[Federal Register Volume 62, Number 231 (Tuesday, December 2, 1997)]
[Proposed Rules]
[Pages 63812-63820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31574]
[[Page 63811]]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 112
Oil Pollution Prevention and Response; Non-Transportation Related
Onshore and Offshore Facilities; Proposed Rule
Federal Register / Vol. 62, No. 231 / Tuesday, December 2, 1997 /
Proposed Rules
[[Page 63812]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[FRL-5930-1]
RIN 2050-AC62
Oil Pollution Prevention and Response; Non-Transportation Related
Onshore and Offshore Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency)
proposes to revise the Spill Prevention, Control, and Countermeasure
(SPCC) Plan requirements, found at 40 CFR part 112, to reduce its
information collection burden. Proposed revisions would: give facility
owners or operators flexibility to use alternative formats for SPCC
Plans; allow the use of certain records maintained pursuant to usual
and customary business practices, or pursuant to the National Pollutant
Discharge Elimination System (NPDES) program, to be used in lieu of
records mandated by the SPCC requirements; reduce the information
required to be submitted after certain spill events; and extend the
period in which SPCC Plans must be reviewed and evaluated. EPA also
proposes to amend the Facility Response Plan (FRP) requirements, found
at 40 CFR 112.20, for two purposes. First, EPA proposes to provide a
method to calculate storage capacity when certain facilities have tanks
which contain mixtures of process water/waste water with 10% or less of
oil. This calculation is for the sole purpose of determining whether a
facility has sufficient capacity to subject it to the requirement in
Sec. 112.20 to prepare an FRP. Second, EPA proposes to amend the FRP
requirements to clarify that the Integrated Contingency Plan format may
be acceptable for an FRP. EPA believes that none of the proposed
changes will have an adverse impact on public health or the
environment. This is so because the proposal would maintain the same
standards of environmental protection that the rule now affords while
reducing its information collection burden.
DATES: Comments must be submitted on or before February 2, 1998.
ADDRESSES: Written comments on the proposed rule should be submitted in
triplicate, by U.S. mail, to the Superfund Docket, at 401 M St., S.W.,
Washington, D.C. 20460 (mail code 5203G). The docket is physically
located at 1235 Jefferson Davis Highway, Crystal Gateway 1, Arlington,
Virginia 22202, Suite 105. Comments physically delivered to EPA by any
means other than U.S. mail should go to the Arlington address. The
docket number for the proposed rule is #SPCC-7. Comments may also be
sent electronically to EPA at superfund.docket@epamail.epa.gov.''
Files should be sent in ascii format. The record supporting this
rulemaking is contained in the Superfund Docket and is available for
inspection, by appointment only, between the hours of 9 a.m. and 4
p.m., Monday through Friday, excluding legal holidays. Appointments to
review the docket can be made by calling 703-603-9232. As provided in
40 CFR part 2, a reasonable fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Oil Program
Center, U.S. Environmental Protection Agency, at 703-603-8769; or the
RCRA/Superfund Hotline at 800-424-9346 (in the Washington, D.C.
metropolitan area, 703-412-9810). The Telecommunications Device for the
Deaf (TDD) Hotline number is 800-553-7672 (in the Washington, D.C.
metropolitan area, 703-412-3323).
SUPPLEMENTARY INFORMATION: The contents of this preamble are as
follows:
I. Introduction
II. Request for Comment and Discussion of Proposed Revisions
III. Summary of Supporting Analyses
I. Introduction
A. Regulated Entities
Entities Potentially Regulated by this Proposal Include:
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Category NAICS codes
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Petroleum and Coal Products NAICS 324.
Manufacturing.
Petroleum Bulk Stations and Terminals.. NAICS 42271.
Crude Petroleum and Natural Gas NAICS 2111111.
Extraction.
Transportation (including Pipelines), NAICS 482-486/488112-48819/4883/
Warehousing, and Marinas. 48849/492-493/71393.
Electric Power Generation, NAICS 2211.
Transmission, and Distribution.
Other Manufacturing.................... NAICS 31-33.
Gasoline Stations/Automotive Rental and NAICS 4471/5321.
Leasing.
Heating Oil Dealers.................... NAICS 454311.
Coal Mining, Non-Metallic Mineral NAICS 2121/2123/213114/213116.
Mining and Quarrying.
Heavy Construction..................... NAICS 234.
Elementary and Secondary Schools, NAICS 6111-6113.
Colleges.
Hospitals/Nursing and Residential Care NAICS 622-623.
Facilities.
Crop and Animal Production............. NAICS 111-112.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. It lists the types of entities of which EPA is now aware that
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility could be regulated by this action, you should carefully
examine the criteria in Secs. 112.1 and 112.20 of title 40 of the Code
of Federal Regulations. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.
B. Statutory Authority
Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act)
requires the President to issue regulations establishing procedures,
methods, equipment, and other requirements to prevent discharges of oil
from vessels and facilities and to contain such discharges. 33 U.S.C.
1321(j)(1)(C). The President has delegated the authority to regulate
non-transportation-related onshore facilities under section
311(j)(1)(C) of the Act to the U.S. Environmental Protection Agency
(EPA or the Agency). Executive Order (E.O.) 12777, section 2(b)(1), 56
FR 54757 (October 22, 1991), superseding Executive Order 11735, 38 FR
21243. By this same E.O., the President has delegated similar authority
over transportation-related onshore facilities, deepwater ports, and
vessels to the U.S. Department of Transportation (DOT),
[[Page 63813]]
and authority over other offshore facilities, including associated
pipelines, to the U.S. Department of the Interior (DOI). A Memorandum
of Understanding (MOU) among EPA, DOI, and DOT effective February 3,
1994, has redelegated the responsibility to regulate certain offshore
facilities located in and along the Great Lakes, rivers, coastal
wetlands, and the Gulf Coast barrier islands from DOI to EPA. (E.O.
