Response Plans for Marine Transportation-Related Facilities
[Federal Register: February 29, 1996 (Volume 61, Number 41)]
[Rules and Regulations]
[Page 7889-7939]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 7890]]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 150 and 154
[CGD 91-036]
RIN 2115-AD82
Response Plans for Marine Transportation-Related Facilities
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is adopting with some changes, as final, the
interim final rule which establishes regulations requiring response
plans for marine transportation-related (MTR) facilities including
deepwater ports, certain Coast Guard regulated onshore facilities,
marinas, tank trucks, and railroad tank cars. This final rule also
adopts with some changes, as final, the interim final rule which
establishes additional response plan requirements for facilities
located in Prince William Sound, Alaska, permitted under the TransAlaska
Pipeline Authorization Act (TAPAA). These regulations are
mandated by the Federal Water Pollution Control Act (FWPCA), as amended
by the Oil Pollution Act of 1990 (OPA 90). The purpose of requiring
facility response plans is to enhance private sector planning and
response capabilities to minimize the environmental impact of spilled
oil.
EFFECTIVE DATE: May 29, 1996.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406) (CGD 91-036),
U.S. Coast Guard Headquarters, 2100 Second Street SW., room 3406,
Washington, DC 20593-0001, between 8 a.m. and 3 p.m., Monday through
Friday, except Federal holidays. The telephone number is (202) 267-
1477.
FOR FURTHER INFORMATION CONTACT:
LCDR Walter (Bud) Hunt, Response Division (G-MEP), (202) 267-0441. This
telephone is equipped to record messages on a 24-hour basis.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal persons involved in drafting this document are LT
Cliff Thomas, Project Manager, Standards Evaluation Branch (G-MES-2),
and Jacqueline Sullivan, Project Counsel, Office of Chief Counsel (GLRA).
Regulatory History
On March 11, 1992 the Coast Guard published an advance notice of
proposed rulemaking (ANPRM) in the Federal Register (57 FR 8708)
entitled ``Facility Response Plans.'' The ANPRM discussed the
background, statutory requirements of section 311(j) of the FWPCA, and
possible regulatory approaches. In addition, the ANPRM posed questions
for public comment. The Coast Guard received 116 comments.
On June 19, 1992, the Coast Guard published a notice of proposed
rulemaking (NPRM) on the related rulemaking project Vessel Response
Plans (VRP) (57 FR 27514). The Coast Guard also gathered public input
on the proposed VRP rule through the Oil Spill Response Plan Negotiated
Rulemaking Committee. Twenty-six organizations and the Coast Guard were
members of the Committee. To maintain consistency between the two
regulations, this rule uses certain concepts developed in the VRP NPRM
and negotiated rulemaking committee.
The Coast Guard released Navigation and Vessel Inspection Circular
(NVIC) No. 7-92 on September 15, 1992. NVIC No. 7-92 provided immediate
guidance to the marine industry for preparing facility response plans
to meet the February 1993 deadline established by the Oil Pollution Act
of 1990 (OPA 90).
On February 5, 1993, the Coast Guard published an Interim Final
Rule (IFR) entitled ``Response Plans for Marine Transportation-Related
Facilities'' in the Federal Register (58 FR 7330). The Coast Guard
received 55 comments on the IFR. These comments were considered in
developing this final rule.
Background and Purpose
In response to several recent major oil spills, Congress passed the
Oil Pollution Act of 1990 (OPA 90) (Pub. L. 101-380). OPA 90 amended
section 311(j) of the Federal Water Pollution Control Act (FWPCA) (33
U.S.C. 1321(j)). It established requirements, and an implementation
schedule, for facility response plans and periodic inspections of
discharge-removal equipment.
As amended by OPA 90, section 311(j)(5) directs the President to
issue regulations implementing the new FWPCA requirements for facility
response plans. The President delegated this authority, in part, to the
Secretary of Transportation (DOT) by Executive Order 12777 (3 CFR, 1991
Comp.; 56 FR 54757). The Secretary of Transportation, in 49 CFR 1.46(m)
(57 FR 8581; March 11, 1992), further delegated, to the Commandant of
the Coast Guard, the authority to regulate marine transportationrelated
(MTR) onshore facilities, and deepwater ports subject to the
Deepwater Ports Act of 1974, as amended (33 U.S.C. 1501, et seq.). This
rule addresses only MTR facilities that handle, store, or transport
oil. Oil spill response plan regulations for vessels are the subject of
a separate rulemaking project (CGD 91-034).
