend to virtually .11 surface
waters of the United States. See International Paper Co. v. Oucllcttc ,
479 U.S. 481, 484, 107 S. C i. 805, 808, 17 ELR 20327, 20330
(1987); UnIted States v. Riverside Bayview Homes, 474 U.S. 121,
106 S. C i. 455, 16 BR 20086 (1985)
penalties and liability limits, and mandates an expande
regulatory program for contingency planning and preven
tion to address discharges from vessels and facilities. Th
CPA also creates a $1 billion fund to provide sufficien
compensation for damages resulting from sp 11 is and ade
quate resources to cany out the act’s new preparedness ant
response provisions.’
As with all new statutes, implementation of the CPA wil
take time and involve agency rulemaking. The inevitabl
outcome will be to redefine the power of executive brand
agencies that arc given responsibility for carrying out th
OPA’s mandates. This Article examines some significan
steps that need to be taken by executive branch agencies t
implement the provisions of the CPA. ’
3. ThIs I of the OPA establishes new sections of the FWPCA. whic
have been codified ax 33 U.S.C. *02701-2719. ThIs title now govern
liability and compensation Issues arising from discharges of oi
While titles II and IV nm,i iI existing FWPCA *311 authoritie
codified at 33 U.S.C. *1321, 31l continues to cover prcvcxttlo
and removal issues arising from discharges of oil nd hazardot.
substances. OPA *2002 makes It clear, however, that the new OP.
billion dollar tiusi fUnd—which replaces the previous $35 millie
FWPCA *3 11(k) fund—may be used only for addressing oil po
lotion. The OPA also defines “oil” in 01001(23) to exclude hs
ardous substances coveted by the Comprehensive Environincnt.
Response, Compensation, and Uabilixy Act (CERCL.A), 42 U.s.c
ft9601.9675, ELR STAT. CERCLA 001-075. Thus, it appears th.
FWPCA *311 actions to address hazardous substance release pn
vention and response will be funded by the Superfund program.
4. See also Randle, The Oil Pdhaion Act of 1990: 1:: PyovisIo,
Intent, and effects, 21 B.R 10119 (Feb. 1991).
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09/01/98 10:46 ‘202 260 8046
EPA CCC
j003
21 ELR 10606
OPA Responsibilities Directly Assigned to Executive
Branch Agencies
Under the OPA, Congress assigned over 50 new adminis-
trative duties and responsibilities, many of them directly,
to federal agencies. While the Secretary of Transportation
received the largest share of these assignments, the Depart-
ments of Commerce, State, and the Interior also reccived
congressional direction on a wide range of issues.
Department of Transportation
One of the more significant tasks, promulgating regulations
to implement the OPA’s new double-hull requirements, was
given to the Department of Transportation (DOT).’ The
OPA requires double hulls on most newly constructed tank
vessels 6 and phases out existing vessels without double
hulls over the next 25 years. 7 The phasing-out process
begins in 1995 and will take into account the age and
tonnage of affected vessels in order to balance adequate
shipping and shipbuilding capacity against the need to ex-
peditionsl} ensure environmental protection. In the interim.
the DOT is required to issue regulations establishing eco-
nomical and technically feasible structural and operational
methods that provide substantial environmental protection.’
The OPA also requires the DOT to implement new pro-
visions relating to the prevention of oil spills from vessels.
These provisions require the DOT to promulgate regulations
establishing:
• minimum standards and periodic testing for plat-
ing thiclmess (*4109);
• requirements for devices to warn of overfilling
and to monitor tank levels and pressure in oil tank-
ers ( 4llO);
• conditions under which thnks r auto-pilot sys-
tems may be used in navigable waters generally
( 4l14), and specific pilotage and escort require-
ments in Prince William Sound and Puget Sound
( 41l6); and
• standards for vessel communication equipment
(*41l8).
5. This rulemaking moss likely will be promulgated by the Coast Guard,
which carries out most of the Secrelary g functions relating to marine
poilucion and navigation issues.
6. OPA §4115 (a). ELR STAT. On. Pou.. 014. There are some excep-
dons to the general double-bull requirement Tank vessels under
5,000 gross tons need not have double hulls if they are equipped
with an equally effectave double containment system (e.g.. flexible
bladders, double tides, or other combinations of technologies). In
addition, vessels offloading oil at dcepwater paris axe exeinç (mm
the double-hull requirement until 2015.
7. I i at 015. Smaller tank vessels (I.e., those under 5.000 puSs Ions)
may qualify for an exemption if they are equipped with equally
protective features.
S. S. CPA §4115(b), ELR STAT. On. Pou.. 015. The CPA requires
promulgation of these regulations in final form by August 1991.
Examples of structural and operational requirements include hydro-
static loading, liners, apt 11 ratis, and on.board containment devices.
See H.R. CaMP. Rn’. No. 653, 101st Cong., 2d Seas. 141 (1990).
9. The Secretary I v also required to Install an automated navigation
light at BlIgh Reel (sitc of the £zr.cn Vatdez accIdent) (*5003) and
a vessel traffic service system to neck vessels nansinag Prince
William Sound (*5004).
The OPA also requires the DOT to ade 9 uatcly consider
alcohol and drug use when reviewing and issuing lic -
certificates of registry, arid merchant mariner’s
rnents. 10 The OPA further allows the Secretary to
entry into U.S. ports to foreign vessels that are not properly
manned” or do not have adequate evidence of financial
responsibility.’ 2 As a related matter, another DOT ruletuak-
big will need to address the financial responsibility require-
ments for vessels under the significantly increased liability
limits Set forth in §1004.’
Finally, the Secretary will be conducting studies on a
variety of subjects, including vessel movement and the need
for better traffic service systems; “ the adequacy of existing
authorities designed to ensure safe waterborne transport of
oil and hazardous substances, including issues relating to
crew size, training, equipment, inspection, and navigation
procedures; alternatives to double hulls that can provide
equal or better environmental protection:’ 6 and the feasi-
bility of a Maritime Oil Pollution Prevention Program. ‘
Department a/Commerce
OPA §1006(e)(l) ” charges the Under Secretary of Coin-
incite for Oceans and Atmosphere. in consultation with the
Fish and Wildlife Service and the Environmental Protection
Agency (EPA), among others, with publishing natural re-
source damage assessment regulations within two years of
the OPA’s enactment. In a recent advance notice of pro-
posed rulemaking, the National Oceanic and Atmospheric
Administration (NOAA) informed the public of its i
to issue these regulations and solicited public cornmt
a number of aspects concerning development of approp -
damage assessment procedures and the proper scope of the
damage assessment process. t ’
An interesting feature in the OPA is a new provision that
requires federal natural resource trustees to assess damages,
as well as to prepare and implement a restoration plan.
When the NOAA regulations are used by natural resource
trustees in evaluating the extent of injuries to natural re-
10. OPA §4101, ElI STAT. Oat Pott. 012. The Secretary Ii authorized
to review driving records and criminal records In carrying out these
duties. I d .
11. Id. at §1016, ELk STAT. On. POLL 009.
12. Id. at §4106. ELk SttT. On. PoLL 013.
13. OPA 1 1016 also authorizes the President to issue financial respon-
sibility regulations for offshore facilities. This function wili need
to be delegated In the executive order, which Is discussed In the
next section.
14. IS ax §4107, ELk STAT. OIL Pou.. 013.
15. Id. at §4111, ELR STAT. OIL Pou... 014.
16. Id. as §4115(e), ELk STAT. On. Pots.. 015.
17. Id. at §4117, ELk Smr. On. Pou.. 016. In addition to DOT studies,
CPA §4112 requires the Secretary oldie Army to study the feasibility
of converting dredges Into vessels suitable for removing discharges
of oil and hazardous substances. Moreover, CPA §4113 requires
the President to study liner, and other secondary containment meas-
ures at onshore facilities, and report to Congress with recomnien-
datkin . within one year of rnscunent. Given the Environmental
Protection Agency’s (EPA’s) experience with liners in the hazardous
waste management program under the Resource Conservation
Recovery Act (RCRA), 42 U.S.C. § 690l-6992k, ELk
RCRA 001-050, it is likely that EPA will conduct this stud)
18. 33 U.S.C. §2 70 6(eXl), ELk STAT. On. Pou.. 007.
19. ces 55 Fed. Rag. 53475 (1990) (proposed Dec. 28, 1990).
20. See OPA § 1006(c), EL.R STAT. Ott. Poi.r.. 007.
ENvm0NMENTAL LAW REPORTER 10-91
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09/01/98 10:47 ‘ 202 260 8046
EPA OGC
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10-91
NEWS & ANALYSIS
21 ELR
sources caused by oil spills, the resulting damage assess-
ments will enjoy a rebuttable presumption on behalf of the
trustee in subsequent administrative or judisial proceed-
ings. u The legislative history indicates that the measure of
damages includes the cost associated with restoring. reha-
bilitating, replacing, or ac uiring the equivalent of the im-
pacted natural resources. The measure of damages also
includes thc diminution or loss of value in services provided
by those resources pending their restoration, and the cost
of conducting damage assessments. m
The CPA provision is patterned after *301(c) of the
Comprehensive Environmental Response, Compensation,
and Liability Act (CERC1A), ‘ under which the President
delegatedro theDepnrtmentofthc lnterior(DOI)thcre-
spousibility for preparing regulations for assessing damages
to natural resources that axe injured, lost, or destroyed by
releases subject to CERCLAand *311 of theFederal Water
Pollution Control Act (FWPCA). Although Congress
specified its desire to have the Department of Commerce
(DCC), rather than the DOl, prepare damage assessment
regulations for purposes of the OPA 4 basic similarities be-
tween Dora damage assessment regulations promulgated
under CERCLA and DOC’s forthcoming regulations under
the OPA can be expected. However, the recent advance
notice of proposed rulemaking indicates that NOAA intends
to consider newly available technical information and may
adopt methodologies and procedures that differ from the
DO l modeL ‘
Under the CPA. the Secretary of Commerce aLso chairs
the Prince William Sound Oil Spill Recovery Instiwtc.
The institute will initiate research and carry out educational
and demonstration projects related to the Ercon Valdez spill.
The institute is distinct from the Interagency Coordinating
Committee on Oil Pollution Research. which is established
by OPA §7001 to conduct “a comprehensive program of
oil pollution research, technology development, and dem-
onstration” projects. The committee, which is composed
21. Se, OPA 10O6(e)(2). ELR ST*r. On. Pou.. 007.
22. KR. Cons. Rap. No 653, .wpra note 8 at 108.
23.42 U.S.C. *9651(c), ELR STAT. CERCL.A 062.
24. fiR. Cons. REP. No. 653, supra note 8, it 108. The Conference
Report state* a preference for reetoradon, rehabililation, and replace-
ment, 4i . radng that acquisition of equivalent resources should be
used as a last fCSO L hi
25. Und CERCLA *301(cX2), these regulations outlise psvccdnrei
for eitb duiplifled or full-field damage asscumcntL The vrocc-
dares, published at 43 C .F.L Pt 11(1990), were remanded n part
by the U.S. Coust of Appeals for the District of Columbia in Ohio
v. U.S. Dep ’t of the Interior, 880 P.2d 432, 19 R 21099 (D.C.
Cit. 1989) and Coloredo v. U.S. Dep’t of the Interior, 880 P.2d 4*1
(DC C l i. 1989). One aspect rejected by the cowl dealt with Dora
nasrow markes ue vilue approach for damage assessment S€ 01.
ion, Muural Rewwvs Damages hr the Wake of the Ohio and
Colorado Decjswrss. W iere Do We G a Fran, here, 19 .R 10551
(Dec. 19*9); and Kopp, Ponnay, & Smith, Nature! Rereu,ee Des ,.
ages: The Zccvwnik, have Shifted After Ohio V. United States
Department of the Inter Ior. 20 E..R 10127 (Apr. 1990).
26. The Senate Environment and Public Wor ’e, Committee report en-
coumages NOAA to explore new approaches (or the damage assess-
ment regulations: In requiring NOAA to Issuc new regulations, it
is Iniended that NOAA adopt advanced teclmiques to assess damages
consistent with the above-mentioned measurement of damages
[ sums including, but sot limited to, reatoestion, rep1acemani ecqui.
utica of equivalent resources, plus Interim diminution of use and
other vitucsj.” S. Ra’. No. 94, 101st Cong.. lit Seas. 15 (1989).
27. See OPA *5001, E.R STAT. OIL P0ZL 023.
28. 33 USC *2761, ELR STAT. On. Pou. 029.
of representatives of EPA, NOAA, the National Aeron
and SpacciMministrution, and other federal agencies
coordinatc its comprehensive program with, and to set
cooperatir p of, industry groups, universities and r c a
institutiods, and state and foreign governments.
§10 12(a)(5)(C) authorizes up to $27.5 million per ye.
research and development efforts under §7001. In add
the OPA also encourages joint funding of researci
example of such research involves the efforts under
byEPAandExxoninthewakeof the Valdezspilltoex
the feasibility and efficacy of new bioremediation tech
gies on oil spills pursuant to the Technology Transferi
Department of State
On the international side of oil pollution issues. the Secr
of State, in consultation with the DOT, EPA, NOAA, n
boring states, the International Joint Commission, and
interested agencies, is tasked with reviewing existing a
meats and treaties with Canada related to cooperath
addressing spills on the Great Lakes and Lake Champir
In addition, the Secretary of State, in consultation wit
Secretaries of the Interior and Transportation, and the
exnor of Alaska, is called upon to begin negotiations
Canada on a treaty regarding liability for and respon
possible oil sp 111 s in the Arctic Ocean.
Department of the Interior
Finally, §6003 32 temporarily prohibits the Secretary o
Interior from conducting any offshore oil leasing, exp
don, or development activities pursuant to the Outer
tinental Shelf Lands A&’ off the coast of North Care
In addition, the section requires the Secretary to con
additional ecological and socioeconomic studies psic
authorizing such activities.
Delegating Presidential Functions In an Executive
Order
As with CERCLA and FWPCA §311. many impom
authorities and duties under the OPA simply are give
the President. This approach necessitates promulgatio
an executive order to delegate these functions to the ap
priate administrative agencies. TM Two primary concept
the existing executive orders governing implementatic
29. Pub. L No. 99502, 100 Stet. 1785 (1986) (codified it 15 U
§3710a).
30. OPA §13002-3003, R Smr. Ott. POLL. 011. Reports on t
points were due to Congress by February 18, 1991.
31. Id ax §302, ELR STAT. On. Pou.. 033.
32. 33 U.S.C. §2753, ELR STAr. On.. Fou.. 027.
33. 43 U.S.C. *11331.1356, £LR STAr. Our. 045.
34. Delegation of one presidential authority could not be delayed p
big Ixeparatlon of the anticipated executive order. On Augus
1990. President Bush delegated to the Secretary of Trattaporti
the authority m mdci the OPA to make money available from
newly created $1 billion Oil Spill Uability Trust Fund for reap
actions. among other things. See 55 Fed. Rag. 35291 (1990).
special delegation was necessitated by the elimination of the prey
FWPCA *311(k) response fUnd. The Secretary otThnsportt
subacq ucndy delegated this now authority to the Commander
the U.S. Carat Guard.
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CERCLA and FW1 A §311 programs will likely serve as
models for the OPA executive order.
First, some program functions vested in the President are
currently divided betw n EPA and the Secretary of Trans.
portaliori (acting throug i the Coast Guard) on the basis of
“inland” and “coastal” waters. This jurisdictional divi-
sion is reflected in the National Contingency Plan (NCP),
which provides that EPA generally will provide on-scene
coordinators “for discharges (of oil] or releases [ of hazard-
otis substances] into or threatening the inland zone.” while
the Coast Guard generally will provide on-scene coordina-
tors for discharges and releases “within or threatening the
coastal zone.” 3
Second. regulatory functions vested iii the President under
FWPCA §311(j) traditionally have been divided between
EPA and the Coast Guard on the basis of the discharger’s
characteristics, Thus, EPA has been responsible for prom-
ulgating regulations under *31 l(jXI)(C) concerning “pro-
cedures, methods, and equipment and other requirements
for equipment to prevent discharges of oil and hazardous
substances ... and to contain such discharges” where the
facilities are characterized as “non-transportation-related
onshore and offshore facilities.” At the same time, the
Coast Guard has taken responsibility for vessels and trans.
portatlon-related facilities.
Inland and Coastal Areas
Dividing jurisdictional responsibility on the basis of inland
and coastal waters will likely be applied to several programs
and authorities under the OPA and amended FWPCA §311.
o The federal response system. Prior to the OPA. FWPCA
*311(c) authorized the President to respond to a discharge
35. Exec. OrderNo. 12580,3 C.P.R . 193(1987). reprintedI , 42 U.S.C
{9615 app. at 1356-59 (Supp. V 1982), implements C CLA, as
amended by the Superfund mø wtni rtta and Resinhorinadon Act
of 1986 (to lbs ext ent the OPA does act apeciflcafly amend CER-
aA. this executhtc order should remain in txt); and Exec. Order
No. 1173S (38 Fed. Reg. 21243) (1913), as amended by Exec. Order
No. 12418,3 C.F.R. 187(1984), reprinied iii 33 U.S.C *1321 app.
at 628 (Supp V 1982). Implements FWPCA *311. Most of Exec.
Oider No.11735 will need to be amended to carry out the revisions
contained In the OPA.
3& Forexaniple, in *1(aX3) of Excc, Order No. 12580 (implementing
Supedund), the chairperson of the regional response teams is de-
termined by whether the release occurs in the inland or coastal zone.
37. On-Scene Coordinators and Remedial Project Mansgcn General
Responsibilities, 40C.F.L *300.120(1990). The “inland zone” is
defined ii 40 C.FR.. 0300.5 for response purposes as “the environ-
meal inland of the coastal w a n excluding the Great Lakes and
specified posts and harbors on inland rivers.” The “coastal zone”
Is defined at 40 C.F.R. 03003 as “eli United States waters subject
to the tide, United States waters of the Great Lakes, specified ports
and harbors on inland nvcra, 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.”
38, Sec Excc. Order No. 11735, mpra coin 35. 01(4). In implementing
the OPA., ii may be appropriate to delegate a number of the respon-
sibilities relating to offshore facilities under DOl’s jurisdiction to
the DO! Instead of to EPA to the extent the DO! regulates off shorn
oil explocanort and leasing acthities.
39. See i L 02. The agencies have act out the distinctions between these
two types of facilities in a memorandum of understanding, the
relevant poslion of which is published as an appendix to 40 C.F.R.
p 1. [ 12 (1990).
10-91
of oil or hazardous substances into waters of the Unites
States, unless he determined “such removal wilJ
properly by the owner or operator” causing d ii Is
addition, the President was authorized under
*311(j)(1)(A) to establish “methods and procedures for the
removal of discharged oil and hazardous substances.’”°
The OPA significantly modified and strengthened federal
authority to respond to oil and hazardous substance spills.’
To begin with, under FWPCA §311(c), the President must
“ensure effective and immediate removal of a discharge oJ
oil or hazardous substance.” Moreover, the President must
assume responsibility for cleanup actions where the dis-
charge (or substantial threat of a discharge) poses a “sub-
stantial threat to the public health and welfare.” 2 In car-
rying out both provisions, the OPA requires the President
to consult with nutural resource trustees regarding “the
appropriate removal action to be taken in connection with
any discharge of oiL” To more effectively carry out these
expanded response authorities and duties, Congress added
new federal enforcement authority to direct cleanup actions
by responsible parties and states, and to issue administrative
orders to that end.”
O Abatement of imminent and substantial endangerment
In the past, FWPCA §311(c) authorized the President to
seek judicial relief to abate an imminent and substantial
threat to public health and welfare caused by a discharge
or threatened discharge of oil or hazardous substances. OPA
§4306 amends that provision by giving the Presider .w
authority to issue edministrative orders to addret e
situations.”
40. The main components of the response framework are set out in
Subp st B of the NC?, Including the responsibilities of the National
Response Team (40 C.F.R. 0300.110 (1990)). Regional Response
Team (40C.PJ... 0300.115 (1990)), and On-Scene Coordinators (40
C.P.R. 0300.120 (1990)). FWPCA *311(IX1XA) was not amended
by the CPA.
41. One ch*nge that appears unlntcndcd, but which could bavesdrainailc
Impact or the FWPCA 0311 program, arises from a slight change
in the language outlining the jurisdictional scope of this provisiorL
FWPCA *311(c)(1) still provides federal removal authority in re-
sponse to discharges of oil or hazardous substances into navigable
wa xers, onto adjoining shorelines to navigable watcri, or into the
water. of the exclusive economic zone. After Listing these three
water-relaxed jurisdictional categories, the statute now continues
with “or (iv) that may affect neutral resources belonging to. ap cr .
tainlngto, or under the exclusive management authority of the United
States.” This last category is not tied to “waters” of any kind, and
arguably could stretch *311 authority to cover discharges occurring
solely on dry land. Congress’ attempt to clarify ibis provision by
nesting separate subparagmphs tray have inadvertently changed
the entire scope of the program.
42. By adding this new language to the FWPCA, the CPA appears to
limit to some extent the President’s discretion to respond to a
discharge and introduces a fesutse not found in the CERCLA model.
43. See OPA p1011. ELR STAT. OIL Port. 008. This consultation
appears to be a prerequisite to considering a removal action to have
been completed.
44. Se. OPA 04201, ELR STAT. On. POLL. 016, and 04306. ELR STAT.
Oa. Fou.. 022, amending FtVPCA *31 1(c). (a), EL.R STAT. FW-
PCA 044, 045.
45. It Is not clear how Congress intended the standard in F
0311(c), which requires the federal govcwmentto take over,
actions where a ‘substantial threat to the public health and w .
exists, to Interface with the federal government’s amended authority
under FWPCA *311(e) to issue administrative ordcn and take ju-
dicial action where “there may be an £mmhienl and substantial threat
to the public health or welfare” (emphasis added).
21 ELR 10608 V1RONMENTAL LAW REPORTER
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2 1E11t10
o Area contingency plans Prior to enactment of the OPA,
the President was authorized under ?WPCA §311(j)(1) to
establish “criteria for the development and Implementation
of local and regional oil and hazardous substance removal
contingency plans.” Current EPA regulations provide some
criteria to assist Local, state, and regional development of
oil removal contingency plans. ‘ Other federal contingency
phasing procedures are established In the NCP which dis-
cusses the purposes and scope of different kinds of federal
conbngency plans, including the NCP, regional contingency
plans, and on-scene coordinator (OSC) contingency plans.”
Although Congress did not amend *311(j)(1), it added a
new requirement to the exIsting contingency planning
framework. (Jndcr FWPCA §311(j)(4), the President must
designate “areas” throughout the countty, appoint members
to federal area committees who are to draw up contingeuc
plans for each area, and review and approve those plans.
Vessels and Facilities
The division of responsibility that brings nontransportation-
related facilities under EPA’s jurisdiction and transporta-
don-related facilities and vessels under the Coast Guard’s
jurisdiction also is expected to be carried over for several
authorities in the OPA executive order.
o Response plans Since 1972, FWPCA §3110)(1XC) has
provided the President with the authority to issue regulations
“establishing procedures, methods, and equipment and
other requirements for equipment to prevent discharges of
oil and hazardous substances from vessels and from onshore
facilities and offshore facilities, and to contain such dis-
charges.” CPA §4202(b)(4) added a new subparagraph (5)
to FWPCA §311 (j) that requires facility and vessel
owner/operators to prepare response plans and, in some
cases, obtain federal approval of those plans in order to
continue operating. That provision also requires the Presi-
dent to conduct periodic drills and inspections of vessels
and facilities to ensure availability of response equipment
and lest response capabilities described in vessel and facility
response plans. °
o Adjustment of liability limit. OPA §1002 outlines the
elements of liability for “responsible parties.” ° In addition
to removal costs, liability extends to a wide range of dam-
ages, including those to natural resources; real or personal
property and related profits and earning capacity; subsis-
tence use; revenues lost by governmental entities (e.g. ,
46. See Critena for State, Local, and Regional Oil Removal Contingency
Plans, 40 C.P .R. pt. 109 (1990). The aiterla Include descriptions
of appropriate authorities and responsibilities of relevant agencies,
notification procedures, availability of equipment and other resowee
capabilities, and response and coordination procedures.
47. See Federal Contingency Plans, 40 C.FR. *300210 (1990).
4*. See OPA *4202(b), EL Sr r. On. Pou .. 019.
49. See OPA *4202(a)(6), ELk STAT. On. POLL. 019. Ia addItion, the
President continues to have authority under FWPCA 1311(JX1XD)
to Inspect vessels carrying oil and hazardous substances and their
cargoes.
50. OPA *1001(32), 33 U.S.C. *2701(31). ELk STAT. OIL POLL. 004.
provides an extensive definition of “responsible pazfltcij” that In.
chides owners, operators licensees, and permitter. of a variety of
veeaels and facilities. This definition Ii also incorporated Into the
revised federal removal authority by FWPCA 1311(cX 6 ).
taxes, royalties, and rents); and the provision of additio
public sexvices. Liability also extends to the coat of
sessing these damages.
The statute places parameters on this broad liability
two ways. First *1003 provides a limited set of defen
to liability patterned after those found in CERCI
§107(b).” However, these defenses arc unavailable to
sponsible panics who fail or refuse to report the dischar
cooperate and assist in cleanup activities, or comply
a federal order or directive issued underFWPCA §311
or (e). In addition, §1004(a) establishes liability limits
parties responsible for discharges of oil into waters of
United States. These limits range from $1,200 per gri
ton for vessels (or $10 million, whichever is greater),
$75 million plus removal costs for offshore facilities oIl
than deepwater ports, to $350 million for onshore facilit
and deepwater ports.” These limits do not apply where
discharge is caused by responsible party’s gross negliger
or willful misconduct; violation of applicable regulatio
failure or refusal to report the discharge or cooperate in
cleanup efforts; or failure or refusal “without suffici’
cause” to comply with an administrative cleanup order
directive.”
There arc two administrative responsibilities associa l
with the OPA’ liability limits. First the limits for
shore facilities may be adjusted downward by the Pre
51. OPA 1001(31),33 U.S.C *2701(31), ELk Smr. On. Pou.. 0
defines the “purposes of this Act.” Under the OPA, “removal cas
means those costa incurred afler a discharge—or substantial thi
of discharge—of oil has occurred, including prevention, mininu
non and mitigation expenses. OPA *1001(30) define. “remov
to mean actions taken to contain and clean up discharge ., as v
e ‘the taking of other actions in may be necessary to InI Imi?r
mitigate damage to the public health or welfare.” Thin definitiot
consistent with the new definition of “removal” in FWPCA {3
aa amended by OPA *420 1(b). InterestIngly, the definition ot
moval” in OPA *1001(30) applies to both oil and hazardous si
stances, even though title I of the act focuses on oil discharges or
52. See OPA 11001(5), 33 U.S.C *2701(5). ELk STiiT. OIL POLL I)
53. See 42 U.S.C. *9607 (b). ELk STAT. CERCLA 025. Delco
include an set of God, an act of war, or an act or omission of ccrt
third parties.
54. OPA.41003(c)(3), ELk STAT. On. Pots.. 003. As in RC
ll106 X1) and 107(c)(3), “sufficient cause” on the part of
responsible party may excuse such rthsal or failure to comply w
an administrative order or directive. The sufficient cause defense
intended to preclude assessment of penalties when a party demi
males Ii has an objective, reasonable belief that it was not rcsponsl
for the discharge or that the action required by the order or direct
Ii Inconsistent with the NCP. See Solid State Circuits v. U.S. El
812 P.24 383, 17 ELk 20433 (8th Cl ,. 1987). Th In could arise
key facts am in question when the order or directive I. issued
th . responsible party does not have the financial or technical
sources to comply, or If no technological means exist for acbiev
compliance. The sufficient cause defense .l o tempers aeverul oti
OPA provisions, including *1004’s exception to liability limits a
14301(b)’. imposItion of civil penalties for failure or refusal
comply with an order or directive, amending FWPCA *311 (bX ’
55. In addison to i eaaing applicable liability limits, Congress cli i
natcd&omplayea archaic, potentially troublesome mantune stani
The 1851 Limitation of Lanbility Ac 46 U.S.C. *183, passed
part to promote the growth of the country’s merchant marine,
sendally limits a vessel owner’s liability to the value of the yes
afler an accident occurs. Congress has resolved any Lingering dou
about the applicability of the 1851 act to discharges of oil into waS
of the United States by aIming thai It cannot be used to lInii
responsible party’s liab ility under applicable federal law (Inclutit
RC RA) or itate at Local authorities, Including common law,
OPA *1018, ELF.. STAT. On. POLL 010.
56. OPA *1004(cXl)-(2), ELk STAT. On. POLL 006.
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21 ELR 10610
dent to not less than $8 million through a rulemaking
procedure, depending on the “size, storage capacity, oil
throughput, proximity to sensitive areas, type of oil han-
dled, history of discharges, and other factors relevant to
the risks posed by the.. . facility.” “For deepwater ports,
the Secretary of Transportation is authorized to lower the
limits of liability to not less than $50 million, after con-
ducting a study and issuing a report on the associated
operational and environmental risks. 3’ The OPA also
mandates periodic reports to Congress by the President,
starting six months after enactment, in order to determine
whether the statutory limits should be adjusted.’ 9 Rec-
ognizing how quickly limits can become obsolete, Con-
gress authorized the President to adjust the liability limits
every three years through regulations to reflect significant
increases in the Consumer Price Index. ’ 0
Other Executive Order Issues
A third set of presidential functions under the OPA does
not depend on the traditional jurisdictional divisions be-
tween EP#i inc 1 the Coast Guard.” These functions include
assigning responsibility for making the revisions to the NCP
required by §4201(b), and determining the quantities of oil
and hazardous substances that “may be harmful” to public
health, welfare, or the environment” Based on how CER-
CLA and the FWPCA §311 program have been ixnple-
mented, it is likely these OPA responsibilities will be dele-
gated to EPA.
Similarly, one can presume that the Coast Guard, with
its experience in n lminictering the FWPCA §311(k) fund,
will be given responsibility for managing the billion dollar
Oil Spill Liability Trust Fund. The fund manager will be
responsible for reimbursing response costs incurred consis-
tent with the NCP and uncompensated claims under §1013,
and paying natural resource trustees for damage assessment
costs and federal agencies for administrative and operational
costs associated with implementing the statute. In addition,
§1012 requires the President to issue regulations to desig-
nate federal officials who are authorized to obligate the
fund, and to authorize states to obligate up to $250,000 per
spill. Furthermore, §1013(e) calls for regulations to govern
the processing of claims flied by aggrieved parties seeking
57. Id. ax §1004(d)(1), ELR STAT. On. Pou.. 006.
58. Id. at § 1004(dX2), EL.R STAT. OIL POlL 006.
59. Id. at §1004(dX3), ELK STAT. On. Pou.. 006.
60. Id. ax *1004(dX4). ELR STAT. Ott. Pou.. 006.
61. Functions in this category include a number of appointments to
committees and advisory groups by the PgcsWenL For example, the
President is to appoint thc fcdcral representative to the Oil Terminal
Facilities and Od Tanker Operations Association operating in Pth c
William Sound pursuant to OPA §5002(c). Addit]onall , the Presi-
dent may add federal representatives to the membership list Congress
already specified for the Interagency Coortlinathig Committee on
Oil Pollution Research in CPA *7001. and is to select the members
of the Presidential Task Force on the Trans-Alaska Pipeline System
under OPA §8103.
62. OPA §4204 amends existing authority to make such determinations
found in FWPCA §31 1(bX4) by adding “or the environmeni ’ For
purposes of oil spills, EPA has issued regulations at 40 C.F.R.
*1103 determIning the quantity that may be harmful to be either a
violation of applicable water quality standards or £ discharge that
creates a “film or sheen.” The Fifth Circuit Court of Appeals recently
upheld EPAs “sheen lest” in Ciievron, U.S.A., Inc. v. Yost, 919
F.2d 27, 21 ELK 20336 (5th dr. 1990).
compensation for removal costs they incurred or for dam-
ages described in §1002 (b) (e.g., damages to natural re-
sources, property, subsistence use, revenues, profits and
earning capacity, and public services). As a related matter,
§ 1014 requires the President to identify the source of a spill
and let the affected public know how to present claims
against the fund when there has been a discharge.
One final issue that may be addressed by the executive
order relates to interagency coordination during oil spills. 63
In the initial stages of the E. on Valdez spill, President
Bush directed EPA Administrator William Reilly to coor-
dinate the long-temi restoration of Prince William Sound
and the Gulf of Alaska on behalf of the federal natural
resource trustees.” This coordination role for EPA, de-
signed to ensure an ecosystem-wide approach to restoration
activities, is not embodied in the NCP or in prior executive
orders governing CERCLA or FWPCA §311 response ac-
tions. To institutionalize EPA’s role in nationally significant
incidents, it would be appropriate to include language in
the OPA executive order clarifying EPA’s relationship to
federal natural resource trustees for reference in future
spills. A fuller elaboration of EPA’s role would also be
appropriate in the context of the revisions to the NCP.
Implementing Revisions to the Federal Response and
Planning Framework
Through the OPA. Congress added new features to the
existing framework for addressing discharges that affect
the aquatic environment. The OPA now establishes three
levels of response and planning capabilities. The first level
builds on the NCP,’0 the current regulation that implements
the FWPCA §311 and CERCLA programs. The second
level creates a new federal entity designed primarily for
planning purposes—the area committee—which is toprc-
pare area contingency plans throughout the country. ‘0 The
third level requires owners and operators of facilities and
vessels top individual response plans.
The NC?
The NCP (which is the common acronym for the National
Oil and Hazardous Substances Pollution Contingency Plan )
63. Interagency coordination is generally addressed in both Exec. Order
No. 11735 (*6), implementing FWPCA *3 11, and Exec. Order No.
12380 (*1 1(f)). 3 C.F.R. 193 (1987). reprinted in 42 U.S.C. §9615
app. ax 1356.59 (Supp. V 1982), Implementing CERCLA. In addi-
tion, *11(g) of the CERCLA executive order contams authority to
redelegate certain assigned functions to heads of other federal agcn.
des. A similar provision for the OPA may be appropriate, as well
64. For purposes of C CLA and FWPCA §311, federal naurral re-
source trustees designated by *1(c) of Exec. Order No. 12580 [ 17
ELK 45031], include the Secretaries of Commerce, the Interior, and
Agriculture. OPA §1006(c) add, Indian tribes and foreign trustees
to the two categories of natural resource trustees previously men-
tioned in FWPCA §311(0(5) (i.e., federal and state trustees).
65. For a complete discussion of the most recent revisions to the NCP,
see Freedman, Proposed Amendment: to the National Contingency
Plan. Explanation and Analy :Lr. 19 ELK 10103 (Mar. 1989); Star-
field. The 1990 National Contingency Plan—More Detail and More
Structure, But Still a Balancing Act. 20 ELK 10222 (June 1990).
66. The OPA area committees do not necessanly displace regional
response learns, the response and planning bodies established under
the current NC?. See 40 C.F.R. §300.115 (1990). However, the
exact relationship between regional response teams and area com-
mittees will nccd to be addressed La the next NC? revision.
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21 ELR 106
dates back to 1968 in one form or another ” Since 1972,
it has provided a regulatory framework for planning and
response actions related to discharges of oil and hazardous
substances, first under the FWPCA §311 program and later
under the Supcrfünd program. Although CERCLA sig-
nificantly changed the complexion of the NCP in 1980, the
plan has continued to provide the fundamental organiza-
tional structure, general procedures, and basic responsibili-
ties of federal agencies and their interaction with state and
local entities.
OPA §4201 requires another revision to the NCPes and
provides only one year to republish the new regulation. 7°
In addition to the existing statutory list of subjects to be
covered in the NCP, 7 ’ the CPA adds two major items:
• “criteria and procedures to ensure immediate and
effective Federal Identification of. and response to,
a discharge, or threat of discharge, that results in a
substantial threat to the public health and wel-
fare;”” and
• “procedures and standards for removing a worst
case discharge of oil, and for mitigating or prevent-
ing a substantial threat of such a discharge.””
o Substantial threat to the public health and welfare. The
OPA’s new requirement that the President must direct all
federal, state, and private response activities when the dis-
charge “is of such a size or character as to be a substantial
threat to the public health or welfare of the United States,” 4
represents a significant change in federal removal authority
In determining what kind of incident constitutes a “sub-
stantial threat” and how best to address it, Congress deferred
to the executive branch.
The legislative history of the OPA provides some indi-
cation of which spills Congress intended to cover by the
new NCP criteria. First, the conference committee report
lists three specific incidents involving a substantial threat
to the public health and welfare: the Exxon Valdez (Prince
William Sound, Alaska), the American Trader (Huntington
Beach, California), and the Mega Borg ( Gulf of Mexico). ”
67. Freedman. supm note 65. ax 10105-07.
63 Supezfund Amendments and Reauthorization Act of 1986 (SARA),
Pub. L No. 99-499, 100 Stat. 1613 (1986), ELR SmT. CERCLA
001.
69. Previous revisions to the NC?. precipitated by legislative directives,
occurred in 1973, 1982, and 1990.
70. CPA §4201(c), D.R STAT. OIL Lou.. 018.
71. Prior to the OPA. FWPCA §311(c)(2) outlined the basic elements
to be included in the NC? for FWPCA purposes, such es provisions
addressing general duties and responsibilities, equipment and sup-
plies, nonfication requirements, response procedures and techniques,
use of dlspersants, and reimbursement for removal costa by states.
CERCLA §105 requires the NC? to address similar points and
methods for dlscovenn& investigating, evaluatIng, and remediating
releases of hazardous substance..
72. CPA §4201(b). ElI STAT. On. Lou.. 017 (amending FWPCA
§311(dX2)(1), ELR STAT. FWPCA 045).
73. Id. (amending FWPCA §31 1(d)(2X1), ELR STAr. FWPCA 045).
74. OPA §4201(a), ElI STAT. On. Lou.. 016 (amendIng IWPCA
§311(c)(2), ELR STAT. FWPCA 045). This provision applies to
discharges and substantial threara of discharges of both oil and
hazardous substances. FWPCA §31 1(cX2) states that public health
and welfare concerns include Thh. shellfish, wildlife, other natural
resouxces, and the public sal private beaches and shorelines.”
75. H.R. Covr. Rnr. No. 653. supm note 8, at 146.
The size of the spill or potential spill alone, however, is o
determinative. The Senate Environment and Public Wor
Committee report states:
The requirements of this provision are meant to apply
not only to large spills like the one from the Exxon
Valdez, but also to smaller spills, such as those that
occurred In the waters off the Rhode Island coast and In
the Delaware River In June, 1989, which posed substan-
tial threats of a pollution hazard to the public health and
welfare, Including fisheries and wildlife. 76
In addition, spills occurring near major drinking water s
plies or environmentally sensitive areas could represen
substantial threat to the public health or welfare.
As to the need for procedures in the NCP governi
effective response actions in these circumstances, the cc
ference committee report notes that the revisions to FWP(
§311(c) authority are “designed to eliminate the confusi
evident in recent spills where the lack of clear delineati
of command and management responsibility impec
prompt and effective response.” By more clearly descr
ing the roles of affected local, state, and federal agenci
and outlining how they are called into play during ma
spill events, the revised NCP should act to facilitate
direction of cleanup efforts when the federal governm
assumes responsibility.
o Worst-case discharge. Congress, prompted by fears
what the full impacts could have bcea had the Mega B
lost its entire cargo, added a new definition to FWP
§311(a) for “worst case discbarg 7° This phrase mc
the loss of a vessel’s entire cargo “in adverse weat
conditions,” or “the largest foresecable discharge in advc
weather conditions” at a facility. The “largest foreseen
discharge” at a facility does not necessarily equate to a tc
loss of the facility’s contents, but “Is intended to descr
a case that is worse than either the largest spill to date
76. S. Rn’. No. 94, supra note 26. at 18-19. The Senatc bill conta
language similar to that adopted by the conference committee.
77: Thesctwodiaractcrlstics are mentioned in the conference commi
repost’s discussion of fscility response plans. See HR. C0NF. I
No. 653, supra note 8, at 150. As described infra in footnotei
through 113 and accompanying text, owners and operators r
prepare response plans In situations where a discharge from
facility “could reasonably be expected to cause substantial barr
the environment.” FWPCA §31 1(jXS). It is not clear whether C
gress attached any significance to the slight difference Interininol
between the response authority provision (I.e., is of such a sir
character as to be a substantial threat tothepu.blic health orwelfa
and the facility response plan provision (La., “could reasonabl
expected to cause substantial harm to the environment”) (empt
added).
78. HR. Cotp. REP. No. 653, supru note 8. at 146. The Sc
Committee on Environment and Public Works was equally
caned with recent federal response effoits: 1he disaster cal
by the cation’s largest oil ap i11 in Prince William Sound was e
erbated greatly by an unreasonably slow, confused and inadeq
response by Industry and government chat failed miserably In
raining the spill and preventing damage.” S. Rn’. No. 94, si
note 26, at 2.