12777 Sec. 2(I) regarding authority to redelegate.) The MOU is included
as Appendix B to 40 CFR part 112. An MOU between the Secretary of
Transportation and the EPA Administrator, dated November 24, 1971 (36
FR 24080), established the definitions of non-transportation-related
facilities and transportation-related facilities. The definitions from
the 1971 MOU are included as Appendix A to 40 CFR part 112.
C. Background of this Rulemaking
Part 112 of 40 CFR outlines requirements for both prevention of and
response to oil spills. The prevention aspect of the rule requires
preparation and implementation of the Spill Prevention, Control, and
Countermeasure (SPCC) Plans. It was originally promulgated on December
11, 1973 (38 FR 34164), under the authority of section 311(j)(1)(C) of
the Act. The regulation established spill prevention procedures,
methods, and equipment requirements for non-transportation-related
onshore and offshore facilities with aboveground oil storage capacity
greater than 1,320 gallons (or greater than 660 gallons in a single
container), or buried underground oil storage capacity greater than
42,000 gallons. Regulated facilities are also limited to those that,
because of their location, could reasonably be expected to discharge
oil in harmful quantities into the navigable waters of the United
States or adjoining shorelines.
The SPCC requirements have been amended a number of times. On
August 29, 1974, the regulation was amended to set out the Agency's
policies on civil penalties for violation of section 311 requirements.
39 FR 31602. On March 26, 1976, the rule was again amended, primarily
to clarify the criteria for determining whether or not a facility is
subject to regulation. 41 FR 12567. Other revisions made in the March
26, 1976, rule clarified that the SPCC Plan must be in written form and
specified the procedures for development of SPCC Plans for mobile
facilities.
Implementation of the regulation since the 1976 revision indicated
the need for other changes, primarily to clarify and simplify the rule.
Therefore, on May 20, 1980, the Agency proposed further revisions to
the SPCC rule. 45 FR 33814. The 1980 proposal was never finalized
because the Agency believed these proposed changes needed additional
justification. However, continuing experience with administering the
program provided that justification and demonstrated a need for
clarifications to 40 CFR 112.7. Accordingly, on October 22, 1991, the
Agency proposed certain changes to 40 CFR 112.7 similar to those
proposed in 1980. 56 FR 54612.
The October 1991 proposed revisions involved changes in the
applicability of the regulation and the required procedures for the
completion of SPCC Plans, as well as the addition of a facility
notification provision. The proposed rule also reflected changes in the
jurisdiction of section 311 of the Act made by amendments to the Act in
1977 and 1978. To date, the proposal has not been finalized.
On November 4, 1992 (57 FR 52705), the Agency promulgated a
revision to the civil penalty provisions for violations occurring prior
to the enactment of the Oil Pollution Act of 1990 (OPA). On March 11,
1996, EPA rescinded that penalty provision because it no longer
accurately reflected the penalties provided for under section 311(b) of
the Act, as amended by OPA. 61 FR 9646.
On February 17, 1993, the Agency again proposed further
clarifications of and technical changes to the SPCC rule, and facility
response plan requirements to implement OPA. 58 FR 8824. The proposed
changes to the SPCC prevention requirements included clarifications of
certain requirements, contingency plans for facilities without
secondary containment, prevention training, and methods of determining
whether a tank would be subject to brittle fracture. The facility
response plan requirements of the 1993 proposal were promulgated on
July 1, 1994, (59 FR 47384) and codified at 40 CFR 112.20-21. To date,
the prevention requirements in the 1993 proposal have not been
finalized.
In 1996, EPA concluded a survey of SPCC facilities. EPA used the
results of that survey to help develop this proposed rule. The survey
results are part of the administrative record for this rulemaking.
The purpose of this proposal is to reduce the information
collection burden now imposed by the prevention requirements in the
SPCC rule and the response requirements in the FRP rule without
creating an adverse impact on public health or the environment. It
supplements the 1991 and 1993 proposals. The earlier proposals remain
pending, except for the withdrawal in this notice of the proposed 1991
definition of ``SPCC Plan.'' A revised definition of that term is being
reproposed today. EPA will, after considering public comments,
promulgate a rule finalizing this proposal. In that rule, EPA will also
finalize the 1991 and 1993 proposals. EPA is not seeking additional
comments on either the 1991 or 1993 proposals.
II. Request for Comment and Discussion of Proposed Revisions
A. Request for Comment
EPA proposes to reduce the information collection burden of the
SPCC rule through program changes. In connection with these proposed
changes, EPA requests public comment on new standards, technologies, or
approaches that have been developed since the enactment of OPA which
would reduce the burden of other SPCC rule requirements, without
compromising environmental protection. EPA requests comments on these
possible measures in order to discover additional ways to reduce the
information collection burden of the rule. Conversely, EPA also seeks
comments on measures not now required that would enhance the
environmental protection the SPCC rule provides. Both of these requests
for public comments are for the purpose of securing information to
develop possible future rules or policies, and are not for the purpose
of developing a final rule implementing this proposed rule. Lastly, for
purposes of developing a final rule, EPA is considering whether any
change is justified in the level of storage capacity which subjects a
facility to the requirement to prepare an SPCC Plan. Currently, a
facility with a total aboveground storage capacity of 1,320 gallons or
less of oil, but that has a single container with a capacity in excess
of 660 gallons of oil is subject to SPCC requirements. EPA is
considering eliminating the provision in the current rule that requires
a facility having a container with a storage capacity in excess of 660
gallons to prepare an SPCC Plan, as long as the total capacity of the
facility remained at 1,320 gallons or less. The effect of such a change
would be to raise the threshold for regulation to an aggregate
aboveground storage capacity greater than 1,320 gallons, thereby
eliminating the need for facilities with less than that capacity to
prepare an SPCC Plan. EPA invites public comment on this issue and
supporting data where available.