Section 311(a)(1) of the FWPCA defines oil as including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with
waste other than dredge spoils (33 U.S.C. 1321(a)(1)). While the most
common oils are the various petroleum oils (e.g., crude oil, gasoline,
diesel, etc.), non-petroleum oils such as animal fats (e.g., tallow,
lard, etc.), vegetable oils (e.g., corn oil, sunflower seed oil, palm
oil, etc.), and other non-petroleum oils, such as turpentine, are
included within the ambit of this regulation when handled, stored or
transported by an MTR facility.
A major objective of the OPA 90 amendments to the FWPCA was to
create a national planning and response system. OPA 90 requires the
President to develop nationwide criteria for determining those
facilities which could reasonably be expected to cause substantial harm
to the environment. The OPA 90 Conference Report (Report 101-653)
states that the criteria should result in a broad requirement for
facility owners or operators to prepare and submit response plans.
Those facilities identified by the President are required to submit
response plans.
Section 311(j)(5) of the FWPCA requires the preparation and
submission of response plans from all onshore facilities that could
reasonably be expected to cause either ``substantial'' or ``significant
and substantial'' harm to the environment by discharging oil into or on
the navigable waters, adjoining shorelines, or exclusive economic zone
of the United States. Response plans must also be consistent with the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
(40 CFR part 300) and applicable Area Contingency Plans (ACPs).
Section 311(j)(5) also requires that, in a facility response plan,
an owner or operator identify and ensure by contract or other means
approved by the President the availability of private personnel and
equipment sufficient to remove, to the maximum extent practicable, a
worst case discharge and to mitigate or prevent substantial threat of
such a discharge.
Section 311(j)(5)(F) of the FWPCA allows the Coast Guard to
authorize an MTR facility requiring plan approval to
[[Page 7891]]
operate for up to 2 years after a plan is submitted for approval. This
provides an interim period in which the facility may continue to
operate while the plan approval process is completed.
Section 5005 of OPA 90 establishes requirements for response plans
for MTR facilities located in Prince William Sound, Alaska, which are
permitted under the Trans-Alaska Pipeline Authorization Act (TAPAA) (43
U.S.C. 1651, et seq.). This section requires a higher level of
preparedness for facilities in Prince William Sound in order to provide
an even greater margin of safety.
Although OPA 90 requires response plans for oil or hazardous
substance spills, section 4202(b)(4) establishes an implementation
schedule only for oil spill response plans. Response plans for
hazardous substance spills will be the subject of a separate
rulemaking.
Discussion of Comments and Changes
The Coast Guard received 55 comments on the IFR. The following
discussion summarizes the comments and explains substantive changes
made to the regulation in response to the comments. Comments are
categorized by the specific section of the IFR to which they apply. In
addition to these changes, editorial changes have been made to clarify
the rule or standardize terminology. The following sections have
changes which are purely editorial: Secs. 154.1010, 154.1017, 154.1030,
154.1047, 154.1050, 154.1070, 154.1075, 154.1125, and appendix C,
sections 1, 3, 4, 5, 7, and 8. The following sections were not changed:
Secs. 154.1028, 154.1029, 154.1041, 154.1057, 154.1115, 154.1130,
154.1135, 154.1140 and appendix C, sections 6 and 9 and Tables 1-5. For
the convenience of the public, the Coast Guard has reprinted subparts F
and G of part 154 in their entirety, including both changed and
unchanged sections. Two new subparts H and I have also been added to
part 154.
General Comments
One comment argued that the regulations do not consider economic
reasonableness, overstep the intent of Congress in their scope and
essentially place the entire burden for cleanup on owners and operators
of facilities. The Coast Guard disagrees. The primary intent of the
response planning portions of OPA 90 was to require that facility
owners or operators identify and ensure, by contract or other approved
means, the availability of private personnel and equipment to remove a
worst case discharge. The Coast Guard has considered the economic costs
of this final rule and they are summarized in this preamble in the
section entitled ``Assessment.''
Regulatory consistency. The Coast Guard received 16 comments urging
regulatory consistency in the development of these regulations. All of
these comments stated that there should be consistency with the other
regulations issued under OPA 90. One of these comments also recommended
the establishment of an interagency working group to identify which
sections of rules should be consistent and work toward achieving that
consistency. Another of these comments also urged that response plan
requirements should be amended to resemble EPA's requirements more
closely but that the Coast guard's requirements should have a much
closer focus on emergency response. The Coast Guard, EPA, and other
Federal agencies met repeatedly throughout the development of each
agency's rules. This coordination has produced significant similarities
between agencies issuing response plan rules. For example, the Coast
Guard and EPA have adopted the same requirements with respect to
planning volumes, amounts of response equipment, and the use of
dispersants, and other similar new or unconventional spill mitigation
techniques including mechanical dispersal.