79. OPA §4201(bX4), ELR STAT. On. Lou.. 018.
80. See FWPCA *31 1(a)(24), ELI STAT. On. Lou.. 039. In addi
to such atmospheric conditions as severe storms and flood
may be appropriate to consider other variables directly influ
lag worst-case events. These might include seismic activity
unstable geologic formations, such as karat terrain and unsi
foundation areas.
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09/01/98 10:56 ‘ ‘2O2 260 8046
EPA 0CC
I 002
the maximum probable spill for that facility.” t The differ-
ence in definitions reflects the dissimilanties between ves-
sels and onshore facilities in terms of the actual proximity
of the contained oil or hazardous substance to the aquatic
environment, and the potential buffer that secondary con-
tainment and other preventive equipment, such as shut-off
devices and overflow alarms, can provide on land.
The worst-case concept provides a common thread
throughout the new federal contingency planning process
envisioned by Congress. It is to be integrated into the NC?,
area contingency plans, and facility response plans. ‘ Re-
visions to the NC? must include appropriate measures for
addressing such a catastrophe once It happens, as well as
steps that can be taken to mitigate or to prevent a potential
worst-case spill.
The NC? will also need to address the interaction between
a worst-case spill and a discharge that poses a substantial
threat to the public health or wclfare. For example. there
clearly will be cases where a worst-case spill also represents
a substantial threat (i.e.. the breakup of a full supertanker
near a fragile estuary). At the same time, some worst-case
spills at facilities may not require the same level of attention
(i.e., a small refinery suffering the collapse of its single,
small above-ground storage tank near a heavily polluted
waterway). To ensure effective cleanup actions, while not
needlessly over-committing scarce response resources., the
NC? will need to reconcile the appropriate degree of federal
involvement in worst-case spills and events posing substan-
tial threats.
The worst-case concept appears to be borrowed in part
from regulations issued by the Council on Environmental
Quality (CEQ) implementing the National Environmental
Policy Act (NEPA). ‘ A previous iteration of those regu-
lations required federal agencies preparing environmental
impact statements for major federal actions significantly
affecting the environment to include a worst-case analysis
where relevant information concerning the potential adverse
impacts of a proposed course of action did not exist or was
too costly to obtain. “ That analysis could then be used to
fully evaluate the different environmental effects of avail-
able alternatives.
81. H.LCotn .Ras.No.653,suprcnot8,It147.ThenetdfOTdcfiniflg
veuetg sad faciliuiea dlfferertdy is explained in the coafere corn-
mitten zeportas enslng from the difficulty Is determining what the
entire conten ts of * facility ate In certain circumstances (e.g., pipe-
lines).
82. See OPA 4202(s), E .R Sr 1 T. On. Pou.. 018. On the response
side, the wont-case scenano also forms the basis of one of the
responsibilities of the newly created Coast Guard National Response
Unit, which ii to “coordinate use of private and public personnel
and equipment to remove $ worst case discharge, and to mitigate
or prevent a substantial threat of such a discharge.” FWPCA
31 1(J)(2XC).
83. See Environmental impact Statement Guidelines, 40 C.F.R.
*1502.22(1990).
10-91
In the NEPA context, the worst-case analysis was for-
merly designed to ensure more comprehensive planning by
factoring in the risks and severity of possible adverse con-
sequences of federal agency decisions in the face of scien-
tific uncertainty or lack of information. Under the OPA,
the worst-case scenario also serves a planning function to
better prepare response actions in the face of catastrophic
spill events. 3 However, the worst-case concept under the
OPA and the former CEQ regulations clearly diffcr in at
least one respect. The CEQ interpreted the worstcasc analy-
sis to cover not only “low probability/catastrophic impact”
events, but also “a spectrum of events of higher probability
but less drastic impact.” “The OPA’s use of the worst-case
spill, on the other hand, is focused only on catastrophic
events.
Other NC? Revtstons
In addition to incorporating the “substantial threat” and
“worst-case” concepts into the NC?, the OPA expands the
scope of the previous statutory language governing the
NCP’s treatment of the use of dispersants. At present, dis-
pcrsants for the most part may be used to respond to an oil
discharge only if they are included on the National Product
Schedule. nlThcexistingNCPestablishes datarequirements
that must be satisfied prior to being listed on the schedule.”
Currently, dispersants, surface collecting agents, oil spill
control agents, and other chemical and biological products
are eligible for inclusion.’ 9
The OPA now suggests that “other spill mitigating de-
vices and substances” may be appropriate for inclusion on
the existing product schedule. “While there is no indication
what this phrase is intended to cover, it could include booms,
skimmers, sorbents, and burning agents, which are not cur-
rently listed. The conference committee report indicates
that the short- and long-term environmental impacts of such
devices and substances should be considered, and that the
schedule should include “those which are least harmful to
the environment.” 9 ’ Thus,, besides providing information
on a producra toxicity and effectiveness, it may be appro-
priate for the NC? to require an evaluation of a product’s
overall acceptability for use.
85. 42 U.&C. **4321.4370a, ELR STAT. NEPA 001.014. Use of the
word “fole5eeab!c ” in the CPA definition of worst-case piil may
revive some of the concerns raised in the context of NEPA that
defining the scope of a worst-case event requires a ‘csystal ball
inquay.” See, e.g., SigIer, 695 F.2d at 970, 13 ELR at 20215.
86. Forty Mod Asked Questions Concerning CEQ’s NEPA Regulations,
46 lied. Rag. 18026, 18032 (1981).
87. See 40 c.F.R. §300.910 (a) (1990). Thc reguIaiim provide a limited
exception to this general rule, however, where the use of a product
not on the schedule is needed to “prevent or substantially reduce a
hazard hnmnn life.” Id. at §300.910(c).
88. Sea 40 C.P.R. §300.915 (1990).
89, See 40 CY.R. §300.910 (1990). The regulations stare that sinking
agents arc not authorized for use in cii spills. Furthermore, burning
agcnta, which an not included art the schedule, may be authonzcd
on a case-by-case baits.
90. OPA §4201(b), ELR STAT. Cit. Pou.. 017.
91. HR. Coies’. Rne. No. 633. supra note 8, at 147. Since booms and
skimmers are mechanical means to control oil spii 1 s and, as distinct
from chemical and biological compounds, connally would nor pose
environmental hazards when used, there does not appear to be a
need to evaluate their cbaractcrlstic through the NC? Product
Schedule process.
21 ELR 10612 ENVU(ONMENTAL LAW REPORI ’ER
84, The requirement in the CEQ regulations for a worst-case analysis
was upheld in Sierra Club v. SIgler, 695 P.26 957, 13 El I 20210
(5th Ci i. 1983). That case involved a Corps of Engineers permit
issued under FWPCA 4404 for a multipurpose deepwazer port arid
crude oil distribution system in a sensitive wildlife and estuanne
environment The worst-can analysis required In that litigation
centered oe the tots] lou of a supertanker’i cargo. The CEQ sub-
sequently deleted the specific requirement in Its regulations for a
wont-case analysis, an action upheld by the U.S. Supreme Cowi
in Robertson v. Methow Valley Citizens CouncIl. 109 S. Ct. 1835.
19 ELR 20743 (1989).
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21 EL.R 10613
In addition, Congress added a requirement that the NCP
include “(a] fish and wildlife response plan ... for the
unmediatc and effective protection, rescue, and rehabili-
tation of, and the minimization of risk of damage to 1 fish
and wildlife resources and their habitat that are harmed
or that may be jeopardized by a discharge.” 2 Such a
plan could facilitate effective response actions by estab-
lishing procedures and allocating responsibilities among
federal, state, and local fish and wildlife agencies, as well
as private organizations with expertise in these matters.
Specific subjects that might be included in the plan are
identification of particularly vulnerable species and habi-
tats, and priorities for addressing them in the event of an
incident: availability of equipment and personnel to ad-
dress fish and wildlife aspects of a response action; and
procedures for ensuring adequate consideration of fish
and wildlife values during cleanup activities.
Finally, the NCP is to designate a federal on-scene co-
ordinator for each “area” established under the amended
FWPCA §31 l(j)(4) and to provide for coordination between
those on-scene coordinators, the area conunittees estab-
lished in the designated areas, Coast Guard strike teams,
and Coast Guard District Response Groups. ‘
Designation of Areas and Appointment of Area
Committees
Another key feature of the CPA’s expanded federal planning
and response framework focuses more on the regional leveL
The OPA creates a new federal planning entity, the “arcs
committee.” In addition, the act establishes two new corn-
poncnts—a Coast Guard National Response Unit’ and ten
Coast Guard District Response Groups ‘i—that in large part
are to assist on-scene coordinators in responding to dis-
charges. These new elements represent a new, statutorily
mandated intermediate federal presence, bridging the gen-
cmi perspective of the NCP with the more specific focus
of individual facility response plans.
The OPA requires the President to designate “areas ”
covering virtually all surface waters in the country. te Co.
teria for area designations could include the likelihood of
discharges, the likelihood of severe economic or environ-
mental damage that could arise from a discharge, and the
adequacy of existing contingency plans. “ Other relevant
factors may include the amount and kind of oil handled at
facilities within the area; the natural resources at risk; and
the influence of geographic, topographic, and weather fac-
tors on the frequency and severity of discharges. te Assum-
ing the executive order follows the inland/coastal division
of responsibilities between EPA and the Coast Guard, it is
likely the Coast Guard will usc the areas presently covered
by its 48 Captains of the Poxt while EPA is likely to use
the 13 areas now covered by regional response learns, at
least initially.
The area committees created by the OPA are responsible
for preparing contingency plans for their respective areas
under the direction of federal on-scene coordinators. re Each
plan is to integrate the responsibilities and capabilities (e.g.,
equipment and personnel) of individual facility owners
within the area, as well as local and stale agencies. ‘°° Plans
are also to address the possibility of a worst-case spill and
provide a framework for coordinating the appropriate ele-
ments of the NCP, other areas’ plans, and individual facility
response plans when responding to discharges.
Finally, the OPA emphasizes the importance of integrat-
ing preplanning measures into area contingency plans, par-
ticularly procedures for expediting decisions on dispersant
use. Preauthorization of dispersants and other spill control
agents by each area committee, based on the unique geo-
graphic and environmental features within that area 1 could
expedite response decisions and rninirthe potential adverse
ecological impacts associated with removing spills.
The area contingency plans are subject to federal review
96. Under OPA 4202(b)(lXA), R STAT. On. Pou .. 019, this des-
ignasion process was to be completed by Pcbnsazy 18, 1991. How.
c’ , the deadline was not toct due to the fact that the CPA executive
order had not been signed at that time.
10-91 NEWS & ANALYSIS
92. See CPA 42Ol(b), U R STAT. On. Pou 017 (amendIng FWPCA
*311(d ), ELR STAT. FWPCA 045). Congress requires the consid-
erosion of flab and wildlife concerns bother contexts, as welL For
example, the Anny Corps of Engineers consulla with the U.S. Fish
and Wildlife Service, the National Marine Fisheries Service, and
approp ate state agencies in carrying out dvii works project. and
issuing permit. under 4404 of the FWPCA. This consultation, re-
quired under the Fish and Wildlife Coordination Act (16 U.S.C
662). I, aimed at preventing direct and Indirect loss sad damage
to fish and wildlife resouzent. See 33 C.F.R. fl320.4, 336 1 (1990).
93. Prior to enactment of the OPA, the E WPCA required the NC? to
address establishment of spccializcd “strike team?’; the OPA has
now clarifiedthet these are to be composed of Coast Guard personnel
The role of Coast Guard strike turns currently is desaThod in the
NCP at 40 C.F.R. 3OO.145 (1990).
94. Under FWPCA 1311(jX2), ma amended by the CPA,, the National
Response Unit Ii established In Elizabeth City, North Carolina, in
act ass clearinghouse (c c available equipment and resources needed
to respond to discharges, provide technical assistance to on-scene
coordinators and area coniminees In carrying out their responsibilI.
ties, and to maintain copies of area contingency plans.
95. Each district response group i. responsible foe maintaining equip-
ment and providing technical assistance to on-scene coordInators
for response action, and rosin. committees In preparing contingency
plans.
97. These criteria am taken from 4432 of the House Merchant Marine
and Fisheries Cotnnutiec version of the Rouse bill, which was
Incorporated into H.P.. .1465. The House language in large part
provided the franiewosk for area committees. The Merchant Marine
and Fisheries Committee report specifIcally refers rothe Long Island
Sound, New York Harbor, and the Hudson River region as an area
that would satisfy the atatutozy criteria for designation, “(i]n light
of the number of spills, and environmental and economic damage
such spills cause.’ H.R. Ru. No.242,101st Cong . 1st Sega., p1.
2. at 83 (1989). Anothet example of an appropriate designation
“would be en area In which a post cc ports and unloading and
loading facilities are located In the same general vicinity and would
be ins position to respond tea spill from * vessel cc facility in that
ares.” See id., pt. 1, at 40.
98. These criteria were listed In 202 of the House Committee on Public
Works and Transportation version of the House bill. The conference
committee chose not to include any designation ciiteria in the Statute,
and dropped the requirement in the House versions thai designations
be made In consultation with state end local governments and the
public.
99. See OPA 44202(a)(6). ELR STAT. On. Fou.. 018 (amending FW.
PCA 4311(j)(4)(A), ELR Smr FWPCA 047, to provide that the
members of these coinnilnacs shall be appointed by the President,
from appropriate federal, stale, and local agencies).
100. Se . FWPCA 431 1(JX4XC), ELR STAT. FWPCA 047. In thi, regard,
“(t]he pian could Include cooperative agreements for assistance on
a reciprocal or reImbursable basis, the sharing of expense. for the
shortage (awl and maintenance In the asea of response equipment,
the training of personnel foe response actions, and the like.” H.R.
Ru. No. 242. :upra note 97. p1. 1,at40.
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‘ ‘202 260 8046 EPA 0CC
I j 004
and approval. Under OPA §4202(b)(1XB), plans are to be
submitted by February 18, 1992, and are to be approved—
with modifications required by the appropriate federal
agency—by August 18, 1992.
Facility and Verni Response Plans
Extending direct federal involvement in contingency plan-
ning to the local level, Congress, under the OPA, requires
the preparation of individual facility and vessel response
plans to address discharges of oil and hazardous sub-
stanc es .’°’ These plans will build on the existing regulatory
framework addressing prevention and preparedness plans
for certain types of facilities. Since 1973, EPA regulations
under FWPCA 3 1 1(j)(1)(C) have required the preparation
of oil spill prevention, control, and countermeasure plans
at nontransportation-related facilities. Where owucra or
opcralors of facilities do not include appropriate contain-
ment features to prevent oil from reaching waters of the
United States in the event of a spill, they nrustprepaiv an
oil spiii contingency plan and provide a “written commit-
ment of manpower, equipment and materials required to
expeditiously control and remove any harmful quantity of
oil discharged. ”° 3 For its part, the Coast Guard has issued
regulations governing marine oil transfer facilities, includ-
mg a requirement for an operations manual that is to address,
among other items, the “procedures to be followed if the
cargo spills or leaks,” “fire fighting procedures and extin-
guishing agents effective with fires involving the cargo,”
and “reporting and initial containment of oil discharges.” ‘°
Pursuant to FWPCA §311(j)(5). as amended by the
OPA, til tanker and offshore facility owners and opera-
tors—and owners and operators of onshore facilities that
“could reasonably be expected to cause substantial harm
to the environment” by virtue of potential discharges into
or onto navigable waters, adjoining shorelines, and the
waters of the exclusive economic zoneS—must prepare
and submit a response plan. Within this regulated com-
munity, owners and operators of onshore facilities that
“could reasonably be expected to cause significant and
substantial harm to the environment” It) due to their in-
cation, and vessel and offshore facility owners and op-
erators, must obtain federal approval of their plans by
August 1993, in order to continue handling, storing, or
10-91
transporting oil. °‘ As amended, the FWPCA allows for
a two-year extension where a draft plan has been sub
mitted and the owner or operator has made approprial
arrangements to secure the personnel and equipment
needed to respond “to the maximum extent practicable,
to a worst case discharge or a substantial threat of such
a discharge.” ‘°
Relevant criteria for determining which onshore facility
response plans require federal review and approval include
“oil storage capacity, location of environmentally sensitive
areas, and location of potable water supplies,” as well as
the size and age of the facility’s storage tanks Also, the
spill history of the facility or vessel might be a critical factor
in this determination. However, Congress made it clear that
no liability extends to the United States as a result of any
federal approval given to response pIans ,’°
Once again, the worn-case concept is woven into re-
sponse plan requirements. Unlike the NC? and area con-
tingency plans, however, the requirement to address worst-
case spills in facility and vessel response plans is qualified
to some degree. A response plan must provide for the
availability of personnel and equipment “necessary to re-
move to the maximum e#ent practicable a worst case dis-
charge (including a discharge resulting from fire or explo-
sion) and to mitigate or prevent a substantial threat of such
a discharge.” ° The owner or operator must either have
such equipment on hand, or ensure its availability throu h
a “contract or other means approved by the President.”
Congress intended the “maximum extent practicable”
qualification to reflect “technological limitations associated
with oil sp 11 i removal, and the practical and technical limits
of the spill response capabilities of individual owners and
operators.” U I
At the same time, the OPA envisions that facility and
vessel response plans will be keyed into the NCP and area
contingency plans. Thus, resources (e.g., equipment and
personnel) identified in the area contingency plan—and
ultimately in the NCP, in spills of truly catastrophic pro-
portions—would normally come into play as the financial
and technical capabilities of an owner or operator to address
a worst-case discharge are exceeded. “ There is. however ,
106. FWPCA *311(J)(SXD) , ELR STAT. FWPCA 047. By the express
tein s of the statute, this provision applies only to facilities and
vessels haiwflin 3 oil.
107. FWPCA *31 1(J)(3)(E), Eli STAT. FWPCA 047.
108, Sec H.R. CONF. Rip, No. 653, supro note 8, at 150. The report
also states that “the selection ci4teria should not necessarily omit
those smaller facilities that are near major drinking water supplies
or that are near environmentally sensitive areas.” In determining
whet arc envirotunenlally sensitive areas, consideration of fishetles,
wildlife, and other natural resources would he appropriate.
109. FWPCA *311(j)(8), Eli STAT. FWPCA 047.
110. PWPCA *311(JXS)(C)(iil), Eli Sw. FWPCA 047 (emphasis
111. Id The House Merchant Marine and Fisheries Committee report
Indicate, ‘ p]ri contractor, will play an important pert in
enabling vessels to meet their responelbifides under this Act” with
regard to this requirement H. Ret. No. 242, supra note 97. Pt. 2,
at 87.
112. KR. Corn’. Rip. No. 653, supru note 8, ax 150.
113. Section 204 of the Senate bill would have required the owner or
operator to be more sc1f ’sufficient in this regartL Under the Senate
approach, the plan was to be capable of “removing oil and mini-
miring any damage to the environment resulting from a worst case
discharge” from a vessel “prompdy and properly” and “to the
21 ELk 10614 ENVIRONMENTAl. LAW REPOR1
101. See OPA 44202(a )(6), Eli STAT. OIL Pou.. 018 (amending FW.
PCA 3 I 1(j)(5), ELk S w. FWPCA 041). The President’, respon.
tibilitieg under this section are most likely to be delegated to the
EPA for nonn orsaxion-related facilities and to the Coast Guard
for vessels and transportatIon-related facilities.
102. See 40 C.F.R. pt. 112 (1990).
103. 40 C.F.R. 112.7(d) (1990). The contingency plan Is to be consistent
with the cntena set forth in 40 C$.R. pt. 109 (1990); see supra
flotf 46.
104. See 33 C.F.R.. *154310 (1990).
105. FWPCA *31 l(j)(5)(D), Eli STAT. FWPCA 047. Congress did not
elaborate on the intended d1stinctlo s between a discharge that could
cause ‘ significanx and substantial harm to the environment” under
his section and one posing a “substantial threat to the public health
and welfare” under *311(c). However, the conference committee
report indicates that the requirement for facility response plans
“should be applied broadly,” since “even small discharges from an
onihore facility could result In substantial harm under certain cir-
curnatances.” H.R. Coxw. Rs . No. 653, :upra note 8, ax 150.
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EPA OGC
10-91
NEWS & ANALYSIS
21 ELR bc
no requirement to proceed sequentially in these circum-
stances, or to wait to initiate federal cleanup actions under
the area contingency plan or NCP until a determination is
made that a particular facility or vessel response plan might
be inadequate.
The response plan must also describe the actions to be
taken to minimize impacts from any discharge. Beyond
that, the owner or operator is required to describe how
equipment testing, periodic drills, and training are to be
carried out. Other elements that may be incorporated in
federal regulations implementing the response plan re-
quirement include detection and notification procedures;
availability of equipment and personnel for less than a
worst-case discharge; measures to protect the aquatic
environment during implementation of response actions
and the appropriate disposal of contaminated materials
used in the cleanup, such as booms and recovered oil.’”
Significant changes in a response plan necessitate resub-
mission to the appropriate federal agency for approval.
The conference committee report makes it clear that these
response plans do not replace or supersede reporting and
emergency planning requirements under other statutes, such
as the Resource Conservation and Recovery Act (RCRA),Us
CERCLA, the Emergency Planning and Community Right-
to-Know Act, 7 and the Occupational Safety and Health
AcL’ At the same time, the conference report indicates
that Congress intended that federal agencies coordinate the
CPA facility and vessel response plan requirement with
other program initiatives to avoid potential conflicts and
duplication of effort.’
Enforcement Authorities
Realizing that the existing enforcement provisions under
FWPCA §311 were out of date, Congress dramatically
raised civil penalty ceilings and provided stronger admin-
istrative enforcement mechanisms in the OPA. The OPA
also substantially increased criminal sanctions for failure
to report discharges pursuant to FWPCA §311(b)(5) and
added violations of FWPCA §311(b) discharge limitations
to the list of sections covered by the criminal provisions in
FWPCA §309(c). The new penalty framework may be
applied only to violations occurring after the date of the
OPA’s enactment.. 121
Two OPA provisions augment the President’s enforce-
ment authority and, in all lilcelihood, will be delegated
to EPA and the Coast Guard in the upcoming OPA ax-
maximum extent practicable . .. withoiu she ocdve panicipetion of
any Fedv.rui personnel or equlpmesu” (emphasis added). For cases
involving a maxinium probable spill,” the plan was to dcmonatnte
cleanup capability “enssre wishout the active participation of any
Fede,uI perzu.wI or equ pn e u’ (emphasis added).
114. These regulations are due to be published In August 1992. See OPA
§4202(b)(4). ELR Smr. On. Pou.. 019.
115. FWPCA 4311(j)(5)(CXvl), ELR STAT. FWPCA 047.
116. 42 U.S.C. §4690 1.6992k, U .R Sr r. RCRA 001-050.
117. Superfund j&mrnthii#nts and Reauthorization Act of 1986, title Ill,
42 U.S.C. 4411001-11050, EL. ?. STAT. EPCRA 001.012.
118. Pub. L No. 91.596, 84 Star. 1590(1970).
119. Set H.P.. Coup, Rz . No. 653, upr’a note 8, at 151.
120. OPA 44301(a), (c), ELR STAT. On. Pou... 020.21.
121. See CPA 46001(d), ELR STAr. On. Pou.., 027.
ecutive order along the lines previously discussed. LU
first authorizes the President to seek injunctive relief
secure compliance with financial responsibility requi
meats and obtain civil penalties of up to $25.000 per d
for violations of these requirements. The second mo
flea the existing authority to obtain judicial relief in em
gency situations under PWPCA §311(e). Reflecting ir
guage from similar provisions in CERCLA and RCR
FWPCA §311(e) now allows the President to issue r
ministrative orders to address a discharge or threat
discharge that may present an imminent and substant
threat to the public health and welfare. 124
The other amended FWPCA *311 civil enforce mc
authorities are given directly to EPA and the Coast Guard.
CPA §4301 greatly expands the framework for assessi
administrative and judicial penalties, patterned largely af
the federal enforcement provision in FWPCA §309. C
authorized dischargers of oil and hazardous substances, a
owners and operators of facilities who do not comply w
regulations issued under FWPCA §311 (j), axe now subjc
to two administrative penalty regimes. Class I penalties
$10,000 per day (up to a maximum of $25,000 total) m
be assessed after notice and opportunity for a hearing, usit
streamlined procedures. Class Ii penalties of up
$125,000 may be assessed where formal adjudicatory pr
ceedings axe followed. The OPA also provides an oppc
tunity for interested members of the public to participa
122. For both of these enforcement authorities, and the authority to
a collection action if an administrative civil penalty is not paid,
OPA epccIfic that the Attorney General shall fda the action. mu
estingly. no such assignment is made to the Attorney General
FWPCA 4311(b)(7) civil penalty actions. Arguably. EPA and I
Secretary of Transportation could seek such civil penalties direci
without requesting the Anorney General to O le on behalf oft
United States. This issue may also be adth eascd an the executi
order.
123. OPA §4303, EL?. STAT. On. Pou.. 022.
124. Both CERCLA *106 and RCRA §7003 authorIze arlministran
audjudicul actions to confront situations giving rise loan ‘1nuninc
and luhatandal endangerment” to public health, welfare, and t
environment For all practical purposes, the CERCLAIRCRA stan
anus essentially the sam ss the amended FWPCA *311(c) pmv mi
(‘imminent and substantial threat to the public health or welfare’
It is Interesting to note, however, that Congress in CPA 4421
bror4cned th. scop. of FWPCA 431 l(bX4) by adding the wor
“cr the environment” to the existing FWPCA standard of “pubi
health and welfare,” but did cot make conforming language charig
to 4311(c) and Ce). Nonetheless, examples of public health orwelfa
ped&a1iy1ncJudedbl’CA *311(e)U.c., “including fish. sheJ
fish, and wildlife, public and private property, shorelines. beache
habitsi, and other living and nonliving natural resources”) appe
to cover many cnvtronmentsi valuct, and ii i. noncxbauative n ato
of the list leaves the door open to address other environment
125. Congreu In OPA 44302 also amended a number of other enfore
incnt provisions In Statutes governing nmantuuc operations und
the j risdiction of the Secretary of Transportation. These inclut
provisions In the Deepwster Poit Act (33 U.S.C. 41514(a)), the A
to Prevent Pollution Prom Ships (33 U.S.C. 4 1908(a)), the late
ventlon on the High Seas Act (33 U.S.C. 41481(a)), and the Por
and Waterways Safety Act (33 U.S.C. 41232(b)).
126. PWPCA 431 l(b)(1 1) provides that civil penalties cannot be anesat
under both 4311 and 4309 for the seine discharge.
127. FWPCA 431 1(bX6)(B)(1), EL.R STAT. FWPCA 043. -
128. FWPCA 4311(b)(6XEX1I), EL?. STAT. FWPCA 043. Initiation
aiss U Mfluinistzisivs proceedings bars parallel adrninisuativc at
thus under FWPCA 430 9(g) and judicial action for civil pcnaltlc
under FWPCA 4309(d) sod *505 (citizen suit provision).
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09/01/98 11:03 e202 260 8046
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(including presentation of evidence) in both class I and H
procedures. ‘
Congress also brought the civil penalty amounts available
in judicial proceedings undcrFWPCA *331 more in line
with current levels found in other federal environmental
statutes. Dischargers are now subject to civil fines of up to
$25,000 per day, or $1,000 per barrel of oil or unit of
hazardous substances exceeding the established reportable
qumfity. t3 Anyone who, without sufficient cause, falls to
comply witha directive issued under FWPCA §3 11(c) when
the federal government assumes responsibility for cleanup
(i.e., where the discharge poses a substantial threat to the
public health or welfare); or with a FWPCA §311(e) ad-
ininistrative ceder issued in response to an imminent and
substantial threat to the public health or welfare, may be
assessed a $25,000 per day penalty or up to three thnes the
amount paid out by the oil spill trust fund because of the
failure to comply. Finally, failure to comply with regulations
issued under FWPCA §311(3) can lead to a civil fine of up
to $25,000 per day. ” Civil and criminal penalties are to
be paid into the oil spill trust fund.
EPA and the Coast Guard will need to pursue several
initiatives to implement these new authorities. First, each
agency will have to publish regulations governing the con-
duct of class I and U administrative proceedings. EPA will
presumably continue its past practice by consolidating OPA
class U formal adjudicatory procedures into the existing
regulations governing similar actions under other federal
environmental statutes. ‘“For class Iprocedures, it is likely
that EPA will follow the same basic procedures it uses for
similar violations in other federal environmental statutes. “
As for the Coast Guard, existing regulations for bearing
officers might be adequate for class I procedures. 135
would have to be modified to satisfy due process require-
ments for formal adjudicatory proceedings.”
In addition, the agencies may issue guidance in the form
of a penalty policy to address the new statutory requirement
that various factors be considered in determining FWPCA
§311 civil penalty amounts.W These factors include the
129. FWPCA §31 1(b)(6)(C), £15 STAT. FWCPA
130. Where the discharge results from gross negligence er willful mis-
conduct, the limits are Increased tea minimum of$ 100,000 per day
of violation, up to a maximum of $3,000 per barrel er unit of
irportable quantity. FWPCA §ltt(bX7XD), ELI Sat FWPCA
044. EPA has published regulations establishing repo tbla quand-
ties f hazaSoui substances forptsrpoaeaofFWPCA §311.240
C.F.R pt 217 (1990).
131. FWPCA §311(bX7)(C), ES STAt FWPCA 044.
132. See OPA §4304, El I STAT. On. Pou.. 022.
133. Sn 40 C.F.R. pt. 22(199W.
134. EPA has Issued one set of streamlined procedures 1a40 C.P.R. pt.
24 (1990). which governs hearings roe corrective action eta issued
under RCRA §3003(h). These procedures were upheld in aemical
Waste Management, Inc. v. U.S. EPA, 873 P.24 1477, 19 ES
20868 (D.C. r. 1989). In addition. EM Intends en peqEac new
regulations providing informal hearing procedures for class I yb-
tadosa under several federal cnvlrontnental natates, Including CHIt-
CIA, the FWPCA, the Safe Drinking Water Act, sad the Emergency
Planning and Community Right-to-Know Act. These procedures
will be codified at 40 C.F.R. pe. 2&
133. Lee 33 CY.R.. *1.07 (1990).
136. FWPCA §31 t(bK6)WXil), HI.RSTAT. FWPCA 043, requIres notice
and heating procedures foe class II penalty assessments to be con-
ilatent with §554 of the Mrninlnratlve Procedure Act.
137. See FWPCA I3ll(bXB), U. K STAT. FWPCA 044.
10 -91
seriousness of the violation, the economic benefit to the
discharger, the degree of culpability, prior violations, effost
by the violator to miiiirnire the impact of the discharges
and the economic impact of a penalty on the violator.
Finally, the two agencies will need to revise the existing
memorandum of understanding that divides their respective
enforcement responsibilities under the §311 program.’ TM A
significant aspect that will need to be addressed in this
process is the change made by the OPA to allow both
agencies to assess civil penalties for discharges of both oil
and hazardous substances.
International Initiat ives
One long-standing executive branch initiative left unre-
solved by the OPA concerns a proposed international oil
spill liability and compensation regime. In 1984, the United
States participated in the preparation of two protocols do-
signed to amend the 1969 Civil Liability Convention and
the 1971 FundConvention. “ Theprotocolswould establish
new international liability rules and limits for oil spill in-
cidents, and create a larger fund to provide compensation
for pollution damage caused by spills from foreign tankers.
However, efforts to secure the Senate’s ratification of the
protocols, in the context of the OPA, were unsuccessful.
Two major issues have stood in the way of ratification
of the protocols. First, there is a concern that the limitation.
on liability set in the protocols would be insufficient to
ensure sufficient financial compensation for environmental
harm done and provide adequate incentives to prevent dis-
charges.”° The 1989 Earns Valdez spill, with its potential
cleanup and restoration costs measured in billions of dollars ,
has reinforced those concerns. One way to address this issue
would be to include an automatic upward adjustment of
liability limits, based on experience gained from actual
incidents and an appropriate pricing index.’ 4 ’ Second,
strong opposition exists to the preemption of state oil spill
liability and compensation laws, which could result from
ratification of these international agreements. The OPA
contains two express provisions preserving states’ authority
to impose additional liability and other requirements related
to oil spills.’ 4 ’ One possible avenue for compromise could
have been to ratify the protocols with a specific reservation
138. The existing memorandum of understanding was published In I S
Federal Regirler on August 29, 1979 (44 Fed. Keg. 30785).
139. International Convatdoa on Clvii Liability for Oil Pollution Dam-
age, Nov. 29, 1969,26 TJ.S.t 765, T.LAS. No. 8068,973 U.N.TS.
3; and International Convention on the Establishment of an Inter-
national Fund for Compensation for 011 Pollution Damage.
18, 197!, I I LLM. 284 (Mar. 1972). The United Stares has am
ratified these two original trusties dealing with oil spill liability sad
compensation. The failure to ratify the original a n Des and the t984
protocol. undermines, to aetna degree, the ability of the United
States to plays lead role In developing imernatlonal agreements on
other significant environmental issues.
140. ‘The 1984 protocols would cap liability at nearly 60 mIllion “units
of account” Units of account fluctuate depending on the relative
value of certain key world currencies. As of 1991, one unit of
account Is wonh approxlnat$y 31.40.
141. OPA 31004(d) Incorporates an adjustment mechanism into Its 8-
nancial responsibility reulatoiy structure, using the Consumer Price
Index as a reference po Int.
142. See 0Th §1018, ELK STAT. On. Iou.. 010 (relationshIp to other
law); CPA §4202(c), ELK STAT. On. You.. 019 (state law not
preempd).
21 ES t06t6 ENVIRONMEWL4.L LAW REPORTER
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09/01/98 11:05 e202 260 8046
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21 E R 10617
concerning the preservation of state law dealing with oil
spill liability and compensation. ‘ ‘ Such a reservation, how-
ever, would call into question the effect of United States
ratification, since it would largely undercut the purpose of
the protocols and significantly reduce the prospects of rati-
fication by other countries.
The Senate bill contained no language that could be
construed as ratification of the protocols. LU HR. 1465,
on the other band, contained an international conventions
title that could have served to implement the major ele.
ments of the protocols. In particular, the House bill con-
tained a ‘ joindcr” provision, under which the domestic
oil spill fund established by the legislation would indein-
oily and defend parties liable under the international
framework and also would be substituted as the party
defendant in any resulting litigation (including state law
actions). However, the House bill also provided that
“(n]othing in this title shall constitute a ratification of
either the Civil Liability Convention or the Fund Con..
vention.” ‘ ‘ In addition, both the House and Senate bills
had strong language precluding any preemption of state
liability laws.
The compromise reached in conference committee was
to include the following provision in the OPA
It La the sense of Congress that It Is In the best Interests
of the United States to participate In an international oil
pollution liability and compensation regime that fiat
least as effective as Federal and State laws In preventing
Incidents and tn guaranteeing full and PrOmçI compen-
sation for dainagea resulting from Incidents.
It is now up to cxecutive branch agencies to continue cx-
ploxiug avenues for achieving these goals in an arrangement
acceptable to the international community.’ 47
One other international initiative in the OPA has produced
143. For excmple, in cases w e the rasponalbie pany wu negii en& In
causing the discharge, the liability framework could provide that
ca on liability could be exceeded once the Interes-
dons! funds limits have been exhausted In response to claims snide
for that discharge.
144. There was a title In S. 1066, introduced by Sea. safcc (ft-LI)
and re(erred to the Environment and Public Works Committee, that
would have implemented the 1054 protocols. Thai provision, bow-
ever, was not incorporated into S. 686, the bill the Senate parsed.
145. ILR. 1465, 101st Cong., Is! Scar. p3002(a) (1989).
146. CPA *3001. ELk STAT. On. Pou.. 011.
147. A parallel effort to design an International regime addressing liability
mare positive results. Under 3O04. Congress sought tc
“encourage appropriate international organizations to es
tablish aninteinational inventoryof spill rernovalequipmen
and personneL” ‘ ‘ International efforts in this regard wert
well underway by the time the OPA was enacted, and thi
Convention On Oil Pollution Preparedness, Response sac
Co-Operation was adopted by an international conferenc
on November 28, 1990. “ The convention would .requizs
preparation of vessel oil pollution emergency plans; eatib
lish reporting procedures for discharges; encourage nationa
and regional cooperation in developing preparedness an
response systems; facilitate technical cooperation and th t
exchange of research and development results; and promot
international cooperation in providing technical support
equipment, and advice in the event of a major incident. Th
IJnited States, along with over a dozen other couturier
signed the convention.
Looking Ahead
The OPA took well over a decade to develop and enac
and will take years to fully implement The act’s emphasi
on planning, preparedness, and prevention should reduc
the need to use newly expanded federal authorities in n
aponding to worst-case incidents and those posing substar
tial threats to public health and the environment. In additios
the adoption of more comprehensive procedures for coo
dinating federal, regional, local, and individual facility u
sponse efforts, and the development of new cleanup tee)
nologies to mitigate adverse environmental impacts once
spill takes place, should go a long way to achieving tI
act’s goals. The OPA’s true effectiveness, however, will I
measured over time by the absence of oil spill catastroph1
and near misses, and by the reduction in the thousands
smeller spills that occur each year.
and compensation for releases of hazardous substances is also haL
ve1y developed under the auspices of the Int rnadona1 Mantir
Organ Izati MO). oiuncs relied as obatseles lathe contr
of the 1984 protocols may well generate similar concetas wheat
IMO treaty is submitted to the Senate for ratification.
148. Statement by PresideS! of the United Staler. 5 U.S. CODE Co
a Anscac. News 861-1 (Nov. 1990). When signing thc bill Is
Law, President Bush noted that thf a provision, as written, couId
construed to Infringe on my constitutioosl authority overthe condi
of diplomacy by requIring ma to take certain actions with reap
to internatIonal org nIzs±iong.” The President went on to consb
the language as “advisory” in nanire.
149. 30 LLM. 733 (May 1991). Over 90 countries parttdpsxed in
10-91 NEWS & ANALYSIS
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REGIONAL WORKGROUP MEETS IN GALVESTON
The active participation of EPA field personnel
involved in oil pollution prevention and abatement is
an integral part of the Agency’s implementation of the
Oil Pollution Act of 1990 (CPA). As part of this
effort, 50 Regional and h adquarters staff gathered in
Galveston Island, Texas, irom December 10-13, 1990.
The purpose of the meeting was to discuss
implementation issues and to develop Regional
recommendations on the expanded role and
responsibilities of EPA in preventing and responding
to oil spills. The special meeting also provided an
opportunity for Regional staff to exchange ideas and
information with EPA Headquarters about current
activities and measures addressing oil pollution.
On-Scene Coordinators (OSCs) from all 10 EPA
Regions participated, as did Headquarters
representatives from the Office of Solid Waste and
Emergency Response, Office of Enforcement, Office of
Research and Development, and Office of General
Counsel. The responsibility for implementing many
OPA requirements will be assumed by EPA’s OSCs,
who currently enforce the Oil Pollution Prevention
regulation (also known as the Spill Prevention,
Control, and Countermeasures, or SPCC, regulation)
and who lead responses to oil spills in the inland zone.
Representatives from the U.S. Coast Guard (USCG)
also attended to indicate how the USCG is
implementing its areas of responsibility and to provide
recommendations regarding EPA efforts. Under a
forthcoming Executive Order, the USCG and EPA are
the primary Agencies charged with implementing this
far-reaching new law.
Organization
The four-day meeting was organized into a series
of general sessions and smaller working group
discussions on specific implementation issues. The first
Continued on ne page
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9200.5-1151
February 1991
Update on Implementation
of the Oil Pollution Act of 1990
Office of Emergency and Remedial Response
Emergency Response Division OS-210
Intermittent Bulletin
Volume 1 Number 1
Inside the Update
• Regional Workgroup Meets in Galveston
• Qt stions and Answers on the Oil Pollution Act
of 1990
• Timeline: Major EPA Activities and Deadlines
Associated with the Act
• Lsr of EPA Implementation Workgroups
Purpose of the Update
Chances are that in the time it takes to read
this new bulletin, another two oil spills in the U.S.
will be reported to the Federal government. In all
of 1990, nearly 20,000 oil discharges were reported,
up more than 10 percent from the previous year.
With the Oil Pollution Act of 1990, signed into law
by President Bush on August 18th, the U.S.
Environmental Protection Agency and the U.S.
Coast Guard together have unprecedented ability
to prevent oil spills from occurring and to combat
the effects of spills that do occur.
In this series of bulletins, we intend to
provide you with up-to-date information on EPA’s
implementation of the various provisions of this
important new law. Specifically, the Update will
highlight the activities of our Headquarters and
field staff as they develop and enforce the
regulations and policies that make up our high-
priority oil pollution prevention program. Your
comments on the Update are welcome; please
contact the editor, Ms. Phyllis Anderson, at (202)
382-5614.