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B. Proposed Program Revisions
Specific proposed revisions are discussed below.
40 CFR 112.2
On October 22, 1991, EPA proposed a definition for ``SPCC Plan or
Plan.'' 56 FR 54612, 54632. Today, EPA is withdrawing that proposal in
favor of a revised definition. The proposed rule would describe an SPCC
Plan, and would allow an Integrated Contingency Plan or a State plan
that meets all the requirements of part 112 to be counted as an SPCC
Plan, if it is sequentially cross-referenced from the requirement in
Sec. 112.7 to the page(s) of the equivalent requirement in the other
plan. The Regional Administrator may accept any other format if it: (1)
meets all regulatory requirements in the SPCC rule; and, (2) is
sequentially cross-referenced by SPCC rule provision to the page(s) of
the equivalent requirement in the other plan. The proposed change would
allow facilities new flexibility in formatting an SPCC Plan. A new
facility developing an SPCC Plan would have the opportunity to use the
most convenient acceptable format. Existing facilities could also elect
to use one of the proposed alternative formats. EPA contemplates that
at least two types of formats could be used in addition to the format
prescribed in Sec. 112.7, and would amend the rule to include those
formats as acceptable examples. The formats are discussed below.
Integrated Contingency Plans or ICPs. One format that would be
allowed is an Integrated Contingency Plan (ICP) prepared in accordance
with the notice published at 61 FR 28642, June 5, 1996. The intent of
the ICP is to provide a mechanism for consolidating multiple plans that
facilities may have prepared to comply with various regulations into
one functional emergency response plan.
The ICP was developed for facilities to integrate emergency
response plan requirements. EPA does not contemplate that the use of an
ICP or other format would reduce the information collection burden, but
it would simplify compliance with multiple applicable statutes and
rules.
State Plans and Requirements. Approximately 20 States have oil
spill prevention requirements pursuant to State law. Included in those
requirements is often the responsibility to prepare an SPCC-like plan.
The proposed rule would allow an owner or operator of a facility
flexibility to prepare a State SPCC-like plan in lieu of a Federal SPCC
Plan if the State plan meets all the regulatory requirements contained
in part 112. Like ICPs, State plans would also have to be cross-
referenced sequentially from the Federal SPCC requirement in part 112
to the plan page(s) containing the equivalent requirement. In cases
where an owner or operator of a facility chooses to prepare a State
plan containing only some of the elements required in the Federal plan,
the State plan would have to: (1) contain elements that are equal to or
more stringent than Federal SPCC requirements; (2) be sequentially
cross-referenced by SPCC rule provision to the page(s) of the
equivalent Plan provision; and, (3) be supplemented by elements that
meet the remainder of the EPA requirements contained in part 112.
40 CFR 112.4(a)
Section 112.4(a) requires that an owner or operator of a facility
subject to the SPCC rule provide certain information to EPA after a
discharge of 1,000 gallons of oil into or upon the navigable waters of
the United States or adjoining shorelines in a single event, or when
two reportable spills of any size occur within any twelve month period.
Reportable spills are defined at 40 CFR 110.3. 61 FR 7419, February 28,
1996. EPA proposes to reduce the information that an owner or operator
must report pursuant to Sec. 112.4(a). The Agency proposes to require
that the owner or operator would report: (1) the name of the facility;
(2) the name(s) of the owner or operator of the facility; (3) the
location of the facility; (4) a description of the facility, including
maps, flow diagrams, and topographical charts; (5) the cause of the
spill(s), including a failure analysis of system or subsystem in which
the failure occurred; (6) corrective actions and/or countermeasures
taken, including an adequate description of equipment repairs and/or
replacements; (7) additional preventive measures taken or contemplated
to minimize the possibility of recurrence; and, (8) such other
information as the Regional Administrator may reasonably require
pertinent to the Plan or spill event. EPA would eliminate from the rule
the need to always submit: (1) the date and year of initial facility
operation; (2) maximum storage or handling capacity of the facility and
normal daily throughput; and, (3) a complete copy of the SPCC Plan with
any amendments. EPA believes that the information that would be
eliminated from a post-spill report is not always necessary in order to
accurately assess the spill or to require appropriate corrective
action. The Regional Administrator would still retain discretion to
require information that is specified by the current rule in a post-
spill report, or any other information as he/she finds necessary. The
reporting requirements under 40 CFR part 110 would still apply to any
discharge of oil to navigable waters or adjoining shorelines that is
``harmful'' as specified in Sec. 110.3.
40 CFR 112.5(b)
An owner or operator of a facility subject to the SPCC regulations
must review and evaluate a facility's SPCC plan at least once every
three years from the date the facility becomes subject to 40 CFR part
112. EPA is proposing to extend the period in which an owner or
operator must conduct this review and evaluation from at least once
every three years to at least once every five years. EPA is proposing
this change because it believes that it would have the effect of
reducing the record keeping burden, thus saving time and money for
facilities, while causing no harm to the environment. A facility owner
or operator would still have to amend an SPCC Plan whenever there is a
change in facility design, construction, operation, or maintenance
which materially affects the facility's potential for discharge of oil
into or upon the navigable waters of the United States or adjoining
shorelines. 40 CFR 112.5(a). Therefore, absent such changes, an SPCC
plan should continue to provide adequate protection against discharges
for a five year period.
In its 1991 proposal to amend the SPCC rule, EPA solicited comments
on whether owners or operators of facilities should have to affix a
signed and dated statement to the SPCC Plan indicating that the
triennial review has taken place and whether or not amendment of the
Plan is required. EPA did not at that time propose a rule change. 56 FR
54612, 54616, 54629, October 22, 1991. Today, EPA is implementing that
request for comments with a proposed rule change that would provide
that an owner or operator must certify completion of the review and
evaluation. An owner or operator, for purposes of this certification,
includes any person with authority to fully implement the Plan, e.g., a
facility manager. The certification would entail little additional
information collection burden as it would merely note completion of the
review and evaluation process at least once every five years. See 5 CFR
1320.7(j)(1). It would be maintained with the Plan at the facility, and
would provide EPA with written proof that the owner or operator has
complied with the rule.