Public Participation. Six comments addressed concerns of public
participation in the process of this rulemaking. Four comments argued
that the Coast Guard should have issued an NPRM instead of an IFR to
facilitate public comment. The IFR was issued to meet OPA 90's deadline
for implementing these oil pollution rules. Public comment to the IFR
has been considered in the development of this final rule.
One comment argued that the IFR did not meet the requirements of
OPA 90 for public input regarding the adequacy of the plans because it
does not provide for notification of plan receipt by the Coast Guard;
supplying copies of the plans to interested people; making copies of
the plans available in a central location for public review; or
allowing the public to appeal Coast Guard decisions on deficiencies or
classification.
The Coast Guard concludes that there is no requirement contained in
OPA 90 for the public to determine the adequacy of individual response
plans from onshore or offshore facilities. Along with Federal, state,
and local government representatives who are responsible for
coordinating environmental issues and emergency response operations,
the Coast Guard has encouraged Area Committees to include environmental
groups, representatives from academia, and concerned citizens. The
Coast Guard concludes that this is an appropriate method for private
citizens to provide advice, guidance, and expertise to the Area
Committee and will result in a coordinated community response to an oil
discharge.
This same comment requested a public hearing and the establishment
of a negotiated rulemaking committee for this regulation. The Coast
Guard established an Oil Spill Response Plan Negotiated Rulemaking
Committee (56 FR 58202, November 18, 1991). The Coast Guard used
information in the final report provided by the Committee in the
drafting of the VRP Rule (CGD 91-036) and this rule. The Coast Guard
finds it unnecessary to conduct a separate negotiated rulemaking for
the Facility Response Plan (FRP) rule.
Clarification. Two comments requested general clarification of the
IFR. One comment stated that the regulations must be clarified in many
respects to avoid differences of interpretation. The other comment was
concerned with words in the regulations having different meanings from
their accepted meanings. The Coast Guard recognizes these concerns and
has strived for clarity in this final rule. For example, in this final
rule, the Coast Guard has added definitions of the terms ``complex'',
``tier'', and ``fish and wildlife and sensitive environment''. It has
also issued guidance to response plan reviewers to assure uniform
understanding and enforcement of response plan requirements.
Agency jurisdiction. Two comments addressed the issue of
jurisdictional conflicts between agencies. One comment asserted that
there is an overlap in Coast Guard and Research and Special Programs
Administration (RSPA) authority over pipelines. This comment argued
that pipelines used only for transporting fuel between tanks and
vessels were previously subject only to Coast Guard jurisdiction.
However, this comment argues, new RSPA regulations now apply to all
pipelines. This comment contended that such regulation conflicts with
the delegation of authority in E.O. 12777 giving RSPA authority over
non-MTR pipelines only.
Executive Order 12777 delegated to the Secretary of Transportation
responsibility for the issuance of regulations requiring the owner or
operator of a transportation-related onshore facility and deepwater
ports to prepare and submit response plans. The Secretary delegated to
the Commandant of the Coast Guard the responsibility for
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the issuance of regulations requiring the owner or operator of a marine
transportation-related onshore facility and deepwater ports to prepare
and submit response plans. The Secretary delegated to the Administrator
of RSPA the same authority for non-marine transportation-related
pipelines. The Coast Guard finds that there is no conflict over
jurisdiction.
Section 150.129 Response Plans
The Coast Guard received one comment on this section. The comment
requested that the Coast Guard clarify the submission requirements for
deepwater ports. Under the IFR, the Coast Guard determined that
deepwater ports are significant and substantial harm facilities under
Sec. 154.1015 and, therefore, are required to submit a response plan
for review and approval. The Coast Guard finds that the submission
requirements are clear and, therefore, has made no changes to the final
rule on the classification of deepwater ports.
Section 154.106 Incorporation by Reference
The Coast Guard received one comment on this section. The comment
stressed that the Coast Guard should review the standard test methods
developed by the American Society of Testing Materials (ASTM) that are
incorporated by reference in this section as the standards are revised.