Stephen Lufug, Director
Emergency Response Division, EPA
Printed on Recycled Paper
February 1991
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REGIONAL WORKGROUP (Continued)...
day included presentations on the principal provisions
of the OPA, the implementation schedule, and the
current status of activities. The following two days
were devoted to discussions of six separate working
groups. Provisions of the new law were divided into
the areas of prevention and response, with three
working groups addressing each area. At the end of
each day, the participants reconvened to summarize the
day’s progress and hear the suggestions of the other
working groups. On the third day, Stephen Luftig,
Director of EPA’s Emergency Response Division,
discussed the budgetary and resource implications of
the OPA. The final day was devoted to developing a
set of consensus recommendations reflecting the
Regional perspective on prevention and response
issues. Interspersed throughout the four days were
presentations on the history of EPA’s oil spill
programs, new research and development initiatives in
oil spill clean-up technology, and the implications of
the enforcement provisions of the statute that expand
on existing Federal authority.
Prevention
The OPA contains numerous new planning and
preparedness provisions designed to prevent oil spills
from happening in the first place. The two main
provisions that EPA is responsible for implementing
require the preparation of response plans by certain
facilities that may discharge oil to navigable waters and
the establishment of Area Committees to develop
contingency plans for specific areas at risk of damage
from an oil spill. Under the OPA , a facility that may
discharge oil causing ‘substantial harm” to the
environment must submit its response plan to EPA or
the USCG. In addition, the Agency must review and
approve the response plan of any facility whose oil
discharge may cause “significant and substantial harm.”
Participants focused on developing appropriate
definitions for these two phrases, and discussed what
should be contained in a facility’s response plan.
The OPA also requires the establishment of Area
Committees under the direction of an OSC. These
committees will develop Area Contingency Plans
specifically addressing potential discharges in that
locale. The plans must be approved by EPA or the
USCO. Regarding the Area Committees, participants
discussed factors to be considered in designating the
Area Committees, including: past spill history in the
area; presence of natural resources or special
environmental areas; concentration of facilities,
pipelines, and vessels, location of potable water
supplies; and location of existing planning or response
entities. Participants also began the process of defining
the composition and role of the Area Committee in
relation to other existing planning and respon-
organizations, such as the Regional Response Te
created under the National Oil and Hazardou
Substances Pollution Contingency Plan (NCP). The
NCP is the regulatory bluepnnt that guides the Federal
response to oil spills and releases of hazardous
substances.
Response
The OPA modifies the Federal role in responding
to oil spills by establishing a new, consolidated trust
fund to pay for response actions and by expanding the
OSC’s role in spills that pose a “substantial threat to
public health and welfare.” For these serious spills, the
Federal OSC is required to direct the response.
Participants addressed the mechanics of access to the
new oil spill response fund including reimbursements
for states that respond to oil spills. The OSCs also
discussed the required revisions to the ? .2..
Among the key NC? revisions will be new criteria
and procedures for responding to discharges that result
in a “substantial threat to the public health or welfare”
and procedures and standards for removing a “worst
case discharge” of oil. Participants discussed both the
definitions of these terms and the regulatory char
required. In addition, participants debated the meL
of dividing the NCP into separate documents covering
oil and hazardous substances or emergency and
remedial response to facilitate its usefulness during a
response. The implications of changes in enforcement
policies and penalties stemming from the OPA also
received attention. Representatives from several
Regions stated that enforcement activities in their
Region may be reorganized as a result of the new law.
Next Steps
Among the key initiatives emerging from the
meeting was the need to preserve flexibility at the
Regional level to reflect local circumstances and
conditions. Further, the participants expressed the
desire to integrate the new statutory requirements into
EPA’s successful existing oil pollution prevention and
abatement programs. A draft report of the consensus
recommendations of the Workgroup will be prepared
by mid-January, and a final report is expected by early
February. The participants also expressed an interest
in additional periodic meetings with the participation
of the USCG to promote Federal coordination and to
ensure a continued strong Regional perspective
implementation proceeds. U
Update on Implementation of the Oil Pollution Act of 1990
February 1991
-------
QUESTIONS AND ANSWERS
What is the Oil Pollution Act of 1990 (OPA)?
The OPA is a comprehensive statute designed to
expand oil spill prevention activities, establish new
Federal authority to direct responses to spills, improve
preparedness and response capabilities, ensure that
shippers and oil companies are responsible for damages
from spills that do occur (subject to liability limits),
and establish an expanded oil pollution research and
development program. Primary Federal responsibility
for implementing the CPA rests with the U.S. Coast
Guard (USCG) and EPA. The CPA was signed into
law by President Bush on August 18, 1990.
Congress approved the CPA primarily as a result
of spill response efforts for the Eaon Valdez spill and
other recent spills. Although seven similar proposals
had been defeated over the past 15 years, recent spill
events solidified a broad-based support for oil pollution
legislation and led to unanimous passage of the CPA
by both houses of Congress.
What is the nature and extent of the oil spill problem in
this country?
Thousands of oil spills occur each year. Over the
three-year period from 1987 through 1989, the Federal
government received approximately 50,000 notifications
of oil discharges -. an average of 16,700 per year, or 45
notifications every day. Fixed facilities accounted for
about 45 percent of all reported releases; marine
sources accounted for approximately 20 percent of the
releases; pipeline and offshore facilities each
represented about 10 to 15 percent of releases; and
highway accidents accounted for less than 10 percent of
the total number of releases reported. Two thirds of
the releases primarily affected water; one third affected
land. In 1989, there were 29 oil spills exceeding
100,000 gallons.
What are the OPA ‘s main provisions?
The most significant provisions include:
Expanded Federal Role in Response . Federal
authority for response to a discharge of oil is expanded:
the Federal government is required to direct responses
to discharges that pose a “substantial threat to the
public health or welfare, and has the discretion to
direct responses to other discharges. In addition, the
USCG is to establish a National Response Unit and
individual oil spill response groups in each of the ten
USCG Districts to coordinate equipment used for spill
response activities.
Oil Spill Liability Trust Fund . The OPA esis 1
Oil Spill Liability Trust Fund administered by tbc
USCG to pay for removal costs and damages riot
recovered from responsible parties. Fund monies arc
supplied by a five-cent-per-barrel fee on oil. The Furi
provides up to $1 billion per incident for cleanup costs
and other damages.
Continttencv Planning . The OPA requires EPA and
the USCG to enhance the existing National Response
System by designating Area Committees to develop
Area Contingency Plans to help ensure the removal ol
a worst-case spill from a vessel or facility in or near the
area covered by a plan. In addition, the OPA requires
that owners or operators of individual vessels and
facilities (except onshore facilities that are not expected
to cause environmental harm) prepare response plans
for worst-case oil and hazardous substance discharges.
Increased Liability for Spills . The CPA increases the
liability of tanker owners and operators in the event of
a spill from $150 per gross ton to $1,200 per gross ton’
of vessel weight. In addition, responsible parties at
onshore facilities and deepwater ports are liable for up
to $350 million per spill; holders of leases or permits
for offshore facilities are liable for up to $75 million
per spill, plus the removal costs for the spill. The
OPA also broadens liability to cover not only removal
costs and natural resource damages, but also the
provision of spill-related health and safety services by
State and local governments and losses of property,
revenues, and profits.
Double Hulls . Under the OPA, most newly
constructed tankers over certain size limits must have
double hulls or other double containment systems.
Existing tankers without double hulls are to be phased
Out by size, age, and design beginning in 1995; most
tankers without double hulls are banned after 2015.
Research and Development . The CPA mandates the
establishment of an interagency committee to
coordinate efforts to improve oil spill response
technology.
How does the OPA affect existing laws and regulations?
The OPA revises CWA section 311 to expand
Federal response authority; increase penalties for spills;
establish USCG response organizations; require vessel
and facility response plans; and provide for interagency
contingency plans. Many of the statutory changes will
require corresponding revisions to the National Oil and
Hazardous Substances Pollution Contingency Plan
(NCP). In addition, the OPA amends the Deepwater
Port Act of 1974 and the Outer Continental Shelf
Con jznued on n pog
Update on Implementation of the Oil Pollution Act of 1990
February 1991
-------
QUESTIONS AND ANSWERS (Continued)...
Lands Act Amendments of 1978 to merge funds
established under these laws with the new Trust Fund,
and makes the Trust Fund available for actions under
the Intervention on the High Seas Act.
How Lc the OPA being implemented?
A forthcoming Executive Order is expected to
delegate authority to implement the OPA primarily to
the USCG and EPA. The Agency is expected to
receive lead responsibility or joint responsibility (with
the USCG) for a number of provisions. A
memorandum of understanding will address how the
two organizations will interact in carrying out their
responsibilities. (See the next page for the major EPA
activities and deadlines associated with the OPA.)
How will EPA implementation of the OPA help oil spill
planning and prevention efforts?
The OPA strengthens spill planning a-id
prevention activities by providing for the establishment
of interagency spill contingency plans for areas of the
U.S., mandating the development of response plans for
individual vessels and facilities, and requiring the
inspection of spill removal equipment. These efforts
are intended to result in more prompt and effective
cleanup or containment of oil spills, thereby preventing
spills from becoming larger and reducing the amount
of damage caused by spills.
Area Committees, to be composed of qualified
Federal, State, and local officials, will be created to
develop Area Contingency Plans. These plans must be
reviewed and approved by EPA and the USCG by
August 18, 1992. In addition, owners and operators of
onshore facilities that could cause significant and
substantial harm by discharging oil to navigable waters,
offshore facilities, and tank vessels are required to
prepare and submit response plans. Response plans
for onshore facilities that could cause significant and
substantial harm by discharging oil to navigable waters
must be reviewed and approved by EPA. If response
plans are not developed and approved as required by
the OPA, the vessel or facility may be prohibited from
handling, storing, or transporting oil. Under the OPA,
containment booms, skimmers, vessels, and other major
spill removal equipment must be inspected periodically;
bulk vessels must carry removal equipment that uses
the best technology economically feasible and
consistent with the safe operation of the vessel.
The higher limits on liability and the broader
scope of damages for which dischargers may be liable
under the OPA will serve as an added incentive for
facilities and vessels to prevent spills. In addition,
EPA is expected to take the lead or participate in
several studies and research and development efforts
that will aid in oil spill prevention. (Other
requirements of the OPA to be implemented by the
USCO -- such as the establishment of a National
Response Unit and District Response Groups and new
standards for vessel construction, crew licensing, and
manning -- also will help to prevent or mitigate spills.)
What will EPA do under the OPA to improve oil spill
response efforts?
The OPA expands the Federal government’s
involvement in responding to the most significant
spills. For discharges that pose a “substantial threat to
the public health or welfare,” the OPA requires that
the Federal government direct response efforts. For
other types of discharges, the OPA gives the Federal
government the authority to direct all Federal, State,
and private response actions. This authority is in
addition to the existing discretion to conduct response
activities and recover costs from responsible parties. In
addition, the OPA requires the establishment of
procedures and standards for the removal of “worst-
case discharges” (defined in the OPA as discharges in
adverse weather conditions of the entire cargo of a
vessel or the largest foreseeable amount of oil from a
facility).
What EPA oil pollution research and development efforts
are mandated by the OPA?
The OPA requires that an interagency committee
be established to coordinate oil pollution research,
technology development, and demonstration.
Technologies that may be developed to address the
problem of oil pollution include booms, skimmers, and
containers for temporary storage of oil during recovery
activities; chemical treatment methods, such as
dispersants; biological oil treatment methods, such as
the introduction of microorganisms and/or nutrients;
and the use of aircraft and remote sensing in oil spill
cleanup and monitoring activities. In addition, EPA is
undertaking a study on whether liners or other means
of secondary containment should be used to detect or
prevent leaking from onshore bulk storage facilities.
How are the EPA program offices cariying out their
responsibilities under the OPA?
To coordinate the numerous efforts required
under the OPA, EPA’s Emergency Response Division
(ERD) has formed the OPA Implementation
Workgroup. Within the overall workgroup, a number
of other workgroups have been formed to implement
specific OPA provisions (see the last page of this
bulletin). U
Update on Implementation of the Oil Pollution Act of 1990
February 1991
-------
Major EPA Activities and Statutory Deadlines
Associated with the Oil Pollution Act of 1990
OPA Signed 1—
2/18/91
8/18/92
Promulgate regulations on inflation adjustments
to liability limits for removal costs for non-trans-
8/1 8/9 ______ [
portation-related onshore facilities (1004(d)(4))
Approve facility response plans (4202(b)(4)(C))
8/18/90
Report to Congress on the desirability of
ad;ustng kabilrty lirnrts for rernovai costs for
non-transportation-related onshore facilities
(OPA section 1004(d)(3))
Propose regulations on authorTty to obligate
theTrustFund (1012(e).US CoastGuard lead)
Report to Congress on Great Lakes Agreements
(3002. Department of State lead)
Report to Congress on Lake Champlain
Agreements (3003. Department of State lead)
Designate areas for Area Contingency Plans
(4202(b)(1)(A))
Interagency research committee submits
implementation plan to Congress (7001 (b)(1).
USCG lead)
Report to Congress on deepwater ports
(1004(d)(2)(B), USCG lead)
Promulgate regulations on periodic gauging
of vessel plating thickness (4109. USCG lead)
Promulgate regulations on overfill and cargo
tank level or pressure monitoring devices
(4110. USCG lead)
Report to Congress on liners at onshore
facilities (4113(b))
Revise and republish the Nationai Contingency
Plan (4201(c))
8/18/91
2/18/92
Initiate rulemaking to lower liability limits for
deepwater ports if recommended in Report
to Congress required by 1004(d)(2)(B)
(1004(d)(2)(C). USCG lead)
Implement recommendations of Report
to Congress on liners (4113(c))
Area Contingency Plans submitted for review
(4202(b)(1 )(B))
Promulgate regulations on assessment of
natural resource damages from oil discharges
(1006(e). National Oceanic and Atmosphenc
Administration lead)
Require penodic Inspection of removal
equipment at non-transportation-related
onshore facilities (4202(a)(6))
Review and Issue determinations on Area
Contingency Plans (4202(b)(1)(C))
Promulgate regulations for facility response plans
(4202(b)(4))
Update on I!lpIernen(afjon of ih oil Pnlh, ,on Arr of 1000
Februar9 1991
-------
EPA WORKGROUPS IMPLEMENTING ThE OPA
CHAIR
OPA Implementation Workgroup. Coordinates the numerous efforts required under the
OPA and oversees the activities of the other EPA workgroups.
Stephen Luftig, ERD
(202) 475-8720
Area Contingency Plans. Considcnng issues associated with designating areas for which Area
Committees are to be established and Area Contingency Plans are to be prepared.
Caroline Isber, CEPPO
(202) 382-5338
Facility Response Plans. Developing regulations for facility response plans as part of the
Spill Prevention, Control, and Countermeasures Phase II Rulemaking Workgroup.
Bobbie Lively-Diebold, ERD
(703) 356-8774
Response Plan Guidance. Developing interim and final guidance for reviewing facility
response plans.
Bobbie Lively-Diebold, ERD
(703) 356 8774
NCP Revisions. Developing revisions to the NCP required by the OPA.
Elizabeth Zeller, ERD
(202) 382-7735
NCP Subpart J Revisions. Focusing on the development of Subpart J revisions to the NCP
Product Schedule.
Karen Sahatjian, ERD
(202) 382-2307
Enforcement. Determining EPA enforcement responsibilities in light of the new penalty
provisions added by the OPA.
David Drellich, OE
(202) 382-2949
Liner Study. Preparing a report to Congress on whether liners or secondary containment
should be used to prevent leaking at onshore facilities.
Kurt Jakobson, ORD
(202) 382-5747
Research and Development. Coordinating EPA’s program of oil pollution research,
technology development, and demonstration.
Fred Lindsey, ORD
(202) 382-2600
Regional OPA Workgroup. Facilitating Regional involvement in the development of EPA
programs, policies, and regulations required by the OPA.
Doug Kodama
EPA Region 2
(908)906-6905
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On February 21-22, 1991, the U.S. Coast Guard
sponsored an On-Scene Coordinator/Regional
Response Team (OSCIRRT) exercise in Baltimore,
Maryland to test oil spill response plans and
capabilities. Representatives of EPA Headquarters as
well as Region Ill attended the exercise.
The scenario for the table-top exercise involved
a collision in the Chesapeake Bay between an inbound
tank vessel loaded with 200,000 barrels of oil and an
outbound container vessel. Oil was spilled into the
Bay from ruptured cargo wing tanks. An unknown
number of containers were pushed over the side of the
container vessel; one 5,000-gallon intermodal tank
filled with methyl bromide also was thrown onto the
deck of the tank vessel. Each vessel contacted Coast
Guard Group Baltimore which in turn notilied the
Marine Safety Office. Thai office then notilied the
Federal pre-designated On-Scene Coordinator, the 5th
Coast Guard District Operations Center, which got
word to the Region III RRT, and the Maryland
Department of the Environment.
Approximately 500 Federal, state, and local
government personnel as well as representatives from
the private sector participated in and observed the
exercise. As is typical in such exercises, separate rooms
were provided for the OSC and his staff, the RRT, and
the control group running the exercise. Everyone else
was in a large meeting room where closed-circuit
television monitors provided continuous video coverage
of the activitk in the three smaller rooms.
The issues addressed during the exercise included:
various provisions of the Oil Pollution Act (CPA) such
as responsible party liability and fund access; differing
state liability limits; the use of a NOAA Scientific
Support Coordinator; wildlife rescue, cleaning, and
rehabilitation; the disposal of oil, oiled debris, and
toxic wastes; the use of state and local resources
(including a mosquito fleet of local fishermen), the
OSC’s role in directing a large spill cleanup by
responsible parties; the use of dispersants, in-situ
burning, and/or bioremecliation; the emergency
capabilities of local medical facilities; communications
among responders and with ship crews; as well as
public and media relations.
The OSC, RRT members, and others took part in
a debriefing session that provided several lessons for
future planning and response efforts. Among the
lessons learned were the following: OSCs and other
response officials could profit from training in stress
management; planners need to include a fish and
wildlife section in Area Contingency Plans, officials
must provide accurate information to the public as
quickly as possible without reaching any snap decisions
about long-term impacts; and local barge and tugboat
operators have developed their own contingency plans
that could be useful to the OSC.
On March 13-14, a follow-up meeting was held in
Rosslyn, Virginia to provide an opportunity for senior
headquarters and regional officials of agencies
represented on the NRT to see how their agencies
might participate in the response to a catastrophic
spill Additional drills will be held in the future to test
removal capability under Area Contingency Plans and
tank vessel and facility response plans; such drills are
required to be conducted periodically under CPA
section 4202 •
EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9200 5-1151
April 1991
Update on Implementation
of the Oil Pollution Act of 1990
Office of Emergency arid Remedial Response
Emergency Response Division OS-210
Intermittent Bulletin
Volume 1 Number 2
Inside the Updai
- - - -
: - .
• Spill Exercise in Baltimore
• Spill Planning/Response: Practical Issues
• San Diego Oil Spill Conference -
•_TheExron Valdez: Lessons Learned
• The Exron Valdez: What If?
. Oil Spills Reported in the U.S., 1988-1990
• ‘Interim Guidelines for Bioremediation
J
Pnnted on Recycled Paper
Apnl 1991
-------
OIL SPILL PLANNING AND RESPONSE:
PRACTICAL ISSUES
Preparing Area Contingency Plans or response
plans for vessels and facilities under the new OPA
requirements will not be easy. That’s because there are
many complicatingi factors in oil spill response and
contingency planning.
First, “oil” itself may have different physical
properties depending upon where it comes from and
whether it has been processed into a useable end
product. Oil right from the ground is called “crude”
oil. Most people probably know that this crude oil
requires further processing before consumers and
businesses can use it. But what may not be commonly
understood is that there are many types of crude oil,
and these types can vary widely in consistency,
appearance, and environmental persistence. Various
refined oil ‘roducts have their own physical properties.
Chemical additives further alter the character of
refined oil products.
These physical and chemical differences mean
that teams planning for or responding to a release of
oil must use the approach that is specifically tailored to
the particular properties of the kind of oil released.
For example, some types of spilled oil may respond
well to the introduction of nutrients to stimulate
biodegradation by indigenous microorganisms; other
spilled products may require the introduction of new
biodegrading species.
A second complicating factor is the
environmental circumstance (weather conditions and
affected areas) of the spill. For example, vessels
outfitted with equipment to skim oil from the surface
of the water are relatively ineffective in rough seas. A
particular oil spill dispersant may be effective in
treating a given type of crude oil but toxic to organisms
in the environment where the spill occurred.
Mechanical cleanup methods may be able to remove oil
from a marsh but may do more harm than good to the
marsh in the process. The challenge in planning for an
oil spill response is that every spill is different and
requires a unique approach to response.
In future editions of the Update, we will present
articles on some critical issues affecting oil spill
response and contingency planning, such as the types
of oil and constituent chemicals in oil spills and
technologies (new and existing) for combating oil
pollution.
SAN DIEGO OIL SPILL CONFERENCE
The tradition of government and industr oil
experts convening to discuss common concerns and to
share information continued this year at the 12th
Biennial International Oil Spill Conference.
The Conference, sponsored by EPA, the U S.
Coast Guard (USCG), and the American Petroleum
Institute (API), was held in San Diego, California, on
March 4.7, and had an unprecedented attendance of
2,400 people. This high attendance was a consequence
of concern over the impact of two recent major events
the 1989 oil spill in Prince William Sound, Alaska,
and promulgation of the OPA -- on governme it
organizations, industry, and the environment. The
conference featured technical sessions, poster
presentations, and films oi. ‘ pollution prevention
schemes, the need to est lish and implement
comprehensive response and management plans, and
the effect of increasing public concern and involvement
in oil pollution. About 190 exhibitors provided
displays and hands-on demonstrations of oil spill
prevention and response products available from U.S.
and foreign companies, institutions, and government
agencies
Events began with a plenary session in which
representatives from EPA, the USCG, state agencies,
and industry discussed the effects of the OPA and
similar state legislation on the oil industry, cleanup
contractors, and Federal and State enforcement
agencies After the opening plenary session,
participants elected to attend any of 2S sessions on
such topics as contingency planning, cleanup
operations, response policy, case histories, damage
assessment, dispersants, fate and effects,
bioremediatiOn, and modeling.
Four special panel discussions (on research and
development issues, scientific/litigation conflicts in oil
spill damage assessment and operational spill response,
crisis communications, and oil spill management and
decision-making) had lively audience participation.
The 1989 oil spill in Prince William Sound has
undeniably stimulated new public interest and
involvement in oil pollution issues. During discussions
of the spill, representatives of citizen groups often
provided first-hand accounts and differing perspectives
from the statements and opinions presented by EPA,
the USCG, API, the National Oceanic and
Atmospheric Administration, and others.
Off-siteand conference demonstrations were well-
attended additions to the Conference and offered
Conwwed on noa page
2
April 1991
-------
San Diego Conference (Continued)...
valuable educational opportunities to attendees
Approximately 500 people attended a demonstration of
state-of-the-art oil containment and recovers’
equipment and response systems, including dedicated
oil spill response vessels, rapid response boats,
skimmers, booms, and dispersant application
techniques. Capping the week’s events was a discussion
of the new, industry-created, non-profit Marine Spill
Response Corporation. I
THE EXXON VALDEZ: LESSONS LEARNED
T o years ago, the 987-foot tank vessel Exxon
Va!dez struck Bligh Reef in Prince William Sound,
Alaska. What followed was the largest oil spill in U.S.
history. The oil slick spread over 3,000 square miles
and onto 350 miles of beaches in Prince William
Sound, one of the mo t pristine and magnificent
natural areas of the country. Soon after the Exxon
Valdez spill, the National Response Team (NRT), at
the request of the President, began preparing a report
to address the preparedness for, the response to, and
early lessons learned from the incident. The Report
was published two months after the spill, in May 1989.
In the Report, the NRT concluded the following:
• Preparedness was not adequate to address the
spill. Neither Exxon, nor the State of Alaska,
nor the Federal government was adequately
prepared for the spill. The various contingency
plans in place at the time of the spill did not
reference each other or establish a workable
response command hierarchy.
• Response efforts were slow and often insufficient.
The quantity of oil released in such a short time
overwhelmed recovery and containment efforts.
The isolation of the spill area hampered the
movement of response and worker support
equipment.
• Compensation and liability provisions of existing
statutes may have been insufficient. If Exxon
had not voluntarily assumed financial
responsibility for cleaning up the spill, the Clean
Water Act section 311(k) Trust Fund would have
been rapidly depleted. (At the time of the spill,
there was S6 7 million in the Trust Fund.)
The Report also noted that the NRT was
conducting a related study of the adequacy of oil spill
contingency plans throughout the country under the
leadership of the Coast Guard. This study resulted in
publication of the October 1990 0 ,1 Spill Coniznt cnc
Planning Report to the President.
The October 1990 Report looks at the EL II
Valdez incident several months into the cleanup and
also analyzes the National Response System as a whok.
including: the NRT; Regional Response Teams, the
National Oil and Hazardous Substances Pollution
Contingency Plan; Federal On-Scene Coordinators,
Regional, State, and local personnel; and industry
personnel It examines the ability’of the Nation’s oil
spill response system to address worst-case spills on the
order of the Ex.xon V’aldez incident. It also reviews the
adequacy of response equipment and personnel,
assesses the effectiveness of response training and
exercises throughout the Regions, and reports on the
organizational effectiveness of the National Response
System. Topics and findings in the report include:
• Prevention. The best defense against ‘ills is to
prevent them from occurring in the first place
Unfortunately, budget restrictions in recent years
have placed constraints on many prevention
programs, both in the government and in
industry.
• Planning and Coordination. The network of
Federal, state, local, and industry organizations
that participate in oil spill response cannot
operate to maximum effectiveness without better
coordination among the participants. This is
particularly true of government and private sector
coordination.
• Catastrophic Spills. According to the TevieW of
contingency planning conducted for the October
1990 Report, the ability of Federal, state, and
local governments as well as the ability of
industry to respond to a catastrophic spill iS
inadequate. The Exxon Valdez incident provided
a graphic example of how the concern over OflC
catastrophic spill, such as the Amoco CadzZ
incident in 1978, can turn to complacency in the
years following the spill, with the result that
response capabilities are ineffective when the next
catastrophic spill occurs.
• Cumulative Effect of Responses. During a single
week in June 1989, Federal, state, local, and
industry organizations and agencies responded
effectively to three demanding oil spills across the
country, all at a time when the Exxon Va!deZ
response also was underway. However, those
involved in responding to these major spills
pointed out that these incidents pushed the
response system to its limits. If the spills had
Continued a p i nc 1 page
3
April 1991
-------
The Exxon Vatdez (Continued)...
occurred under less favorable circumstances, or if
the response actions had gone on longer, some
parts of the system might not have had the
backup capability to perform a timely and
adequate cleanup.
The OPA incorporates many of the
recommendations of the two NRT studies. For
example, the OPA provision requiring the
establishment of Area Committees and Area
Contingency Plans stems from the finding in both
studies that increased planning and coordination are
essential to improving the National Response
System.
THE FXYON VALDEZ INCIDENT: WHAT IF
THE OPA HAD EXISTED?
I
The Exxon Valdez oil spill predated enactment of
the OPA by a year and a half. In fact, the Exxon
Va!dez incident is widely regarded as the primary event
behind the development of many provisions of the
OPA, its unanimous passage in Congress, and its
eventual signing into law. But suppose the OPA had
already been in effect as the Exxon Valdez pulled out of
the Alyeska marine terminal on the evening of
March 23, 1989 and made its way down Valdez Arm
toward the more open waters of Prince William Sound.
What might have been different?
Although it is impossible to say for sure, the
OPA’s many provisions specifically related to Prince
William Sound (such as the requirement that pilots of
tankers in Prince William Sound not be tanker crew
members) might well have prevented the spill from
occurring in the first place. However, even without
these Prince William Sound provisions (which probably
would not have been included in the OPA but for the
Exxon Valdez spill), there are a number of more
generally applicable CPA requirements that might have
prevented the spill or at least diminished its size and
the resulting damage.
Prevention
Several OPA provisions might lead to measures
that, had they been in place, would have prevented the
accident altogether. The forthcoming study on vessel
traffic service systems required by OPA section 4107
might lead to improvements in vessel traffic operations
that would have prevented the incident by keeping the
Exxon Va!dez away from Bligh Reef and other
dangerous areas. Similarly, the study on tanker
navigation safety standards mandated by section 4111
might lead to the establishment of ew standards
the size of and rest periods for tanker crews that c
have prevented the incident. The small size of the
Exxon Vaidez crew and its fatigue after cargo loading
have been identified as lactors chat may have
contributed to the incident.
The CPA section 4115 requirement that most
tankers be equipped with double hulls might have
prevented the spill or resulted in a smaller spill. The
USCG has estimated that a double hull on the Exxon
Valde.z would have reduced the size of the spill by
50 percent, or 5½ million gallons. Although this
phased-in requirement would not have prohibited the
use of a single hull on the Exxon Valdez until more
than 19 years after OPA enactment, the tanker might
have been built with a double hull in anticipation of
the requirement. If the Exxon Valde.z were still a
single-hull tanker, the section 4116 requirement that it
be escorted by at least two towing vessels and piloted
by a person who is not a crew member might have
prevented the incident by keeping the tanker away
from dangerous areas.
Response
Even if the Exxon Valdez had spilled oil, cer
OPA provisions designed to improve spill response
actions might have reduced the size and environmental
impact of the spill. The OPA section 4202
requirements for an Area Contingency Plan and a tank
vessel response plan designed to handle a worst-case
spill (worse than the Exxon Valdez spill), and for the
best available spill removal equipment to he kept on
board on the tanker, might have resulted in quicker
and more effective spill response.
Other section 4202 provisions requiring periodic
inspection of removal equipment and unannounced
drills of removal capability might have revealed
inadequacies in response planning that could have been
addressed before the Exxon Valdez spill occurred. In
addition, the section 4201 requirement that the Federal
government direct responses to spills that pose a
substantial threat to the public health or welfare”
might have improved the initial response to the spill by
clarifying the chain of command for spill response
activities.
Because most of the provisions described here are
not limited to any single area, their potential for
preventing or mitigating the effects of another Er
Valdez incident also applies to any major U S spill
might occur after the OPA is fully implemented. Thus,
this brief look at ‘what might have been’ bodes well for
what might occur -- or be prevented -- in years to
come. U
4
ApnI 1991
-------
OIL SPILL STATISTICS: RELEASE NOTIFICATIONS BY REGION, 1988-1990
• Total numbers Include not ications where the Region was not provided.
Source: Emergency Response Notification System (ERNS); February 21, 1991.
The information presented in the map above is
from the Emergency Response Notification System
(ERNS), a national computer data base and retrieval
system used to store information on releases of oil and
hazardous substances. ERNS contains preliminary
information on the date, cause, and size of a release;
the response actions taken; the environmental media
affected; and several other data items. The map shows
the number of oil spills that have been reported to
EPA Regions, the National Response Center, and the
U.S. Coast Guard during the past three years. ERNS
is continually updated as new reports are received and
information is verified.
As the map shows, oil release notifications vary
substantially from one EPA Region to another. In
1990, the number of these reports ranged from 477 in
Region 8 to 6,726 in Region 6. Emergency responders
use this type of information to determine where to
concentrate emergency response efforts. For example,
the highest number of notifications are consistently
received in Region 6, which includes the States of
Texas, Oklahoma, and Louisiana. These states also
account for the greatest number of oil production
facilities.
An overall increase in the number of notifications
each year is apparent. The number of notifications
increased six percent in 1989 and more than twice as
much, 14 percent, in 1990. This rise, however, does
not necessarily indicate an increase in the number of
oil spills. More diligent reporting, greater awareness of
Federal reporting requirements, and improved
notification and data collection processes may account
for at least part of the increase.
ERNS information can be used for different and
more extensive analyses than that presented above.
Data in ERNS are available to anyone intercsted in
release notifications, such as emergency response
personnel, government officials, the public, the media,
educational institutions, and scientific organizations.
Data may be provided in various forms, including
computerized copies, printouts, or summarized release
totals. General information and specific data may be
obtained by calling the ERNS Project Manager at
(202) 382-2342 or by writing to the U.S. Environmental
Protection Agency, Freedom of Information Act Office
(A-101), 401 M Street, S.W., Washington, D.C.
20460. •
5
TOTAL
1988
1989
1990
RELEASE NOTIFICATiONS
Number % Change
15,799 -2%
16,819 6%
19,526 14%
April 1991
-------
INTERIM GUIDELINES FOR
BIOREMEDIATION SPILL RESPONSE PLANS
The identilication and development of promising
new technologies for the prevention and reduction of
oil pollution are important paris of EPA’s effort to
implement the OPA. Bioremediation -- the use of
microorganisms to degrade chemical substances (such
as petroleum products and other hydrocarbons) -- is a
technology that the Agency believes offers significant
potential for addressing not only oil spills, but releases
of hazardous substances as well. Given an appropriate
environment and sufficient time, microorganisms have
exhibited the ability to degrade a wide variety of
chemical substances. The Bioremediation Action
Committee (BAC) was created last year at the
direction of EPA Administrator William K. Reilly to
foster the development of bioremediation as a safe and
effective solution to environmental problems Within
the BAC, six subcommittees have been established:
Data Identification and Collection, Education, National
Bioremediation Spill Response, Pollution Prevention,
Research, and Treatability Protocol.
The Subcommittee on National Bioremediation
Spill Response recently took the first steps toward its
long-term goal of developing a national bioremediation
response capability for oil spills. It has prepared
interim guidelines to addrcss the urgent need for
guidance on the use of promising but not widely
established bioremediation spill response measures,
including the use of bioremediation agents listed on
the Product Schedule under Subpart J of the National
Oil and Hazardous Substances Pollution Contingency
Plan (NCP). (The Subpart J regulations are amc’- -
those EPA is in the process of revising based on
OPA) In preparing the guidelines, Royal Nadeau,
EPA’s Environmental Response Team in Edison, New
Jersey. who headed up the effort, drcw on the expertise
of Subcommittee members involved in bioremediation
projects in Alaska’s Prince William Sound and on
research being conducted at the Agency’s Office of
Research and Development laboratories.
The new guidelines provide.a general model on
how to craft site-specific plans for using bioremediation
agents that reflect the particular needs and
characteristics of a given location. As the first major
product of its kind, the interim guidelines have been
forwarded to U.S. personnel in Saudi Arabia to assist
in response to the Kuwaiti oil spill in addition, the
Subcommittee is conducting a pilot project in which
the guidelines are being used to develop a site-specific
bioremediation response plan for a particular area.
For more information, please write to. Pamela
Russell-F ‘arris, Emergency Response Division
(OS-210), U.S Environmental Protection Agency,
401 M Street, S.W., Washington, D.C. 20460. I
COMMENTS ON THE UPDATE
Your comments on this new series of
bulletins are welcome. Please contact the editor,
Phyllis Anderson, at (202) 382-5614 or write to
the Emergency Response Division (OS-210), U.S.
Environmental Protection Agency, 401 M Street,
S.W., Washington, D.C. 204.60.
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EPA’S OIL SPILL PREVENTION AND
RESPONSE PROGRAM
The Clean Water Act ... On-Scene Coordinators
if National Response Center ... SPCC Plans . the
oil sheen rule .. These are a few well-known phrases
that refer to parts of EPA’s program for oil spill
prevention and response. How do all the parts fit
together? What’s the big picture? This article
illustrates how the components of the national oil spill
program -- such as EPA Headquarters offices, EPA
Regional offices, and various statutes and regulations
- - are linked.
The oil spill prevention and response program at
EPA Headquarters was formed in response to statutory
requirements and implementing regulations. As
regulations on oil pollution are promulgated and
revised, the offices at EPA and other Federal agencies
and departments responsible for implementation must
be prepared to address the changes As
implementation of the Oil Pollution Act of 1990
(OPA) continues, the oil program at EPA is expected
to expand to meet its increased responsibilities.
Section 311 of the Clean Water Act (C\VA), as
amended by the OPA, provides the authority for the
Federal government’s oil spill program. Major
provisions of section 311 authorize the Federal
government to.
• Establish reporting triggers, or criteria, for
notifying the Federal government of
discharges of oil and hazardous substanccs
into U.S. waters,
• Respond to oil and hazardous substance
discharges, including directing certain
cleanups by responsible parties,
Continued a,, page 2
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9200 5-1151
June 1991
Update on Implementation
of the Oil Pollution Act of 1990
Office of Emergency and Remedial Response
Emergency Response Division OS-210
Intermittent Bulletin
Volume 1 Number 3
Inside the Update
• EPA’s Oil Spill Prevention and Response
Program
• Bioremediation Spill Response Plan
• Roundtable on the NC?
• Oil Spill Statistics
Praise for the first two issues of the Update
has been widespread and we are happy that the
information has been helpful. But please, let’s
hear your criticisms and suggestions, too! We
intend to develop the Update in format and
content to meet your needs and interests. Our
goal is to provide straightforward information to
keep EPA Regional staff, our counterparts at
other Federal agencies and departments, the
regulated community, and the general public up to
date on the implementation of this broad, new
legislation.
You’ll notice that our feature article in this
issue is an overview of the oil program at EPA
Headquarters. We realize that the labyrinth of oil
pollution-related statutes, regulations, and offices
can be confusing. This article will help you to
understand the implementation of oil-related
activities and to see where implementation of the
OPA fits into the larger picture of the entire EPA
oil program.
Please send us your comments and
suggestions. Contact the editor, Phyllis Anderson,
at (202) 382-5614, or wTite to the Emergency
Response Division (OS-210), U.S. Environmental
Protection Agency, 401 M Stieet, S.W.,
Washington, D.C 20460.
Stephen Luftig, Director
Emergency Response Division, EPA
Printed on Recycled Paper
June 1992
-------
EPA’s Oil Program (Continued)...
• Assess civil and criminal penalties;
• Establish regulations requiring procedures.
methods, and equipment to prevent
discharges;
• Re-publish the National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP), incorporating OPA changes;
• Establish Area Committees to prepare Area
Contingency Plans; and
• Promulgate regulations that require a
facility owner or operator to prepare a plan
for responding to a worst-case discharge,
and to a substantial threat of such a
discharge.
Responsibility for implementing section 311 is
divided between EPA and the Department of
Transportation (DOT) by Executive Order 11735. In
general, DOT is responsible for regulations governing
vessels and pipelines, while EPA is responsible for
fixed facilities. Within DOT, the U.S. Coast Guard
(USCG) and the Office of Pipeline Safety have
responsibility for implementing section 311.
EPA’s Oil Spill Program Responsibilities
EPA’s oil spill program is implemented by several
offices at Headquarters and in the 10 EPA Regional
offices. Primary responsibility for development of EPA
national policy, as well as oversight of Regional
activities, rests with the Office of Solid Waste and
Emergency Response (OSWER). The Emergency
Response Division (ERD) of the Office of Emergency
and Remedial Response within OSWER is in charge of
regulatory development and guidance for implementing
the CWA oil spill provisions. The majority of the
OPA provisions for which EPA has responsibility will
be implemented by ERD.
In addition to ERD, other EPA offices are
responsible for various aspects of oil pollution
prevention and mitigation The Office of Underground
Storage Tanks, also within OSWER, implements
regulations that apply to underground tanks containing
petroleum. The Chemical Emergency Preparedness
and Prevention Office is involved in local emergency
planning activities. Outside of OSWER, the Office of
Water is involved in coordinating damage assessments
for the Exxon Valdez oil spill as a part of water
restoration efforts. The Office of Research and
Development conducts oil-related research.
The On-Scene Coordinators in the 10 EPA
Regional offices form the ‘front line’ of the Agcn ’s
oil spill program. They respond to spills of oil in most
inland areas (the USCG responds to spills in coastal
and some inland port areas) and inspect facilities to
determine compliance with the Oil Pollution
Prevention regulation, also known as the Spill
Prevention, Control, and Countermeasures (SPCC)
regulation.
EPA Oil Regulations
Oil pollution prevention, notification, and
response are addressed in three separate regulations,
each discussed below.
The SPCC regulation (40 CFR Part 112) is
perhaps the most wide-reaching oil spill regulation
implemented by EPA. This regulation applies to non-
transportation-reldL facilities that store oil
aboveground or Ufli :rground. Each oil production,
refining, and storage facility covered by the SPCC
regulation must prepare a plan detailing its spill
prevention and control measures. EPA Regional staff
inspect hundreds of SPCC-regulated facilities each year.
The Agency reviews SPCC Plans, determines violations,
negotiates compliance matters with facility owners and
operators, and enforces the requirements of the
regulation.