[[Page 63815]]
40 CFR 112.7 Introduction
EPA is proposing to amend the introduction to Sec. 112.7 so that
its language conforms to the newly proposed definition of an SPCC Plan
in Sec. 112.2. See the above discussion. The change to the introduction
would merely track language in proposed Sec. 112.2 to allow facilities
flexibility to use certain alternative formats in lieu of the format
prescribed in the SPCC rule, such as the ICP format, certain State
formats, or other formats acceptable to the Regional Administrator.
40 CFR 112.7(e)(2)(iii)(D)
EPA is proposing to amend Sec. 112.7(e)(2)(iii)(D), which applies
to bulk storage tanks (onshore), excluding production facilities.
Section 112.7(e)(2)(iii) authorizes the drainage of rainwater from the
diked area into a storm drain or an effluent discharge that empties
into an open water course, lake, or pond, and bypasses the in-plant
treatment system if four conditions are met. 40 CFR
112.7(e)(2)(iii)(A)-(D). The change would allow the use of records
recording stormwater bypass events which are required to be kept under
a National Pollutant Discharge Elimination System (NPDES) permit. In
the NPDES regulations, ``bypass'' is defined to mean the ``intentional
diversion of waste streams from any portion of a treatment facility.''
40 CFR 122.41(m)(1)(I).
The NPDES regulations set forth conditions that all NPDES permits
must contain. 40 CFR 122.21. One of these NPDES ``standard conditions''
allows for excusable bypasses under certain conditions. 40 CFR
122.41(m)(2), (3), and (4). One of the conditions is that the permittee
must provide notice of the bypass event. 40 CFR 122.41(m)(3). Under 40
CFR 122.41(j)(2), the permittee must maintain records of all such
bypass events for at least three years from the date of the report.
These permit conditions for notification and record keeping serve the
same objective as the SPCC rule requirement in
Sec. 112.7(e)(2)(iii)(D), and the documentation is therefore acceptable
to satisfy the SPCC requirement. Furthermore, the proposed change would
reduce the information collection burden imposed by the SPCC rule.
Owners or operators would no longer be required to maintain duplicate
records of the same event pursuant to different regulatory programs.
This proposed change would also affect the information collection
burden imposed by Sec. 112.7(e)(5)(ii)(A). This section requires
inspection of diked areas in onshore oil production facilities prior to
drainage as provided in Sec. 112.7(e)(2)(iii)(B), (C), and (D). By the
cross reference to the record keeping requirements in
Sec. 112.7(e)(2)(iii)(D), the requirement to maintain adequate records
of such events is included. Therefore, when those records of bypass
event notification are maintained at onshore oil production facilities
pursuant to NPDES permitting conditions as discussed above, duplicative
record keeping under part 112 would be unnecessary.
40 CFR 112.7(e)(2)(vi)
Section 112.7(e)(2)(vi) requires periodic integrity testing of
aboveground tanks, taking into account tank design (floating roof,
etc.), and using such techniques as hydrostatic testing, visual
inspection, or a system of non-destructive shell thickness testing. It
further requires maintenance of comparison records when appropriate.
Tank supports and foundations should be included in these inspections.
In addition, the rule requires that the outside of the tank should be
frequently observed by operating personnel for signs of deterioration,
leaks which might cause a spill, or accumulation of oil inside diked
areas.
EPA proposes to amend Sec. 112.7(e)(2)(vi) to provide that usual
and customary business records would suffice to meet the record keeping
requirements of the section. Among such usual and customary business
records are those maintained pursuant to API Standards 653 and 2610.
API Standard 653 concerns tank inspection, repair, alteration, and
reconstruction. It is considered the predominant standard for
aboveground tank inspection and its provisions are based on tank design
principles found in API Standards 620 and 650. API Standard 653 calls
for owners or operators of tanks and associated systems to maintain a
complete record file consisting of construction, repair/alteration
history, and inspection history records. Construction records include
nameplate information, drawings, specifications, construction complete
reports, and any results of material tests and analyses. Repair/
alteration history includes all data accumulated on a tank from the
time of its construction with regard to repairs, alterations,
replacements, and service changes. Inspection history includes all
measurements taken, the condition of all parts inspected, and a record
of all examinations and tests.
API Standard 2610 concerns design, construction, operation,
maintenance, and inspection of terminal and tank facilities. It
incorporates the requirements of many different standards for tanks
into one document. The Standard recommends that records should be kept
of the activities conducted pursuant to the Standard. It recommends
that periodic inspection and preventive maintenance should be conducted
on all transfer systems to control leaks. Accurate inventory records
may be maintained and periodically reconciled for indication of
possible leakage from tanks and piping systems. It further calls on the
operator to keep complete maintenance records for all equipment within
a terminal.
40 CFR 112.7(e)(8)
EPA proposes to amend Sec. 112.7(e)(8) to provide that usual and
customary business records, such as records maintained pursuant to API
Standards 653 and 2610, would suffice to meet the requirements of the
section. The revision would have the effect of reducing the information
collection burden of the SPCC rule. See the discussion concerning usual
and customary business practices above.
The section requires that inspections required by part 112 be in
accordance with written procedures developed for the facility by the
owner or operator. These written procedures and a record of
inspections, signed by the appropriate supervisor or inspector, must be
made a part of the SPCC Plan and maintained for a period of three
years.
