03-9480. Oil Pollution Prevention and Response; Non-Transportation-Related Onshore and Offshore Facilities

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA or we) is today extending, by eighteen months from the dates promulgated in the July 2002 Spill Prevention Control and Countermeasure (SPCC) amendments, the dates for a facility to amend its SPCC Plan and implement the amended Plan (or, in the case of facilities becoming operational after August 16, 2002, prepare and implement a Plan that complies with the newly amended requirements). We are finalizing this extension to, among other things, provide sufficient time for the regulated community to undertake the actions necessary to update (or prepare) their plans in accordance with the amendments. The extension will also avoid a flood of individual extension requests it has become apparent we will otherwise receive.

DATES:

This final rule is effective April 17, 2003.

ADDRESSES:

The docket for this rulemaking is located in the EPA Docket Center at 1301 Constitution Ave., NW., EPA West, Suite B-102, Washington, DC 20460. The docket number for the final rule is OPA-2002-0001. The docket is contained in the EPA Docket Center and is available for inspection by appointment only, between the hours of 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding legal holidays. You may make an appointment to view the docket by calling 202-566-0276. You may copy a maximum of 100 pages from any regulatory docket at no cost. If the number of pages exceeds 100, however, we will charge you $0.15 for each page after 100. The docket will mail copies of materials to you if you are outside of the Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT:

For general information, contact the RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC metropolitan area, call 703-412-9810 or TDD 703-412-3323.

For more detailed information on specific aspects of this final rule, contact Hugo Paul Fleischman at 703-603-8769 ([e-mail]); or Mark W. Howard at 703-603-8715 ([e-mail]), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 5203G.

SUPPLEMENTARY INFORMATION:

This final rule concerns an eighteen month extension of the deadlines in 40 CFR 112.3(a) and (b). The contents of this preamble are as follows:

I. General Information

II. Entities Affected by This Rule

III. Statutory Authority

IV. Background

V. Today's Action

VI. Statutory and Executive Order Reviews

I. General Information

Introduction. For the reasons explained in Section V of this notice, the Environmental Protection Agency (EPA or we) is finalizing a proposal to extend the dates in 40 CFR 112.3(a) and (b) for a facility to amend its Spill Prevention, Control, and Countermeasure (SPCC) Plan and implement the amended Plan (or, in the case of facilities becoming operational after August 16, 2002, prepare and implement a Plan that complies with the newly amended requirements). Today's rule extends these deadlines by eighteen months from the dates promulgated in the July 2002 SPCC rule amendments.

How Can I Get Copies of The Background Materials Supporting Today's Final Rule or Other Related Information?

1. EPA has established an official public docket for this proposed rule under Docket ID No. OPA-2002-0001. The official public docket consists of the documents specifically referenced in this final rule and other information related to this final rule. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the EPA Docket Center located at 1301 Constitution Ave. NW., EPA West Building, Room B-102, Washington, DC 20004.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/​fedrgstr.

You may use EPA Dockets at http://www.epa.gov/​edocket/​ to access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI, and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified above.

II. Entities Affected by This Rule

Industry category	NAICS code
Crop and Animal Production	111-112
Crude Petorleum and Natural Gas Extraction	211111
Coal Mining, Non-Metallic Mineral Mining and Quarrying	2121/2123/213114/213116
Electric Power Generation, Transmission, and Distribution	2211
Heavy Construction	234
Petroleum and Coal Products Manufacturing	324
Other Manufacturing	31-33
Petroleum Bulk Stations and Terminals	42271
Automotive Rental and Leasing	5321
Heating Oil Dealers	454311
Transportation (including Pipelines), Warehousing, and Marinas	482-486/488112-48819/4883/48849/492-493/71393
Elementary and Secondary Schools, Colleges	6111-6113
Hospitals/Nursing and Residential Care Facilities	622-623

The list of potentially affected entities in the above table may not be exhaustive. Our aim is to provide a guide for readers regarding those entities that EPA is aware potentially could be affected by this action. However, this action may affect other entities not listed in the table. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section entitled FOR FURTHER INFORMATION CONTACT.