Revisions to the SPCC regulation are currently
being developed. The proposed revisions will consider
the recommendations of the SPCC Task Force, which
analyzed the program and issued findings and
recommendations in May 1988. The proposed SPCC
revisions are expected to he published latcr this year
The Discharge of Oil regulation (40 CFR Part
110) requires notification of certain oil spills Under
this broad regulation, often called the ‘oil sheen’ rule,
the person in charge of a facility or vessel must notify
the National Response Center whenever an oil spill
causes a discoloration or sheen on the surface of a
body of water or violates water quality standards.
The NCP (40 CFR Part 300) implements
important aspects of both the Comprehensive
Environmental Response, Compensation, and Liability
Act (also known as Superfund) and section 311 of the
CWA. Procedures for quick-response and long-term
clean-up actions are discussed in the NCP, which serves
as the Federal government’s blueprint for evaluating
and responding to releases of oil and hazardous
substances. The OPA mandates that the NCP be
revised to address a number of new issues, including
area contingency planning and response procedures for
Continued on pogc 3
-------
EPA’s Oil Prograiii (Continued)...
“worst case discharges’ and ‘substantial threats to
health or welfare.” The OPA also added the
requirement that spin-mitigating devices and substances
be addressed in the NCP Product Schedule where
appropriate. The Product Schedule currently is a list
of dispersants and other chemicals that may be used in
spill mitigation. ERD has formed workgroups to
address revisions to the NCP in general and the
Product Schedule specifically.
The Future of EPA’s Oil Spill Program
Activities underway to recognize the
environmental significance of preventing oil spills
include providing the funding to implement the
programs already in place, coordinating with agencies
and departments responsible for other aspects of oil
pollution, promulgating additional regulations, issuing
guidance, and conducting training. Currently,
regulations mandated by the OPA are being developed.
(See the February 1991 issue of the Update for an
overview of tie regulations required by the OPA.)
To help ensure more effective prevention and
response in the future, EPA’s oil spill program will
emphasize rapid response with the appropriate
equipment and personnel, and research and
development of new prevention and mitigation
technologies, such as bioremediation. The future
program will build on the foundations of the current
program by incorporating the recommendations of
studies (Such as the October 1990 Oil Spill Contingency
Planning Report to the President), the concerns of
Congress, and lessons drawn from EPA’s own
implementation experience. I
BIOREMEDIATION SPILL RESPONSE PLAN
BEING DEVELOPED FOR REGION 6
I
The Bioremediation Action Committee (BAC)
was created last year at the direction of EPA
Administrator William K. Reilly to promote the
development of biotechnology as a possible solution to
environmental problems. At its first meeting in June
1990, the BAC identified oil spill response as an area
where biotechnology appeared to offer significant
potential. The Subcommittee on National
Bioremediation Spill Response was formed with the
long-term goal ol developing a national bioremediation
response capability for oil spills. Recently, Lhe
Subcommittee began work on a pilot bioremediation
spill response plan with Region 6.
Bioremediatton, the use of microorganisms to
treat wastes, is actually an old practice. Bacteria have
been used to process sewage in municipal wastewater
treatment plants for nearly a century. Industrial plants,
such as food processors. also have used bacteria
increasingly over the last 20 years to reduce the
amount. of organic pollutants they release into rivers or
sewage systems. Recently, after the Exxon Valdez
incident in March 1989, bioremediation was used to
treat shorelines after a major oil spill. In an effort to
stimulate native microorganisms that degrade crude oil
compounds, fertilizers were applied to some oiled
beaches in Alaska as part of a field experiment.
Although preliminary results indicate that the natural
degradation processes were enhanced, it is difficult to
determine precisely how much enhancement occurred.
One task of the Subcommittee on National
Biorernediation Spill Response is to develop guidance
to assist Regional Response Teams in determining
whether and how to integrate hi remediation into their
oil spill contingency planning 1 amework. The first
phase of that task was completed earlier this year when
the Subcommittee drafted its Interim Guidelines for
Preparing Bioremediation Spill Response Plans. The
interim guidelines will provide a general model from
which site-specific plans for the use of bioremediation
can be prepared. Designed to promote comprehensive
contingency planning, the guidelines will address
everything from feasibility assessment and response
logistics to post-treatment monitoring.
The next phase of the Subcommittee’s work, the
use of the interim guidelines in a pilot project to
develop a site-specific bioremediation spill response
plan, began in March. The kick-off meeting for the
pilot project took place in Austin, Texas, and was
hosted by the Texas Water Commission. In attendance
were 21 members from several organizations, including
EPA, the Texas Water Commission, the Texas General
Land Office, the National Oceanic and Atmospheric
Administration, the Marine Spill Response
Corporation, the U.S. Coast Guard, and the Texas
Parks and Wildlife Department Their purpose was to
begin preparing a plan for using bioremediation in
response to oil spills in Region 6.
Patrick Roques of the Texas Water Commission
opened the meeting with a presentation on the
experimental use of bioremediation in response to the
Mega Borg and Apex oil spills, both of which occurred
along the Texas coast in 1990. Mr. Roques stressed
that the lack of guidance on the use of bioremediation
forced response officials to improvise, underscoring the -
need for bioremediation spill response planning. The
group reached a consensus to model the
Continued on page 4
3
June 1991
-------
BioremediatiOn Spill Response (Continued)...
bioremediatiOn spill response plan after Subpart H of
the Regional Contingency Plan for Region 6, which
governs the use of dispersants. The interim guidelines
will be used to identif ’ the issues that must be
addressed in a bioremecliation response plan.
After a structure for the plan was agreed upon,
the group turned its attention to the choice of a
location on which to focus the group’s first data
gathering efforts. Alter considerable discussion,
Galveston Bay, Texas was chosen. In addition to its
large volume of petroleum product traffic, Galveston
Bay was deemed an appropriate choice because its
environment is considered to be representative of the
Texas coast in general. Eventually, data will be
collected for other locations within Region 6 as well.
The remainder of the conference was devoted to
beginning the preparation of the spill response plan
itself. Each participant agreed to concentrate on a
particular issue within the 1 lan. One member, for
example, will gather data on the microbial population
of Galveston Bay to determine whether indigenous
bacteria are capable of degrading petroleum
compounds. This information is essential to
determining whether biotemediation efforts in
Galveston Bay should focus on the use of nutrients to
enhance indigenous populations, as occurred in Alaska,
or on the introduction of cultured microbes, as
occurred in the Mega Borg and Aper spills. U
ROUNDTABLE DISCUSSION
ON
TIlE
NATIONAL CONTINGENCY
PLAN
A 5 part of the San Diego Oil Spill Conference,
EPA sponsored a roundtable discussion on the CPA-
mandated revisions to the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP). About
25 representatives from industry, nonprofit
organizations, state and local governments, and other
Federal agencies learned about the Agency’s progress
to date and contributed their perspectives regarding the
OPA’s new prevention and response provisions. The
topics covered during the meeting included:
• Intentional releases of oil for research and
development purposes;
• Definition of substantial threat,’ which
triggers mandatory Federal direction of an
oil spill response;
• Definition of ‘worst case discharge’ for
facility response plans; and
• Use of dispersants and other chei.
countermeasures.
Participating in the discussions from EPA were
Stephen Luftig, Director of the Emergency Response
Division; John Riley, Chief of the Response Standards
and Criteria Branch; John Cunningham, Chief of the
Oil Pollution Response and Abatement Section; and
Elizabeth Zeller, Chief of the Response Policy,
Guidance and Support Section. EPA staffers Bobbie
Lively-Diebold and Karen Sahatjian, who each chair
one of the Agency’s 10 workgroups on OPA regulatory
initiatives, also took part in the discussion.
Intentional Releases of Oil for R&D
Mr. Cunningham reported that among the
regulatory initiatives being discussed by E 1 vere
changes to the guidelines originally developed in 1970
on the intentional release of oil for R&D purposes.
He stated that because of a lack of applications for a
permit to intentionally release oil, the Agency was
uncertain whether any revisions were required.
Industry representatives stated that the current process
was costly and time-consuming and discour’
applications. In addition, the perception exists w.
industry that EPA would not approve any requests
submiited, especially requests for discharges ofamounts
large enough to provide useful data It was suggested
that EPA adopt a system such as Norway’s, in which a
single approval is granted for multiple discharges over
several years. In this way, the costs io industry and
government of preparing and reviewing an application
would be spread over several tests, and industry would
be assured that an extended R&D program would not
face recurring regulatory hurdles.
There was general agreement that intentional
discharges were necessary for R&D purposes This
view was based on the belief that accidental spills are
insufficient for R&D because pre-spill, baseline data on
the sites of such spills were generally inadequate for
drawing conclusions about the effectiveness of tests.
Industry representatives generally agreed that the
1,000-gallon limit on the size of an intentional
discharge in the current guidelines should be raised to
improve the usefulness of any test data gathered. In
fact, it was reported that the Minerals Management
Service is proposing to conduct an in-situ burn tesS
25,000 to 50,000 gallons in the summer of 1992
that the discharge may provide an opportunity for a
concurrent demonstration of dispersant use or open-
Continued on page 5
4
June 1991
-------
Roundtable Discussion (Continued)...
water bioremediation. Finally, the issues of liability
and response to intentional spills were discussed;
Mr. Cunningham commented that the current
requirements on liability and response procedures in
the NC? were just as suitable for a response to an
intentional discharge as they were for an accidental
spill.
Definition of Substantial Threat
Section 311(c) of the CWA, as amended by OPA
section 4201(a), mandates Federal direction of the spill
response when the spill poses “a substantial threat to
the public health or welfare of the United States.” Ms.
Zeller reported that, although Congress mentioned
several spills as examples of events representing
substantial threats, the term was not specifically
defined in the legislation. The Agency is considering
what factors should be used to make this regulatory
determination. Jack Gould of the American Petroleum
Institute agreed that factors other than the quantity
discharged must be considered, but emphasized the
need to include only factors reflecting the public safety
or ecological risks involved not political or public
reaction to a spill. Ivan Lithous of the U.S. Coast
Guard announced that it was establishing criteria for
determining the risks posed by spills in the Coastal
Zone for which it is responsible Ms. Zeller stated that
her workgroup has discussed providing the Federal On.
Scene Coordinator (OSC) vith a list of factors for the
OSC to consider on a case-by-case basis.
Ms. Zeller also explained that direction of the
spill response by the Federal government was not
necessarily the same as “Federalizing” the spill, in
-which the government pays for the cleanup and later
seeks to recover its costs Under the OPA, the OSC
must direct the response to a spill posing a substantial
threat regardless of who is paying for the cleanup.
Definition of Worst Case Discharge
Under the OPA, facilities and vessels are required
to prepare response plans addressing, among other
things, a “worst case discharge.” Ms Lively .Diehold
explained that Congress defined a worst case discharge
for a vessel as discharge of the entire cargo during
adverse weather. For facilities, a worst case discharge
is “the largest foreseeable discharge in adverse weather
conditions.” Ms. Lively.Dicbold statcd that her
workgroup was debating several alternative approaches
to quantifying the largest foreseeable discharge for
onshore fixed facilities Several industry participants
stated that a definition referring to the entire contents
of the facility was unrealistic, and that a reference to
some lesser quantity was needed. It was also noted
that for some facilities, such as pipelines, the entire
contents of the facility might be difficult to define.
Other participants noted that use of the phrase
“adverse weather conditions” would complicate
development of response plans because mechanical
recovery may not be feasible under such conditions.
Ms. Lively-Diebold noted that the OPA requires a plan
for responding to a worst case discharge to the
“maximum extent practicable.” This qualification may
help define the amount of response equipment that a
facility should have available in the event of a spill.
Industry representatives suggested that the Agency
consider the costs of choosing a definition that is
significantly more stringent than the level to which
industry is currently developing its response
capabilities.
Ms. Lively-Diebold further explained that the
Agency intends to develop a set of factors to determine
winch onshore fixed facilities must submit plans and, in
turn, which plans must be reviewed and approved.
Mr. Luftig noted that the OPA requires the Federal
Government to review response plans for certain
facilities and prohibits those facilities from operating
without an approved response plan. In contrast, review
of SPCC Plans is not statutorily required.
Use of Dispersants and Other Countermeasures
Ms. Sahaijian noted that the OPA directs the
Federal government to address “other spill mitigating
devices” in the NC? Product Schedule and mandates
expedited decisionmaking for the use of chemical
countermeasures. In addition, she noted, the Agency
is reconsidering the current toxicity and effectiveness
tests for dispersants under Subpart J of the NC? She
also stated that EPA may develop effectiveness criteria
for products on the Product Schedule, which may
reduce the number of products on the schedule.
Whereas over 90 products currently are on the list in
the U.S., Canada, which has established effectiveness
criteria, has only six to eight accepted products on its
list.
Several representatives from industry asked
whether the provision on expedited decisionmaking
would lead to preauthorization of dispersant use in the
NC? Preauthorization would allow members of
Regional Response Teams (RRTs) to approve in
advance the use of certain dispersants in specific areas.
Mr. Riley noted that many RRTs currently are working
on preauthorization and most meeting participants
supported this effort •
5
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OIL SPILL STATISTICS: CHARACTERiSTICS
L OF THE LARGEST SPILLS
• Neariy 20,000 oil discharges to U.S. waters were
reported last year, up 14 percent from 1989. Most of
these spills were less than 1,000 gallons in size and
resulted in limited damage to the environment.
However, each year there are a number of major
spills of over 100,000 gallons; 101 such discharges were
reported from 1988 to 1990. Relatively fe in number
but often catastrophic in impact, these largest spills
highlight response problems and grab headlines. The
exhibits below, using data from the Emergency
Response Notification System, illustrate some
characteristics of these large releases.
lhe clistriDutlon 01 011 uiscnarges greater [ han
100,000 gallons in size by source reveals some
surprising facts. Although public and media attentir’n
has focused on discharges from vessels, these disch:
actually accounted for less than one-fourth of all m.. -
spills. In contrast, fixed facilities accounted for 43
percent of all large discharges reported. Pipelines
accounted for the next biggest share (30 percent) of
large spill reports.
Of the states in which discharges over 100,000
gallons were reported, the most occurred in the oi1
producing states of California and Texas (18 and 15,
respectively). Overall, discharges in quantities greater
than 100,000 gallons occurred in more than one-half of
the States. •
Oil Discharge Notifications by Source:
Spills Over 100,000 Gallons, 1988 - 1990
Oil Discharge Notifications by State:
Spills Over 100,000 Gallons, 1988-1990
Source: Emergency Response Notification System (ERNS).
EPA
United States
Environmental Protection
Agency (OS-i 20)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
First-Class Mail
Postage and Fees Paid
EPA
Permit No. G.35
2%
1%
— Rail
Fixed Facility
Oft-shore
Marine
Highway
Pipeline
1%
California
IlIifl0 S
New Jet....,
LII New York
Texas
Oklahoma
Other States
4
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Publication 9360.8-0 1 FS
Thousands of oil spills occur in the United States each year. Over the three-year period from 1988 through 1990, the
Federal government received 42,000 notifications of oil discharges--an average of 15,000 per year, or about 40 notifications
per day. In 1990 alone, there were 24 oil spills that exceeded 100,000 gallons, live of which were greater than 1 million
gallons. In 1989, 38 oil spills exceeded 100,000 gallons, i luding the devastating Erxon Valdez spill in Alaska’s Prince
William Sound. In response to the new public awareness of tie damaging effects of major oil spills, Congress unanimously
enacted tougher oil spill legislation and, on August 18, 1990, the President signed into law the Oil Pollution Act of 1990
(OPA or the Act).
On October 18, 1991, the President issued Executive Order 12777, delegating the authority for implementing provisions
of the OPA to several Federal agencies and departments, including the U.S. Environmental Protection Agency (EPA) and
the U.S. Coast Guard (USCG). These “OPA Q’s & A’s” are part of a series of fact sheets that provide up-to-date
information on EPA’s implementation of the CPA. This first fact sheet provides an overview of the various provisions of
the OPA and the Agency’s responsibilities under the new law.
L General Overview
Qi. What istheOPA?
A. The OPA (Pub. L. 101-380) is a comprehensive
statute designed to expand oil spill prevention, pre-
paredness, and response capabilities of the Federal
government and industry. The Act establishes a new
liability and compensation regime for oil pollution
incidents in the aquatic environment and provides
the resources necessary for the removal of discharged
oil. The OPA consolidates several existing oil spill
response funds into the Oil Spill Liability Trust
Fund, resulting in a $1-billion fund to be used to
respond to, and provide compensation for damages
caused by, discharges of oil. In addition, the OPA
provides new requirements for contingency planning
both by government and industry and establishes new
construction, manning, and licensing requirements
for tank vessels. The OPA also increases penalties
for regulatory noncompliance, broadens the response
and enforcement authorities of the Federal govern-
ment, and preserves State authority to establish laws
governing oil spill prevention and response.
02. How does the OPA affect existing laws and
regulations?
A. The OPA amends section 311 of the Federal Water
Pollution Control Act (the Clean Water Act or
CWA, 33 U.S.C. 1321 et seq), to clari ’ Federal
response authority, increase penalties for spills,
establish USCG response organizations, require
tank vessel and facility response plans, and provide
for contingency planning in designated areas Many
of the statutory changes will require corresponding
changes to the National Oil and Hazardous Sub-
stances Pollution Contingency Plan (NCP), codified
at 40 CFR Part 300. In addition, the OPA repeals
the following statutory provisions and merges the
funds established under these laws with the Trust
Fund: (1) CWA section 311(k); (2) Title III of the
Outer Continental Shelf Lands Act Amendments of
1978 (43 U S C. §1811 el scq); (3) section 18(l) of
the Decpwater Port Act of 1974 (33 U S C. § 1502 ci
seq); and (4) section 204(c) of the Trans-Alaska
Pipeline Authorization Act (43 U.S C. §1651 ci seq),
except for amounts necessary to pay remaining
claims. The OPA also makes the Trust Fund
available for actions taken in accordance with the
Intervention on the High Seas Act (33 U.S.C. §1486
ci scq). The OPA, however, does not preempt
States’ rights to impose additional liability or other
United States
Environmental Protection
Agency
EPA
Office of
Solid Waste and
Emergency Response
OPA 0’s & A’s:
December 1991
Overview of the Oil Pollution
Act of 1990
Office of Emergency and Remedial Response
Emergency Response Division OS-210
Quick Reference Fact Sheet
-------
requirements with respect to the discharge of oil
within a State or to any removal activities in
connection with such a discharge.
03. Which Federal agencies are responsible for
implementing the CPA?
A. On October 18, 1991, the President tssued Executive
Order 12777, delegating authority to implement the
OPA to various Federal agencies and departments,
including EPA and the USCG (via the U.S.
Department of Transportatton or DOT) Forth-
coming memoranda of understanding between EPA
and the 13 5CC will address how the two agencies
will interact in carrying out their respective
responsibilities. In general, EPA is responsible for
oil spilt prevention, preparedness, and response
activities associated with non-transportation-related
onshore facilities. The Agency has lead responsi-
bility for implementing many of the OPA provisions
in the inland zone, including revising the NC ?,
developing non-transportation-related facility
response plan regulations, reviewing and approving
facility response jlans, designating areas, appointing
Area Committee members, and establishing require-
ments for Area Contingency Plans.
In addition, the DOT (including, in some cases, the
USCO) generally is responsible for oil spill planning
and response activities for tank vessels, transpor-
tation-related onshore facilities, and deepwater ports.
The U.S. Department of Interior generally is
responsible for oil spill planning and response
activities for offshore facilities except deepwaier
ports. Under the CPA, the National Oceanic and
Atmospheric Administration is developing regula-
tions for natural resource trustees to assess damages
to natural resources caused by oil discharges.
04. How are the EPA program offices carrying out
their responsibilities under the OPA?
A. Most CPA provisions delegated to EPA are being
implemented by EPA’s Emergency Response
Division (ERD), a part of the Office of Emergency
and Remedial Response within the Office of Solid
Waste and Emergency Response. Within ERD, the
newly created Oil Pollution Response and Abate-
ment Section will play a major role in carrying out
the Agency’s responsibilities under the OPA.
Moreover, to coordinate the many efforts required
under the Act, EPA formed the CPA Imp lementa-
tion Workgroup, chaired by the Director of ERD. A
variety of Headquarters and Regional offices are
represented on this workgroup; EPA Region 2
currently participates as the lead Regional
represeniative. Within the overall workgroup, a
number of other workgroups are implementing
specific CPA provisions (see Highlight 1).
Highlight 1: EPA Workgroups
to Implement the OPA
• The Reeionai Implementation workgroup is
developing reconiniendaiions on EPA ’s e\pan i •d
role and responsibiiiiies in preventing and
responding to oil spills.
• The Area Conuneency Plans workgroup is
studying issues Bssociated with designaiin ,sTe.i\
for which Area Committees and Area
contingency Plans are 10 be established
• The Facility Response Plans workgrnup, sthirh
has been incorporated into the eusiing Spill
Preveni ion, Control, and Couni arm easu rcs
(SPOC) Phase Two Workgroup, is developing
regulations for facility response plans, as well as
interim guidance [ or reviewing such plans
• The NCP Revisions workgroup is developing the
revisions to the NC ? requited by the OPA A
subworkgroup has been established to focus on
revising Subpari J io establish procedures for
using chemical agents to respond to oil spills
• The Enforcement workgroup is reviewing EPA
enforcement responsibilities in light of ihe ne’
penalty provisions added by the OPA
The Liner Study workgroup is preparing a report
to Congress on whether liners or secondary
containment should be used to prevent discharges
from onshore facilities.
• The Research and Development workgroup is
coordinating EPA ’s program of oil pollution
research and iechnoto ’ development and
demonstration.
flh 5t R 0 1 ,
05. What Is the Federal government’s role when
responding to releases of oil?
A. Under section 311(c) of the CWA, as amended by
section 4201(a) of the CPA, the Federal
government must ensure the effective and
immediate removal of a discharge (or a substantial
threat of a discharge) of oil or hazardous substance
(1) into or on navigable waters and adjoining
shorelines; (2) intO or on the waters of the excluSi C
economic zone; or (3) that may affect natural
resources of the U.S. In carrying out this provisic
the Federal government may: (1) remove I.
arrange for the removal of a discharge, subject 10
reimbursement from the responsible party; (2) direct
or monitor all Federal, State, and private actions tO
remove a discharge; or (3) remove and, if necessai).
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destroy a vessel discharging, or threatening to
discharge. If the discharge is of such size or
character as to pose a substantial threat to the public
health or welfare, the Federal government is
required to direct all public and private efforts to
remove the discharge. - For all other discharges, the
Federal government has the discretion to take action,
direct, or monitor public or private actions to
remove the discharge. To facilitate and expedite
emergency responses to discharges that pose a
substantial threat to the public health or welfare,
CPA section 4201 amends the CWA to exempt the
Federal government from certain laws governing
contracting procedures and the employment of
personnel. In addition, an amendment to section
311(c) of the CWA provides an exemption from
liability for response costs and damages which result
from actions taken, or not taken, by a person
rendering care, assistance, or advice consistent with
the NC?. This exemption does not apply: (1) to a
responsible party; (2) to a response conducted
pursuant to the Comprehensive Environmental
esponse, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.); (3) with respect to personal
injury or wrongful death; or (4) if the person is
grossly negligent or engages in willful misconduct.
The intent of the OPA is to enable the Federal
government to direct responses that are both
immediate and effective.
06. Many States have laws governing oil spill
prevention and response. Does the OPA
preempt State laws?
A. No; section 1018(a) of the OPA specifically provides
that the Act does not preempt State law. States may
impose additional liability (including unlimited
liability), funding mechanisms, requirements for
removal actions, and fines and penalties for
responsible parties. Section 1019 of the OPA
provides States the authority to enforce, on the
navigable waters of the State, CPA requirements for
evidence of financial responsibility. States are also
given access to Federal funds (up to $250,000 per
incident) for immediate removal, mitigation, or
prevention of a discharge, and may be reimbursed by
the Trust Fund for removal and monitoring costs
incurred during oil spill response and cleanup efforts
that are consistent with the NCP.
Liability and Financial Responsibility
07. What provisions for oil spill liability does the
OPA establish?
A. Title I of the OPA contains liability provisions
governing oil spills modeled after CERCLA and sec-
tion 311 of the CWA. Specifically, section 1002(a)
of the OPA provides that the responsible party for
a vessel or facility from which oil is discharged, or
which poses a substantial threat of a discharge, is
liable for: (1) certain specified damages resulting
from the discharged oil; and (2) removal costs
incurred in a manner consistent with the NC?.
Highlight 2 identifies the types of “damages” that
responsible parties are potentially liable for under
the OPA. Section 1002(d) also provides that if a
responsible party can establish that the removal
costs and damages resulting from an incident were
caused solely by an act or omission of a third party.
the third party will be held liable for such costs and
damages. In these cases, however, the responsible
party is still required to pay the removal costs and
damages resulting from the incident, but is entitled
by subrogation to recover all costs and damages
from the third party or the Trust Fund
08. Does the OPA provide defenses to its oil spill
liability provisions?
A. ‘Yes; section 1002(c) of the OPA provides excep-
lions tO the statute’s liability provisions The
exceptions include: (1) discharges of oil authorized
by a permit under Federal, Stale, or local law. (2)
discharges of oil from a public vessel, or (3) dis-
charges of oil from onshore facilities covered by the
liability provisions of the Trans-Alaska Pipeline
Authorization Act.
In addition, section 1003 of the OPA provides ihe
responsible party with defenses tO liability imposed
under seciion 1002 of the Act if the responsible
party establishes that the spill was caused solcl by:
(1) an act of God; (2) an act of war, (3) an act or
Highlight 2: Damaj cs for Which Responsible
Parties Are Potentially Liable
The scope of damages for which oil dischargers may be
liable under section 1002 of the OPA includes.
• Natural resource damages, including the reasonable
costs of assessing these damages;
• Loss of subsistence use of natural resources,
• Real or personal property damages;
• Net loss of ta and other revenues,
• Loss of prolits or earning capacity; and
• Net cost of additional public services provided
dunng or after removal actions
I
-------
omission of a third party; or (4) any combination of
these events. To prevail in a third-party defense, the
responsible party must prove that it took due care in
handling the oil and took precautions against any
foreseeable acts of the third party and any
foreseeable consequences of those actions. However,
the defenses contained in section 1003 are not
available to responsible parties that: (1) do not
report an incident of which they are aware, (2) do
not cooperate with response officials during removal
actions; or (3) without sufficient cause, do not
comply with an order issued under section 311 of the
CWA, as amended, or the Intervention on the High
Seas Act.
09. Does the OPA establish limits on liability?
A. Yes; the OPA establishes significantly higher limits
of liability for tank vessels, facilities, and deepwater
ports than existed previously under section 311 of
the CWA. Specifically, section 1004 of the OPA
increases the liability for tank vessels larger than
3,000 gross toni to $1,200 per gross ton or SlO
million, whichever is greater. Responsible parties at
onshore facilities and deepwater ports are liable for
up to $350 million per spill: holders of leases or
permits for offshore facilities, except deepwater
ports, are liable for up to $75 million per spill, plus
removal costs. Section 1004(d)(1) of the OPA,
however, provides the Federal government with the
authority to adjust, by regulation, the $350-million
liability limit established for onshore facilities,
“taking into account size, storage capacity, oil
throughput, proximity to sensitive areas, type of oil
handled, history of discharges, and other factors
relevant to risks posed by the class or category of
facility.” The Agency is currently assessing the
desirability of adjusting the liability limit for onshore
non-transportation-related facilities based on these
factors.
In addition, the OPA establishes the following
conditions under which liability would be unlimited:
(1) discharges caused by gross negligence, willful
misconduct, or violation of Federal safety,
construction, or operating regulations, (2) failure to
report a known spill, (3) failure or refusal to
cooperate in a removal action; or (4) failure or
refusal to comply with an order issued under section
311 of the CWA, as amended, or the Intervention on
the High Seas Act. In addition, the owner or
operator of an Outer Continental Shelf facility, or
vessel carrying oil as cargo from such a facility, is
required to pay for all removal costs incurred by the
U.S. Government or any State or local agency in
connection with a discharge, or substantial threat of
a discharge, of oil.
010. What penalties are responsible partIes
subject to under the OPA?
A. Section 4301(a) of the OPA amends the CWA
increase the criminal penalties for failure to notit
the appropriate Federal agency of a discharge.
Specifically, the fine is increased from a maximum
of $10,000 to a maximum of S250,000 for an
individual or S500,000 for an organization. The
maximum prison term is also increased from onc
year to five years.
In addition, section 4301(b) of the OPA amends the
CWA to authorize a civil penalty of $25,000 for
each day of violation or $1,000 per barrel of oil
discharged. These penalties are higher in cases of
gross negligence or willful misconduct. Failure to
comply with a Federal removal order can result in
civil penalties of up to S25,000 for each day of
violation or three times the resulting costs incurred
by the Trust Fund. Under section OPA 4301(c),
criminal penalties can range up u 250,000 and 15
years in prison. EPA and the USC 3 also have the
authority to administratively assess civil penalties of
up to $125,000 against violators of the Oil Pollution
Prevention Regulations (40 CFR Part 112) or those
responsible for the discharge of oil or hazardous
substances.
011. Are all parties regulated under the OPA
required to provide evidence of financial
responsibility?
A. No; owners and operators of onshore facilities are
not required to maintain financial assurance mech-
anisms. owners and operators of offshore facilities,
certain vessels, and decpwatcr ports, however, must
provide evidence of financial responsibility.
Specifically, section 1016 of the OPA requires that
offshore facilitics maintain c’ idence of financial
responsibility of $150 million and vessels and
deepwater ports must provide evidence of financial
responsibility up to the maximum applicable liability
limitation amount. Any vessel subject to this
requirement that cannot produce evidence of
financial responsibility is not allowed to operate in
U.S waters Methods of assuring financial
responsibility under the OPA include evidence of
insurance, surety bond, guarantee, letter of credit, or
qualification as a self-insurer. Also, OPA section
1016(f) provides that claims for removal costs and
damages may be asserted directly against the
guarantor providing evidence of financial
responsibility.
012. Are there funds available if cleanup costs ai
damages cannot be recovered from responsible
parties?
A Yes; thc OPA authorizes the expenditure of funds
from the Oil Spill Liability Trust Fund, established
-------
under section 9509 of the Internal Revenue Act of
1986 (26 U.s.c 9509), to pay for removal costs
and/or damages resulting from discharges of oil into
U.S. waters or supplement existing sources of
funding. The Trust Fund, which is administered by
the USCG, is based on a five-cent-per-barrel
environmental fee on domestic and imported oil.
The OPA amends section 9509 of the lnte 1 nal
Revenue Act of 1986 to consolidate funds estab-
lished under other statutes and to increase permitted
levels of expenditures. Specifically, section 9001(a)
of the OPA consolidates the assets and liabilities
remaining with, and the penalties paid pursuant to,
the funds established under: (1) section 311 of the
CWA (2) section 18(1) of the Deepwater Port Act of
1974; (3) Title III of the Outer Continental Shelf
Lands Act of 1978; and (4) section 204 of the Trans-
Alaska Pipeline Authorization Act (after settlement
of existing claims). The OPA amends the resulting
Trust Fund by expanding permissible expenditures
from $500 million per incident, and a separate S250.
million per incident limit on atural resource claims,
to Si billion per incident and a S500-niillion per
incident spending limit on natural resource damages.
in addition, the OPA increases the Trust Fund
borrowing limit from $500 million to Si billion.
Oil Spill Preparedness and Prevention
013. I-f ow will Implementation of the OPA help oil
spill planning and prevention efforts?
A. Section 4202 of the OPA strengthens planning and
prevention activities by: (1) providing for the
establishment of spill contingency plans for all areas
of the U.S.; (2) mandating the development of
response plans for individual tank vessels and certain
facilities; and (3) providing requirements for spiii
removal equipment and periodic inspections. These
efforts are intended to result in more prompt and
effective cleanup or containment of oil spills, thereby
preventing spills from becoming larger and reducing
the amount of damage caused by oil spills.
The development of Area Contingency Plans will
assist the Federal government in planning response
activities. In addition, owners and operators of tank
vessels, offshore facilities, and any onshore facilities
that because of their location could cause substantial
harm to the environment from a discharge, are re-
quired to prepare and submit to Lhe Federal govern-
ment plans for responding to discharges, including a
worst case discharge or a threat of such discharge.
If response plans are not developed and approved as
required by section 3 l 1 (j)( 5 ) of the CWA, as
amended by the OPA, the tank vessel or facility will
be prohibited from handling, storing, or transporting
oil unless the tank vessel or facility submits a plan
to the Federal government and receives temporary
approval to continue operations (see Question #16
of this fact sheet). In addition, containment booms.
skimmers, vessels, and other major spill removal
equipment must be inspected periodically, tank
vessels must carry removal equipment that uses the
best technology economically feasible and is
consistent with the safe operation of the vessel
Moreover, the higher limits on liability and the
broader scope of damages for which dischariiers may
be liable under the OPA should serve as added
incentives for facilities and vessels to prevent spills
In addition, EPA is taking the lead or participating
in several studies and research and development
efforts that will aid in spill prevention. Other
requirements of the OPA being implemented by the
USCO -- such as establishing a National Rest .. se
Unit and District Response Groups and . w
standards for lank vessel construction, crew
licensing, and manning -- also will help to prevent
or mitigate spills.
014. What are Area Committees and Area Contin-
gency Plans?
A. Area Committees, to be composed of qualified
Federal, State, and local officials, will be created to
develop Area Contingency Plans. At a minimum,
Area Contingency Plans are intended to ensure the
removal of a worst case discharge, and to mitigate
or prevent a substantial threat of such a discharge,
from a vessel or facility in or near the area covered
by the plan. In the case of an onshore facility, a
worst case scenario is defined as the largest
foreseeable discharge under adverse weather
conditions. Area Contingency Plans will describe
areas of special environmental importance, outline
the responsibilities of government agencies and
facility or vessel operators in the event of a spill,
and detail procedures on the coordination of
response plans and equipment. In accordance with
Executive Order 12777, EPA is responsible for
reviewing and approvingArea Contingency Plans for
the inland zone, whereas the USCG has similar
responsibilities for the coastal zone
015. Does the OPA require onshore facilities to
prepare and submit a facility response plan?
A Yes; section 4202 of the OPA amends section
31 l(j)(S) of the CWA to require the owner or
operator of a tank vessel, offshore facility, and
certain onshore facilities to prepare and Submit tO
the Federal government a plan for responding, to
the maximum extent practicable, to a worst case
discharge, or substantial threat of such a discharge.
of oil or hazardous substances. Specifically. OPA
I
-------
section 4202(a)(6) revises CWA section 3 ll(j)(S) to
require the owner or operator of an onshore facility
that, because of its location, could reasonably be
expected to cause “substantial harm” to the
environment as the result of an oil discharge, to
submit a response plan to the Federal government.
The OVA revisions to CWA section 311(j)(5) also
require the Federal government to review and either
approve, or require amendments to, the response
plans of tank vessels, offshore facilities, and those
onshore facilities that could reasonably be expected
to cause significant and substantial harm to the
environment from a discharge. Under Executive
Order 12777, the President has delegated the
authority to review and approve response plans for
non-transportation-related onshore facilities to EPA.
016. What deadlines does the OPA place on the
preparation and submission of facility response
plans?
A. Section 4202(b) of the OVA establishes deadlines for
the preparation and approval of facility response
plans. Regulations addressing facility response ?lanS
are required to be promulgated 24 months after the
date of enactment of the OVA (i.e., August 18,
1992). Owners and operators of affected facilities
are required to prepare and submit their plans 30
months after the date of enactment (i.e., February
18, 1993). Section 4202(b) of the OPA also states
that if the owner or operator of a facility required to
submit a plan has not done so by the deadline, that
facility must stop handling, storing, or transporting
oil. Furthermore, a facility required to prepare and
submit a response plan may not handle, store, or
transport oil unless: (1) the plan has been approved
(when plan approval is required), and (2) the facility
is operating in compliance with the plan. EPA may
authorize a facility which has submittcd a plan to
operate without approval for up to two years if the
owner or operator certifies the availability of
personnel and equipment necessary to respond to a
worst case discharge or the substantial threat of such
a discharge.
017. What types of Information must facility
response plans Include?
A. The OPA requires owners or operators of a facility
to submit a response plan that is: (1) consistent
with the NCP and Area Contingency Plans; (2)
updated periodically; and (3) rcsubmitted for
approval with each significant change. highlight 3
provides additional information that must be
included in the facility response plan. In conjunction
with the SPCC Phase II workgroup, the Facility
Response Plans workgroup is making preparations to
meet with trade associations representing the
regulated community to provide information and
seek comments on the possible contents, the level of
Highlight 3: Information That Must be
Included in Facility Response Plans
OPA section 4202(a) requires thai each facility response
plan, at a minimum
• Identify the individual with full authority to
implement removal actions, and requires immediate
communications between thai individual, the
appropriate Federal official, and those providing
response personnel and equipment,
• Identify and ensure the availability of private
personnel and equipment necessary to remove to
the maximum extent practicable a worst case
discharge (including a discharge resulting from fire
or explosion), and to mitigate or prevent a
substantial threat of such a discharge, and
• Describe the training, equipment testing, periodic
unannounced drills, and response actions of persons
on the vessel or at the facility, to be carried out
under the plan to ensure the safety of the vessel or
facility and to mitigate or prevent the discharge, or
the substantial threat of a discharge.
detail, and guidance that may be useful fr’
preparing response plans.
018. Does the CPA contain provisions that address
tank vessel construction?
A. Yes; a major spill prevention feature of the OVA is
the requirement that tank vessels be equipped with
double hulls. Specifically, under section 4115 of the
OPA, newly constructed tank vessels must be
equipped with double hulls, with the exception of
vessels used only to respond to discharges of oil or
hazardous substances. In addition, newly
constructed tank vessels less than 5,000 gross tons
are exempt from the double-hull requirement if they
are equipped with a double containment system
proven to be as effective as a double hull for the
prevention of a discharge of oil Existing tankers
without double hulls are to be phased out by size,
age, and design beginning in 1995. and are required
to be escorted by two towing vessels in specially
designated high-risk areas. Most tankers without
double hulls will be banned by 2015.
019. What other OPA requirements are designed to
prevent oil spills from tank vessels?
A. The OPA contains additional provisions that o
intended to prevent tank vessel spills from
occurring, including: (1) strict licensing require-
ments; and (2) manning and safety standards.
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To ensure that the USCG can identify vessel per-
sonnel with motor vehicle offenses related to the use
of alcohol and drugs, OPA section 4101 requires
anyone applying for a license, certificate of regist iy,
or merchant mariners’ document to provide a copy
of their driving record obtained from the National
Driver Registry. This requirement is intended to
provide background information on potential vessel
personnel with motor vehicle offenses related to the
use of alcohol and drugs. Applicants must also
submit to drug testing. Further, OPA SeCtiOn 4103
provides additional authority for the expeditious
suspension of licenses and documents of merchant
mariners suspected of alcohol or drug abuse. OPA
section 4104 provides authority for the orderly
removal or relief of a vessel master or individual in
charge of the vessel suspected of being under the
influence of alcohol or a dangerous drug. The
inclusion of these provisions reflects the concern that
alcohol or drug impairment are serious threats to
safe vessel operation.
Section 4114 of the OPA also requires that new tank
vessel manning standards be set, both for U.S. and
foreign tank vessels. For U.S. tank vessels, licensed
seamen are not permitted to work more than 15
hours in any 24-hour period, or more than 36 hours
in any 72-hour period. Forthcoming regulations will
designate the conditions under which tank vessels
may operate with the autopilot engaged or the
engine room unattended. Crew members also must
be trained in maintenance of the navigation and
safety features of the tank vessel. For foreign tank
vessels, a USCG review will determine whether tank
vessel safety practices are at least the equivalent of
U.S. requirements. Tank vessels that do not satisfy
this standard will be prohibited from entering U.S.
waters. These new requirements, emanating from
issues raised in the investigation of the Exron Valdez
spill, should lead to better trained and more well-
rested crews on tank vessels.
[ Other Provisions
020. What oil pollution research and development
efforts are mandated by the OPA?
A. Section 7001 of the OPA requires that an
interagency committee be established to coordinate
the establishment of a program for conducting oil
pollution research, technology development, and
demonstration. This program is specifically required
by the statute to provide research, development, and
demonstration in a number of areas, including;
• Innovative oil pollution technologies (e.g.,
development of improved tank vessel design or
improved mechanical, chemical, or biological
systems or processes);
• Oil pollution technology evaluation (eg.,
controlled field testing and development of
testing protocols and standards);
• Oil pollution effects research (e.g., development
of improved fate and transport models);
• Marine simulation research (e.g., use and
application of geographic and vessel response
simulation models); and
• Simulated environmental testing (e.g., use of the
Oil and Hazardous Materials Simulated
Environmental Test Tank).
021. What provisions are included in the OPA to
protect Alaska’s Prince William Sound?