The Coast Guard intends to review any revisions to these standards and
will conduct appropriate rulemaking to revise this section if warranted
by changes to these standards.
Section 154.1010 Purpose
The Coast Guard received several comments requesting clarification
of this section. In response to these comments, the Coast Guard has
revised this section to clarify the purpose of response plans.
Section 154.1015 Applicability
The Coast Guard received eight comments on this section of the IFR.
Three comments argued that the classification of facilities should not
be determined solely by the amount of oil that a facility is capable of
transferring. The comments stated that other factors such as a
facility's spill history, proximity to fish and wildlife and sensitive
environments, presence of containment structures, and potential worst
case discharge should be considered in the classification of
facilities.
The IFR reflects the Coast Guard determination that all MTR
facilities that transfer oil to or from a vessel with a capacity of 250
barrels or more could reasonably be expected to cause at least
substantial harm to the environment, and that large fixed facilities
and deepwater ports could reasonably be expected to cause significant
and substantial harm to the environment in the case of an oil
discharge. If a facility owner or operator believes that his or her
facility should be reclassified from significant and substantial harm
to substantial harm or excluded from the substantial harm category
based on factors other than the facility's capacity for transferring
oil, then under Sec. 154.1075 the facility owner or operator is
permitted to appeal the classification to the COTP and then to the
District Commander, and then to the Commandant. There have been no
changes in these provisions in the final rule.
Although the Coast Guard has not changed the final rule to reflect
the consideration of factors other than the facility's type and its
capacity for transferring oil in the classification of the facility,
the Coast Guard has modified the threshold for the initial
classification of significant and substantial harm facilities in the
final rule, thereby decreasing the number of facilities which will be
classified as significant and substantial harm facilities. The Coast
Guard has identified several fixed MTR facilities which are segments of
non-MTR facilities that have a total storage capacity of less than
42,000 gallons. The Environmental Protection Agency (EPA) has
determined that such non-transportation related facilities with a
storage capacity of less than 42,000 gallons associated with a MTR
facility are not considered as substantial harm facilities. However,
these MTR facilities are capable of transferring oil to or from a
vessel with a capacity of 250 barrels or more. The Coast Guard has
determined that these facilities could reasonably be expected to cause
substantial harm to the environment. These facilities must still submit
response plans; however, they are no longer classified as ``significant
and substantial harm'' facilities. Paragraph (c)(1) of Sec. 154.1015
has been amended to incorporate this change.
One comment suggested that facilities that transfer only oily water
mixtures should be classified as substantial harm facilities. The Coast
Guard disagrees. Although a facility may transfer only oil that is
mixed with water, the facility may transfer enough oil to reasonably be
expected to cause significant and substantial harm to the environment
if a discharge were to occur.
Another comment stated that the Coast Guard should clarify that
mobile facilities are the only facilities that are not classified as
significant and substantial harm facilities. Under the IFR, mobile
facilities are the only facilities which initially are classified only
as substantial harm facilities; however, under Sec. 154.1016, the COTP
may determine that other facilities may reasonably be expected to cause
substantial harm to the environment and may upgrade mobile MTR
facilities to significant and substantial harm facilities.
Additionally, the amended paragraph (c)(1) of Sec. 154.1015 of the
final rule, which modifies the threshold for significant and
substantial harm facilities, has increased the number of facilities
that will initially be classified only as substantial harm facilities.
One comment suggested that the Coast Guard provide guidance on how
to determine whether a facility is part of a complex. A facility is
part of a complex if the entire facility is regulated by more than one
Federal agency under section 311(j) of the FWPCA. Most MTR facilities
are part of a larger facility that has segments which are regulated by
agencies such as EPA, RSPA or the Minerals Management Service (MMS). If
a facility owner or operator is unable to determine whether his or her
facility is part of a complex, he or she may request guidance from the
COTP.
Two comments contended that the regulation should not apply to nonpetroleum
oils. One comment specifically stated that the regulation
should not apply to facilities which handle animal and vegetable oils
because these oils are not toxic to the environment. The Coast Guard
disagrees. The response planning requirements of this regulation were
developed to ensure that facility owners or operators are prepared to
respond to an oil spill originating from their facility, regardless of
the type of oil spilled. The Coast Guard recognizes that certain nonpetroleum
oils, including certain animal fats and vegetable oils, are
non-toxic in the marine environment; however, lethal acute aquatic
toxicity is not the sole factor considered in determining harm to the
environment. A discharge of animal fats or vegetable oils may cause
chronic effects for waterfowl and aquatic organisms. Proper response
planning for a discharge of non-petroleum oils will have a significant
effect in limiting harm to the environment. Therefore, facility owners
or operators handling non-petroleum oils at their facility are required
to prepare response plans under this regulation.