III. Statutory Authority

33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351

IV. Background

On July 17, 2002, at 67 FR 47042, EPA published final amendments to the Spill Prevention, Control, and Countermeasure (SPCC) rule. The rule was effective August 16, 2002. The rule included dates in 112.3(a) and (b) by which a facility would have time to amend its SPCC Plan to conform with newly promulgated requirements and to implement its amended Plan (note that for facilities becoming operational after August 16, 2002, the rule contained dates for the preparation and implementation of a Plan in compliance with the amended rule).

On January 9, 2003, EPA published both an interim final rule and a proposed rule. The interim final rule immediately extended the dates in 40 CFR 112.3(a) and (b) by sixty days. The proposed rule proposed extending the dates in those sections by one year.

V. Today's Action

EPA is extending by eighteen months the compliance dates in § 112.3(a) and (b). Thus, an onshore or offshore facility that: (1) Was in operation on or before August 16, 2002 must maintain its Plan, but must amend it, if necessary to ensure compliance, on or before August 17, 2004, and must implement the amended Plan as soon as possible, but not later than February 18, 2005; (2) becomes operational after August 16, 2002 through February 18, 2005, and could reasonably be expected to have a discharge as described in 40 CFR 112.1(b), must prepare a Plan on or before February 18, 2005, and fully implement it as soon as possible, but not later than February 18, 2005; and (3) becomes operational after February 18, 2005, and could reasonably be expected to have a discharge as described in 40 CFR 112.1(b), must prepare and implement a Plan before it begins operations. Today's rule is immediately effective; EPA is invoking the exception to the 30-day notice requirement in the Administrative Procedure Act because the purpose of the rulemaking is to relieve a restriction (5 U.S.C. 553(d)(1)).

A. Comments ^[1]

Extension of Time. The vast majority of commenters ^[2] supported an extension of time for compliance with the SPCC Plan amendments to allow the regulated community to undertake the various activities required to update (or prepare) their Plans, although one commenter believed that no additional time, other than the 60 days that EPA already provided, was needed. However, there was a broad range of times suggested by the commenters. Commenters supported the extension of compliance deadlines in a range from one to five years or “until all deficiencies are corrected.”

Commenters who recommended extending the compliance deadlines echoed the Agency's view at the time of proposal that an extension is appropriate to address concerns that there is a shortage of PEs in some areas, to allow PEs (or their agents) to make visits to sometimes remote facilities, and for PEs to obtain the training necessary to certify Plans under the new amendments. In addition, many of these commenters agreed with EPA that an extension of the compliance deadlines in the rule would prevent a flood of individual extension requests going to the Regions pursuant to 40 CFR 112.3(f). However, commenters also identified a number of other reasons, such as the need to plan their budgets for capital expenditures and delays they would encounter at facilities affected by winter weather.

However, as noted above, a great number of these commenters argued for longer time extensions than the one year proposed to address the issues cited above. In addition, others argued for longer time frames, often citing reasons that are more specific to their individual facilities or industries. For example, many commenters, mostly electric utilities and cooperatives, suggested time extensions of between two and four years. These commenters stated that such additional time is needed because, among other things, much of their electrical equipment is located on property owned by others and that “delineating of responsibilities for Plan purposes will have the effect of slowing down the overall compliance deadlines.”

Rule requirements during any extension period. Several commenters noted that although EPA extended the compliance deadlines in the rule, it did not delay the effective date of the rule itself. These commenters stated that they understood “this to mean that to the extent the July 2002 rule imposes new more stringent compliance obligations than did the old SPCC rule, the deadline for fulfillment of those obligations is extended under the interim final and proposed rule, to the same extent as the deadline for implementing amended Plans.” These commenters asked EPA to confirm this understanding in the preamble to the final rule.

B. Response to Comments

Extension of Time in General: Nothing received in comments on the proposed rule has persuaded the Agency that its view at the time of proposal, that additional time for compliance is appropriate, was incorrect. As noted above, the vast majority of commenters on the rule supported a one-year or longer extension, and their comments contain information that lends additional support for such an extension.