A. Title V of the OPA contains several provisions
aimed at preventing future spills in Prince William
Sound. Specifically, the OPA: (1) authorizes the
Prince William Sound Oil Recovery Institute in
Cordova, Alaska; (2) establishes Oil Terminal
Oversight and Monitoring Committees for Prince
William Sound and Cook Inlet, (3) authorizes and
appropriates funds for construction of a navigation
light on Bligh Reef; and (4) requires all tank vessels
in Prince William Sound to he under the direction
and control of a pi 1 ot, who cannot be a member of
the crew of the tank vessel, licensed by the Federal
government and the State of Alaska. In addition,
section 8103 of the OPA establishes a Presidential
Task Force on the Trans-Alaska Pipeline System
The Task Force will conduct a comprehensive audit
of the pipeline system (including the terminal in
Vak]ez, Alaska) to assess compliance with
applicabte laws.
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United States
O 1l of SoIV Waste
Pub4 catlon 9360.0-2 S
Environmental
and Emergency
Apr Il 1992
Protection Agency
Response
Oil Notifications
Emergency Response Notification System (ERNS)
Fact Sheet
Office of Emergency and Remedial Response
Emergency Response D1V IOn OS-210 Ou k R erence Fact Sheet
The Emergency Response Notification System (ERNS) is a national computer database which provides the only
centralized mechanism for documenting and verifying incident notification information as initially reported to the
National Response Center (NRC), the U.S. Environmental Protection Agency (EPA), and to a limited extent., the U.S.
Coast Guard (USCG). This initial notification data may be followed up with updated information from various
Federal, State and local response authorities, as appropriate. ERNS contains data that can be used to analyze
ielease notifications, support emergency planning efforts, and assist decision makeTs in developing spill prevention
programs. This fact sheet provides summaiy information on notifications of releases of oil reported in accordance
with the Clean Water Act (CWA). Under Section 311 of the CWA, discharges of oil which: 1) cause a sheen to appear
on the surface of the water; 2) violate applicable water quality standards; or 3) cause sludge or emulsion to be
deposited beneath the surface of the water or adjoining shoreline, mw.t be reported to the NBC.
In the ERNS database, notifications involving the release of oil products are divided into two categories. The
first category, “Petroleum,” refers to all releases of materials that are petroleum or its by-products. ERNS specifies
64 different petroleum products. These products include: crude oil, heating oil, jet fuel, kerosene, automotive
gasoline, and motor oil. Releases involving these 64 types of petroleum-based oil products account for approximately
41% of all the releases reported to ERNS, and 78% of oil and petroleum notifications, made in compliance with the
CWA. The second category of oil products in ERNS contains all of the non-petroleum types of oil. There are 156
different non-petroleum types of”Oil” in ERNS. These materials include substances ranging from coconut,
sunflower and other edible oils, to anthracene oil and coal. The non-petroleum oil notifications account for
approximately 12% of all releases reported to ERNS.
NUMBER OF OIL AND PETROLEUM NOTiFICATiONS RECEIVED ANNUALL
Typeof Release
1961
1968
1989
1990
1991
“Petroleum” NotIficatIons
12,550
12,399
12.567
14.085
14,520
“oir NotifIcations
3,027
2,768
3,507
4,761
4,744
Total Oil/Petroleum NotificatIons
15.577
15,167
16,074
18,846
19,264
Total Number of ERNS NotificatIons
28,677
29,874
34,104
34,259
35,653
The following chart is a graphical representation of
the distribution of oil and petroleum releases among the ___
six “causes of release” in ERNS. The six causes are
transportation accident, equipment failure, operator
error, natural phenomenon, dumping, and unknown. ____
As the chart reveals, petroleum releases outnumber
oil releases in all catagories, by more than 2 to 1.
Additionally, petroleum releases caused by equipment ____
failure represent the largest number of recorded
releases in ERNS.
A11 nu beie are bued on init ial notU1cat1o to the Fedcrl government and ay oct have been verUlad.
Nuiit of O6tP.tiv sum P4od6 don by Ca .
(lOll .lOll)
T SPORT
EOUFM94T
OP E OA
NAT P I
u
-Ill’’
¶‘liii
¶Wf9WJfW
f III
I I I I
LW
0 23466
•o.
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The map below ahows the number of oil and petroleum releases for each of the ten EPA regions. The largest
numbers of reported oil/petroleum releases occurred in Regions 6 and 9. The data used the map are cumulative,
from 1987.1991.
Oil I Petroleum Notifications (1987 - 1991)
by U.S. EPA Region
The following table shows the size distribution of oil and petroleum notifications. ERNS data reveal that the
largest number of notifications for both categories involve releases less than 1,000 gallons. Notifications involving
releases in quantities greater than 100,000 gallons represent an average of .2% and .1%, for petroleum and oil
respectively.
NUMBER OF OILIPETROLEUM NOTiFICATIONS BY SIZE
1987
1988
1989
1990
1991
No Quanttty Reported
OIl
1230
1.189
0
0
0
1,364
1,283
3
2
0
Less than 1,000 g&lons
oil
1,662
1.432
3.372
4,635
4,636
.tros.um
10.001
10.052
11,424
12,895
13.321
1,000-9 ,999 gallons
Oil
102
119
109
95
83
Petroleum
980
878
938
980
998
10,000-99999gallons
Oil
26
17
22
23
23
Petroieum
177
163
170
184
181
100,000 gallons or greater Oil
7
11
23
____________ 28
For fiirt her information regarding ERNS, call the ERNS infor7naton line
Manager, U.S. EPA, at OS-210, 401 MSL, SW, Washington, DC 20460.
4
32
8
24
at (202) 260-2342, or write the ERN..
A11 numbers axe baaed on Initial noWtcaiiona to t Federal government and may t have b n verified.
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United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9200.5-1151
August 1992
6EPA OPA Update
Implementation of the Oil Pollution Act
of 1990
Office of Emergency and Remedial Response
Emergency Response Division OS-210
Intermittent Bulletin
Volume 2 Number 1
A. 5 OU have probably noticed, the
Update has a new look! This new
format will allow us to include more
information without compromising
content and readability. In this issue
of the Update, we provide information
on facility response plans, the
Environmental Response Team,
mechanical containment and recovery
of oil, and the recent designation of
Areas under the OPA.
You may be interested to know that
ERD has undergone several personnel
changes. Stephen Luftig, former
Director of ERD, is now acting
Deputy Director for OERR; I am now
the Acting Director of ERD and John
Riley is ERD’s Acting Deputy Direc-
tor. As always, we welcome your
comments or suggestions on the
content and/or format of the Update.
Please contact ERD’s SPCC/OPA
Information Line at (202) 260-2342, or
write to the Emergency Response
Division (OS-210), U.S. Environmental
Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460.
Debbie Dietrich, Acting Director
Emergency Response Division, EPA
Inside
• 1993 International
Conference
Oil Spills
S Mechanical Containment and
Recovery
S Map of U.S. Water Zones
• Environmental Response Team
• Publications Update
• Designation of Areas
FACILITY RESPONSE
PLAN REQUIREMENTS
UNDER THE OPA
in one of the largest inlanu * spills
in U.S. history, approximately 50,OOO
gallons of diesel fuel were discharged
into Pennsylvania’s Monongahela River
when a 4-million-gallon storage tank
owned by the Ashland Oil Company
collapsed. This devastating oil spill
disrupted community water supplies,
closed schools and businesses, and
caused serious ecological damage.
This spill clearly indicated the need for
additional Federal efforts to prevent
oil discharges of such magnitude. As a
result, an interagency Spill Prevention,
Control, and Countermeasures (SPCC)
Task Force was formed to review
existing Federal regulations governing
oil spills from aboveground storage
tanks and to recommend actions to
improve the spill prevention program.
Based on the SPCC Task Force
recommendations, EPA developed a
two-phased strategy for revising the Oil
Pollution Prevention regulation (also
known as the SPCC regulation). The
Agency published the Phase I Notice
of Proposed Rulemaking in the Federal
Register on October 22, 1991 (see
related article in the January Update).
The OPA mandates, among other
things, that certain facilities prepare oil
spill response plans. EPA decided to
implement this OPA requirement in
the forthcoming SPCC Phase II
rulemaking. This article provides a
brief overview of the OPA provisions
for onshore facility response plans,
Continued on page 2
As one of the country’s largest inland oil spills, the Ashland Oil Co. facility
spill (above) rallied support for improved oil spill prevention.
Printed on Recycled Paper
August 1992
-------
Responst. Pians (Cont’d from p. 1)...
including requirements for response
plan submission and review and certain
elements that must be included in the
response plan.
The OPA requires the owner or
operator of an onshore facility that,
because of its location, could
reasonably be expected to cause
“substantial harm” to the environment
as a result of a discharge of oil or a
hazardous substance into navigable
waters or adjoining shorelines, to
submit a response plan to the Federal
government. Additionally, the OPA
requires the President (EPA by
delegation) to review and either
approve or require amendments to the
plans of the subset of facilities that
could reasonably be expected to cause
“significant and substantial harm” to
the environment from a discharge.
According to the OPA Conference
Committee report, the criteria
developed to determine which onshore
facilities are required to submit plans,
and which of those submitted plans
must be reviewed and approved, should
include, but not be limited to, such
factors as oil storage capacity, location
of environmentally sensitive areas, and
location of potable water supplies.
Facilities must submit response plans
within 30 months after the date of
enactment of the OPA (i.e., by
February 18, 1993). If the owner or
Thperator of a facility required to
submit a plan has not done so by the
deadline, or is not operating in
compliance with the plan, that facility
must stop handling, storing, or
transporting oil. EPA may authorize a
facility that has submitted a plan for
review to operate without approval for
up to two years if the owner or
operator certifies the availability of
personnel and equipment necessary to
respond to a worst case discharge (i.e.,
the largest foreseeable discharge under
adverse weather conditions)- In
addition, the OPA requires that
approved facility response plans be
updated periodically and be
resubmitted for approval of each
significant change.
In preparing response plans, facility
owners or operators must ensure that
the plans are consistent with the
National Oil and Hazardous Sub-
stances Pollution Contingency Plan
(NCP) and Area Contingency Plans
(which are also mandated by the
OPA). It is also important to note
that the OPA provisions for onshore
facility response plans do not
supersede, and must be consistent with,
the planning requirements of other
statutes, including provisions under
Title III of the Superfund
Amendments and Reauthorization Act
(SARA) and section 311 of the Clean
Water Act. The OPA Conference
Committee report encourages that
information developed in facility
response plans be made available to
State Emergency Response Commis-
sions and the Local Emergency
Response Committees established
under SARA Title III.
The OPA specifies a number of
elements that must be included in
facility response plans. Specifically,
the OPA requires facility response
plans to ensure that sufficient
personnel and equipment are available
The 13th Biennial International
Conference on the Prevention,
Behavior, Control, and Cleanup of
Oil Spills will be held March 29
through April 1, 1993, at the Tampa
Convention Center in Tampa,
Florida. The conference provides a
forum for private sector and
government organizations from
around the world to discuss current
issues related to oil spills. The 1993
conference will focus on such issues
as pollution prevention, pre-
planning, and the development of
new or improved techniques and
technologies for oil spill response
operations. Other areas that will be
addressed include implementation of
the OPA, oil spill liability, damage
assessment, State oil spill legislation,
and other existing and pending
regulations.
to remove, to the maximum extent
practicable, a worst case discharge
(including a discharge resulting from
fire or explosion) and to mitigate c
prevent a substantial threat of such
discharge. The OPA Confercncc
Committee report indicates that the
phrase “maximum extent practicabk
should be interpreted to 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. The OPA also
requires facility response plans to
identify a qualified individual who ha
full authority to implement removal
actions. It also requires immcdiaic
communication between that individual
and the appropriate Federal official
and those providing response
nersonnel and equipment. Facility
wners and operators also must
ucscribe training, equipment testing,
and periodic unannounced drills in the
response plan. Because the ultimate
success of a response plan hinges on
personnel who clearly understand and
are qualified and capable to perform
their response duties, periodic trainir
and drilling are essential to ensure
prompt and effective spill response.
Co,imiued Ofl page 3
Papers addressing such oil-related
issues will be presented orally at the
conference and will be published in
the Conference Proceedings. The
conference will also feature “poster
presentations,” for shorter works
more suitable for graphic and visual
display. A Film Festival will be held
during the conference and will show
films and videos on a broad range of
oil pollution prevention and control
issues. More than 2,000 people
from over 35 countries attended the
1991 conference held in San Diego,
California. For more information
about the 1993 conference or to
make reservations, please call
(301) 468-3210. U
1993 INTERNATIONAL OIL SPILLS CONFERENCE
2
August 1992
-------
Raspoeae Plans (Cont’d from p. 2)...
These are the requirements set forth
under the OPA for developing onshore
facility response plans. As part of the
development of the Phase II revisions
to the SPCC regulation, EPA plans to
meet with parties interested in the
facility response planning requirements
to provide preliminaiy information and
to solicit comments on the possible
contents, level of detail, and guidance
that may be useful for preparing and
reviewing response plans. For more
information regarding facility response
plan requirements, please contact
EPA’s Dana Stalcup at (202)
260-1353.
PRACTICAL ISSUES FOR OIL
SPILL RESPONSE:
MECHANICAL
CONTAINMENT AND
RECOVERY OF OIL
SYhen discharged into water, oil tends
to spread rapidly. The longer a
discharge is allowed to spread, the
nore resources will be needed to
contain and clean up the oil.
According to the Office of Technology
Assessment (U.S. Congress), if an oil
spill the size of the Exxon Va!dez
incident is not contained within four
days, the oil could spread across an
area of 15-20 square miles. Therefore,
rapid deployment of containment
equipment is needed to mitigate the
environmental impacts of an oil spill
on water. This article describes the
various mechanical containment and
recovery technologies available to the
response. community to minimize
damage to shorelines and aquatic
ecosystems resulting from oil spills.
CONTAINMENT EQUIPMENT
Containment equipment is intended to
hold oil until it can be recovered or
dispersed. The primary type of
mechanical containment equipment
used to collect, concentrate, and/or
Uvert spilled oil is the containment
boom, although other containment
techniques, such as air or water
streams, can also be used under certain
conditions.
Containment Booms
Containment booms are floating
barriers that contain spilled oil on the
surface of the water. By far the most
commonly used containment
mechanism, booms are designed to
limit the spread of oil and concentrate
it in thicker layers to make recovery
easier. Booms also can be used to
direct oil slicks to flow along a desired
path; for example, oil can be channeled
into the apex of a NVW where it can be
recovered. All boom types are affected
by sea state; the higher the wave
swells, the less effective the boom
becomes. There are three basic types
of industrial containment booms:
fence, curtain, and sorbent booms.
Fence booms are highly rigid, have a
high freeboard (to contain oil and
prevent spillover), and use a flat
flotation device. Some models lose
their effectiveness in rough water
where wave and wind action can cause
the boom to twist. In general, fence
booms are easy to clean and deploy
and are resistant to damage; however,
they are bulky to store. Curram booms
have a circular fi ‘tation device in the
center and a flexible skirt. Most
curtain boom models are easily
deployed and cleaned and work well in
rough seas. While they are resistant to
damage by debris, they are somewhat
bulky to store. Self-inflating curtain
booms have the advantage of rapid
deployment, but are difficult to clean
and subject to puncture and deflation.
Sorbent booms and barriers are
designed to soak up oil as they contain
it. These barriers consist of either a
synthetic or natural oleophilic (oil-
attracting) sorbent material such as
straw, peat moss, or sawdust. Sorbent
booms are most effective in situations
where the oil spill is small and the
slick is relatively thin, and in calm
waters such as slow streams and rivers
or sheltered bays and inlets.
Boom Deployment
Depending on site-specific conditions,
booms can be fixed to a structure or
buoy, or towed behind or alongside a
vessel. When the boom is stationary
or moored, it should be anchored
below the water surface for stability.
A stationary boom must be monitored
due to changes in tides, currents, sea
conditions, or other factors influencing
water depth, direction, and force.
Continued on page 4
Curtain boom is used to contain oil from the Exxon Valdez.
3
August 1992
-------
Practical Issues (Cont’d from p. 3)...
Other factors can significantly impair a
boom’s ability to contain an oil slick.
Wind and waves can force oil over the
top of the boom, or force the boom to
lie flat in the water, releasing
contained oil, while currents can carry
oil beneath the skirt of the boom. In
general, rough or choppy water is the
factor most likely to contribute to
boom failure, although mechanical
failure and improper mooring may also
occur.
Other Containment Methods
Various other methods also can be
used to contain oil spills. For
example, in waters with little or no
current, the force of a stream of water
from a fire hose or a high-pressure air
flow can be used to direct or contain a
slick. This method is usu.Ily
considered a short-term treatment or is
used in combination with other
measures. Air or bubble barriers are
another containment method and are
produced by pumping air through a
perforated pipe set below the water
surface perpendicular to the path of
the slick. When the bubbles rising
from the holes in the pipe reach the
surface, they divide and spread out
horizontally, forming a curtain of
turbulence beyond which the slick will
not travel. The oil is thus held back,
but water underneath can flow through
without resistance. Although not
widely used in the U.S., air barriers
could be particularly useful in areas
such as harbor mouths where the
deployment of booms may disrupt
water traffic patterns.
RECOVERY EQUIPMENT
Responders’ duties go far beyond
merely containing an oil spill; that is,
they must also recover it from the
water. Recovery equipment typically
refers to sorbents and skimmers,
although booms also can be used for
recovery.
Sorbents
Sorbents are materials that recover oil
through absorption, adsorption, or
both. Absorption is a process whereby
the oil is soaked up into the body of
the absorbent material. Adsorption,
on the other hand, is a process
whereby the oil simply adheres to the
surface of the adsorbent material,
without penetrating. To be useful in
combatting oil spills, sorbents must be
oil-attracting and water-repellant
(hydrophobic). Sorbents typically fall
into three general categories based on
their composition: (1) natural organic
sorbents, which include peat moss,
straw, hay, sawdust, ground corncobs,
feathers, and other organic products;
(2) inorganic natural sorbents, which
include clay, perlite, vermiculite, glass,
wool, or sand; and (3) 3ynthetic
sorbents, which include organic
polymeric materials such as
polyurethane, polyethylene, poly-
propylene, and nylon fibers. Sorbents
are most often used to remove final
trace amounts of oil, as well as oil in
areas that cannot be reached by
skimmers.
Skimmers
of the water. Skimmers may be self-
propelled, used from shore, or
deployed from vessels. The efficiency
of skimmers in recovering spilled oil i
highly dependent upon sea conditions,
the type of oil being recovered, and the
degree to which ice or debris is present
in the water. There are several types
of skimmers:
Weir skimmers employ a dam or
enclosure at the oil-water interface.
Oil floating on the water spills ovcr
the dam and becomes trapped in a well
inside, bringing with it as little water
as possible. The trapped oil and water
mixture can then be pumped through
a pipe or hose to a storage tank for
recycling or disposal.
Centrifugal or vortex skimmers create a
whirlpool that separates the and
water by centrifugal force. The . htcr
oil concentrates in the center of the
whirlpool, while the heavier water is
forced to the outer edge. The
separated water flows through the
bottom of the skimmer, while the
recovered oil is pumped out throug
the top.
Oleophilic skimmers use belts, disks, or
continuous mop chains of oleophilic or
oil-attracting materials to blot oil from
Continued on page 5
A skimmer is a mechanical device for
recovering spilled oil from the surface
I T —.
_ ,fl
A vessel-of-opportunity skimming 3ystem is being used on this vessel to
contain and recover oil onboard.
4
August 1992
-------
iamsei onr from p 4)...
$s whet surface. The oil is then
out Into a recovery tank.
OloophlUc skimmers can be used
cUecttvcly on spills of any depth or
ncenuation. Some types, such as
chain or rope mop skimmers,
function well even on water that is
choked with debris or rough ice.
Suction skimmers operate much like a
household vacuum cleaner. Oil is
sucked up through wide floating heads
and is pumped to storage tanks.
Although this is an efficient way to
remove spilled oil, suction skimmers
are vulnerable to debris clogging and
require constant observation. They
operate best on smooth water, where
oil has collected against boom or
barriers.
Submersion skimmers are larger than
other skimmers and are usually
mounted on or incorporated within a
powered vessel. A moving belt is
inclined at an angle to the water
surface in such a way that oil in the
path of the device is forced beneath
the surface and subsequently rises (due
to its buoyancy) into a collection well.
Submersion skimmers are usually more
efficient with low viscosity oils and
when the slick is fairly thin and not
contained.
Integrated Recovery Systems
The difficulties associated with
obtaining and deploying boom,
skimmer, and oil storage vessels and
equipment in certain areas have led to
the development of integrated oil
recovery systems. One of the more
common integrated systems is the
vessel-of-opportunity skimming system
or VOSS. These systems, which can be
used on many types of vessels, utilize a
skimmer that is fixed to the side of the
vess 1. Oil is collected by the
skimmers and is stored onboard as the
vessel moves through the oil slick.
The advantages to VOSS (and similar
systems) is that it can be employed on
a variety of vessels that are already
present at the spill site, it operates
independently from other support
vessels (until their oil storage capacity
is reached), and it has great mobility.
However, a limitation of VOSS is that
it is dependent on the suitability of
vessel types at the spill site.
The key to effectively combatting oil
spills is the selection and proper use of
the equipment and materials best
suited to the type of oil and the
conditions at the spill site. Damage to
spill-contaminated shorelines and
dangers to other threatened areas can
be reduced and sometimes eliminated
by timely and proper deployment of
mechanical containment and recovery
equipment. •
The nat issue of the Update will provide
information on the chemical treatment of
spilled oil, including the types of technologies
available, how they operate, and under what
conditions they work best.
High
seas
‘4ot.: 1 nauticai mil• .quals 1.15 sta dw mSis.
MAP OF THE U.S. WATER ZONES
As Defined Under U.S. and International Law
• Territorial sea (defined under the OPA as 3 nautical miles from the coast)
— Contiguous zone (defined under the CWA as 9 nautical miles seaward from the territorial sea)
— Exclusive economic zone (defined under international law as 200 nautical miles from the coast,
induding the territo4’iai sea and contiguous zone)
— Coastal zone (indudes U.S. waters of the Great Lakes, the contiguous zone, and spealfied ports
and harbors on inland rivers, as defined by the NCP)
In the September 1991 issue of the Update, we defined the various water zones of the U.S.
This map provides a general graphic representation based on those definitions.
5
August 1992
-------
EPA’S ENVIRONMENTAL
RESPONSE TEAM
The Agency’s Environmental
Response Team (ERT) is a group of
scientists and engineers that is
available to provide technical expertise
24 hours a day to On-Scene
Coordinators (OSCs) and Remedial
Project Managers (RPMs), State and
local responders, and foreign countries
in times of environmental crisis.
Section 311 of the Clean Water Act
established the ERT in 1978 and its
vanous functions are outlined in
section 300.145(c) of the National Oil
and Hazardous Substances Pollution
Contingency Plan, or NCP (40 CFR
Part 300). Based in Edison, New
Jersey, the ERT operates under the
direction of the Chief of the
Enviromnental Response Branch.
In general, the ERT provides expert
advice in the development of both
immediate and long-term actions in
response to releases of oil or
hazardous substances. At the request
of the OSC, the ERT may also serve as
the Scientific Support Coordinator.
The ERT will provide support on the
range of technical issues involved in
the management of inland oil spills by
coordinating available scientific and
technical resources within EPA and
other response agencies.
The ERT is divided into five sections,
each of which supports oil spill
response actions. The Alternative
Technology Section provides technical
expertise in the development of new
approaches to site assessment and
remediation, including alternatives in
oil spill clean-up materials and
methodologies. The Contracts and
Data Management Section oversees
the ERPs information and lab services
and has performed sampling analyses
for bioremediation efforts at oil spill
sites. The Operational Support
Section performs site-engineering
evaluations and clean-up cost analyses.
This section also offers extensive
training, including one course
specifically designed for OSCs
• OPA Update: Implementation of the
Oil Pollution Act of 1990 To order
single copies of previous issues of the
Update, or to place your name on the
mailing list, please call 202-260-8864
To obtain more information on
specific articles in the Updaze, please
call 800-424-9346.
• Oil Spill ContiL ency Planning:
l”iational Status. This 118-page report
provides a representative picture of oil
spill planning and preparedness across
the country. National Response
Team, October 1990. To order call
Barbara Ramsey, 202-260-4041.
• lntenm Guidelines for Preparing
Bioremediation Spill Response Plans.
This 53-page document prepared by
the Subcommittee on National
Bioremediation Spill Response
contains preliminary guidelines for
developing bioremediation spill
response plans for both oil and
hazardous substance spills. U.S. EPA,
May 1991 (an update to the guidelines
was published in December, 1991)
To order call the SPCC/OPA
Information Line at 202-260-2342.
• Federal Implementation of the Oil
Pollution Act of 1990. This 13-page
article discusses the executive agencies
and departments responsible for
implementing the OPA, and how
jurisdictional responsibilities will be
divided among these organizations
Environmental Law Reporter, October
1991(21 ELR 10605). To order call
800-433-5120
Investigation Sett%.
sampling and anab
assists in developing wJrkpb
conduct of water qualit)
media impact analyses. u
OPA Q’s & A’s: O’ver iew of lb. (sit
Pollution Act of 1990 This 7•p u c c i
sheet provides an ovcrvic of Ihc
provisions of the OPA and I l’
responsibilities through a scruc% e
questions and answers (Pubtic.ir !1
9360 8-OIFS). To order call 800 ..1
9346.
• An Overview of the Emergency Respon ’i
Program. This 24-page brochure
provides an overview of EPA’s progr.im
for emergency response to discharges of
oil and releases of hazardous substanccs.
including the legislative and regulator)
authorities, EPA’s role in managing and
conducting responses, and the techniques
and technologies used. (Publication
9360.0-25) To order call 703-487-4600
• Coping With an Oiled Sea. This 70-page
book, prepared by the U.S. Congress’s
Office of Technology Assessment,
provides a comprehensive discussion of
current oil spiil technologies and spill
response issues The document also
includes a list of U S spill cleanup
cooperatives To order call the National
Technical Information Service at 703-487-
4650 (Publication No PB9O-219973).
• Bioremediation for Manne Oil Spills
This 31-page book, a companion to
Coping with an Oiled Sea,’ explores in
greater detail the available bioreniediation
technologies, their health and
environmental effects, and ongoing
bioremediatmon research To order call
the Government Printing Office at 202-
783-3238 (Stock No. 052-003-01240-5) or
the National Technical Information
Service at 703-487-4650 (Publication
No. P391-186197)
responding to inland oil spills. The
Safety and Air Surveillance Section is
responsible for the areas of safety and
health and air surveillance, and has
served in the past to monitor emissions
from burning oil. Finally, the Site
PUBLICATIONS UPDATE
A iJuectoty of OPA-Related Publications
6
August 1992
-------
In an effort to enhance oil spill
contingency planning, the OPA
requires the President to divide the
nation into “Areas” and to appoint an
Area Committee for each Area for
purposes of developing an Area
Contingency Plan. In Executive Order
12777, the President delegated these
responsibilities to EPA for the inland
zone and to the U.S. Coast Guard
(USCG) for the coastal zone (See
January 1992 issue of the Update).
On April 24, 1992, EPA published a
Federal Register notice (57 FR 15198)
designating the 13 Regional Response
Team (RRT) areas under the NCP as
inland zone Areas. The 13 RRT
regions generally comprise the 10 EPA
Regions, with some slight
modifications, and the following 3
regions: (1) Puerto Rico and the U.S.
Virgin Islands; (2) Alaska; and (3)
Hawaii, Guam, the Northern Mariana
Islands, the Pacific Island
Governments, and American Samoa
(see map above). By initially
designating the 13 RRT legions as the
inland zone Areas, EPA builds upon
the existing oil spill planning and
response structure to ensure that the
Area network satisfies the OPA
requirement that all navigable waters
and adjoining shorelines be subject to
an Area Contingency Plan. The notice
also states that the RRTs will serve as
the initial Area Committees that will
prepare Area Contingency Plans under
the direction of a Regional On-Scene
Coordinator.
In a parallel effort, the USCG
published a Federal Register notice on
January 16, 1992 (57 FR 1933) out-
lining a preliminary policy for the
appointment of Area Committee
members and delineating Area
Committee responsibilities for the
coastal zone. Additionally, the USCG
issued a notice on April 24, 1992 (57
FR 15201) designating the 48 Coast
Guard Captain of the Port areas as
coastal zone Areas. The coastal zone
Areas include major river systems
associated with the ports.
EPA is currently anticipating giving
EPA Regional Administrators (RAs)
the authority to subdivide the inland
zone Areas, which would result in a
larger number of geographically
smaller Areas. Once Headquarters
provides this authority, the RAs could
divide the entire Area into smaller
inland zone Areas immediately and
appoint new Area Committees at that
time. Alternatively, the RAs may
decide to initiate a subdivision process
to designate some smaller Areas and
Area Committees immediately, while
leaving other Areas to be designated at
a later date. If the RA were to select
the subdivision process, the RRT
would serve as the Area Committee for
the balance of the original Area, unless
the RA designated a specific
committee for that purpose.
According to the notice, to draw Area
boundaries in the Area subdivision
process, the RA should analyze the
following factors:
• The pattern of past spills and
the likelihood of future spills;
Conwused on page 8
EPA DESIGNATES AREAS
UNDER OPA
7
August 1992
-------
Areas Under OPA (Cont’d from p. 7)...
• The presence and proximity of
natural resources, environ-
mentally sensitive areas,
population concentrations, and
water supplies;
• The concentration of facilities,
pipelines, and transportation
routes within the Region;
• The location of drainage basins
and pertinent geographic and/or
topographic features; and
• The location and capabilities of
existing preparedness and
response organizations.
“se the environmental damage
cat ed by an oil spill can extend to
more than one Region or State, Areas
would not necessarily be delineated by
political boundaries. The RAs of all
Regions affected by an Area
designation must grant their approval
to the Area designation. As such, RAs
would be encouraged to coordinate
among themselves during the process
of designating Areas that extend
beyond Regional boundaries. In order
to most effectively utilize the oil spill
response expertise of the RRTs, RAs
also would be encouraged to involve
the RRT in the subregional Area
designation process, and to solicit
recommendations from the RRT for
long-term coordination with the Area
Committees. Once a subregional Area
has been created, the RA would
appoint qualified individuals to the
Area Committee, including repre-
sentatives from each agency
comprising the RRT, the State
Emergency Response Commission and
other State agencies, and the Local
Emergency Planning Committee and
other local government entities. To
assist in the development of Area
Contingency Plans, Area Committees
would be encouraged to consult with
the RRT, facility owners or operators,
cleanup contractors, emergency
planning and response officials,
academia, environmental groups, and
other persons demonstrating interest in
environmental matters. RAs are
responsible for granting final approval
to the plans.
Future issues of the Update will
provide further information on the
status of Area designation and the
development of Area Contingency
Plans. U
EPA
United Slates
Environmental Protection
Agency (OS-i 20)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
First-Class Mail
Postage and Fees Paid
EPA
Permit No. G-35
-------
In 1990, Congress passed the Oil Pollution Act (OPA) in part to expand the scope of public and private
planning and response activities associated with discharges of oil. The OPA amends §311 of the Clean Water Act
(CWA) to augment Federal response authority, increase penalties for unauthorized spills, expand the organizational
structure of the Federal response framework, and provide a greater emphasis on preparedness and response activities.
CWA §311 requires the preparation of plans to respond to a worst-case discharge of Oh and sets forth specific
requirements for development of such plans. These response plan requirements apply to an uwnerl operator of any
onshore fa ility that, bemuse of its Location, could reasonably be expected to cause substantial harm to the
environment by a discharge of oil into navigable waters, 1 adjoining shorelines, or the exclusive economic zone (i.e.,
“substantial harm facilities”). Section 311 of the CWA requires that owner/operators of such “substantial harm
facilities” must submit their response plans by February 18, 1993, or stop handling, storing, or transporting oil. CWA
§311 aLso provides that a subset of “substantial harm facilities” (i.e., facilities that could reasonably be expected to
cause significant and substantial harm to the environment by discharging oil, or “significant and substantial harm
facilities”) must have their plans approved by the Federal government
The President has delegated the authority to regulate non-transportation-related onshore facilities to the
Administrator of EPA. EPA is implementing the CWA §311 response plan requirements in a proposed revision to
the Oil Pollution Prevention regulation (40 CFR Part 112). The purpose of this fact sheet is to provide general
information on how EPA intends to implement the CWA §311 requirements. Specifically, the fact sheet addresses
who must prepare plans, which plans must be approved, and what a facility response plan should contain.
WHO NEUST PREPARE P lANS?
(“SUBSTANTIAL HARM FACILiTIES”)
Under CWA §311, only certain facilities are
required to prepare and submit response plans, i.e.,
those facilities that could cause substantial harm to
the environment. EPA has proposed two ways in
which a facility may be identified as posing subst.antial
harm: (1) through a self-selection process; or (2) by
determination of the Regional Mminictrator (RA).
For the self-selection process, §112.20ffl(i) of
the proposed rule jists specific criteria to help
owner/operators evaluate whether their facilities pose
substantial harm (see HIghlight 1). The proposed rule
also provides more detailed information to help
owner/operators interpret these criteria to determine
whether their facility should be regarded as a
“substantial harm facility.” For example, Appendix C
of the proposed rule provides formulas to help
evaluate whether a facility is located at a distance that
could cause injury to an environmentally sensitive area
or shut down operations at a public drinking-water
intake. (NOTE: Facility owner/operators may also
use an alternative formula provided that they
document suc h use, as appropriate.) Appendix D of
the proposed rule provides information on
environmentally sensitive areas.
1 Navtgsble Waters are define*i in CWA §5O2( 7) and at 40 CFR 110.1 as wateis ot the Unite4 States, including the terntonal
$CS$. ThIS dCtjJ1 tIOn includes, among other thingi, lakes, rivers, str mj (including intermittent streanu), mudtlats. and wetlands
United States
Environmental Protection
Agency
Office of
Sohd Waste and
Emergency Response
Facility Response Plans
Publication 9360 8-O6FS
February 1993
Office of Emergency and Remedial Response
Emergency Response Division 5202G
Quick Reference Fact Sheet
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The owner/operator of any facility currently
regulated by the existing Oil Pollution Prevention
regulation may consult the proposed rule for details
on the self-selection screening process. If the self-
selection process does indicate that a facility poses a
threat of “substantial harm’ to the environment, the
owner/operator would be. required prepare and submit
a facility response plan to the appropriate EPA RA
CWA §311 requires that owner/operators of
“substantial harm faciLities” must submittlaei.r response
plans by February 18, 1993, or stop handling, storing,
or transporting oil.
Under the proposal, the R.A would have
the authority to determine that a facility may cause
substantial harm, regardless of the results of the self-
selection screening process. As set forth in *112.20(b)
of the proposed rule, the RA’s determination would
be based on factors similar to the criteria used in the
self-selection screening process, as weU as other site-
specific characteristirs and environmental factors.
Under the proposal, if an owner/operator
determines that the facility does jQ have the potential
to cause substantial harm, the owner/Operator would
have to complete the certification form contained rn
Appendix C of the proposed response plan
rulemaking. This form would be maintained at the
facility. La addition, if the self-selection process is
completed using an alternative formula, the
owner/operator would be required to notif i the R.A in
writing and provide information on the reliability and
analytical soundness of the alternative formula.
WHICH PLANS MUST BE APPROVED?
(“SIGNIFICANT AND SUIBSTAN11AL
HARM FACILiTIES”)
In addition to the requirement to prepare
response plans, CWA §311 establishes further
requirements for a subset of facilities chat could cause
significant and substantial harm. CWA §31 luires
that EPA must review and approve the respon : plans
submitted for these facilities.
Under §112.20(0(3) of the proposed rule, the
RA would identify these ‘significant and substantial
harm facilities” using a series of risk-based screening
considerations. These considerations include factors
similar to the criteria to determine substantial harm,
as well as the age of the tanks, proximity to navigable
waters, and spill frequency. Facilities would be
notified in writing of th&’ status as posing significant
and substantial harm.
Under CWA §311, if EPA does not review and
approve a “significant and substantial harm facility”
plan by August 18, 1993, the facility must stop
handling, storing, or transporting oil. However, the
number of plans ne44ing review may prevent RAs
from approving all response plans by the statutory
deadline. CWA §311 allow’s a “significant and
substantial harm facility” owner/operator to seek
Federal authorization to operate for up to two years
after the plan has been submitted where the owner!
operator certifies that he or she has ensured by
contract or other approved means the availability of
private personnel and equipment necessary to respond
to a worst-case discharge.
Under , §112.20(b) of the proposed rule,
owner/operators who seek such authorization may
submit to the RA a certification statement and proof
that a written contractual agreement or other
approved means is in place. Examples of other
approved means” may include:
HighlIght 1
SELF-SELECTION CRiTERIA
Under the propoecd rule, a facility would fall
under the “substantial barm” category LI it meets at
least one of the following aitena
The facility has a total storage capacity greater
than or equal to 42,000 gallons and perform.s over-
water oil transfers to or from vesseLs; OR
The facility has a total storage capacity greater
than or equal to one million gallons, and meets any
one of the following conditions:
— Does not have adequate secondary containment
for each aboveground storage area;
— Is located such that a discharge could cause
“injury” to an environmentally sensitive area;
— Is located such that a discharge would shut
down a public drmking.water intake; or
— Has had, in the past 5 years, a reportable spi 11
greater than or equal to 10,000 gallons.
IN ADDITION TO ThEE SELF-SELECTION
PROCESS, THE RA MAY DETERMINE
THAT A FACILITY POSES
SUBSTANTIAL HARM.
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• Certification that the owner/operator has
access to the necessary personnel and
equipment;
• Active membership in spill organization that
ensures adequate access to the necessary
personnel and equipment; or
• Other specific arrangements approved by the
RA upon the request of the ownerfoperator.
WHAT SHOULD A FACILITY
RESPONSE PLAN CONTAIN?
As discussed above, CWA §311 requires that
the response plan must address certain critical items.
CWA §311 requires that the response plan:
• Be consistent with the National Contingency
Plan and Area Contingency Plans;
• Identify a qualified individual having .full
authority to implement removal actions, and
require immediate communication between
that person and appropriate Federal
authorities and responders;
• Identify and ensure availability of resources to
remove, to the maximum extent practicable, a
worst-case discharge;
• Describe (raining, testing, unannounced drills,
and response actions of persons at the facility;
• Be updated periodically; and
• Be resubmitted for approval of each
significant change.
To assist owners or operators in preparing
response plans, Appendix G of the proposed rule
includes a model facility response plan that addresses
CWA §311 provisions In a comprehensive and well-
organized manner. HighlIght 2 outlines elements of
the model plan.
Under the proposal, the organization of the
model plan and the information contained in it would
be representative of the format and level of detail
needed to address the required response plan elements
in an acceptable manner. However, EPA recognizes
that there may be many facilities with existing
response plans. Therefore, owner/operators generally
HLghlight 2
RESPONSE PLAN ELEMENTS
Under the proposed rule, elements of an effective
response plan would include the foUo ng
- Emergency Response Action Plan’
— Facility name, type, location, owner, operator
information
— Emergency notification, equipment, personnel, and
evacuation information
— Identification and evaluation of potential spzH
hazards and previous spills
Identification of small, medium, and worst-case
discharge scenarios and response actions
Description of discharge detection procedures and
equipment
-. Detailed implementation plan for containment and
disposal
- Facility and response resource seLf-Inspection,
training, and meeting lop
- Diagraim of facility and surrounding layout,
topography, and evacuation paths
- Secunty (fenccs lighting. aLarms, guards,
emergency cut-off valves and locks, etc.)
‘A response plan would serve as both a planning and
action document, and the action portion should be
maintained as an easily.accessibte, stand-alone section
of the overall plan.
would not need to prepare a separate plan to comply
with CWA §311 if they have alieady prepared a plan,
provided that the original plan: (1) satisfies the
appropriate requirements and is equally stringent; (2)
includes aU the elements described in the model plan;
(3) is cross-referenced appropriately; and (4) contains
an Action Plan for use during a discharge.
Although Spill Prevention, Control, and
Countermeasure (SPCC) plans (i.e., prevention plans)
and response p1ans are different, and should be
maintained as separate documents, some sections of
the plans may be the same. The proposed rule would
allow the owner/operator to reproduce and use those
sections of the SPCC Plan in the response plan.
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SPILL PREVENTION (SPCC) PLANS
AND FACILiTY RESPONSE PLANS
ARE DIkTERENT
The CWA §311 requirements to develop a
response plan will affect many facilities that are
already subject to the Oil Pollution Prevention
regulation. This regulation, which has been in effect
since 1973, applies to facilities that meet the
characterjstj set forth at 4.0 CFR §112.1 (see
Highlig .t 3).
The owner/operator of any facility subject to the
Oil Pollution Prevention regulation is required to
prepare and implement an SPCC Plan. SPCC Plans
focus on procedures to prevent and control oil spills.