40 CFR 112.20(f)(4)
The owner or operator of any non-transportation-related onshore
facility that, because of its location could be expected to cause
substantial harm to the environment by discharging oil in harmful
quantities into or on the navigable waters of the United States or
adjoining shorelines, is required to prepare and submit a facility
response plan to EPA. To determine whether a facility could cause
substantial harm, an owner or operator of a facility must review the
criteria listed in Appendix C of the rule and base his/her
determination on those criteria. A facility that transfers oil over
water to or from vessels and that has a total oil capacity greater than
or equal to 42,000 gallons would meet the substantial harm criteria and
be required to prepare and submit a response plan as required by
Sec. 112.20 to the appropriate Regional Administrator. Any other
facility with a capacity of one million gallons or more would evaluate
the criteria in 40 CFR 112.20(f)(1)(ii)(A)-(D) and work through the
flowchart in Appendix C to determine whether it is a substantial harm
facility.
[[Page 63816]]
EPA proposes to add a new paragraph to Sec. 112.20(f) to provide a
method to calculate the oil storage capacity of aboveground tanks
containing a mixture of process water/waste water with 10% or less of
oil. EPA is proposing this change because it believes that the harm due
to spills from tanks that contain 90% or more of process water/waste
water is roughly proportional to their oil content. Discharges from
tanks containing process water/waste water and 10% or less oil will
cause less harm to the environment than tanks containing a greater
proportion of oil. Facilities that are required to prepare and submit
facility response plans must do so because of the substantial harm that
discharges of oil from those facilities might cause. That substantial
harm is predicated, at least in part, on a storage capacity
determination. If there is a smaller percentage of oil in a tank, there
will be less likelihood of great harm. Therefore, EPA believes that the
entire capacity of process water/waste water tanks with 10% or less of
oil should not be counted in the capacity necessary to subject a
facility to the requirement to prepare a facility response plan. Only
the oil portion of the storage capacity in process water/waste water of
10% or less oil would be counted. EPA believes that an oil threshold
capacity to determine substantial harm calculations of 10% or less in
tanks containing process water/waste water is a reasonable one. It is
reasonable because it exempts lower risk facilities, from which
discharges would not reach substantial harm levels, from having to
prepare facility response plans.
The proposed rule change, however, would have no effect on the
calculations necessary to determine whether to prepare an SPCC Plan.
Calculation of capacity under the SPCC rule of tanks containing
mixtures of process water/waste water and oil would continue to be done
as it is now. No change is necessary in SPCC capacity calculations
because SPCC Plans are designed for prevention purposes, not response.
While harm might result from discharges from these SPCC facilities, it
would not reach the substantial harm level. Finally, this proposed
change would not apply to the oil capacity determination for
substantial harm saline process water/waste water from oil drilling,
production, or workover facilities because discharges from such
facilities have a greater likelihood of causing environmental damage
than facilities that do not handle saline water.
Pursuant to the proposed rule, a facility owner or operator would
determine the percentage of oil in the process or waste water in a
tank. If the percentage of oil varies over a period of time, the owner
or operator would use the highest percentage of oil for purposes of the
capacity calculation. If the capacity of oil is 10% or less, the owner
or operator would multiply the percentage of oil by the capacity of the
tank or container. If appropriate, the owner or operator would then add
the volume of oil calculated to the total capacity of any other oil
storage tank or container with 100% oil or mixtures of oil and process
or waste water above the 10% amount to determine its total capacity for
the substantial harm determination of Sec. 112.20(f).
40 CFR 112.20(h)
EPA proposes to amend Sec. 112.20(h) to clarify that an Integrated
Contingency Plan (ICP) prepared in accordance with the notice published
at 61 FR 28642, June 5, 1996 is an acceptable format for a facility
response plan. The ICP was developed for facilities to integrate
emergency response plan requirements. The intent of the ICP is to
provide a mechanism for consolidating multiple plans that facilities
may have prepared to comply with various regulations into one
functional emergency response plan. Like the proposed requirements for
SPCC Plans, the FRP rule already provides for cross-referencing.
Similarly, an owner or operator who uses the ICP format must meet all
of the regulatory requirements of the FRP rule for that format to be an
acceptable substitute for the present FRP format.
EPA does not contemplate that the use of an ICP or other format
would reduce the information collection burden of the FRP rule, but it
would simplify compliance with multiple applicable statutes and rules.
Appendix C
EPA also proposes to amend Appendix C to this part to reflect
changes proposed in Sec. 112.20(f)(4). EPA also proposes to amend
section 2.1 of Appendix C to state the correct capacity that subjects a
facility to FRP requirements if it transfers oil over water to or from
a vessel. That capacity in section 2.1 of Appendix C should read
``greater than or equal to 42,000 gallons * * *'' as specified in
Sec. 112.20(f)(1)(I).
III. Summary of Supporting Analyses
A. Executive Order 12866
Under E.O. 12866 (58 FR 51735, October 4, 1993), the Agency must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the E.O. The E.O. defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866.
Pursuant to the terms of E.O. 12866, it has been determined that
this proposed rule is a ``significant regulatory action'' because it
raises novel legal or policy issues. Such issues include proposed
measures which would relieve some facilities of regulatory mandates and
could change the manner in which facilities comply with remaining
mandates. Therefore, this action was submitted to OMB for review.
Changes made in responses to the OMB suggestions or recommendations
will be documented in the public record.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, requires that a
Regulatory Flexibility Analysis be performed for all rules that are
likely to have a significant adverse impact on a substantial number of
small entities. EPA has determined that this proposed rule would not
have a significant adverse impact on a substantial number of small
entities because it would impose few if any new burdens, and overall
would substantially reduce existing burdens on small businesses.
Therefore, I certify that this proposed rule is not expected to have a
significant adverse impact on a substantial number of small entities.
Thus, no Regulatory Flexibility Analysis is necessary.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule will
be submitted for approval to OMB as required by the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Information Collection Request (ICR)
documents
[[Page 63817]]
have been prepared by EPA (EPA ICR no. EPA 0328.06 and 1630.04) and
copies may be obtained from Sandy Farmer, OPPE Regulatory Information
Division; U.S. Environmental Protection Agency (2137); 401 M St., S.W.;
Washington, D.C. 20460 or by calling 202-260-2740. These ICRs are also
available for viewing or downloading at EPA's ICR Internet site at
http://www.epa.gov/icr.