However, as noted above, one commenter, a PE, did express the view that additional time for compliance with the amendments is unnecessary. Specifically, this commenter wrote that the 60-day interim extension that the Agency promulgated on January 9, 2003 was “more than an adequate time extension for the affected facilities to prepare amendments to their SPCC Plans.” The commenter based this position on the following: (1) That the SPCC amendments were published in the Federal Register seven months before the compliance date, (2) that the final amendments reduced the number of facilities required to have Plans, (3) the commenter's personal experience that the facilities with which it deals are either finished with amending their Plans or in the final stages of doing so, (4) that the SPCC amendments were specifically written not to require a “local PE” and thus a shortage was unlikely, and (5) the view that with the slowdown in the economy, personnel resources should be available to carry out the activities within the additional 60-day period.

The Agency was not persuaded by this comment. Specifically, the fact that seven months were already provided by the rule, that the rule as a whole reduced the number of facilities subject to the rule, and that there is a slowdown in the economy, do not, without additional information or analysis, overcome the evidence provided in the comments (and the Agency's experience at the time of the proposal) that additional time is necessary. In addition, although this PE's individual experience does not suggest a difficulty meeting the existing deadlines, the experience of a good number of other PEs (and those who need to hire PEs) who commented on the rule does indicate the need for extending the deadlines. With respect to the fact that the rule does not itself require the use of a local PE, at least one commenter did report complications, stating that “individual state engineering registration and licensing boards do not always allow out-of-state PEs to practice in such a manner, thus limiting even further the number of available PEs for plan certification.” In any event, even if a facility is permitted to use a non-local PE in areas with local shortages, the Agency expects that doing so would likely extend the PE certification process.^[3]

Extension of Time for 18 months. Although the comments made it very clear to the Agency that an extension was warranted, no commenter made a compelling case for any particular time frame. In other words, no commenter provided a technical basis in support of the time frame it was advancing. As discussed above, commenters provided a great number of reasons for additional time, but very similar problems identified were often accompanied by widely varying suggestions as to the length of extension needed to address such problems.

The Agency has settled on an 18-month extension, which is six months greater than the one-year extension originally proposed. EPA believes this time frame better addresses concerns identified at proposal than the proposed one-year extension, and should address many of the other concerns raised in comments suggesting one year or longer time frames. For example, in addition to reducing the immediate demands on PEs, it provides an additional warm season to address sites affected by winter weather, and will provide additional time for facilities to budget for necessary capital expenditures. (In seeking an extension greater than a year, several commenters noted that many companies budget a year or more into the future for capital expenditures and thus need additional planning time to accommodate expenditures associated with complying with the amendments.) In situations where the extension does not provide enough relief for an individual facility, that facility may seek an extension pursuant to § 112.3(f), where applicable.^[4] It is EPA's belief, however, that the 18-month extension will provide enough relief to prevent the Agency from again being faced with the prospect of an overwhelming number of requests for individual extensions under 40 CFR 112.3(f).

Rule requirements during any extension period. The commenter requesting clarification of rule requirements during the extension period discussed above was correct that EPA did not extend the effective date of the July 2002 rule itself. Instead, the Agency only extended the deadlines in 40 CFR 112.3(a) and (b) for amending and implementing (and in some cases, preparing) Plans to come into compliance with new requirements. Thus, the commenter is correct that to the extent that the July 2002 imposes new or more stringent compliance obligations than did the old SPCC rule, that the deadlines in 40 CFR 112.3(a) and (b) for fulfillment of those obligations is extended under this final rule.

On the other hand, a provision that provides regulatory relief in the revised rule is not affected by the compliance deadline extensions because such provisions are not addressed by 40 CFR 112.3(a) or (b); these are not provisions for which it would be “necessary” to amend existing Plans “to ensure compliance with” the July 2002 amendments.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866—Regulatory Planning and Review

Under Executive Order 12866, (58 FR 51735, October 4, 1993), the Agency must determine whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Under the terms of Executive Order 12866, it has been determined that this rule is not a “significant regulatory action” because it would extend for eighteen the compliance dates in § 112.3(a) and (b). It would have no other substantive effect.