In contrast, the facility response plans required by
CWA §311 are intended to focus on reactive
measures, such as how facility personnel are to
respond to a discharge. The response plan should be
maintained as a separate document from the SPCC
Plan and be easily accessible during an emergency.
Under CWA §311, certain facilities are required to
submit only the response plan to EPA.
FOR MORE INFORMATION
For more information, please call the SPCC Information Line at (202) 260-2342, or the specific EPA Regional
office. The mailing addresses for the offices and a map showing the geographic boundaries of the Regions are
contained in the proposed regulation.
EPA Region I
(617) 860-4361
EPA Region 5
(312) 886-62.36
EPA Region 2
(908) 321-6656
EPA Region 6
(214) 655-2270
EPA Region 3
(215) 597-5998/1357
EPA Region 7
(913) 551.5000
EPA Region 4
(4.04) 347-3931
EPA Region 8
(303) 293-1788
EPA Region 9
(415) 744-1500
EPA Region 10
(206) 553.1090
This document is not intended and cannot be relied upon to
-rec’e nghts, subsranth’e or pocedura& enforceable by any pany
in litigation with the United States.
WA
UnIt.d Slats.
Envtronm.ntal Proi.ctlon
Ag.ncy (5202-0)
Washington, DC 2040
Officl Bus sss
P.naity for P,tv.t. Us.
$300
F au U
Postag. and Foss Paid
EPA
P.rmft No. 0-35
ITighlight 3
FACILITIES SUBJECT TO TILE OIL
POLLUTION PREVENTION REGUlATION
The Oil Pollution Prevention regulation applies to
facilities with the following c atensurs
• Facility c : Non.transportatioo.reiat:d on-
sbore facilities.
• Oil Product Storage : The total aboveground
storage capacity at the facility is greater than
1,320 gallons (or greater than 660 gallons in a
single container), or the total underground
storage capacity is greater than 42,000 gallons.
• Location : Facilities that, because of their
location, could reasonably be expected to
discharge oil into the navigable waters of the
US. or adjoining shorelines.
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Unfted States
Environmental Protection
Agency
Emergency
Response
Division
Publication 9200.5-105
EPA 540-K-93-003
PB93-963409
October 1993
Office of Emergency and Remedial Response
EPA
Understanding Oil Spills and
Oil Spill Response
=
,
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INTRODUCTION
n an increasingly technological era, we have become more dependent upon petroleum
products to help us maintain our high standard of living Products derived from petroleum, such as
heating oil and gasoline, provide fuel for our automobiles, heat for our homes, and energy for the
machinery used in our industries Other products derived from petroleum, including plastics and
pharmaceuticals, provide us with convenience and help to make our lives more comfortable
However, petroleum must be stored and transported, usually in large volumes As a result of
exploration actrvities, or during storage or transport, oil and other petroleum products are sometimes
spilled onto land or into waterways When this occurs, human health and environmental quality may
be at risk Every effort must be made to prevent oil spills, and to clean them up promptly once they
occur
The purpose of this brochure is to provide information about oil spills This volume contains
individual sections that outline what oil spills are, their potential effects on the environment, how they
are cleaned up, and how various agencies prepare for spills before they happen Details about one
oil spill cleanup -- that of the Exxon Valdez spill of March, 1989 -- is provided to offer an example of
the complexities that can potentially be involved in oil spill cleanup activities
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TABLE OF CONTENTS
Title Page
The Behavior and Effects of Oil Spills in the Marine Environment . . I
Mechanical Containment and Recovery of Oil Following a Spill 7
Chemical and Biological Treatment of Spilled Oil . 13
Shoreline Cleanup Following Oil Spills . . 17
Rescuing Birds and Mammals from Oil Spills . . . . 23
Preparing for Oil Spills. Contingency Planning . . . . 29
Responding to Oil Spills The National Response System . . . 33
Response to Oil Spills The Exxon Valdez 37
Gfossaiy . . . . . . . . . 45
For Further Informat ion . . . 47
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THE BEHAVIOR AND EFFECTS OF OIL SPILLS
IN THE MARINE ENVIRONMENT
INTRODUCTION
Spilled oil can pose serious threats to
the marine environment. The severity of
impact of an oil spill depends on a variety of
factors, including characteristics of the oil itself
Even large spills of refined petroleum products
such as gasoline evaporate quickly and cause
only short-term environmental effects On the
other hand, crude oils, heavy fuel oils, and
water-in-oil mixtures may cause widespread
and long-lasting physical contamination of
shorelines, Natural conditions, such as water
temperature and weather, also influence the
behavior of oil in the marine environment
PHYSICAL PROPERTIES OF OIL
The term oil describes a broad range
of natural hydrocarbon-based substances and
refined petroleum products (Hydrocarbons
are chemical compounds composed of the
elements hydrogen and carbon) Most refined
petroleum products are mixtures of many types
of hydrocarbon-based substances. Commonly
used products refined from crude oil include
fuel oil, gasoline, kerosene, and jet fuel Each
type of crude oil and refined product has
distinct physical and chemical properties
These properties affect the way oil will spread
and break down, the hazard it may pose to
marine and human life, and the likelihood that
it will pose a threat to natural and man-made
resources.
The rate at which an oil spill spreads
will determine its effect on the environment
Most oils tend to spread horizontally into a
smooth and slippery surface, called a slick, on
top of the water Factors which affect the
ability of an oil spill to spread include surface
tension, specific gravity, and viscosity.
• Surface tension is the measure of
attraction between the surface
molecules of a liquid The higher the
oil’s surface tension, the more likely a
spill will remain in place If the surface
tension of the oil is low, the oil will
spread even without help from wind
and water currents Because
increased temperatures can reduce a
liquids surface tension, oil is more
likely to spread in warmer waters than
in very cold waters
Specific gravity is the density of a
substance compared to the density of
water. Since most oils are lighter than
water, they flat on top of it However,
the specific gravity of an oil spill can
increase if the lighter substances within
the oil evaporate
Viscosity is the measure of a liquid’s
resistance to flow. The higher the
viscosity of the oil, the greater the
tendency for it to stay in one place
(Honey is an example of a viscous
liquid.)
THE FATE OF SPILLED OIL
Natural actions are always at work in
the marine environment These can reduce
the severity of an oil spill and accelerate the
recovery of an affected area Some natural
actions include weathering, evaporation,
oxidation, biodegradation, and emulsification
• Weathering is a series of chemical and
physical changes that cause spilled oil
to break down and become heavier
than water Wave action may result in
natural dispersion, breaking a slick into
droplets which are then distributed
throughout the water column These
droplets can also form a secondary
slick or thin film on the surface of the
water
1
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• Evaporation occurs when the lighter
substances within the oil mixture
become vapors and leave the surface
of the water. This process leaves
behind the heavier components of the
oil, which may undergo further
weathering or may sink to the bottom
of the ocean floor. Spills of lighter
refined products such as kerosene and
gasoline contain a high proportion of
flammable components known as light
ends. These may evaporate
completely within a few hours, causing
minimal harm to the environment.
Heavier oils leave a thicker, more
viscous residue. Wave action from
rough seas increases both evaporation
and natural dispersion.
• Oxidation occurs when oil contacts the
water, and oxygen combines with the
oil hydrocarbons to produce water-
soluble compounds. This process
affects oil slicks mostly around their
edges. Thick slicks may only partially
oxidize, forming tar balls. These
dense, sticky black spheres may linger
in the environment, washing up on
shorelines long after a spill.
and they are formed when strong wave
action causes waler to become
trapped inside viscous oil. Chocolate
mousse emulsions may linger in the
environment for months or even years.
Oil and water emulsions cause oil to
sink and disappear from the surface,
giving the visual illusion that it is gone
and the threat to the environment has
ended.
EFFECTS OF OIL ON PLANTS AND
• Biodegradation occurs when micro-
organisms such as bacteria feed on oil
hydrocarbons. A wide range of micro-
organisms is required for a significant
reduction of the oil. To sustain
biodegradation, nutrients such as
nitrogen and phosphorus are
sometimes added to the water to
encourage the micro-organisms to
grow and reproduce. Biodegradation
tends to work best in warm water
Emulsification is the process that forms
emulsions, which are mixtures of small
droplets of oil and water. Emulsions
are formed by wave action, and they
greatly hamper weathering and
cleanup processes. Two types of
emulsions exist: water-in-oil and oil-in-
water. Water-in-oil emulsions are
frequently called TM chocolate mousse,”
environments.
ANIMALS
After oil is spilled, the most toxic
substances in it evaporate quickly. Therefore,
plant, animal, and human exposure to the most
toxic substances are reduced rapidly with time,
and are usually limited to the initial spill area.
Although some organisms may be seriously
injured or killed very soon after contact with
the oil in a spill (lethal effects), non-lethal toxic
effects are more subtle and often longer
lasting. For example, marine life on reefs and
shorelines is at risk of being smothered by oil
that washes ashore or of being slowly
poisoned by long-term exposure to oil trapped
in shallow water or on beaches.
Sensitivity of marine habitats
• The marine environment is made up of
complex interrelations between plant and
animal species and their physical environment.
An oil slick surrounding a small island
2
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Harm to the physical environment will often
lead to harm for one or more species in a food
chain, which may lead to damage for other
species further up the chain. Where an
organism spends most of its time -- in open
water, near coastal areas, or on the shoreline --
will determine the effects an oil spill is likely to
have on that organism.
In open water, marine organisms such
as fish and whales have the ability to swim
away from a spill by going deeper in the water
or further out to sea, reducing the likelihood
that they will be harmed by even a major spill.
Marine animals that generally live closer to
shore, such as turtles, seals, and dolphins, risk
contamination by oil that washes onto beaches
or by consuming oil-contaminated prey. In
shallow waters, oil may harm sea grasses and
kelp beds, which are used for food, shelter,
and nesting sites by many different species.
Spilled oil and cleanup operations can
threaten different types of marine habitats, with
different results.
• Tidal flats are broad, low-tide zones,
usually containing rich plant, animal,
and bird communities. Deposited oil
may seep into the muddy bottoms of
these flats, creating potentially harmful
effects on the ecology of the area.
• Salt marshes are found in sheltered
waters in cold and temperate areas.
They host a variety of plant, bird, and
mammal life. Marsh vegetation,
especially root systems, is easily
damaged by fresh light oils.
• Mangrove forests are located in tropical
regions and are home to a diversity of
plant and animal life. Mangrove trees
have long roots, called prop roots, that
stick out well above the water level and
help to hold the mangrove tree in
place. A coating of oil on these prop
roots can be fatal to the mangrove
tree, and because they grow so slowly,
replacing a mangrove tree can take
decades.
Coral reefs are important nurseries for
shrimp, fish, and other animals as well
as recreational attractions for divers.
Coral reefs and the marine organisms
that live within and around them are at
risk from exposure to the toxic
substances within oil as well as
smothering.
Exposed sandy, gravel, or cobble
beaches are usually cleaned by
manual techniques. Although oil can
soak into sand and gravel, few
organisms live full-time in this habitat,
so th’ risk to animal life or the food
chain is less than in other habitats,
such as tidal flats.
Sheltered beaches have very little wave
action to encourage natural dispersion.
If timely cleanup efforts are not begun,
oil may remain stranded on these
beaches for years.
Sensitivity of marine birds and mammals
An oil spill can harm birds in several
ways, by direct physical contact, toxic
contamination, and destruction of food
sources.
Crews work to keep oil from entering a
marsh
3
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• Physical contact -- When fur or
feathers come into contact with oil,
they get matted down. This matting
causes fur and feathers to lose their
insulating properties, placing animals
at risk of freezing to death. For birds,
the risk of drowning increases, as the
complex structure of their feathers that
allows birds to float becomes
damaged.
• Toxic contamination -- Some species
are susceptible to the toxic effects of
inhaled oil. Oil vapors can cause
damage to the animal’s central nervous
system, liver, and lungs. Animals are
also at risk from ingesting oil, which
can reduce the animal’s ability to eat
or digest its food by damaging cells in
the intestinal tract. Some studies show
that there can be long-term
reproductive problems in animals that
have been exposed to oil.
• Destruction of food resources -- Even
species that are not directly in contact
with oil can be harmed by a spill.
Predators that consume contaminated
prey can be exposed to oil through
ingestion. Because oil contamination
gives fish and other animals
unpleasant tastes and smells,
predators will sometimes refuse to eat
their prey and will begin to starve.
Sometimes, a local population of prey
organisms is destroyed, leaving no
food resources for predators.
SUMMARY
Oil spilled at sea immediately begins to
move and weather, breaking down and
changing its physical and chemical properties.
As these processes occur, the oil threatens
surface resources and a wide range of
subsurface marine organisms linked in a
complex food chain. Many different types of
marine habitats exist, with varied sensitivities to
the harmful effects of oil contamination and
different abilities to recuperate from oil spills.
In some areas, habitats and populations can
recover quickly. In other environments,
however, recovery from persistent or stranded
oil may take years.
Sea otters covered with oil
4
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cy
A CHAIN OF EVENTS -- Spilled oil has the potential to affect every level of the marine food chain.
Floating oil may contaminate plankton, which includes algae, fish eggs, and the larvae of various
invertebrates such as oysters and shrimp. In turn, the small fish that feed on these organisms can
become contaminated. Larger animals in the food chain, including bigger fish, bears, and humans,
may then eat these contaminated fish. In addition, marine mammals and birds may be exposed
directly to oil in the water, which they can ingest or get on their fur or feathers. Spilled oil may also
prevent the germination and growth of marine plants and the reproduction of invertebrates either by
smothering or by toxic effects.
5
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6
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MECHANICAL CONTAINMENT AND RECOVERY OF OIL
FOLLOWING A SPILL
INTRODUCTION
Two major steps involved in controlling
oil spills are containment and recover,’. This
document outlines some of the techniques and
equipment that are used to conduct oil-spill
control efforts.
Although there is a great deal of
variation in the design and construction of
booms, all generally share the following four
basic elements:
An above-water freeboard M to contain
the oil and to help prevent waves from
splashing oil over the top of the boom
CONTAINMENT
When an oil spill occurs on water, it is
critical to contain the spill as quickly as
possible in order to minimize danger and
potential damage to persons, property, and
natural resources. Containment equipment is
used to restrict the spread of oil and to allow
for its recovery, removal, or dispersal. The
most common equipment used to control the
spread of oil are floating barriers, or booms.
BOOMS
Containment booms are used to
control the spread of oil to reduce the
possibility of polluting shorelines and other
resources, as well as to concentrate oil in
thicker surface layers, making recovery easier.
In addition, booms may be used to divert and
channel oil slicks along desired paths, making
them easier to remove from the surface of the
water.
• A flotation device
• A below-water skirr to contain the oil
and help reduce the amount of oil lost
under the boom
• A Niongitudinal supporr, usually a chain
or cable running along the bottom of
the skirt, that strengthens the boom
against wind and wave action; may
also serve as a weight or ballast to add
stability and help keep the boom
upright
Booms can be divided into several
basic types. Fence booms have a high
freeboard and a flat flotation device, making
them least effective in rough water, where
wave and wind action can cause the boom to
twist. Round or curtain booms have a more
circular flotation device and a continuous skirt.
They perform well in rough water, but are more
difficult to clean and store than fence booms.
Non-rigid or inflatable booms come in many
shapes. They are easy to clean and store, and
they perform well in rough seas. However,
they tend to be expensive, more complicated
to use, and puncture and deflate easily. All
boom types are greatly affected by the
conditions at sea; the higher the waves swell,
the less effective booms become.
Booms can be fixed to a structure,
such as a pier or a buoy, or towed behind or
alongside one or more vessels. When
stationary or moored, the boom is anchored
below the water surface.
Containment boom
7
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It is necessary for stationary booms to
be monitored or tended due to changes
produced by shifting tides, tidal currents,
winds, or other factors that influence water
depth and direction and force of motion
Boom tending requires round-the-clock
personnel to monitor and adjust the
equipment
The forces exerted by currents, waves,
and wind may significantly impair the ability of
a boom to hold oil Currents may wash oil
beneath a boom’s skirt Wind and waves can
force oil over the top of the boom’s freeboard
or even flatten the boom into the water,
causing it to release the contained oil
Mechanical problems and improper mooring
can also cause a boom to fail
While most booms perform well in
gentle seas with smooth, long waves, rough
and choppy water is likely to contribute to
boom failure. In some circumstances,
lengthening a boom’s skirt or freeboard can
aid in containing the oil However, because
they have more resistance to natural forces
such as wind, waves, and currents, these
oversized booms are more prone to failure or
leakage than are smaller ones Generally,
booms will not operate properly when waves
are higher than one meter or currents are
moving faster than one knot per hour
Other Barriers: Improvised Booms
When a spill occurs and no
containment equipment is available, barriers
can be improvised from whatever materials are
at hand. Although they are most often used as
temporary measures to hold or divert oil until
more sophisticated equipment arrives,
improvised booms can be an effective way to
deal with oil spills, particularly in calm water
such as streams, slow-moving rivers, or
sheltered bays and inlets
Improvised booms are made from such
common materials as wood, plastic pipe,
inflated fire hoses, automobile tires, and empty
oil drums They can be as simple as a board
placed across the surface of a slow-moving
stream, or a berm built by bulldozers pushing
a wall of sand out from the beach to divert oil
from a sensitive section of shoreline
RECOVERY OF OIL
Once an oil spill has been contained,
efforts to remove the oil from the water can
begin Three different types of equipment - -
booms, skimmers, and sorbents -- are
commonly used to recover oil from the surface
BOOMS
When used in recovering oil, booms
are often supported by a horizontal arm
extending directly off one or both sides of a
vessel. Sailing through the heaviest sections
of the spill at low speeds, a vessel scoops the
oil and traps it between the angle of the boom
and the vessel’s hull In another variation, a
boom is moored at the end points of a rigid
arm extended from the vessel, forming a “Un-
or J -shaped pocket in which oil can collect
In either case, the trapped oil can then be
pumped out to holding tanks and returned to
shore for proper disposal or recycling
SKIMMERS
A skimmer is a device for recovery of
spilled oil from the water’s surface Skimmers
may be self-propelled, used from shore, or
operated from vessels The efficiency of
skimmers is highly dependent upon conditions
at sea. In moderately rough or choppy water,
skimmers tend to recover more water than oil
Three types of skimmers -- weir, oleophthc,
and suction -- are described here. Each type
offers advantages and drawbacks depending
on the type of oil being cleaned up, the
conditions of the sea during cleanup efforts,
and the presence of ice or debris in the water
Weir skimmers use a dam or enclosure
positioned at the oil/water interface. Oil
floating on top of the water will spill over the
dam and be trapped in a well inside, bringing
with it as little water as possible The trapped
oil and water mixture can then be pumped out
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through a pipe or hose to a storage tank for
recycling or disposa’. These skimmers are
prone to becoming jammed and clogged by
floating debris.
Oleophilic (Noil attractingI) skimmers
use belts, disks, or continuous mop chains of
oleophilic materials to blot the oil from the
water surface. The oil is then squeezed out or
scraped off into a recovery tank. Oleophilic
skimmers have the advantage of flexibility,
allowing them to be used effectively on spills of
any thickness. Some types, such as the chain
or rope-mop skimmer, work well on water that
is choked with debris or rough ice.
Suction skimmers operate similarly to a
household vacuum cleaner. Oil is sucked up
through wide floating heads and pumped into
storage tanks. Although suction skimmers are
generally very efficient, they are vulnerable to
becoming clogged by debris and require
constant skilled observation. Suction skimmers
operate best on smooth water, where oil has
collected against a boom or barrier.
SORBENTS
Sorbents are materials that soak up
liquids. They can be used to recover oil
Boom held between two ships as it is
moved across oiled water (Source: U.S.
Coast Guard)
through the mechanisms of absorption,
adsorption, or both. Absorbents allow oil to
penetrate into pore spaces in the material they
are made of, while adsorbents attract oil to
their surfaces but do not allow it to penetrate
into the material. To be useful in combatting
oil spills, sorbents need to be both oleophilic
and hydrophobic (“water-repellant”). Although
they may be used as the sole cleanup method
in small spills, sorbents are most often used to
remove final traces of oil, or in areas that
cannot be reached by skimmers. Once
sorbents have been used to recover oil, they
must be removed from the water and properly
disposed of on land or cleaned for re-use. Any
oil that is removed from sorbent materials must
also be properly disposed of or recycled.
Sorbents can be divided into three
basic categories: natural organic, natural
inorganic, and synthetic. Natural organic
sorbents include peat moss, straw, hay,
sawdust, ground corncobs, feathers, and other
readily available carbon-based products. They
are relatively inexpensive and usually readily
available. Organic sorbents can soak up
between 3 and 15 times their weight in oil, but
they do present some disadvantages. Some
organic sorbents tend to soak up water as well
as oil, causing them to sink. Many organic
sorbents are loose particles such as sawdust,
Response crew using
(Source: U.S. Coast Guard)
a suction skimmer
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and are difficult to collect after they are spread
on the water. Adding flotation devices, such
as empty drums attached to sorbent bales of
hay, can help to overcome the sinking
problem, and wrapping loose particles in mesh
will aid in collection.
Natural inorganic sorbents include clay,
perlite, vermiculite, glass wool, sand, or
volcanic ash. They can absorb from 4 to 20
times their weight in oil. Inorganic substances,
like organic substances, are inexpensive and
readily available in large quantities.
Synthetic sorbents include man-made
materials that are similar to plastics, such as
polyurethane, polyethylene, and nylon fibers.
Most synthetic sorbents can absorb as much
as 70 times their weight in oil, and some types
can be cleaned and re-used several times.
Synthetic sorbents that cannot be cleaned
after they are used can present difficulties
because arrangements must be made for their
temporary storage before they are disposed of.
The following characteristics must be
considered when choosing sorbents for
cleaning up spills:
• Rate of absorption -- The rate of
absorption varies with the thickness of
the oil. Light oils are soaked up more
quickly than heavy ones.
• Oil retention -- The weight of recovered
oil can cause a sorbent structure to
sag and deform, and when it is lifted
out of the water, it can release oil that
is trapped in its pores. Lighter, less
viscous oil is lost through the pores
more easily than are heavier, more
viscous oils during recovery of
absorbent materials.
• Ease of application -- Sorbents may be
applied to spills manually or
mechanically, using blowers or fans.
Many natural organic sorbents that
exist as loose materials, such as clay
and vermiculite, are dusty, difficult to
apply in windy conditions, and
potentially hazardous if inhaled.
SUMMARY
The primary line of defense against oil
spills is the use of mechanical containment,
recovery, and cleanup equipment. Such
equipment includes a variety of booms,
barriers, and skimmers, as well as natural and
synthetic sorbent materials. A key to
effectively combatting spilled oil is careful
selection and proper use of the equipment and
materials most suited to the type of oil and the
conditions at the spill site. Most spill response
equipment and materials are greatly affected
by such factors as conditions at sea, water
currents, and wind. Damage to spill-
contaminated shorelines and dangers to other
threatened areas can be reduced by timely
and proper use of containment and recovery
equipment.
sorbent squares being usea to remove au
from a beach (Source: U.S. Coast Guard)
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CLEANING UP AN OIL SPILL: AN EXPERIMENT YOU CAN DO AT HOME
This experiment is designed to help you to understand the difficulties with oil spill cleanups’
You will need the following equipment
• two aluminum pie pans, each hall -filled with water
• a medicine dropper full of used motor oil
• cotton balls (use real cotton)
• nylon
• string
• paper towels
• liquid detergent
• feathers
Before you begin, make a list of predictions about the action of oil and water. You might want to
answer the following questions in your list.
• What will happen to the oil when you drop It on the water 7 Will it sink, float, or mix in 7
• Which material will clean up the oil in the least amount of time 7 Cotton, nylon, paper
towel, or stringS’
• How might wind and waves affect the combination of oil and water 9
Complete each of the following steps, and observe what happens
1 Put five drops of motor oil into one of the °oceans” (your aluminum pie pans). Observe the
action of the oil and record what happens. Was your prediction correct 7
2 One at a time, use the different materials (nylon, cotton, string, and paper towels) to try to
clean up the oil from the water, keeping track of the amount of oil each material was able to
clean up and how fast it worked. (These materials are what booms and skimmers are made
of.) Which cleaned up the oil the fastest 7 The best?
3. Add five drops of oil to the second pan. Add five drops of liquid detergent (This represents
the chemical dispersarfls) Observe what happens Where do you think the oil would go in
the real oceans 9
4 Dip a feather directly into some oil What happens to it 9 How do you think this might affect a
bird’s behaviors, such as flying, preening, and feeding 9
1 Uscd with permission from Jane 0 Howard, “Slick Science,” Science and children, vol 27, no 2
(October 19 9)
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CHEMICAL AND BIOLOGICAL TREATMENT OF SPILLED OIL
INTRODUCTION
Several methods exist for containing
and cleaning up oil spills in the aquatic
environment. Mechanical equipment, such as
booms and skimmers, is often used to block
the spread of oil, concentrate it into one area,
and remove it from the water. Chemical and
biological treatment of oil can be used in place
of, or in addition to, mechanical methods,
especially in areas where untreated oil may
reach shorelines and sensitive habitats in
which cleanup becomes difficult and
expensive. This document describes some of
the chemical and biological methods that are
used by response personnel to contain and
clean up oil spills in the aquatic environment.
TYPES OF SUBSTANCES USED
Three types of substances commonly
used to contain or clean up an oil spill are
(1) dispersing agents, (2) biological agents,
and (3) gelling agents.
Dispersing agents
Dispersing agents, also called
dispersants, are chemicals that contain
surfactants, or compounds that act to break
liquid substances such as oil into small
droplets. In an oil spill, these droplets disperse
into the water column where they are
subjected to natural processes -- such as
wind, waves, and currents -- that help to break
them down further. This helps to clear oil from
the water surface, making it less likely that the
oil slick will reach the shoreline.
The effectiveness of a dispersant is
determined by the composition of the oil it.is
being used to treat, and the method and rate
at which the dispersant is applied. Heavy
crude oils do not disperse as well as light- to
medium-weight oils. Dispersants are most
effective when applied immediately following a
spill, before the lightest materials in the oil
have evaporated.
Environmental factors, including water
salinity and temperature and conditions at sea,
also influence the effectiveness of dispersants.
Studies have shown that many dispersants
work best at salinities close to that of normal
seawater. The effectiveness of dispersants
also depends on water temperature. While
dispersants can work in cold water, they work
best in warm water.
Some countries rely almost exclusively
on dispersants to combat oil spills, because
frequently rough or choppy conditions at sea
make mechanical containment and cleanup
difficult. However, dispersants have not been
used extensively in the United States because
of difficulties with application, disagreement
among scientists about their effectiveness, and
concerns that dispersants are toxic.
These problems are being overcome,
however. New technologies that improve the
application of dispersants are being designed.
The effectiveness of dispersants is being
tested in laboratories and in actual spilt
situations, and the information collected is
being used to help design more effective
dispersants. Dispersants used today are much
less toxic than those used in the past.
Helicopters are otten used to apply
dispersants to large areas of open water
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Biological agents
Biological agents are chemicals or
organisms that increase the rate at which
natural biodegradation occurs. Biodegradation
is a process by which microorganisms such as
bacteria, fungi, and yeasts break down
complex compounds into simpler products to
obtain energy and nutrients. Biodegradation of
oil is a natural process that slowly -- sometimes
over the course of several years -- removes oil
from the aquatic environment. However, rapid
removal of spilled oil from shorelines and
wetlands is necessary in order to minimize
potential environmental damage to these
sensitive habitats.
Bioremediation technologies can help
biodegradation processes work faster.
Bioremediation refers to the act of adding
materials to the environment, such as fertilizers
or microorganisms, that will increase the rate at
which natural biodegradation occurs. Two
bioremediation technologies that are currently
being used in the United States for oil spill
cleanups are fertilization and seeding.
Fertilization, also known as nutrient
enrichment, is the method of adding nutrients
such as phosphorus and nitrogen to a
contaminated environment to stimulate the
growth of the microorganisms capable of
biodegradation. Limited supplies of these
necessary nutrients usually control the growth
of native microorganism populations. When
nutrients are added, the native microorganism
population can grow rapidly, potentially
increasing the rate of biodegradation.
Seeding is the addition of
microorganisms to the existing native oil-
degrading population. Sometimes species of
bacteria that do not naturally exist in an area
will be added to the native population. As with
fertilization, the purpose of seeding is to
increase the population of microorganisms that
can biodegrade the spilled oil.
Gelling agents
Gelling agents, also known as
solidifiers, are chemicals that react with oil to
form rubber-like solids. With small spills, these
chemicals can be applied by hand and left to
mix on their own. For treating larger spills, the
chemicals are applied to the oil, then mixed in
by the force of high-pressure water streams.
The gelled oil is removed from the water by
nets, suction equipment, or skimmers, and is
sometimes recovered and reused after being
mixed with fuel oil.
Gelling agents can be used in calm to
moderately rough seas, since the mixing
energy provided by waves increases the
contact between the chemicals and the oil,
resulting in greater solidification.
There is one drawback to the use of
gelling agents. Large quantities of the material
must often be applied, as much as three times
the volume of the spill. For oil spills of millions
of gallons it is impractical to store, move, and
apply such large quantities of material.
Response person manually applying
fertilizer to a utest square TM as part of a
bloremediation experiment
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SUMMARY
Chemical and biological methods can
be used in conjunction with mechanical means
for containing and cleaning up oil spills.
Dispersants and gelling agents are most useful
in helping to keep oil from reaching shorelines
and other sensitive habitats. Biological agents
have the potential to assist recovery in
sensitive areas such as shorelines, marshes
and wetlands. Research into these
technologies continues in the hopes that future
od spills can be contained and cleaned up
more efficiently and effectively
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SHORELINE CLEANUP FOLLOWING OIL SPILLS
INTRODUCTION
Shoreline and nearshore areas are
important public and ecological resources
However, their cleanliness and beauty, and the
survival of the species that inhabit them, can
be threatened by accidents that occur during
oil drilling and transport activities Although
accidents during these activities are relatively
rare, when they do occur oil can be spilled into
the world’s oceans Despite the best efforts of
response teams to contain this spilled oil,
some of it may wash up onto shorelines, into
marshes, or into other ecologically sensitive
habitats along the water’s edge To help
protect these resources from damage and to
preserve them for public enjoyment and for the
survival of numerous species, cleaning up
shorelines following oil spills has become an
important part of oil spill response
shoreline and the natural and recreational
resources it provides must be considered.
FACTORS AFFECTING CLEANUP
DECISIONS
Whenever possible, control and
cleanup of an oil spill at sea begins
immediately. If the oil spill can be controlled
there is less likelihood that it will reach
sensitive habitats near or on shore If the oil
does reach the shore, however, decisions
about how best to remove it must be made
These decisions will be based on factors such
as the
• type of oil spilled
• geology of the shoreline
• type and sensitivity of biological
communities likely to be affected
SHORELINES: PUBLIC AND
ENVIRONMENTAL RESOURCES
Nearshore and shoreline areas serve
as homes to a variety of wildlife during all or
part of the year Many bird species build their
nests on sand or among pebbles, while others
regularly wander the shoreline searching for
food. Sea mammals such as elephant seals
and sea lions come ashore to breed and bear
their pups Fish such as salmon swim through
nearshore zones on their upriver migrations
during spawning season, and their offspring
swim through these same areas on their trips
to the sea in the following year.
Shorelines and nearshore areas also
provide public recreation throughout the world
Many beaches are famous for their wide
expanses of beautiful sand, while others are
admired for their rugged rocky cliffs Beaches
provide opportunities for sports such as
swimming, windsurfing and fishing. In
developing strategies for cleaning up an oil
spill from a shoreline, the characteristics of the
Each of these factors is described further
below.
Type of oil spilled
Lighter oils tend to evaporate and
degrade (break down) very quickly, therefore,
they do not tend to be deposited in large
quantities on beaches Heavier oils, however,
tend to form a thick oil-and-water mixture
called mousse, which clings to rocks and sand.
Heavier oils exposed to sunlight and wave
action also tend to form dense, sticky
substances known as tar balls and asphalt that
are very difficult to remove from rocks and
sediments Therefore, deposits from heavy oils
generally require more aggressive cleanup
than those from lighter ones
Geology of the shoreline
Shorelines can vary dramatically in
their forms and compositions Some
shorelines are narrow with beaches formed
from rounded or flattened cobbles and
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pebbles; some are wide and covered in a layer
of sand or broken shell fragments, and still
others are steep cliffs with no beach at all.
The composition and structure of the beach
will determine the potenttal effects of oil on the
shoreline
Oil tends to stick to mud and to the
surfaces of cobbles and pebbles. It also flows
downward in the spaces between cobbles,
pebbles, and sand grains, and accumulates in
lower layers of beach sediments. Oil that
sticks to mud particles suspended in the water
column and to cobbles and pebbles on the
beach is exposed to the action of sunlight and
waves, which helps it to degrade and makes it
less hazardous to organisms that come into
contact with it Oil that sticks to rocks and
pebbles can be wiped or washed off. Oil that
flows onto sandy beaches, however, can
escape downward into sand, making it
difficult to clean up and reducing its ability to
degrade.
Type and sensitivity of biological
comm unities
Biological communities differ in their
sensitivity to the effects of oil spills and the
physical intrusion that may be associated with
various cleanup methods Some ecosystems
seem to recover quickly from spills, with little or
no noticeable harm, while others experience
long-term harmful effects
Animals, such as elephant seals, that
depend on the nearshore or beach
environment for breeding and pupping can
lose their ability to stay warm in cold water
when their skin comes info contact with oil.
Birds lose their ability to fly and to stay warm
when their feathers are coated with oil, and fish
can suffocate when their gills are covered with
oil. An oil spill can disrupt a community food
chain because it is toxic to some plants, which
many organisms depend on for food
CLEANUP PROCESSES AND METHODS
Both natural processes and physical
methods aid in the removal of oil from
shorelines. Sometimes, physical methods are
used to enhance naturally-occurring
processes. An example of a technology that
uses both natural processes and physical
methods to clean up an oil spill is
b,oremediation, which is described later
Natural processes
Natural processes that result in the
removal of oil from the natural environment
include evaporation, oxidation, and
bode gradation
Evaporation occurs when liquid
cornpDnents in oil are converted to vapor and
released into the atmosphere It results in the
removal of lighter-weight substances in oil in
the first 12 hours following a spill, up to 50
percent of the light-weight components may
evaporate Since the most toxic substances in
oil tend to be those of lightest weight, this
evaporation decreases the toxicity of a spill
over time
Oxidation occurs when oxygen reacts
with the chemical compounds in oil Oxidation
causes the complex chemical compounds in
oil to break down into simpler compounds that
tend to be lighter in weight and more able to
dissolve in water, allowing them to degrade
further.
Biodegradation occurs when naturally-
occurring bacteria living in the ocean or on
land consume oil, which they can use to
provide energy for their various biological
needs. When oil is first spilled, it may be toxic
to some bacteria, which makes the initial rate
of biodegradation quite slow As the oil
evaporates and the more toxic substances are
removed, the population of bacteria grows and
biodegradation activity accelerates.
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In nature, biodegradation is a relatively
slow process. It can take years for a
population of microorganisms to degrade most
of the oil spilled onto a shoreline. However,
the rate at which biodegradation occurs can
be accelerated by the addition of nutrients
such as phosphorus and nitrogen that
encourage growth of oil-degrading bacteria.
Biodegradation rates can also be increased by
adding more microorganisms to the
environment, especially the species that are
already used to consuming the type of oil
spilled. The use of nutrients or the addition of
microorganisms to encourage biodegradation
is called bioremediation.
Bioremediation has been used with
some success in recent oil spill events.
Experiments conducted by the U.S.
Environmental Protection Agency, Exxon
Corporation, and the State of Alaska on cobble
beaches contaminated with oil from the 1989
Exxon Valdez spill showed that the addition of
nutrients more than doubled the natural rate of
biodegradation, and produced no long-term
injury to the shoreline or sensitive habitats.
Physical methods
These materials are often designed as large
squares, much like paper towels, or shaped
into mops . The squares or mops are used to
wipe the sandy beach or oily rocks during
which time the absorbents are filled with as
much oil as they can hold.
There are advantages to the use of
absorbents. They can be used to clean up
any kind of oil on any shoreline that can be
reached by response personnel. The use of
absorbents is generally not harmful to the
beach itself or to the organisms that live on it,
and no material is left behind following the
cleanup effort. Some sorbents are reusable,
reducing the need for disposal after a spill.
However, this method requires the use
of a large quantity of material and several
personnel. Personnel must wear proper
protective clothing to minimize direct contact
with the oil as they are removing it. Oil-filled
absorbents and protective clothing that are
used by response personnel must be properly
disposed of following cleanup, which can be
costly. In addition, the intrusion of many
people onto an isolated beach may disrupt
animal behaviors such as breeding or nesting.
Physical removal of oil from shorelines,
and especially beaches, is time-consuming
and requires much equipment and many
personnel. Methods used to physically clean
oil from shorelines include
wiping with absorbent materials
pressure washing
raking or bulldozing
Before physical cleaning methods are
used, booms made of absorbent material are
often set up in the water along the edge of the
beach. Booms prevent oil released during
beach cleanup activities from returning to the
ocean, and contain the oil so that it can be
skimmed from the water for proper disposal.
Wiping with absorbent materials
Materials that are capable of absorbing
many times their weight in oil can be used to
wipe up oil from contaminated beaches.
Pressure washing involves rinsing oiled
beach sands and rocks using hoses that
supply low- or high-pressure water streams.
Hot or cold water can be used to create these
Sorbents being used to clean an oiled
beach
Pressure washing
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streams. The oil is flushed from the beach into
plastic-lined trenches or down to the shoreline,
then collected with sorbent materials and
disposed of properly.
This method has the advantage of
being relatively inexpensive and simple to
apply. It requires many personnel and is slow,
however. Additionally, high-pressure water
streams can dislodge organisms such as algae
and mussels from rocks and sediments on
which they live, or can force oil deeper into
sediments, making cleanup more difficult.
Raking or bulldozing
When oil moves downward into the
sands or between pebbles and cobbles on a
shoreline, it becomes more difficult to remove.
If the oil has moved downward only a short
distance, tilling or raking the sand can increase
evaporation of the oil by increasing its
exposure to air and sunlight. If the oil has
penetrated several inches into the sand,
bulldozers may be brought in to remove the
upper layers of sand and pebbles. This allows
the oil to be exposed so it can be collected
and removed from the site, washed with
pressure hoses, or left to degrade naturally.
Raking and bulldozing are simple
methods for helping to remove oil that might
otherwise escape into sediments. However,
these methods can disturb both the natural
shape of the shoreline and the plant and
animal species that live on and in the beach
sediments. In addition, the use of bulldozers
requires specially trained operators who can
maneuver them without damaging the beach
unnecessarily; raking and tilling are time-
consuming and require many personnel.
DISPOSAL OF OIL AND DEBRIS
Cleanup from an oil spill is not
considered complete until all waste materials
are disposed of properly. The cleanup of an
oiled shoreline can create different types of
waste materials, including liquid oil, oil mixed
with sand, and tar balls. Oil can sometimes be
recovered and reused, disposed of by
incineration, or placed in a landfill. States and
the Federal government strictly regulate the
disposal of oil.
Reuse or recovery of oil requires that
the oil be processed and separated from the
other materials such as water that are mixed in
with it. The recovered oil can then be blended
with other fuels for use in power plants or
boilers.
Incineration uses extremely high
temperatures to convert compounds such as
oil into carbon dioxide and water. When a
mobile incinerator is used at a remote spill site,
the need for transporting large volumes of
oiled wastes to distant disposal sites is
eliminated. This can be a practical and
efficient method to manage large volumes of
waste generated during a cleanup. Because
incineration can potentially produce air
pollution, it is important that it be used in strict
compliance with air pollution laws.
Landfilling is another method of
disposing of oiled debris. The oil is mixed with
chemicals such as calcium oxide (Nquicklimehl)
that stabilizes the oil and makes it less able to
leak into groundwater or soils. Mixtures of
quicklime and oil must sometimes be taken to
specially designed landfills for disposal.
Response crews using high pressure
hoses to wash an oil-covered beach
(Source: U.S. Coast Guard)
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SUMMARY
Cleaning shorelines after an oil spill is
a challenging task Factors that affect the type
of cleanup method used include the type of oil
spilled, the geology of the shoreline, and the
type and sensitivity of biological communities
in the area. Natural processes such as
evaporation, oxidation, and biodegradation
help to clean the shoreline. Physical methods,
such as wiping with sorbent materials,
pressure washing, and raking and bulldozing
can be used to assist these natural processes.
Oil collected during cleanup activities must be
reused or disposed of properly, using such
methods as incineration or landtilling.
Choosing the most effective yet potentially
least damaging cleaning methods helps to
assure that the natural systems of shorelines
and the recreational benefits they offer will be
preserved and protected for future generations.