EPA does not collect the information required by the Oil Pollution
Prevention regulation (i.e., the SPCC Plan) on a routine basis. SPCC
Plans ordinarily need not be submitted to EPA, but must be maintained
at the facility. Preparation, implementation, and maintenance of an
SPCC Plan by the facility helps prevent oil discharges, and mitigates
the environmental damage caused by such discharges. Therefore, the
primary user of the data is the facility.
Although the facility is the primary data user, EPA also uses the
data in certain situations. EPA primarily uses SPCC Plan data to ensure
that facilities comply with the regulation. This includes design and
operation specifications, and inspection requirements. EPA reviews SPCC
Plans: (1) When facilities submit the Plans because of certain oil
discharges, and (2) as part of EPA's inspection program. Note however,
that the proposed rule would eliminate the necessity to submit the
entire Plan after certain discharges, and merely retain the requirement
that it be maintained at the facility. State and local governments also
use the data, which are not necessarily available elsewhere and can
greatly assist local emergency preparedness planning efforts.
Preparation of the information for affected facilities is required
pursuant to section 311(j)(1) of the Act as implemented by 40 CFR part
112.
Through this rulemaking, EPA proposes to reduce the reporting and
record keeping burden for facilities regulated under the SPCC
regulation by: (1) expanding the format of an acceptable SPCC plan to
include plans prepared to meet State or other Federal standards (i.e.,
State plans, Integrated Contingency Plans, etc.); (2) extending the
period of time that a facility must review its Plan from at least once
every three years to at least once every five years; and (3) reducing
the reporting requirements in the event of certain reportable oil
spills and the record keeping requirements relating to certain
discharges of rainwater from a diked area. In addition to the program
changes outlined above, EPA is also proposing to decrease the
information collection burden calculated for the SPCC rule so that the
information collection burden incurred by persons in the normal course
of their business activities would no longer be attributed to the part
112 burden.
To quantify the effect of these proposed changes on reducing burden
to the regulated community, EPA relied, in part, on data gathered
through the 1995 SPCC survey. EPA developed a series of analyses using
the survey data including the paper EPA produced in 1996 entitled
``Effectiveness of EPA's SPCC Program on Spill Risk.'' The results of
the analysis show that compliance with several specific SPCC provisions
appears to reduce both the number and the amount of oil that migrates
outside of a facility's boundaries. Facility practices such as tank
leak detection, spill overfill protection, pipe external protection,
and secondary containment, also appear to reduce the number and
magnitude of oil spills. The results also indicate that a facility's
compliance with even one SPCC measure may serve as a general indicator
of a facility owner's/operator's awareness of the importance of other
spill prevention and control measures.
The net annual public reporting and record keeping burden for this
collection of information, as proposed, for newly regulated facilities
is estimated to range from 37.1 to 53.5 hours, with an average burden
of 39.2 hours, including time for reviewing instructions and gathering
the data needed. The net annual public reporting and record keeping
burden for facilities already regulated by the Oil Pollution Prevention
regulation is estimated to range from 3.7 to 9.5 hours, with an average
burden of 4.0 hours. These average annual burden estimates take into
account the varied frequencies of response for individual facilities
according to characteristics specific to those facilities, including
frequency of oil discharges and facility modification. Under the
proposed rule, an estimated 446,498 existing and newly regulated
facilities are subject to the information collection requirements of
this proposed rule during the first year of the information collection
period. The net annualized capital and start-up costs average $0.3
million, and net annualized labor and operation and maintenance costs
are $49.8 million.
The present information collection burden of the SPCC rule averages
2,557,194 hours per year for the information collection period. Through
this rulemaking EPA proposes to reduce that burden by approximately
864,471 hours. This proposed reduction would result in an average
annual burden of 1,692,723 hours.
In addition to the modifications the Agency is proposing to make to
the SPCC rule, the Agency is also proposing to modify the information
collection requirements of the Facility Response Plan (FRP) regulation
as part of this rulemaking effort. The FRP rule (40 CFR 112.20-112.21)
requires that owners and operators of facilities that could cause
``substantial harm'' to the environment by discharging oil into
navigable waters or adjoining shorelines prepare plans for responding,
to the maximum extent practicable, to a worst case discharge of oil, to
substantial threat of such a discharge, and, as appropriate, to
discharges smaller than worst case discharges. Each FRP is submitted to
the Agency, which in turn, reviews and approves plans from facilities
identified as having the potential to cause ``significant and
substantial harm'' to the environment from oil discharges. Other low-
risk, regulated facilities are not required to prepare FRPs but are
required to document their determination that they do not meet the
``substantial harm'' criteria.
Through this rulemaking, EPA proposes to reduce the reporting and
record keeping burden for facilities regulated under the FRP rule by
adding a paragraph to Sec. 112.20(f) to provide a method to calculate
the oil storage capacity of aboveground tanks containing a mixture of
process water/waste water with 10 percent or less of oil. EPA also
proposes to amend Sec. 112.20(h) to clarify that an Integrated
Contingency Plan prepared in accordance with the notice published at 61
FR 28642, June 5, 1996, is an acceptable format for an FRP; and to
amend section 2.1 of Appendix C to state the correct capacity that
subjects a facility to FRP requirements if it transfers oil over water
or to or from a vessel.
The Agency anticipates that only the first proposed change will
have an appreciable impact on the burden to the regulated community.