B. Paperwork Reduction Act

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (R.F.A.) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined in the Small Business Administration's (SBA) regulations at 13 CFR 121.201—the SBA defines small businesses by category of business using North American Industry Classification System (NAICS) codes, and in the case of farms and production facilities, which constitute a large percentage of the facilities affected by this rule, generally defines small businesses as having less than $500,000 in revenues or 500 employees, respectively; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. Sections 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This rule will temporarily reduce regulatory burden on all facilities by extending for eighteen months the compliance dates in § 112.3(a) and (b). Further, the rule will reduce costs for both existing and new facilities.

After considering the economic impacts of today's rule on small entities, I certify that this action would not have a significant economic impact on a substantial number of small entities, because it provides temporary relief from otherwise applicable compliance deadlines.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Today's rule would reduce burden and costs on all facilities.

EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. As explained above, the effect of the rule would be to reduce burden and costs for regulated facilities, including small governments that are subject to the rule.

E. Executive Order 13132—Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This rule does not have federalism implications.

F. Executive Order 13175—Consultation and Coordination with Indian Tribal Governments

On November 6, 2000, the President issued Executive Order 13175 (65 FR 67249) entitled, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 took effect on January 6, 2001, and revokes Executive Order 13084 (Tribal Consultation) as of that date.

Today's rule would not significantly or uniquely affect communities of Indian tribal governments because they are in the same position as all other users or storers of oil. Therefore, we have not consulted with a representative organization of tribal groups.

G. Executive Order 13045—Protection of Children From Environmental Health & Safety Risks

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866; and, (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under Section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

H. Executive Order 13211—Actions That Significantly Affect Energy Supply, Distribution, or Use

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards such as materials specifications, test methods, sampling procedures, and business practices that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rule does not involve technical standards. Therefore, NTTA is inapplicable.

I. Congressional Review Act

The Congressional Review Act (5 U.S.C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective April 17, 2003.

List of Subjects in 40 CFR Part 112

• Environmental protection
• Fire prevention
• Flammable and combustible materials
• Materials handling and storage
• Oil pollution
• Oil spill prevention
• Oil spill response
• Penalties
• Petroleum
• Piping
• Reporting and recordkeeping requirements
• Tanks
• Transfer operations
• Water pollution control
• Water resources

Dated: April 10, 2003.

Christine Todd Whitman,

Administrator.

For the reasons set out in the preamble, title 40, chapter I, part 112 of the Code of Federal Regulations, is amended as follows:

PART 112—OIL POLLUTION PREVENTION

1. The authority for part 112 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C 2720; E.O. 12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.

Subpart A—[Amended]

2. Section 112.3 is amended by revising paragraphs (a) and (b) to read as follows:

§ 112.3

Requirement to prepare and implement a Spill, Prevention, Control, and Countermeasure Plan.

* * * * *

(a) If your onshore or offshore facility was in operation on or before August 16, 2002, you must maintain your Plan, but must amend it, if necessary to ensure compliance with this part, on or before August 17, 2004, and must implement the amended Plan as soon as possible, but not later than February 18, 2005. If your onshore or offshore facility becomes operational after August 16, 2002, through February 18, 2005, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare a Plan on or before February 18, 2005 , and fully implement it as soon as possible, but not later than February 18, 2005.

(b) If you are the owner or operator of an onshore or offshore facility that becomes operational after February 18, 2005, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare and implement a Plan before you begin operations.

* * * * *

Footnotes

1.  This section, and section B below, contain a summary of the comments received on the proposal, and the Agency's responses to such comments. For more detailed and additional information, see the response-to-comment document available in the docket for today's rule.

2.  Commenters represented oil industry and electrical utility interests, as well as a number of other industrial commenters. In addition, a substantial number of Professional Engineers (PEs) submitted comments.

3.  The same commenter suggested that “a possible alternate action may be to have both the ‘SPCC Plan amendment due date” and the ‘fully implemented no later than date’ as August 18, 2003.” The Agency rejected this approach for the reasons described here and later in today's preamble.

4.  For example, depending on site-specific circumstances, the commenters who may have trouble complying because their equipment subject to the amended rule is located on property owned by others may be able to obtain an individual extension.