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RESCUING BIRDS AND MAMMALS FROM OIL SPILLS
INTRODUCTION
When an oil spill occurs, birds and
marine mammals are often injured or killed by
oil that pollutes their habitat. Without human
intervention, many distressed birds and
animals have no chance of survival.
Unfortunately, rescuing wildlife is a
difficult, time-consuming task, Following the
Exxon Valdez oil spill in March, 1989, the
bodies of over 36,000 birds and 1,000 sea
otters were recovered in Prince William Sound,
Alaska. Scientists suspect that many more
actually perished as a result of the spill.
HUMAN INTERVENTION
Many government agencies and private
organizations help to rescue marine animals
and birds that have been exposed to oil
pollution. When an oil spill occurs, there is
often a plan to help these groups cooperate to
save as many animals as possible. While the
government is responsible for animal rescue
efforts, many private organizations assist in
rescuing injured wildlife. Before any person or
organization can handle or confine birds or
mammals for rescue, however, they must get
special permits that are issued by State and
Federal officials.
If oil is spilled into a marine
environment, the first step to stop the crisis is
to control the release and spread of oil at its
source. This prevents any additional oil
exposure to wildlife and coastal areas. At the
same time, efforts are made to keep animals
away from possible contamination. Devices
such as propane scare cans, floating dummies
and helium-tilled balloons are often used to
scare animals away from oily areas, particularly
birds.
RESCUING BIRDS
For areas that have been polluted by
oil, rescuers must capture birds that have been
affected as quickly as possible in order to save
them. Two-way radio communications are
often used to help rescuers locate oily birds.
Once birds have been captured, they are taken
immediately to treatment centers where they
are given medical treatment and cleaned.
If treatment centers are not available
nearby, temporary facilities must be built in
local warehouses or other large buildings that
offer electricity, hot water, and ventilation. The
International Bird Rescue Research Center of
Berkeley, California has designed a bird
cleaning facility that can be operated from a
trailer, so that a truck can bring the facility to
the scene of an accident immediately.
Minimizing stress is critical for ensuring
that captured birds survive. Rescue parties
usually will contact rehabilitation workers even
before they arrive, to make sure that they are
Human handling injured
wildlife (Source: U.S. Coast Guard)
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prepared to care for the captured birds
immediately. This ensures that the birds are
treated as quickly as possible.
Once a bird has been brought to a
rehabilitation center, certain basic procedures
are followed. First, oil is flushed from its eyes
and intestines. Heavily oiled birds are wiped
with absorbent cloths to remove patches of oil.
Rehabilitation workers also conduct an initial
examination to detect broken bones, cuts, or
other injuries. Stomach-coating medicines
(such as Pepto Bismol TM ) may be administered
orally to prevent additional absorption of oil
inside the bird’s stomach. The bird is then
warmed and placed in a quiet area. Curtains
are often hung to limit its contact with people.
Nutrition is essential for the recovery of
oiled birds. Wild birds will generally learn to
feed themselves from pans or other containers
as soon as they begin to feel healthy. In many
cases, however, the birds must be force-fed
until they are able to feed on their own.
After a bird is alert, responsive, stable
and its body’s fluid balance restored to normal,
detergent is gently stroked into its feathers to
remove the oil. An oiled bird may require three
or more washings to remove the oil entirely.
After its feathers are completely rinsed,
the bird is placed in a clean holding pen lined
with sheets or towels. The pen is warmed with
How Oil Affects Birds
Birds that are exposed to oil are
affected both internally and
externally. The most serious threat
birds face is the destruction of their
feathers, or plumage. Birds rely on
their plumage to protect them in cold
environments. Strong, outer
feathers, known as contour feathers,
help birds to fly, float, and keep
warm in the water. Soft, inner
feathers, known as down, also
provide insulation that is necessary
for survival. When a bird’s feathers
are covered by oil, the bird loses its
ability to fly, float, and maintain a
normal body temperature. This
means the bird cannot get food or
escape from its predators.
Birds are also at risk from swallowing
oil, inhaling oil fumes, or absorbing it
through their skin. Oil can cause
kidney or liver damage, digestive
problems, eye damage, and other
disorders that can cause pneumonia.
Birds also suffer from stress caused
by the destruction to their habitat. In
fact, stress is a leading cause of
death in birds exposed to oil. As a
bird becomes cold and loses its
ability to float, it may go into a panic,
causing the bird to exhaust itself.
heat lamps, and hung with curtains to minimize
human contact. If behavior appears normal
and a bird’s condition remains stable, it is
allowed to swim. The bird then begins to
preen and realign its feathers to restore them
to their original structure, helping the bird to
become waterproof again.
Before a bird can be considered for
release, it must “pass” the waterproofing test.
That is, it must demonstrate buoyancy (the
ability to float) and water-repellency (the ability
Birds in recovery pens after oil has been
removed from their feathers
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to keep water away from its body). Once a
bird passes this test, it is slowly exposed to
temperatures comparable to outside weather.
Its weight and muscle structure should be
average for its species, and it should show no
signs of disease. Rehabilitated birds are
banded by the U.S. Fish and Wildlife Service,
and are released early in the day to an
appropriate habitat.
MARINE MAMMAL RESCUE AND CLEANING
Two primary groups of marine animals
may be affected during an oil spill. The first
group, pinnipeds, includes animals such as
walruses, harbor seals, and sea lions. These
animals are quite large, and rely on blubber
under their skin to stay warm. Harbor seal
mothers give birth on isolated beaches and
small rocky islands. Newborn pups are not yet
protected by a layer of blubber, and do not
enter the water until a few days after birth.
Some scientists are concerned that when a
seal pup’s protective fur coat becomes oiled,
its warming qualities are reduced, increasing
the likelihood of death from exposure. When
these animals are seriously distressed, they
are handled by marine mammal stranding
networks, such as the Marine Mammal Center
in San Francisco, California.
The second group of fur-bearing
marine mammals includes sea otters and fur
seals. These animals do not have a layer of
blubber, but instead rely on their thick fur
coats to maintain warmth. If the coat becomes
dirty through contact with oil or other polluting
substances, its protection may be lost, and the
animal will become chilled in icy waters. Sea
otters, in particular, groom themselves
extensively and are at risk from swallowing
toxins.
The Hubbs Research Center, in San
Diego, California, specializes in mammal
rescue efforts. The Center employs
experienced animal handlers to ensure the
best treatment of stricken animals. Other
animal welfare organizations, such as Friends
of the Sea Otter and local Societies for the
Prevention of Cruelty to Animals, provide
marine mammal rehabilitation sites.
Specific techniques are employed by
the Hubbs Center and other organizations to
help oiled marine mammals to recover. After
an animal is captured and transported to a
marine rehabilitation facility, it is checked for
hypothermia and dehydration, then prepared
for cleaning. The otter is lightly sedated during
the washing process, which is usually done by
a team of two. One restrains the animal and
the other washes it with a mild detergent.
Once rinsed, the otter is hand-rubbed with
towels and dried with hand dryers. Through its
natural grooming process, the otter preens
itself, distributing an oil-like fluid produced by
glands in its skin. In about seven days, the
otters fur will regain its water-repellency.
During the recuperation process, an
otter’s body temperature and eating habits are
monitored. It is fed a variety of its favorite
foods, including fish, squid, shrimp, and
scallops. As its health improves, the animal is
moved to a holding tank. Slowly, it is
introduced to its natural habitat. Often, an
otter will try to return to a habitat that is still
contaminated. For this reason, released otters
are tagged with tracking devices. Some are
held for longer periods of time in order to give
cleanup crews additional time to remove more
a ] from the area.
Otter being towel-dried following removal
of oil from its fur
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After the Exxon Valdez oil spill, otter
rehabilitation and pre-retease centers were
built in Valdez, Seward, and Homer, Alaska
These facilities remained in operation until
September, 1989 The three centers treated a
total of 357 otters, and released 197 into
Prince William Sound and along the Kenai
Peninsula Because of concerns for their
health, an additional 24 adult otters were sent
to various seaquariums In addition, 13 otter
pups, most of which were born in captivity,
were transferred to seaquariums because they
were too young to be released
Several other organizations devote
their energies to the rehabilitation of birds
following oil spills. Tn-state Bird Rescue and
Research, Inc, of Wilmington, Delaware, is
often called to help with East Coast spills On
the West Coast, the International Bird Rescue
Research Center, located in Berkeley,
California, is well-known for its work
Washington Oiled Bird Rescue, in Washington
State, is also devoted to the rehabilitation of
oiled birds.
These organizations follow similar
techniques to recover and rehabilitate oiled
birds. Periodic hands-on exercises are
conducted to provide workers with sufficient
spill-related experience.
and avoiding shortcuts Finally, open
communication with other response agencies
is crucial for any wildlife rescue operation to be
successful
SUMMARY
Many lessons about the care and
treatment of oiled birds and animals have been
learned through experience with recent oil spill
incidents. First, the need for immediate
response is essential for rescuing wildlife
Second, personnel training is needed. The
rehabilitation of oiled wildlife is a complex
medical and technical procedure, and
volunteers must be properly trained Training
workshops, which involve more than 200 hours
of work, are available through the
organizations cited above Third, a
commitment must be made to reclaim oiled
wildlife using proven, documented procedures,
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FOR MORE INFORMATION ABOUT BIRD
REHABILITATION, CONTACT.
Marjorie Gibson
International Bird Rescue Research Center
699 Potter Street
Berkeley, CA 94710
Dr Heidi Stoutl Lynne Frink
Tn-State Bird Rescue and Research, Inc.
110 Possum Hollow Road
Newark, DE 19711
FOR MORE INFORMATION ABOUT MAMMAL
REHABILITATION, CONTACT:
American Cetacean Society
Box 2639
San Pedro, CA 90731
Center for Marine Conservation
312 Sutter Street, Suite 316
San Francisco, CA 94108
Defenders of Wildlife
1244 1 9th Street, NW
Washington, DC 20036
Friends of the Sea Otter
P .O Box 221220
Carmel, CA 93922
Monterey Bay Aquarium
886 Cannery Row
Monterey, CA 93940
National Wildlife Federation
1412 16th Street, NW
Washington, DC 20036
FEDERAL AND STATE AGENCIES
RESPONSIBLE FOR ANIMAL RESCUE
FOLLOWING SPILLS
Commandant (G-MEP)
U S. Coast Guard
2100 2nd Street, SW
Washington, DC 20593
(202) 267-2611
Department of the Interior
U.S Fish and Wildlife Service
1849 C Street, NW
Washington, DC 20240
(202) 208-5634
NOAAIHMRAD
7600 Sand Point Way, NE
Bin C15700
Seattle, WA 98115
(206) 526.6317
Alaska Department of Environmental
Conservation
410 Willoughby Ave.
Juneau, AK 99801-1795
(907) 465-5000
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INTRODUCTION
Oil spills are, unfortunately, common
events in many parts of the United States.
Most of them are accidental, so no one can
know when, where, or how they will occur.
Spills can happen on land or in water, at any
time of day or night, and in any weather
conditions Preventing oil spills is the best
strategy for avoiding potential damage to
human health and the environment from
exposure to oil. However, once a spill occurs,
the best approach for containing and
controlling it is to respond quickly and in a
well-organized manner.
ELEMENTS OF A CONTINGENCY PLAN
At first glance, a well-designed
contingency plan may appear complicated
because it provides many details about all the
steps involved in preparing for, and
responding to, an oil spill However, a well-
designed contingency plan should be easy to
follow. Despite their differences, though, all
contingency plans usually contain three major
elements.
• Spill scenarios
• Background information
• Response actions
THE ROLE OF CONTINGENCY PLANS
In order to respond rapidly and
successfully to an oil spill, personnel
responsible for containing and cleaning up the
spill must know the steps that need to be
followed during and after the spill.
Contingency plans are documents that
describe information and processes for
containing and cleaning up an oil spill that
occurs in a defined geographic area. A
defined area can be relatively small, such as a
piece of property that has oil storage tanks on
it, or it can be large, involving the land and
waters within and between several states
A contingency plan is like a “game
plan,” or a set of instructions that outlines the
steps that should be taken before, during, and
after an emergency When used properly by
trained response personnel, a contingency
plan can provide many benefits such as
allowing oil response efforts to proceed
smoothly and effectively, minimizing danger to
cleanup personnel, reducing overall costs of
cleanup by avoiding unnecessary effort, and
assuring that sensitive habitats are protected
Each of these elements is described briefly
below
Spill Scenarios
It is impossible to know when an oil
spill is going to happen and how much oil is
likely to be spilled Sometimes oil spills occur
in places that are easy for response personnel
to get to, while at other times they occur in
remote spots that are difficult to bring
equipment into Some spills are very small
and easily controlled, while others are very
large and difficult to manage.
Different combinations of the factors
that can affect the ability of response
personnel to contain and clean up an oil spill,
such as weather conditions, geographic
isolation, and spill size, are called scenarios.
Private companies and local, state and federal
agencies design their contingency plans to
reflect several different scenarios In order to
develop these scenarios, the following
information may be collected
PREPARING FOR OIL SPILLS:
CONTINGENCY PLANNING
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• types of oils frequently stored in or
transported through that area
• locations in which oil is stored in large
quantities or through which traffic of oil
tankers is high
• locations of sensitive habitats and
human populations
• extreme weather conditions that might
occur in the area during diflerent times
of the year
Contingency plans are designed to
help response personnel to be prepared for
the kind of spill that is ‘most likely’ for a
particular place.
On rare occasions, however, a spill
occurs in severe weather conditions, or is
much larger or more difficult to get to, than
those that are most likely. To prepare for
these unusual but severe incidents,
contingency plans also include ‘worst case’
scenarios A worst case scenario, for example,
might assume that a large quantity of very
dense, heavy oil has spilled during a dark,
stormy night, close to vacation homes and
extremely sensitive habitats along the
shoreline. By being prepared for the worst
case scenario, response personnel will also be
prepared for less severe incidents.
Background Information
This section of a contingency plan
provides information to personnel involved in
cleaning up a spill to help them make
reasonable, well-informed choices about how
to contain and clean up a spill when it occurs.
Such background information might include
names and phone numbers of
individuals who work with private
companies or local, state and federal
agencies who are responsible for
helping with oil spill cleanup efforts
• descriptions of physical, chemical and
biological techniques that can be used
to contain or clean up an oil spill
• lists of response equipment available in
the area
• lists of oil-sensitive habitats and wildlife
resources that must be protected
• description of the communications
system that will be used to coordinate
the various personnel and agencies
involved in the control and cleanup
effort
Response Actions
A carefully designed contingency plan
will describe major actions that need to be
undertaken when a spill occurs These actions
should take place immediately following a spill
so as to minimize hazards to human health
and the environment Actions to be taken
during a spill that should be described in the
contingency plan include
• notifying all private companies or
government agencies that are
responsible for the cleanup effort
• getting trained personnel to the site
quickly
• defining the size, position, and content
of the spill, its direction and speed of
movement, and its likelihood of hitting
sensitive habitats
• assuring the safety of all response
personnel
• stopping the flow of oil from the ship,
truck, or storage facility, if possible
• containing the spill to a limited area
• removing the oil
• disposing of the oil once it has been
removed from the water or land
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EXAMPLES OF CONTINGENCY PLANS
Many different kinds of contingency
plans exist for dealing with oil spills Some
contingency plans are designed to help deal
with an oil spill that might occur at a very
specific place, such as an oil storage or
refining facility Others are designed to help to
deal with spills that might occur anywhere
within a large geographic region. In fact, the
federal government has designed a National
plan that establishes the process for dealing
with any spill that occurs in the United States.
Facility Contingency Plans
Every facility in the United States that
stores or refines oil products, whether owned
by a private company or operated by a
government agency, is required to develop a
plan for dealing with an accidental release of
oil on its property. These contingency plans
typically contain information such as
• the company’s or agency’s policies for
dealing with spills
• job descriptions for various personnel
within the company or agency and
their responsibilities for dealing with a
spill
• proper procedures for notifying and
alerting employees and response
personnel
• rules and regulations to be followed to
control and clean up spills
Regional Contingency Plans
Federal and state government
agencies with responsibility for protecting the
environment develop contingency plans for
specific geographic regions of the United
States (see map) These plans include
detailed information about resources (such as
equipment and trained response personnel)
available from the federal government and the
states or commonwealths within particular
regions. They describe the roles and
responsibilities of each state and federal
agency during a spill, and how agencies will
respond if they are called upon in an
emergency. These plans also describe how
two or more regions might interact, such as
when a spill occurs in a river that flows
between regions, to assure that a spill is
controlled and cleaned up in a timely and safe
manner.
Regional plans are often brought into
action when facilities are unable to handle
spills on their own In such situations, special
teams -- called Regional Response Teams, or
ARTs -- may be called upon to provide
technical advice as well as cleanup equipment
and specially trained personnel RRTs conduct
training exercises to test the abilities of federal
and state agencies to respond quickly and to
work together to control and clean up spills
These exercises help states and the federal
government to identify problems with their oil
spill response plans so that the plans can be
improved if necessary
The National Contingency Plan
The U.S. Environmental Protection
Agency (EPA) has designed a plan, called the
National Contingency Plan or NCP, to ensure
that resources and expertise of the federal
government would be available for those
relatively rare, but very serious, oil spills that
require a national response This plan was
designed primarily to assist with coordinating
the various federal agencies that are
responsible for dealing with oil spill
emergencies
The NCP was developed and is
continuously updated through efforts of the
National Response Team (NRT), which is
composed of representatives from 14 different
federal agencies, including EPA, the U S
Coast Guard, and the Federal Emergency
Management Agency Although the NRT does
not respond directly to incidents, it stands
ready to offer technical advice and
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coordination assistance if requested during an
incident. It also provides information about
emergency training exercises to local and state
governments, assists in the design of
international contingency plans, and
recommends improvements to Regional
Contingency Plans
IMPROVING CONTINGENCY PLANS
After an oil spill has been controlled
and cleaned up, the companies as well as the
local, state and federal agencies that were
involved in the emergency assess the
usefulness of their contingency plans.
Information gathered during the assessment,
such as problems that had not been
considered in the original plan, and the
successes or failures of cleanup techniques
used, will be used in a revised contingency
plan. This information will also be shared with
private companies and states, regions, and
federal agencies so that they too may learn
from oil spills to improve their contingency
plans.
SUMMARY
Planning for an oil spill emergency
helps to minimize potential danger to human
health and the environment by assuring a
timely and coordinated response Well-
designed local, state, regional and national
contingency plans can assist response
personnel in their efforts to contain and clean
up oil spills by providing information that the
response teams will need before, during, and
after spills occur. Because the approaches
and methods for responding to oil spills are
constantly evolving, and each oil spill provides
an opportunity to learn how to better prepare
for future incidents, contingency plans are also
constantly evolving and improving -- assuring
increased protection to human health and the
environment from these accidents
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RESPONDiNG TO OIL SPILLS: THE NATIONAL RESPONSE SYSTEM
INTRODUCTION
When a major oil spill occurs in any
navigable waters in the United States (U.S),
coordinated teams of local, state and national
personnel are called upon to help contain the
spill, clean it up, and assure that damage to
human health and the environment is
minimized. Without careful planning and clear
organization, efforts to deal with large oil spills
could be slow, ineffective, and potentially
harmful to response personnel and the
environment.
that oil spill control and cleanup activities are
timely and efficient, and that they minimize
threats to human health and the environment
The three major components of the
National Response System are the (1) On-
Scene Coordinator, (2) National Response
Team, and (3) Regional Response Teams The
National Response System is activated when
the National Response Center receives
notification of an oil spill
The National Response Center
The system that has been established
in the U S for organizing responses to major
oil spills is called the National Response
System This document describes the origins
of the National Response System and outlines
the responsibilities of the teams and individuals
who plan for and respond to major oil spills in
navigable waters.
THE NATIONAL RESPONSE SYSTEM
On March 18, 1967, a 970-foot oil
tanker, the Torrey Canyon , ran aground 15
miles off the western coast of England, spilling
117,000 tons of crude oil that eventually
washed up onto the popular resort beaches of
England and France. Although the U.S. had
not yet experienced a spill of this size in its
coastal waters, the federal government began
to question its ability to respond to such spills
if they occurred here. As a result, in 1968
several Federal agencies developed a plan,
now called the National Oil and Hazardous
Substances Pollution Contingency Plan, or
National Contingency Plan (NCP) for short, that
would bring together federal agencies with
various kinds of expertise to respond to oil
spills when they occur. The NCP, which was
made into law in 1973, established the National
Response System, a network of individuals and
teams from local, state and federal agencies
who share expertise and resources to assure
The National Response Center, located
in Washington, D C, is one of the first
organizations to be notified when an oil spill
occurs. It is staffed by officers and marine
science technicians from the U.S. Coast
Guard, and serves as the national
communications center responsible for
notifying the On-Scene Coordinator (OSC)
whose job it is to oversee cleanup efforts at
the spill site
The On-Scene Coordinator
The On-Scene Coordinator (OSC) is a
federal official who is responsible for all federal
government efforts to contain, remove, and
dispose of spilled oil in a major incident. This
official is also responsible for coordinating
federal efforts with, and providing support and
information to, local, state and regional
response communities
The OSC is a representative of one of
two federal agencies the U S Coast Guard
(USCG) or the U S Environmental Protection
Agency (EPA). The USCG has designated 48
OSCs, EPA has designated 145 OSCs When
a spill occurs in coastal waters, the OSC is the
local IJSCG Port Commander. When a spill
occurs inland, a regional EPA official is
assigned as the OSC.
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The OSC is responsible for four main
tasks during an oil spill response (1)
assessment, (2) monitoring, (3) response
assistance, and (4) reporting,
Assessment
Assessment involves evaluating the
size and nature of a spill, its potential hazards,
the resources needed to contain and clean it
up, and the ability of the responsible party or
local authorities to handle the incident The
OSC typically conducts these activities at the
beginning of a response The results of the
assessment are used to determine the need
for personnel, equipment, and other resources
to promptly and effectively combat the spill.
Monitoring
Monitoring comprises those activities
taken to ensure that the actions being taken to
control and clean up a spill are appropriate All
spills of a legally defined minimum size must
be monitored by an OSC, even though most
spills are small and are cleaned up by the
responsible party or local fire or police
departments. Monitoring can be conducted
from the site when necessary, or from an
agency office if the situation appears to be
under control
Response Assistance
Once a spill has been assessed, the
OSC determines whether tederal assistance
will be necessary to help control and contain
the spill If the OSC decides that federal
assistance is required, the OSC will obtain
needed resources such as personnel and
equipment If sufficient resources are not
available at or near the spill site, the OSC can
secure them using a special fund -- the Oil
Spill Liability Trust Fund (see box)-- which has
been established for this purpose. This
assistance is intended to ensure that oil spill
cleanups will not be hindered by a lack of
personnel or equipment
Reporting
Reporting on oil spill response actions
provides information that is useful for
designing or improving spill response plans
The NCP requires that the OSC report all
activities that take place during and after a
spill For example, following a spill, the OSC is
required to file a summary report that outlines
the actions taken to remedy the spill and the
level of assistance provided by local, state, and
federal agencies These reports can be used
to identify problem areas and can be shared
with other agencies who may make
recommendations for improvement
The Oil Spilt Liability Trust Fund
The company or individual
responsible for an oil spill (known as
a responsible party, or RP) has legal
liability, to a defined maximum
amount, for expenses related to
containment and cleanup of the spill
However, when the RP is unable to
pay for cleanup, funds from the Oil
Spill Liability Trust Fund can be used
to pay for removal costs and/or
damages resulting from discharges
of oil into U S. waters This Trust
Fund, created by Congress in 1990,
is administered by the U S Coast
Guard (USCG), and is based on a
five-cent per barrel fee on imported
and domestic oil It also provides
funds for research into and
development of oil spill cleanup
technologies In 1990, $25 million
per year was authorized to the USCG
for its operating expenses for oil spill
cleanup efforts Another $30 million
per year (until the end of 1992) was
provided to establish the National
Response System, and nearly $28
million per year is made available for
research and development
programs
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The National Response Team
The National Response Team (NAT) is
an organization composed of fifteen federal
agencies, each of which has responsibilities in
environmental areas and expertise in various
aspects of emergency response to poflution
incidents Although the NRT does not respond
directly to incidents, it is responsible for three
major activities related to managing oil spill
response (1) distributing information,
(2) planning for emergencies, and (3) training
for emergencies
Distributing information
The NRT is responsible for ensuring
that information about oil spills -- technical,
financial, and operational -- is available to all
members of the team. This information is
collected primarily by NRT committees whose
purpose is to focus attention on specific
issues, then collect and disseminate
information on those issues to other members
of the team.
local personnel, the NRT develops training
courses and programs, coordinates federal
agency training efforts, and provides
information to regional, state and local officials
about training needs and courses
Supporting RRTs
The NRT supports Regional Response
Teams (RRTs) by reviewing Regional
Contingency Plans and assuring that they are
consistent with national policies on oil spill
cleanup. The NRT also supports RATS by
monitoring and assessing RRT effectiveness
during an oil spill cleanup activity The NAT
may ask an ART to focus on specific lessons
learned from a specific incident and to share
those lessons with other members of the
National Response System in this way, the
ARTs can improve their own Regional
Contingency Plans while helping to solve
problems that might be occurring elsewhere
within the National Response System.
Regional Response Teams
Planning for emergencies
The NAT ensures that the roles of
federal agencies on the Team for oil spill
emergency response are clearly outlined in the
National Contingency Plan. After a major spill
event, the effectiveness of the response is
carefully assessed by the NAT The NRT may
use information gathered from the assessment
to make recommendations for improving the
National Contingency Plan and the National
Response System.
The NRT may be asked to help
Regional Response Teams (see below)
develop Regional Contingency Plans The
NAT also reviews these plans to ensure that
they comply with federal policies on
emergency response
Training for emergencies
One important aspect of any
emergency response is preparedness, which is
best developed by training Although most
training is actually performed by state and
There are thirteen Regional Response
Teams (RRT5) in the U S., each representing a
particular geographic region (including the
Caribbean and the Pacific Basin). RRTs are
composed of representatives from field offices
of the federal agencies that make up the NRT
as well as state representatives. The four
major responsibilities of ARTs are (1) response,
(2) planning, (3) training, and (4) coordination.
Response
RATs provide a forum for federal
agency field offices and state agencies to
exchange information about their abilities to
respond to OSCs requests for assistance As
with the NRT, RAT members do not respond
directly to spills but may be called upon to
provide technical advice, equipment, or
manpower to assist with a response
Planning
Each RAT develops a Regional
Contingency Plan to ensure that during an
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actual oil spill the roles of federal and state
agencies are clear. Following an oil spill, the
RAT reviews the OSCs’ reports to identify
problems with the Region’s response to the
incident and improves the plan as necessary
Training
Federal agencies that are members of
the RRTs provide simulation exercises of
Regional plans to test the abilities of federal,
state and local agencies to coordinate their
responses to oil spills Any major problems
identified as a result of these exercises may be
addressed and changed in the Regional
Contingency Plans so the same problems do
not arise during an actual incident
Coordination
The RRTs are responsible for
identifying the resources available from each
federal agency and state in their regions
Such resources include equipment, guidance,
training, and technical expertise for dealing
with oil spills When there are too few
resources in a Region, the RRT can request
assistance from federal or state authorities to
ensure that sufficient resources will be
available during a spill This coordination by
the RRTs assures that resources are used as
wisely as possible, and that no Region is
lacking what it needs to protect human health
and the environment from the effects of an oil
spill
SUMMARY
The National Response System is the
mechanism established by the federal
government to respond to discharges of oil
into navigable waters of the United States.
This system functions through a cooperative
network of federal, state and local agencies.
The primary mission of the system is to provide
support to state and local response activities
The major components of the National
Response System are the On-Scene
Coordinator, the National Response Team, and
the thirteen Regional Response Teams. These
individuals and teams work together to develop
detailed Contingency Plans to outline
responses to oil spill emergencies before they
occur, and to develop or engage in training
that prepares for actual emergencies During
oil spill events, they cooperate to ensure that
all necessary resources such as personnel and
equipment are available, and that containment,
cleanup, and disposal activities are timely.
efficient, and effective It is through this
cooperation that the National Response
System protects human health and the
environment from potential harm from oil spills
in navigable waters
NATIONAL AND REGIONAL RESPONSE
TEAM MEMBER AGENCIES
One representative from each of the
following fourteen agencies sits on the NAT
One representative from each Regional office
of these agencies and representatives from
each state within the Region sit on the RRTs.
Environmental Protection Agency
Coast Guard
Department of Agriculture
Department of Commerce
Department of Defense
Department of Energy
Department of Health and Human Services
Department of the Interior
Department of Justice
Department of Labor
Department of State
Department of Transportation
Federal Emergency Management Agency
General Services Administration
Nuclear Regulatory Commission
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RESPONSE TO OIL SPILLS: THE EXXON VALDEZ
INTRODUCTION
On March 24, 1989, shortly after
midnight, the oil tanker Exxon Valdez struck
Bligh Reef ri Prince W lham Sound, Alaska,
spilling more than 11 million gallons of crude
oil (See Figure 1) The spill was the largest in
U S history and tested the abililies of local,
national, and industrial organizations to
prepare for, and respond to, disasters such as
these Many factors complicated the cleanup
efforts following this spill. The size of the spill
and its remote location, accessible only by
helicopter or boat (see Figure 2), made
government and industry efforts difficult and
tested existing plans for dealing with such an
event.
The spilt posed threats to the delicate
food chain that supports Prince William
Sound’s commercial fishing industry Also in
danger were ten million migratory shore birds
and waterfowl, hundreds of sea otters, dozens
of other species such as harbor porpoises and
sea lions, and several varieties of whales
THE INCIDENT
The two-year-old oil tanker Exxon
Valdez , with a capacity of 1 46 million barrels
(62 million gallons) of oil, was the newest and
largest of Exxon’s 19-ship fleet On the
evening of March 23, 1989, 1 26 million barrels
(54 million gallons) were loaded onto the ship
in Valdez, Alaska. The ship left the port at 9 10
p.m, bound for Long Beach, California
Chunks of ice from the nearby
Columbia Glacier were sitting low in the water,
so the ship’s captain tried to turn into an
empty inbound shipping channel to avoid
them The ship was moving at approximately
12 miles per hour when it struck the rocks of
Shgh Reef in Prince William Sound. The
underwater rocks tore huge holes in eight of
the vessel’s eleven giant cargo holds, releasing
a flood of oil into the Sound More than 11
million gallons of oil spilled within five hours of
the event. Seven hours after the spill was
reported, the resulting oil slick was 1000 feet
wide and four miles long.
In addition to the spilled oil, there were
other immediate dangers. About 80 percent of
the ship’s oil cargo remained on board, the
ship was resting in an unstable position and in
danger of capsizing Removing the remaining
oil from the ship and cleaning the spilled oil
were top priorities
THE RESPONSE
Since the incident occurred in open
navigable waters, the U S. Coast Guard’s On-
Scene Coordinator had authority for all
activities related to the cleanup effort Once he
was notified of the spill, he immediately closed
the Port of Valdez to all traffic. A Coast Guard
investigator, along with a representative from
the Alaska Department of Environmental
Conservation, visited the scene of the incident
to assess the damage caused by the spill By
noon on Friday, March 25th, the Alaska
Regional Response Team was brought
together by teleconference, and the National
Response Team was activated soon thereafter
The National team is based in Washington,
ID C and is composed of representatives from
fourteen different Federal agencies, with either
the Environmental Protection Agency or the
U S Coast Guard taking primary responsibility
for coordinating oil-spill cleanup activities
Alyeska, the association that
represents seven oil companies who operate in
Valdez, including Exxon, first assumed
responsibility for the cleanup Alyeska
operates the pipeline and terminal al Valdez
and is responsible for carrying out plans for oil-
spill emergencies Alyeska opened an
emergency communications center in Valdez
shortly after the spill was reported and set up a
second operations center in Anchorage,
Alaska
37
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The On-Scene Coordinator, in
cooperation with the Exxon Corporation,
established several goals for the response.
The most important goal was to prevent
additional spilling of oil Because the Exxon
Valdez was unstable and in danger of
capsizing, the 43 million gallons of oil still
onboard the tanker threatened the
environmentally-sensitive Sound The first
priority was to protect four fish hatcheries that
were threatened by the spill In addition, there
were concerns about the safety of response
personnel, since highly flammable and toxic
fumes made response actions difficult
Numerous equipment problems slowed
down the response to the spill Alyeska had
mechanical containment equipment available
such as booms, which are floating mechanical
barriers that are designed to stop the spread
of oil, but there were not enough of them to
contain an 11 million gallon spill. Because of
the remote location of the spill, equipment had
to be moved over great distances to reach the
accident scene The barge used by Alyeskas
response team had been stripped for repairs,
and was therefore not immediately available for
use It took ten hours to prepare and load the
barge, and another two hours to reach the
Exxon Valdez
In addition, the remote location of the
incident presented many logistical problems
Because the spill site was located two hours
by boat from the port of Valdez, every task was
time-consuming. The response had to be
staged from mobile platforms, and equipment
had to be air-dropped or delivered by boat
Other problems became apparent as
the emergency teams began to arrive to help
with the cleanup. Only limited lodging was
available in Valdez, a small village of only 4,000
people The small airstrip at Valdez could not
handle large planes carrying the cleanup
equipment These planes were forced to land
in Anchorage, a nine-hour drive from Valdez
The Federal Aviation Administration, the
agency responsible for all air traffic control,
had to set up a temporary tower to manage
increased flights to the area
At the start of the spill, necessary
communications between response personr
were difficult because there was limited phor 1
service in Valdez The Coast Guard On-Scene
Coordinator was the only person with a direct
telephone line out of the community. The lack
of phone lines delayed cleanup teams from
being able to request the resources they
needed, and it took time for the phone
company to increase the number of phone
lines Radio communication was also
troublesome The large numbers of boats
working the area resulted in multiple
simultaneous radio transmissions, and the
mountainous terrain made radio
communication difficult The Coast Guard
established a news office and requested more
communications staff, because numerous
national media representatives were arriving in
Valdez every day
On the second day of the spill, Exxon
assumed responsibility for the cleanup and its
costs Exxon activated its emergency Center ri
Houston, Texas, which sent equipment to
stabilize the ship. The company directed
another ship, the Exxon Baton Rouge , to
remove the remaining oil from the stricken
Valdez ,
In taking responsibility for the cleanup
operations, Exxon set out to address the
problems mentioned earlier. The company
opened a communications network that
allowed information about the spill and the
cleanup efforts to be shared with state and
federal governrn ent officials, private corn pany
representatives, and others who were
interested in the events surrounding the spill
The company, in cooperation with the U S.
Coast Guard, installed four weather stations
around Prince William Sound to provide the
weather forecasts that were critical to planning
cleanup efforts. A refueling station for
helicopters was set up in Seward, Alaska.
More than 274 tons of additional equipment,
including skimmers, booms, and dispersants
arrived at the site by the fourth day
Hundreds of people were brought to
the area to help conduct the cleanup effort
within two days of the spill More than 1000
38
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Alaska and Prince William Sound
Figure 1. Maps showing site of Exxon Valdez accident, March 24, 1989.
a
a ,
S
Figure 2. Location of oil (dark areas) spilled from Exxon Valdez as of April 20, 1989.
F
GSf of Alaska
Oil
Spill
39
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40
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Coast Guard personnel, along with employees
of the National Oceanic and Atmospheric
Administration, the Fish and Wildlife Service,
and the Environmental Protection Agency
helped with the response. Nine additional
Coast Guard cutters and eight aircraft were
brought to the scene Specialists from the
Hubbs Marine Institute of San Diego, California,
set up a facility to clean oil from otters, and the
International Bird Research Center of Berkeley,
California established a center to clean and
rehabilitate oiled waterfowl.
THE CLEANUP
Three methods were tried in the effort
to clean up the spill
• burning
• chemical dispersants
• mechanical cleanup
A trial burn was conducted during the
early stages of the Exxon Valciez spill A fire-
resistant boom was placed on tow lines, and
the two ends of the boom were each attached
to a ship. The two ships, with the boom
between them, moved slowly through the main
portion of the slick until the boom was full of
oil. The ships then towed the boom away from
the slick and the oil was ignited. The lire did
not endanger the main slick or the Exxon
Valdez because of the distance separating
them. Because of unfavorable weather
conditions, however, no additional burning was
attempted in this cleanup effort
Soon after the spill, dispersants were
sprayed from helicopters Mechanical cleanup
was started using booms and skimmers
The use of dispersants proved to be
controversial. Alyeska had less than 4000
gallons of dispersant available at its terminal in
Valdez, and no application equipment or
aircraft A private company applied
dispersants on March 24 with a helicopter and
dispersant bucket Because there was not
enough wave action to mix the dispersant with
the oil in the water, the Coast Guard
representative at the site concluded that the
dispersants were not working.
Skimmers, devices that remove oil from
the water’s surface, were not readily available
during the first 24 hours following the spill
Thick oil and heavy kelp tended to clog the
equipment. Repairs to damaged skimmers
were time-consuming. Transferring oil from
temporary oil storage vessels into more
permanent containers was also difficult
because of the oil’s weight and thickness
Continued bad weather slowed down the
recovery efforts
Efforts to save delicate areas were
begun early in the cleanup Sensitive
environments were identified, defined
according to degree of damage, and then
ranked for their priority for cleanup. Seal
pupping locations and fish hatcheries were
given highest importance, arid for these areas
special cleaning techniques were approved.
Despite the identification of sensitive areas and
the rapid stan-up of shoreline cleaning,
however, wildlife rescue was slow. Adequate
resources for this task did not reach the
accident scene quickly enough. Through
direct contact with oil or because of a loss of
the their food resources, many birds and
mammals died
THREE YEARS AFTER THE SPILL
During the three years after the Exxon
Valdez oil spill, cleanup and environmental
restoration of the affected shorelines and
islands continues. The cost of the cleanup has
amounted to billions of dollars, and the cost of
legal settlements has resulted in millions more.
On June 12, 1992 the U S Coast
Guard announced that the cleanup activities
should end. Although the cleanup activities
have ceased, there are still pools of oil left in
some areas where it is assumed that the harm
caused to the ecosystem by the oil is not
greater than the benefits to be gained from
further cleanup.
41
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The Exxon Valdez incident and the
environmental Impact caused by the spill
attracted the attention of national political,
scientific, and environmental interests The
scientific groups include those from Exxon
Corporation and the U.S. Environmental
Protection Agency that got involved in efforts
to use experimental technologies such as
bioremediation to clean up the spill. The
National Oceanic and Atmospheric
Administration was involved in providing
weather forecasts for Prince William Sound
This allowed the cleanup team to know what
type of cleanup technology would be
compatible with the changing weather
conditions in the Sound. A Valdez trustee
council was born, which is organizing a
meeting about oil spills to attract more
scientific research papers from studies on the
Exxon Valdez incident. This council is made
up of representatives from numerous federal
and Alaskan state agencies that deal with
environmental issues.
The Exxon Valdez incident also
prompted the U.S. government to require the
U S Coast Guard to strengthen their
regulations on oil tank vessels and oil tank
owners and operators under an environmental
law known as the Oil Pollution Act of 1990. As
of July 17, 1992, all tank vessels of 20,000 tons
or greater are required to carry special
equipment that will enable the vessel captain
and the vessel traffic center in Valdez to
communicate better for safer sailing through
that area
Restoration projects to bring back
natural conditions of the affected areas are just
beginning On September 30, 1991, an
agreement was reached between Exxon
Corporation, the state of Alaska, and the
Federal government. As a result of this
agreement, Exxon Corporation agreed to pay
$900 million for environmental restoration.
SUMMARY
The Exxon Valdez incident increased
public awareness about the risks involved in
the transport of oil It also revealed many
weaknesses in the abilities of state, federal,
and industry officials to plan for and respond
to such a disaster The remote location of the
spill and a lack of necessary equipment added
to response problems.
Prevention of spills is the first line of
defense, and the oil industry has taken steps
to reduce the risks of oil spills Once a spill
occurs, however, improved response
coordination between federal, state, and local
authorities should produce more rapid cleanup
actions A program to provide better training
of emergency response personnel is being
prepared, and safety issues are being
addressed. Beach-cleaning techniques that
are more effective and less labor-intensive are
being developed. Studies of the long-term
environmental effects of oil spills and their
influence on food chains in the ocean and on
land are now underway. The costs of cleanup
activities, ecosystem restoration, and legal
settlements of oil spills are so high that the
best strategy is to work to prevent them
42
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RESPONSE ACTIVITIES: THE EXXON VALDEZ OIL SPILL
a. Containment boom surrounds the Exxon Valdez on Bligh
Reef
c. Response crews remove oil from a beach with the use of
high-pressure hoses...
e. andsorbentmops.
f. U.S. Coast Guard response person
resues an oil-covered bird
b. An oil slick surrounds a small island in Prince William
Sound
d. sorbent squares...