The Agency expects that the number of facilities subject to the
requirements to develop an FRP and maintain the plan on a year-to-year
basis will slightly decrease as a result of the proposed process water/
waste water calculation. In the current ICR, EPA estimated that 5,400
facilities would be required to develop and submit FRPs and 4,482 of
these facilities were large facilities (i.e., facilities with storage
capacity greater than one million gallons). Of these 4,482 facilities,
EPA estimated that approximately 250 facilities in the industrial
manufacturing category would be excluded from the FRP requirements as a
result of the proposal. Although these facilities have
[[Page 63818]]
already incurred costs to develop an FRP, the facilities would no
longer incur costs associated with maintaining the Plan or retaining
outside response contractors in the event of an oil spill. The Agency
has previously estimated that it requires approximately 118 hours for
facility personnel in a large, consumption facility to comply with the
annual, subsequent-year reporting and record keeping requirements of
the FRP rule after adjusting for compliance with other Federal and
State regulations. The present information collection burden of the FRP
rule averages 376,599 hours a year. Through this rulemaking EPA
proposes to reduce that burden by approximately 24,190 hours. This
proposed reduction would result in an annual average burden of 352,409
hours.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates and the supporting
analyses used to develop burden estimates, and any suggested methods
for further minimizing respondent burden, including the use of
automated collection techniques. Send comments on the Information
Collection Request to the Director, OPPE Regulatory Information
Division; U.S. Environmental Protection Agency (2136); 401 M St., S.W.;
Washington, D.C. 20460 or E-mail farmer.sandy@epamail.epa.gov; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., N.W., Washington, D.C. 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after December 2, 1997, a comment to OMB is
best assured of having its full effect if OMB receives it by January 2,
1998. The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
D. Differentiation Between Classes of Oils
Pursuant to Public Law 104-55, 33 U.S.C. 2720, enacted November 20,
1995, most Federal agencies (including EPA) must, in the issuance or
enforcement of any regulation or the establishment of any
interpretation or guideline relating to the transportation, storage,
discharge, release, emission, or disposal of a fat, oil, or grease,
consider differentiating between and establishing separate classes for
animal fats and oils and greases, fish and marine mammal oils, and oils
of vegetable origin (as opposed to petroleum and other oils and
greases). EPA has considered whether differentiation between and
establishment of separate classes of oils is appropriate for this
proposed rule and concluded that it is not. This conclusion is based on
the fact that the EPA proposal would reduce the information collection
burden for all classes of facilities. Achievement of that goal does not
require differentiation among classes of oils.
E. Unfunded Mandates
Pursuant to section 202 of the Unfunded Mandates Reform Act (the
Act) of 1995, enacted March 22,1995, Federal agencies must prepare a
statement to accompany any rule in which the estimated costs of State,
local, or tribal governments in the aggregate, or to the private
sector, will be $100 million or more in any one year. Section 205 of
the Act requires agencies to select the most cost-effective and least-
burdensome alternative that achieves the objective of the rule and that
is consistent with statutory requirements. Section 203 of the Act
requires an agency to establish a plan for informing and advising any
small government that may be significantly impacted by the rule. Small
governments would not be significantly impacted by this proposed rule,
therefore, it is not necessary to establish a plan pursuant to section
203. In fact, the proposed rule would reduce the information collection
burden on small governments that have facilities which are subject to
the SPCC rule.
EPA has determined that this proposed rule does not include a
Federal mandate that would result in estimated costs of $100 million or
more either to State, local, or tribal governments in the aggregate, or
to the private sector in any one year. This determination is based on
the fact that the proposed rule would impose no new mandates, and would
reduce costs to the private sector, while imposing no new costs on
State, local, or tribal governments. Thus today's proposal is not
subject to the requirements of sections 202 and 205 of the Act.
F. National Technology Transfer and Advancement Act
Under Sec. 12(d) of the National Technology Transfer and
Advancement Act, the Agency is required to use voluntary consensus
standards in its regulatory and procurement activities unless to do so
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) which are developed or adopted by voluntary consensus standard
bodies. In those cases where the Act applies and where available and
potentially applicable voluntary consensus standards are not used by
EPA, the Act requires the Agency to provide Congress, through the
Office of Management and Budget, an explanation of the reasons for not
using such standards.
Without necessarily deciding whether the Act applies here, EPA
invites comment on the potential use of voluntary consensus standards
in this rulemaking. In particular, as noted above, EPA proposes to
amend 40 CFR 112.7(e)(2)(vi) and (e)(8) to provide that the records
maintained pursuant to usual and customary business practices would
suffice to meet the recordkeeping requirements of the sections. While
not specifically referenced in the proposed regulation, usual and
customary business records would include those maintained pursuant to
American Petroleum Institute (API) Standards 653 and 2610. The Agency
proposes this flexible approach to be consistent with the goal of
reducing the recordkeeping requirements of this regulation. EPA invites
public comment on the Agency's proposal as well as identification and
information about other standards, and in particular, voluntary
consensus standards, which the Agency should consider.
List of Subjects in 40 CFR Part 112
Environmental protection, Fire prevention, Flammable materials,
Materials handling and storage, Oil pollution, Oil spill prevention,
Oil spill response, Petroleum, Reporting and
[[Page 63819]]
record keeping requirements, Tanks, Water pollution control, Water
resources.
Dated: November 24, 1997.
Carol Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 112 is
proposed to be amended as follows:
PART 112--OIL POLLUTION PREVENTION
1. The authority citation for part 112 continues to read as
follows:
Authority: 33 U.S.C 1321 and 1361; E.O. 12777 (October 18,
1991), 3 CFR, 1991 Comp., p. 351.
2. Section 112.2 is amended by adding the definition ``Spill
Prevention, Control, and Countermeasure Plan; SPCC Plan; or Plan'' in
alphabetical order to read as follows:
Sec. 112.2 Definitions.