43
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44
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GLOSSARY
Asphalt: A brown to black residue formed from weathered petroleum products, consisting chiefly of a
mixture of hydrocarbons; varies in texture from hard and brittle to plastic
Biodegradation The breaking down of substances by microorganisms, which use the substances for
food and generally release harmless byproducts such as carbon dioxide and water
Bioremediation. The act of adding nutrients or microorganisms to the environment to increase the
rate at which biodegradation occurs.
Boom. A temporary floating barrier used to contain an oil spill
Dispersion. The spreading of oil on the water’s surface and, to a lesser degree, into the water
column
Emulsification The formation of a mixture of two liquids, such as oil and water, in which one of the
liquids is in the form of fine droplets and is dispersed in the other
Evaporation The physical change by which any substance is converted from a liquid to a vapor or
gas.
Hydrocarbons A large class of organic compounds containing only carbon and hydrogen, common
in petroleum products
Hydrophobic: Not easily wet by water.
Incineration The destruction of wastes by burning at high temperatures
Mousse’ A thick, foamy oil-and-water mixture formed when petroleum products are subjected to
mixing with water by the action of waves and wind
Oil. As commonly used, a naturally-occurring mixture of hydrocarbons and other substances typically
used as fuels or refined for use in a variety of commercial products.
Oleophilic. Having a strong affinity for oils.
Oxidation A chemical reaction that occurs when a substance is combined with oxygen, may lead to
degradation or deterioration of the substance
Seeding The addition of microorganisms to the environment, used in bioremediation
Skimmers Devices used to remove oil from the water’s surface
Slick. A thin film of oil on the water’s surface
Sorbents. Substances that take up and ho’d water or oil
Solidifiers Substances that can be added to liquid oil to make the oil harden into solid substances
that can either be picked up from the water’s surface or left to sink to the ocean bottom
45
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Specific gravity. The ratio of the density of a substance to the density of water
Surface tension The attractive force exerted upon the surface molecules of a liquid by the molecules
beneath the surface When oil is spilled on water, this tension makes the oil behave as a continuous
thin sheet that is difficult to separate or break up
Surfactant. A substance that breaks oil into small droplets This helps to increase the surface area of
the oil spill, which increases the rate at which the oil can be degraded or weathered into less toxic
substances
Tar balls Dense, black sticky spheres of hydrocarbons, formed from weathered oil
Viscosity. Resistance to flow Substances that are extremely viscous do not flow easily
Weathering: Action of the elements on a substance, such as oil, that leads to disintegration or
deterioration of the substance
46
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FOR FURTHER 1NFORMAT1ON
Sharon Begley. The Spill Next Time What Needs to be Done,” Newsweek (Sept 18, 1989) 59
Geoffrey Cowley, “Dead Offers, Silent Ducks,” Newsweek (April 24, 1989) 70
Abe Dane, “Learning from Disaster,” Popular Mechanics 168 (Sept 1991). 94
Art Davidson, in the wake at the Exxon Valdez,” Alaska 56 (May 1990). 28+
Timothy Egan, “The Valdez Spill. One Year Later,” The New ‘york Times Magazine (Apr 15, 1990) 34-
7
Frank Graham, “Oilspeak, Common Sense, and Soft Science,” Audubon 91 (Sept. 1989) 102.108
Brian Hodgson, “Alaska’s Big Spill Can the Wilderness Neat 7 ” National Geographic (Jan 1990)’ 2-
43
John Kenney. ‘Grave Waters,’ National Parks 63 (July/Aug 1989). 18-23
Jon P Luoma, ‘A Soiled Symbol,” Audubon 91 (Sept. 1989) 101.
Jon A. Luoma, ‘Terror and Triage at the Laundry,’ Audubon 91 (Sept. 1989), 92-1 01
Janet Paloff, “Valdez spill leaves lasting impacts,” Science News 143 (Feb. 13, 1993) 102
“Sea Otter Rescue,” National Geographic World 193 (Sept 1991) 3-8
Jeff Wheelwright, “Muzzling Science, Newsweek (Apr. 22, 1991) 10
47
0 Li S Go orrimeflt PrinhilIg Office 1994 - 386-629(22642)
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OVERVIEW: OIL POLLUTION ACT OF 1990 (OPA)
& CLEAN WATER ACT SECTION 311
I. BACKGROUND
A. Clean Water Act Section 311
* 1970: Enacted as Water Quality Improvement Act of 1970 (Response to 1969 Oil Spill
Near Santa Barbara, California)
* 1972: Incorporated into Federal Water Pollution Control Act of 1972 (CLean Water Act)
& Amended to Address Hazardous Substances
* 1978: Amended to Add “Federally Permitted Discharge” Language
* 1990: Amended by OPA
B. Oil Pollution Act of 1990
* 1980: Comprehensive Oil Spill Legislation Almost Adopted as Part of CERCLA
* 1986: Both Houses Adopted Oil Spill Legislation (But Couldn’t Reconcile in
Conference Committee)
* March 1989: Exxon Valdez Oil Spill in Prince William Sound, Alaska (Also Other Oil
Tanker Spills in 1989 and 1990)
* August 1990: OPA Enacted
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II. OPA--KEY PROVISIONS
A. Liability (Title I)
1. Actions Covered: Discharge or Substantial Threat of Discharge of Oil Into Navigable
Waters, Adjoining Shorelines or Exclusive Economic Zone
2. Responsible Parties: Vessel & Facility Owners & Operators (& Charterers by Demise
of Vessels)
3. Standard of Liability: Strict, Joint & Several (Modeled on CERCLA & CWA § 311)
4. Defenses to Liability: Act of God; Act of War; Act or Omission of Third Party (Other
Than Employee, Agent or Contract Relationship); Combination of Other Defenses
5. Exclusions from Liability--Discharge: Allowed by Permit (FederallStatefLocal); From
Public Vessel; From Onshore Facility Subject to Trans-Alaska Pipeline Authorization
Act (TAPAA)
6. Recoverable Response Costs:
* Federal & State Governments: Removal Costs Under CWA § 311(c), (d), (e) or
(1), Intervention on High Seas Act, or State Law
* Other Persons: Removal Costs Incurred for Acts Consistent with National
Contingency Plan (NCP)
7. Recoverable Damages:
* Governments: Natural Resource Damages; Loss of Tax & Other Revenues;
Increased Cost of Public Services
* Other Parties: Damage to Real & Personal Property; Loss of Subsistence Use of
Natural Respurces; Loss of Profits or Earning Capacity
8. Liability Limitations
* Apply to All OPA § 1002 Removal Costs & Damages (But State Remedies Not
Preempted)
* Different Limits for: Tank Vessels; Non-Tank Vessels; Offshore Facilities;
Onshore Facilities & Deepwater Ports [ Can Be Adjusted Downward by
Regulation]
* Unlimited Liability (& No Defenses) In Case of: Gross Negligence or Willful
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Misconduct; Violation of Applicable Federal Regulation; Failure to Report
Incident; Failure to Cooperate with Responsible Official; Failure to Comply,
Without Sufficient Cause, with CWA § 311(c) or (e) Order
B. Oil Spill Liability Trust Fund (Titles I & IX)
1. Consolidates Several Existing Trust Funds (Including CWA § 311(k) Fund)
2. Funded by 5/Barrel Tax on Crude Oil & Petroleum Products
3. Maximum Unobligated Balance = $ I Billion
4. Permissible Uses of Fund:
* Removal Costs (Including Federal & State Monitoring of Private Removal
Actions)
* Natural Resource Damage Assessments & Restoration
* Uncompensated Removal Costs & Damages
* Federal Administrative, Operational & Personnel Costs
* National Response System
* Research & Development
[ All but R & D Must Be Incurred Consistent with NCP]
C. Amendments to Clean Water Act (Title IV)
1. Amended § 311(b) Administrative & Civil Penalty Procedures
2. New § 311(c) Removal Authority
3. New § 311(d) NCP Requirements
4. Amended § 311(e) Enforcement Authority
5. Amended § 311 (j) Contingency Planning Requirements
6. New Criminal Penalties (Amended § 309(c))
D. Other Provisions (Titles Il-Vill)
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1. Vessel Personnel, Equipment & Construction Standards
2. Prince William Sound, Alaska
3. Offshore Drilling Restrictions
4. Research & Development
5. No Preemption of State Law
6. No Preemption of Admiralty & Maritime Law
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III. CLEAN WATER ACT SECTION 311, AS AMENDED BY OPA--KEY PROVISIONS
A. Definitions (Section 311(a))
* Oil: “Oil of any kind or in any form. . .“ [ But Note: Edible Oil Regulatory Reform Act
(Pub. L. 104-55) requires federal agencies to differentiate between animal
fats/oils/greases and other oils/greases (including petroleum) in issuing or enforcing any
regulation]
* Discharge: Includes “any spilling, leaking, pumping, pouring, emitting, emptying or
dumping. .
* Hazardous Substance: Any substance designated by EPA under § 311 (b)(2)
B. Designation of Hazardous Substances, Liability, Penalties, Civil Actions & Recovery of
Removal Costs (Section 311(b))
* Requires EPA to promulgate regulations designating hazardous substances that present
“imminent & substantial danger” when discharged to water
* Prohibits discharge of oil or hazardous substance in quantities that may be harmful to
public health or welfare or environment (hannful quantities designated by EPA
regulations)
Requires immediate notification by owner/operator to appropriate federal agency of
discharge of harmful quantity of oil or hazardous substance (criminal penalties for failure
to so notify)
* Authorizes assessment by EPA and Coast Guard of administrative penalties for
prohibited discharges and regulatory violations, up to $ 125K maximum penalty
* Establishes civil penalties for: prohibited discharge; failure without sufficient cause to
carry out removal under § 311(c) order or to comply with § 3 11(e) order [ penalty $25K
per day or treble Trust Fund costs]; failure to comply with regulation; and gross
negligence or willful misconduct
C. Federal Removal Authority & Civil Enforcement (Section 311(c) & (e))
* Requires President to ensure removal of discharge and mitigation/prevention of
substantial threat of discharge--Allows President to:
* Remove or arrange for removal;
* Direct or monitor removal actions; and/or
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* Remove & (if necessary) destroy vessel
* If discharge or substantial threat of discharge “of such a size or character as to be a
substantial threat to the public health or welfare of the United States,” requires President
to direct all removal or mitigation/prevention actions
* In cases where “there may be an imminent & substantial threat to the public health or
welfare of the United States” because of actual or threatened discharge, authorizes
President to:
* Require Attorney General to secure relief or
* Take any other action necessary to protect public health & welfare, including
issuing administrative orders
* Authorizes federal district courts to grant appropriate relief
D. National Contingency Plan (Section 311(d))
* Requires President to prepare (and revise as necessary) a National Contingency Plan
(NCP) that includes at least 13 specified components (e.g., establishment of Coast Guard
strike teams, designation of federal on-scene coordinators)
E. Liability & Cost Recovery (Section 311 (f)-(i))
* Establishes defenses to liability for discharges (e.g., act of God)
* Establishes limits on recovery of removal costs by federal government (e.g., $50
million for onshore facility), but limits do not apply in case of willful negligence or
willful misconduct
* Defines recoverable costs to include natural resource damages
* Allows owners &,operators to recover removal costs from third parties who solely
caused a discharge (But amount of such third party liability limited except where willful
negligence or willful misconduct)
* Allows owners & operators who remove discharge caused solely by event that is
defense to liability (e.g., act of God) to recover removal costs from federal government
[ NOTE: § 311(f) to (i) do not apply if the OPA liability provisions apply.]
F. National Response System (Section 311(j))
* Establishes National Response Unit (operated by Coast Guard at Elizabeth City, North
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Carolina) & Coast Guard district response groups
* Requires preparation of Area Contingency Plans by Area Committees (for worst case
discharges)
* Requires owners of tank vessels, offshore facilities and “substantial harm” onshore
facilities to prepare & submit for approval response plans (for worst case discharges)
* Requires President to conduct periodic area drills & to periodically inspect major
removal equipment
G. Other Provisions (Section 311 (l)-(s))
* Authorizes President to delegate responsibilities under § 311 to appropriate federal
agencies
* Authorizes EPA & Coast Guard to establish record keeping & reporting requirements
for facility owners/operators, to enter & inspect facilities, and to arrest “in view” violators
* Authorizes President to board & inspect vehicles and to arrest “in view” violators
* Provides that § 311 does not preempt state or local oil spill laws
* Authorizes President to reduce maximum liability for discharges at onshore & offshore
facilities from $50 million (but no lower than $8 million)
* Makes Oil Spill Liability Trust Fund available to carry out § 311(b), (c), (d), (j) & (1) as
they apply to discharges of oil; Provides that amounts received by the federal government
under § 311 will be deposited into the Trust Fund
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IV. EXECUTIVE ORDER 12777 (October 18, 1991)
A. General Delegation Scheme: Area-Specific & Facility-Specific Responsibilities
1. Area-Specific Delegations (e.g., Area Contingency Plans)
* Inland Zone (As Defined in NCP): EPA
* Coastal Zone (As Defined in NCP): Coast Guard
2. Facility-Specific Delegations (e.g., Response Plans)
a Vessels: Coast Guard
* Deepwater Ports: Coast Guard
* Transportation-Related Onshore Facilities: Coast Guard
a Non-Transportation-Related Onshore Facilities: EPA
* Offshore Facilities (x Deepwater Ports): Interior
B. Important Delegations of Authority
1. Section 311(c) & OPA § 1011 Removal Authority
a Inland Zone: EPA
* Coastal Zone: Coast Guard
2. Section 311(e) Enforcement Authority
a Inland Zone: EPA
* Coastal Zone: Coast Guard
3. Management of OSL Trust Fund: Coast Guard
4. Receipt of Notices of Discharges ( 31 l(b)(5)): Coast Guard
5. Determination of Harmful Quantities of Oil & Hazardous Substances ( 31 I(b)(3) &
(4)): EPA
6. Representation in Litigation: DOJ
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SPCC Survey
http,/Iwww epa gov/superfund/oerrler/oilspilllspcc/index
SPCC Facilities Survey
In April 1995, EPA conducted a national survey of oil
storage facilities potentially subject to its Spill
Prevention, Control and Countermeasures (SPCC)
regulation (40 CFR Part 112). The purpose of the survey
was to answer five specific questions: (1) How many
facilities are regulated by EPA’s SPCC program; (2)
What types of facilities does the SPCC Program regulate,
(3) What do these facilities look like; (4) Which facilities
pose the greatest oil spill risk; and (5) How effective is
the SPCC Program in reducing oil spill risk?
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SPCC Facility Survey Results and Analysis
• Nutshell Summary of EPA ’s National Survey of
Oil Storage Facilities (9K)
• Survey Questionnaire (21 OK)
• Final Survey Analyses
Analysis of the Number of Facilities
Regulated by the SPCC Program (109K)
o Analysis of the Relationship Between
Facility Characteristics and Oil Spill Risk
(179K)
o Analysis of the Effectiveness of EPA’s
SPCC Program on Spill Risk (25K)
o Analysis of Trends in the Replacement of
Underground Storage Tanks at SPCC -
3EPA
United States
ErorinEnta Protechon
Agencj
I of2
9/11/984 001
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SPCC Survey http //www epa gov/superfund/oerr/er/oilspill/spcc/index h
Regulated Facilities (20K)
o Analysis of the Applicability of EPA ’s SPCC
Program to the Electric Utility Industry
(72K)
• Initial Survey Analyses
o SPCC Survey Results: Industry Comparison
Tables (104K)
o Question By Question Analysis (33 7K)
• Other Analyses
o SPCC Survey Final Response Rate Chart
(15K)
o Results of the SPCC Survey Non-Response
Validation Exercise (18K)
Search EPA I Search Oil Site I EPA Home I Comments
hiip //www epa gov/ozlspilUspcc/:ndex him
Last updated 10/16/97
2of2 9/11/984001
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NUTSHELL SUMMARY OF
EPA’S NATIONAL SURVEY OF OIL STORAGE FACILITIES
ABSTRACT
In April 1995, EPA conducted a national survey of oil
storage facilities potentially subject to its Spill Prevention,
Control and Countermeasures (SPCC) regulation (40 CFR Part 112)
The purpose of the survey was to answer five specific questions:
(1) How many facilities are regulated by EPA’s SPCC program; (2)
What types of facilities does the SPCC Program regulate; (3) What
do these facilities look like; (4) Which facilities pose the
greatest oil spill risk; and (5) How effective is the SPCC
Program in reducing oil spill risk? This nutshell summary
briefly discusses EPA’s analysis of the survey data.
BACKGROUND
Under the Clean Water Act (33 USC 1251 et and the Oil
Pollution Act of 1990 (33 U.S.C. 2701 et EPA is
responsible for protecting the nation’s waters from the adverse
effects of oil spills. The SPOC regulation, which implements
section 3 11(J) of the Clean Water Act, is designed to prevent
discharges of oil from facilities and to contain such discharges
when they occur. The regulation applies to “onshore, non—
transportation-related facilities” that could reasonably be
expected to discharge oil into navigable waters, when such
facilities have: (1) an aboveground oil storage capacity of more
than 660 gallons in a single container; (2) a total aboveground
oil storage capacity of more than 1320 gallons in multiple
containers; or (3) a total underground oil storage capacity of
more than 42,000 gallons.
SURVEY PURPOSE MID DESIGN
The survey was designed to collect comprehensive statistical
information about the community of facilities regulated by EPA’s
SPCC regulation. To accomplish this, EPA randomly selected
30,000 recipient facilities in 23 different industries deemed
likely to include facilities regulated by EPA.
The survey gathered specific facility information, such as
the size, type, and location of the facility; the size, number,
and type of its storage tanks; its spill prevention systems, and
the number and size of its oil discharges.
HOW MANY FACILITIES ARE REGULATED BY EPA’S SPCC PROGRAM?
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To develop a national estimate, EPA applied standard
statistical techniques to the data obtained by the survey. The
approach for calculating the survey sample was designed to allow
EPA to make statements about surveyed facilities to within 10
percent of their true value and within the 90-percent confidence
interval.
EPA compared the survey results with previous government and
industry studies to calculate its “1996 Adjusted National
Estimate.” This analysis indicates that approximately 438,000
facilities are regulated by the SPCC Program.
WHAT TYPES OF FACILITIES DOES THE SPCC PROGRAM REGULATE?
The survey data indicate that two industries (Farms and Oil
Production) constitute about 80% of the SPCC-regulated universe.
Manufacturing, Transportation, and Gasoline Stations/Vehicle
Fueling constitute the next 12% of facilities. All other
industries combined make up the remaining 8%.
It is important to note that while farms may comprise a
sizable portion of the SPCC—regulated universe, this represents
only a small percentage (8%) of the farms in the United States.
WHAT DO THESE FACILITIES LOOK LIKE?
EPA’S data indicate that facilities in different industry
sectors vary dramatically in Total Storage Capacity, Number of
Tanks, and Annual Throughput Volume.
Farms in general have smaller storage capacity, fewer tanks,
and lower throughput levels than other types of facilities.
WHAT FACILITIES POSE THE GREATEST OIL SPILL RISK?
EPA sought to investigate whether statistically significant
relationships exist between the characteristics of oil storage
facilities and their propensity to spill oil. The results of
that analysis indi ate that facilities with greater oil storage
capacity are likely to have a greater number of oil spills,
larger volumes of oil spilled, and greater cleanup costs than
facilities with smaller capacity. Similar linkages were found
when facilities with a greater number of tanks, and greater
annual throughput were examined. The results of EPA’s
multivariate regression analyses indicate a strong positive
correlation between these variables. Accordingly, as Total
Storage Capacity, Number of Tanks, and Annual Throughput
increase, so does the propensity to spill, the severity of
spills, and the attendant costs of cleanup.
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EPA examined a host of other variables, such as Type of
Business (conducted at the facility), Average Age of Tanks,
Annual Number of Transfers, and Annual Average Tank Turnover,
each of which did not emerge as strongly related to spill
propensity when controlling for the above three variables.
HOW EFFECTIVE IS THE SPCC PROGRAM IN REDUCING OIL SPILL RISK?
EPA’s analysis revealed that compliance with the SPCC
provisions reduces the number of spills, spill volume and the
amount of oil that migrates outside of the facility 1 s boundaries.
It also indicated that compliance with one SPCC provision serves
as a general indicator of a facility’s awareness of the
importance of other spill prevention and control measures.
However, the survey also revealed that a large proportion of
facilities that meet the SPCC regulatory requirements may not be
in full compliance.
OBTAINING ADDITIONAL INFORMhTION
EPA plans to make the complete survey results available to
the public on the Internet by the end of October, 1996. The Oil
Spill Center Home Page is located at the following address:
www. epa. gov/superfund/oerr/er/oilspill/oilhome . htm.
EPA also plans to distribute the survey results via its new
“fax—on-demand” document system, which is scheduled to be
operational by the end of October, 1996. The fax-on-demand phone
number is (202)651-2062.
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0MB Control No. 2050-01 34
Expires on 06/30/95
SURVEY
QUESTIONNAIRE
Parts Aand B
In the space below, please attach the reusable
mailing label used to deliver this survey to you
or provide the following information.
Facility name
Address
County
Survey Identification Number
Please provide the following information about
the person completing this survey.
Name
Title
Address (if different from facility address)
Telephone Number
FOR ASSISTANCE IN ANSWERING ANY QUESTION iN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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INSTRUCTIONS
GENERAL
This survey will ask you to provide information
about your facility (or business), your
aboveground and underground oil storage tanks,
and your facility’s operations.
The questionnaire is divided into two (2) parts
Part A of the questionnaire asks a series of
questions to determine whether you are exempt
from completing the remainder of the
questionnaire. You must complete Part A
regardless of whether or not you store oil.
Part B only needs to be completed if your facility
meets certain criteria outlined in Part A. Part B
asks specific questions about your facility’s
storage of oil and requires that you complete the
two tables that are enclosed.
When answering each question, please circle the
code to the right of the appropn ate answer, or fill
in specific data. Please answer ALL questions as
thoroughly and accurately as possible.
When you have completed all required Sections
of the survey questionnaire, please return all
forms to EPA using the envelope provided.
SURVEY HELP IS AVAILABLE
If you need help completing the survey
questionnaire, please call the Survey Hotline at
1-800-276-5485. When you call this number,
you will be asked to leave your name, survey
identification number (located on the mailing
label), and telephone number; someone will
return your call during business hours to provide
assistance.
CONFIDENTIAL BUSINESS
INFORMATION IS PROTECTED
You may claim business information that you
submit to EPA as confidential. If you wish to
assert a claim of confidentiality, you must mark
the response “Confidential Business Information”
on the survey form itself, and complete the
“Request for Confidential Treatment of Business
Information” form provided in this booklet. You
should avoid generalized claims that all
information submitted is confidential business
information. Information designated as
confidential will be disclosed by EPA only to the
extent allowed by, and by means of, the
procedures published in the U.S. Code of Federal
Regulations at 40 CFR Part 2. If you fail to
claim the information you disclose as confidential
upon submission, it may be made available to the
public without further notice to you.
RESPONSE BURDEN
The burden for completion of Part A of the
survey is estimated to range from 0.2 to 0.5
hours The burden for completing Part B of the
survey is estimated to range from 2.7 hours to
12.1 hours, depending on the size of the facility,
with an average estimate of about 5 7 hours
Send comments regarding this collection of
information, including suggestions for reducing
burden, to: Chief, Information Policy Branch,
Mail Code 2131, U.S. Environmental Protection
Agency, 401 M Street SW, Washington, DC
20460; and to Office of Information and
Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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SURVEY DEFINITIONS
For the purpose of this survey, please use the following terms as they are defined below.j
Oil means oil of any kind or in any form,
including crude oil, gasoline , diesel oil, fuel oil,
heating oil , asphalt, and other refined petroleum
products. Oil also means animal or vegetable oil,
oil refuse, oil sludge, and oil mixed with wastes
other than dredged spoil.
Facility means all establishments, installations,
buildings, structures, and equipment that are used
as part of your business operations in the county
identified on the mailing label used to deliver this
survey. Some examples of facilities include:
industrial plants, factories, terminals and transfer
stations, production wells, refineries, gas
stations, warehouses, commercial stores, office
buildings, schools, farms, and hospitals. The
term facility does include property that you
lease to others. For purposes of this survey, the
entire area within a county where a facility’s
operations occur is considered a single facility
and includes any subsidiaries in the county,
except that:
• Owners or operators of petroleum
production facilities that have multiple
leases within a county should consider
each lease a separate facility , and
complete a separate survey form for each
lease .
• Owners or operators of electric utility
facilities should consider only their
primary electrical generating stations to
be a facility and, thus, should complete a
survey form for each of those facilities
• only. There is no need to complete a
survey form for substations.
Storage Capacity means the total volume or
shell capacity of a tank or container (e g., drums,
cans, etc.) that is used to store oil or a mixture of
oil and another substance, regardless of whether
the tank or container is filled . In addition, mobile
tanks should be included in determining storage
capacity if the tank is not used to transport oil
off-site (i.e., outside the facility boundaries).
Storage capacity also refers to tanks or
containers used for standby storage, seasonal
storage, or temporary storage, but
permanently closed tanks or containers.
Aboveground Storage Tank means any oil
storage tank or container that is not entirely
covered by earth and includes tanks in
subterranean vaults, bunkered tanks, or partially
buried tanks.
Underground Storage Tank means any oil
storage tank completely covered with earth. Oil
storage tanks in subterranean vaults, bunkered
tanks, or partially buried tanks are nQ .t considered
underground storage tanks.
Discharge means any release of oil or oil
mixture, whether intentional or not, and includes
any spilling, overfilling, leaking, pumping,
pouring, emitting, emptying, or dumping of oil.
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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REQUEST FOR CONFIDENTIAL TREATMENT
OF BUSINESS INFORMATION
I hereby request that the information I have provided to the U.S. Environmental
Protection Agency in response to the questions identified below be treated as confidential
business information under 40 CFR Part 2, and Section 1905 of Title 19 of the United
States Code.
LIST THE QUESTION NUMBERS OF THE RESPONSES OR PORTION OF THE
FORM FOR WHICH YOU ARE REQUESTING CONFIDENTIAL TREATMENT:
PLEASE PRINT OR TYPE
Establishment Name: ___________________________________
Mailing Address: ____________________________________
Telephone: ___________________________________
Establishment Owner/Operator: ______________________ __________
(Print or type) (Signature)
Date: / /
Month Day Year
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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PART A - EXEMPTION DETERMINATION
Note: Part A must be completed by ALL respondents and returned to EPA in the envelope provided.
La. Does the name of your business or
establishment differ from the name provided
on the mailing label used to deliver this
survey 9
YES 1
NO 2
If you answered NO, please proceed to
Question 2
lb Does your establishment continue to operate
in the same line of business as the facility to
which this survey was addressed 2
YES [ skip to 3]
NO
1
2
If you answered NO, you are not required
STOP to complete Part B. Please return this
questionnaire to EPA in the envelope
provided.
2 Do any of the following apply to you 7 (Circle
4jJ applicable codes.)
-- Your facility is no longer in business. 1
-- Your facility was sold to a non-family
member and you no longer have any
affiliation with that business 2
- - Your facility has moved to a location
outside the county listed on the
mailing label
3
-- The person to which this survey was
addressed is decea ed the facility is
no longer in business . .. . 4
3 Are there oil storage tanks or containers
either located at, or operated by, your
establishment in the county provided on the
mailing label 9
‘ NOTE. Oil includes crude oil, gasoline,
diesel fuel, heating oil, asphalt, other
petroleum products, as well as animal or
vegetable oil, oil refuse, oil sludge, and oil
mixed with wastes other than dredged spoil
YES 1
NO. .. .2
4 Which of the following describe your
facility’s oil storage tanks or containers 7
(Circle siLk codes that apply)
- - One aboveground tank or container
with a storage capacity of more than
660 gallons
.1
-- Multiple aboveground tanks or containers
with a total storage capacity of more
than 1,320 gallons 2
-- Total underground (completely buried)
oil storage capacity of more than
42,000 gallons
--None of the above
4
If you answered YES, please go to
STOP Question 4. If you answered NO, you are
not required to complete Part B. Please
return this questionnaire to EPA in the
envelope provided.
If you circled of the above, you are not
STOP required to complete Part B. Please return
this questionnaire to EPA in the envelope
provided. If none of the above apply to
you or your facility, please continue to
Question 3.
If you circled codes 1, 2, or 3, you must
STOP complete Part B of this survey
questionnaire. If you circled code 4,
“None of the above,” you are not required
to complete Part B. Please return this
questionnaire to EPA in the envelope
provided.
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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PART B - FACILITY INFORMATION
la. What is the total oil storage capacity (i e.,
filled or not) of aboveground tanks (including
partially buried tanks) at your facility 9 (Enter
capacity in gallons NOTE I barrel equals
42 gallons)
Total aboveground capacity gallons
lb Has your facility stored oil or petroleum
products in underground (i.e., completely
buned) tanks within the past two years?
(Circle only one code)
YES. .
NO [ skip to 3]. . . 2
lc. What is the current oil storage capacity (i.e.,
filled or not) of underground (i.e , completely
buned) tanks at your facility? (Enter capacity
in gallons NOTE: I barrel equals 42
gallons)
Total underground capacity gallons
2a. How many of your facility’s underground
(I e., comp etelybuned) storage tanks have
been replaced in the past two years? (Circle
only one)
NONE [ skip to 3]
ONE.. .. 2
MORE THAN ONE (specify)______ 3
2b. How many of these tanks were replaced with
aboveground storage tanks? (Circle only
one)
NONE.. .. .1
ONE . 2
MORE THAN ONE (spe c /j )______ 3
2c How many of these tanks were replaced with
other underground storage tanks 7 (Circle
only one)
NONE. .,, ... . .. I
ONE ... .. 2
MORE THAN ONE (specify)______ 3
3 What is the approximate percentage of oil
stored in storage tanks versus other types of
containers (e.g , drums, cans, etc.) 7 (Total
should equal 100 percent)
4a. Is your company/organLzatlon in the electrical
utility industry (i.e, SIC Code 49 1)9 (Circle
only one)
YES
NO [ skipto5a] 2
4b How many of the following does your
organization own or operate in your county
with more than 660 gallons in a single piece
of equipment 1,320 gallons in total 7
SUBSTATIONS (Circle only one)
One or more (specify #)____________
None. . .. . . . . . 2
TRANSFORMER iNSTALLATIONS
OTHER THAN SUBSTATIONS (Circle
only one)
One or more (specify #)____________
None 2
4c How many of the following, operated in the
county by your orgamzation, have a total oil
storage capacity of greater than 42,000
gaLlons?
SUBSTATIONS (Circle only one.)
One or more (specify #)___________ 1
None 2
TRANSFORMER INSTALLATIONS
OTHER THAN SUBSTATIONS (Circle
only one)
One or more (specify #)____________
None .. . . . .2
TANKS
OTHER CONTATh.IERS
TOTAL
_percent
_percent
percent
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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5a. Is oil delivered to, shipped to, or produced at
your facility 9 (Circle only one)
YES. .. .
NO [ skip to 8a]
5b On average, how much oil is delivered to,
shipped to, or produced at your facility in a
year? (Enter quantity in gallons NOTE 1
barrel equals 42 gallons.)
Annual quantity gallons
5c. Is any portion of the quantity reported in
Question 5b burned, used, recycled, or
otherwise consumed at your facility? (Circle
only one.)
YES .
If yes, specify the approximate
percentage percent
NO
Sd. Does any portion of the quantity reported in
Question 5b leave your facility as product?
(Circle only one.)
YES . 1
If yes, specify the approximate
percentage percent
NO. 2
6. By what method(s) is oil delivered IQ or
shipped FROM your facility 9 (Circle 4j j
applicable codes.)
--Tanktruck 1
-- Tanker ship 2
-- Tanker barge 3
-- Rail car
-- Pipeline
-- Other truck (e.g., drums) .6
-- Other (specify) 7
7a For each transport method identified in
Question 6 (except pipelines), how many
times is oil delivered IQ your facility each
year 7 (Complete iJ that apply)
-- Tank truck ______times per year
-- Tanker ship ______times per year
-- Tanker barge ______times per year
-- Rail car ______times per year
-- Other truck
(e g , drums) ______times per year
-- Other ______times per year
7b For each transport method identified in
Question 6 (except pipelines), how many
times is oil transferred FROM your facility
each year? (Complete 4j ,J that apply.)
Example: A facility that transfers oil from
one tank to 10 trucks each week is equal to
520 transfers per year (10 x 52 weeks)
-- Tank truck ______times per year
-- Tanker ship ______times per year
-- Tanker barge _____times per year
-- Rail car ______times per year
-- Other truck (drums) ______times per year
-- Other ______times per year
8a. At your facility, is there an oil transfer point
oil storage tank oil storage container
within 1/2 mile of navigable water? (Circle
only one code)
YES [ go to 8b]
NO [ skip to 8c] .
DON’T KNOW [ skip to 8c]
Example: One truck that delivers oil to 5
different tanks at a facility each month is
equal to 70 transfers per year (5 x 12
months).
IL ’ NOTE. For questions 8, 9, and 10, the term
“transfer point” refers to the location where
oil is delivered to or moved from an oil
storage tank, such as a fuel dispenser, a truck
loading rack or platform, a loading arm, etc
2
.9
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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8b Which one of the following navigable waters 10. What is the shortest distance from an oil
is closest 7 (Circle only one) transfer point QL oil storage tank oil
storage container to a sensitive environment
-- Lake . . . . . . . . . 1 (e g., wetlands, national or state parks,
cntical habitats for endangered species,
-- River/stream .... 2
wilderness areas, or marine sanctuarles)’
-- Coastal waters .. 3 (Circle only one)
-- Other tidally-influenced waters .4
-- Less than 1/2 mile..
-- Other (spec ’) 5
--1/2tolmile 2
8c At your facility, is there an oil transfer point -- Greater than 1 mile . . . . . 3
oil storage tank oil storage container
-- Don’t know
within 1/2 mile of a storm drain? (Circle only
one)
11 a Are subsurface monitoring techniques
currently being used at your facility to detect
YES . .. . . ..
contamination in soil or groundwater from
NO •... ... 2
DON’T KNOW. . 9 hydrocarbons or related petroleum products
(e.g., benzene)? (Circle only one)
9a. Is there a navigable water or storm drain
YES.. .. .
downhill (down gradient) from your facility? NO [ skip to 1 2a]
(Circle only one)
1 lb. Indicate the number of groundwater
YES . .. .. 1
NO [ skip to 10] 2 monitoring wells and/or soil vapor monitoring
devices operating at your facility (Complete
DON’T KNOW [ skip to 10] 9 that apply)
9b. Is there a natural , physical impediment that
-- Number of groundwater
would prevent a release from reaching the
monitoring wells _________________
navigable water or storm drain? (Circle only
one.)
-- Number of soil vapor
momtonng devices _________________
YES [ describe]_______________________ 1
NO 2
l2a Does your facility have a wntten pLan for
DON’T KNOW 9
responding to an oil spill when one occurs 7
(Circle only one)
9c Is there a man-made , physical impediment
that would prevent a release from reaching YES
the navigable water or storm drain? (Circle NO [ skip to l3a] 2
only one)
12b When was the plan descnbed in Question l2a
YES [ descnbe]____________________ I first developed? (Provide BOTH month and
NO. ... . 2
DON’T KNOW . . . . .9 year)
MONTH (circle only one)
1 2 3 4 5 6 7 8 9 10 11 12 unknown e
YEAR (specify)___________________
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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12c Has the plan been updated since that time 9 15a Approximately how much did it cost to
(Circle only one.) acquire (i e , one-time, upfront costs) the
response mechamsms identified in Question
YES 1 147 (Complete L LL that apply)
NO [ skip to 13a]. . 2
-- Facility equipment]
12d When was the plan described in Question 12a personnel ____________________Dollars
last updated 9 (Provide BOTH month and
-- Response contractor(s) Dollars
year)
-- Oil spill cooperative Dollars
MONTH (circle only one) -- Mutual assistance
1 2 3 4 5 6 7 8 9 10 11 12 unknown agreement Dollars
YEAR (specify)_______________________ -- Other Dollars
1 3a. Are you aware of the federal government’s 1 5b. On average, how much does it cost to
oil Spill Prevention, Control and maintain these response mechanisms per
Countermeasures, or SPCC, regulation (40 year 9 (Complete iLJ that apply)
CFR Part 112)9 (Circle only one)
-- Facility equipment)
YES personnel ___________________Dollars/year
NO 2 -- Response contractor(s) _______Dollars/year
13b Do the requirements of that regulation apply --Oil spill cooperative _________Dollars/year
to your facility? (Circle only one) -- Mutual assistance
agreement __________________Dollars/year
NO 2 -- Other Dollars/year
DON’T KNOW 9
14 What arrangements does your facility have Questions 16 to 21 are voluntary : you may choose
for responding to discharges (spills, leaks, to answer these questions or skip to Tables I & 2.
etc ) of oil 7 (Circle 4jJ that apply)
I 6a Do you have a written plan for preventing oil
-- Facility equipment and personnel I discharges (leaks, spills, etc.) at your facility 7
-- Response contractor (on retainer) 2 (Circle only one)
-- Response contractor (per incident)... .3 . .
-- Oil spill cooperative . 4 NO [ skip to 17a] 2
-- Mutual assistance agreement 1 6b When was the plan described in Question 1 6a
-- Other (specify) __________________ 6 first developed? (Provide BOTH month and
year)
-- None [ skip to 16a] 9
MONTH (circle only one)
1 2 3 4 5 6 7 8 9 10 11 12 unknown
YEAR (specify)___________________
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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1 6c Has the plan been updated since that time 9 I 7b What type of inspections or detection methods
(Circle only one) are used? (Circle 1LL that apply)
YES . . . . . 1 -- Visual external inspections . .
NO [ skip to 17aJ 2 -- Internal tank inspections . . . 2
16d. When was the plan descnbed in Question 16a -- Inventory monltonng
last updated? (Provide BOTH month and -- Integrity testing.. . 4
year)
-- Other (spec y5. ’) 5
MONTH (circle only one)
18a. What formal training related to your facility’s
1 2 3 4 5 6 7 8 9 10 11 12 unknown
oil operations does your facility offer its
YEAR (specify)________________________ employees? (Circle that apply)
1 7a. Do you have a formal inspection or oil spill] -- Spill prevention (SPCC plan) training 1
leak detection program at your facility 9 -- Spill response training . 2
(Circle only one)
-- Oil-related safety and health
YES I
-- Other (specify) ___________________ 4
NO [ skip to 18a] .... .2
-- No training provided. 5
l8b For each type of training selected in Question 18a, identify in the table below- (1) the number of
employees who attend the training per year, (2) the percentage of all employees at your facility that
receive the particular type of training per year; and (3) the average number of hours of training
provided to each employee per year. (Complete 4JJ that apply)
Type of Training
Number of Employees (Circle
one code for each type of
training)
Percentage of all Employees
(Enter a percentage for each
type of training)
Average Number of Hours Each
Year (Enter a number for each
type of training)
Spill Prevention Training
One or more [ specify] - I
None . 2
Pereent
Hours/year
Spill Response Training
One or more [ specifyj -
None 2
Percent
j-Lours/year
Safety and Health Training
One or more [ specify] -
‘
None 2
Percent
-
j-Iours/year
Other Training
One or more [ specify] - I
None 2
- Percent
-
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTL1NE AT 1-800-276-5485
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If you are familiar wit/i EPA c oil Spill Prevention, Control, and Countermeasures (SPCC) program, please
answer the following questions on what, if anything, you believe could be done to improve the program ‘s
implementation.
19 Do you think that the SPCC program is effective in preventing or minimizing oil releases 7 (Circle
only one)
YES 1
NO 2
Why or why not?
20 Would you recommend changing the SPCC program to be more effective at your facility?
YES 1
NO 2
If yes, how?
21. What types of information would assist you in understanding andlor complying with the
federal government’s SPCC program?
Thank you for completing this portion of the survey questionnaire. Please note that you
are also required to complete the enclosed two tables which request specific information
about your oil storage tanks and any oil discharges that may have occurred atyourfacility.
FOR ASSISTANCE IN ANSWERING ANY QUESTION IN THIS SURVEY,
PLEASE CALL THE SURVEY HOTLINE AT 1-800-276-5485
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RETURN COMPLETED SURVEYS TO:
EPA SPCC SURVEY
do ICF Incorporated
9300 Lee Highway
Fairfax, Virginia 22031-1207
DIRECT OTHER WRITTEN CORRESPONDENCE TO:
U.S. Environmental Protection Agency
Emergency Response Division
Mail Code 5202G
401 M Street, SW
Washington, D.C. 20460
FOR SURVEY ASSISTANCE CALL:
1 -800-276-5485
PLEASE USE YOUR SURVEY IDENTIFICATION NUMBER
ON ALL CORRESPONDENCE. YOUR SURVEY IDENTIFICATION
NUMBER IS LOCATED ON THE MAILING LABEL USED TO
DELIVER THIS SURVEY TO YOU.
P,EPA
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