* * * * *
Spill Prevention, Control, and Countermeasure Plan; SPCC Plan; or
Plan means the document required by Sec. 112.3 that details the
equipment, manpower, procedures, and steps to prevent, control, and
provide adequate countermeasures to an oil spill. The Plan is a written
description of the facility's compliance with the procedures in this
part. It is prepared in writing and in accordance with the format
specified in Sec. 112.7, or in the format of a plan prepared pursuant
to State law, or in another format acceptable to the Regional
Administrator. If an owner or operator of a facility chooses to prepare
a plan using either the Integrated Contingency Plan format or a State
format or any other format acceptable to the Regional Administrator,
such plan must meet all of the requirements in Sec. 112.7, and be
sequentially cross-referenced from the requirement in Sec. 112.7 to the
page(s) of the equivalent requirement in the other plan.
* * * * *
3. Section 112.4 is amended by revising paragraphs (a)(1) through
(a)(8) to read as follows:
Sec. 112.4 Amendment of SPCC Plans by Regional Administrator.
(a) * * *
(1) Name of the facility;
(2) Name(s) of the owner or operator of the facility;
(3) Location of the facility;
(4) Corrective action and/or countermeasures taken, including an
adequate description of equipment repairs and/or replacements;
(5) Description of the facility, including maps, flow diagrams, and
topographical maps;
(6) The cause(s) of such spill(s), including a failure analysis of
system or subsystem in which the failure occurred;
(7) Additional preventive measures taken or contemplated to
minimize the possibility of recurrence; and
(8) Such other information as the Regional Administrator may
reasonably require pertinent to the Plan or spill event.
* * * * *
4. Section 112.5 is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 112.5 Amendment of Spill Prevention Control and Countermeasure
Plans by owners or operators.
* * * * *
(b) Notwithstanding compliance with paragraph (a) of this section,
owners and operators of facilities subject to Sec. 112.3(a), (b), or
(c) shall certify completion of a review and evaluation of the SPCC
Plan at least once every five years from the date such facility becomes
subject to this part. * * *
* * * * *
5. Section 112.7 is amended by revising the last sentence of the
introductory text; and by revising paragraph (e)(2)(iii)(D), and the
last sentence of paragraphs (e)(2)(vi), and (e)(8) to read as follows:
Sec. 112.7 Guidelines for the preparation and implementation of a
Spill Prevention Control and Countermeasure Plan.
* * * The complete SPCC Plan shall follow the sequence outlined below,
unless it is in another format acceptable to the Regional
Administrator, such as one described in Sec. 112.2, and include a
discussion of the facility's conformance with the appropriate
guidelines listed:
* * * * *
(e) * * *
(2) * * *
(iii) * * *
(D) Adequate records are kept of such events, such as records
required pursuant to permits issued in accordance with
Secs. 122.41(j)(2) and 122.41(m)(3) of this chapter.
* * * * *
(vi) * * * Records of inspections maintained pursuant to usual and
customary business practices will suffice for purposes of this
paragraph.
* * * * *
(8) * * * Records of inspections maintained pursuant to usual and
customary business practices will suffice for purposes of this
paragraph.
* * * * *
6. Section 112.20 is amended by adding paragraph (f)(4) and by
revising the first sentence of paragraph (h) to read as follows:
Sec. 112.20 Facility response plans.
* * * * *
(f) * * *
(4) To determine the capacity of a facility storing process water/
waste water with oil concentrations of 10% or less, for purposes of
paragraphs (f)(1)(i) and (ii) of this section (except for saline
process water/waste water from an oil drilling, production, or workover
facility), the following calculations shall be used:
(i) Determine the percentage of oil in the process water/waste
water of a tank or container. If the percentage of oil varies over a
period of time, the highest percentage shall be used;
(ii) If the percentage of oil is 10% or less, multiply the
percentage of oil by the capacity of the tank or container;
(iii) If appropriate, add the amount calculated in paragraphs
(f)(4)(i) and (4)(ii) of this section to the total capacity of any
other oil tank or storage container containing 100% oil or mixtures of
oil and process water/waste water above 10%;
(iv)(A) A facility that transfers oil over water to or from vessels
and has a storage capacity of oil greater than or equal to 42,000
gallons will be considered a facility that could cause substantial harm
to the environment by discharging oil to the navigable waters or
adjoining shorelines.
(B) A facility with a capacity of 1 million gallons or greater
shall continue through the criteria in appendix C of this part to
determine whether the facility could cause substantial harm to the
environment by discharging oil to the navigable waters or adjoining
shorelines.; and
(v) A facility that has completed the calculations required by this
paragraph and does not meet the substantial harm threshold will not
have to prepare and submit a response plan unless directed to do so by
the Regional Administrator.
* * * * *
(h) A response plan shall follow the format of the model facility-
specific response plan included in Appendix F to this part, unless an
equivalent response plan has been prepared to meet State or other
Federal requirements. * * *
* * * * *
7. Appendix C to part 112 is amended by revising section 2.0 and
the first sentence of section 2.1 to read as follows:
[[Page 63820]]
Appendix C to Part 112--Substantial Harm Criteria
* * * * *
2.0 Description of Screening Criteria for the Substantial Harm
Flowchart
A facility that has the potential to cause substantial harm to
the environment in the event of a discharge must prepare and submit
a facility-specific response plan to EPA in accordance with appendix
F to this part. To determine the capacity of a facility storing
process water/waste water with oil concentrations of 10% or less
(except for saline process water/waste water from an oil drilling,
production, or workover facility), the respondent shall use the
method prescribed in Sec. 112.20(f)(4). A description of the
screening criteria for the substantial harm flowchart is provided
below:
2.1 Non-Transportation-Related Facilities With a Total Oil Storage
Capacity Greater Than or Equal to 42,000 Gallons Where Operations
Include Over-Water Transfers of Oil.
A non-transportation-related facility with a total oil storage
capacity greater than or equal to 42,000 gallons that transfers oil
over water to or from vessels must submit a response plan to EPA. *
* *
* * * * *
[FR Doc. 97-31574 Filed 12-1-97; 8:45 am]
BILLING CODE 6560-50-P