[[Page 7893]]
The Coast Guard has determined, based upon comments, that animal
fats and vegetable oils, and other non-petroleum oils will be addressed
separately from petroleum oils, and from one another, in the final
rule. The final rule removes the response planning requirements for
animal fats and vegetable oils, and other non-petroleum oils from
Sec. 154.1049 in the IFR and establishes two new subparts H and I,
containing requirements for these oils. Subpart H contains requirements
for animal fats and vegetable oils, while subpart I contains
requirements for other non-petroleum oils. Although new subparts have
been established for animal fats and vegetable oils, and other nonpetroleum
oils, the response planning requirements for these oils are
not changed in the final rule.
One comment stated that a facility that is capable of transferring
oil to or from a vessel with a capacity of 250 barrels or more, but
that does not transfer to a vessel of this size should not be required
to submit a response plan. Although the Coast Guard has not lowered the
threshold for substantial harm facilities in the final rule, the
revised final rule permits the COTP to downgrade a facility. The COTP
is in the position to evaluate the individual situation of each
facility under his or her jurisdiction with respect to operational
history and other factors which would affect the facility's
classification. The COTP may downgrade a facility's classification,
acting either on his own or upon request of the facility's owner or
operator, if he finds that such action is warranted.
Section 154.1016 Facility Classification by COTP
The Coast Guard received four comments on this section. One comment
stated that the COTP should not be permitted to upgrade a facility
based on the facility's proximity to areas of economic importance and
environmental sensitivity. The comment contended that OPA 90 does not
permit such an action. Another comment stated that a facility's spill
history does not indicate that the facility is at greater risk for
future spills and, therefore, spill history should not be considered in
determining a facility's classification. The Coast Guard disagrees. OPA
90 permits the Coast Guard to require response plans for facilities
that could reasonably be expected to cause substantial harm and
significant and substantial harm to the environment. OPA 90 does not
define these terms; therefore, the Coast Guard must determine the
criteria used to distinguish these facilities. The Coast Guard has
adopted EPA's term ``fish and wildlife and sensitive environments'' to
refer to areas of environmental sensitivity. The Coast Guard has
concluded that a facility's proximity to fish and wildlife and
sensitive environments and its spill history are relevant factors in
determining whether a facility could reasonably be expected to cause
substantial harm or significant and substantial harm to the environment
in the case of an oil discharge.
Two comments stated that a facility owner or operator should be
permitted to appeal the COTP's decision to upgrade a facility. Under
Sec. 154.1075 of the IFR, a facility owner or operator is permitted to
request the COTP to review the initial facility classification. The
owner or operator may submit relevant data to the COTP to support his
or her argument. If the owner or operator is dissatisfied with the
COTP's decision, the owner or operator may appeal the decision to the
District Commander. The decision of the District Commander may be
appealed to the Commandant. This appeals provision is unchanged in the
final rule.
Under the IFR, the COTP was permitted only to upgrade a facility's
initial classification. Under the final rule, the COTP is permitted to
upgrade or downgrade the facility's classification. Upon written
request from the facility owner or operator to review the facility's
classification, the COTP may downgrade a facility from significant and
substantial harm to substantial harm or from substantial harm to a
status in which it is exempt from the regulation. This provides the
COTP with greater latitude to appropriately regulate his or her port
area. This change has prompted the renaming of this section to
``Facility Classification by COTP'' in the final rule.
Section 154.1017 Response Plan Submission Requirement
The Coast Guard received many comments on this section of the IFR.
Four comments requested the Coast Guard to clarify whether the FRP
regulations apply to inactive facilities. Under Sec. 154.100(a), the
applicability section for part 154, facilities in caretaker status are
exempt from the requirements of this part, with the exception of
certain safety requirements set out in Sec. 154.735.
Two comments stated that facility complexes should not be required
to submit response plans to more than one Federal agency for approval.
The comments further stated that all facilities that transfer oil over
water should be regulated exclusively by the Coast Guard. The Coast
Guard recognizes that submitting plans to several agencies for approval
may have been burdensome for those facilities whose options
necessitated submission of response plans to more than one Federal
agency. The initial delegation under Executive Order 12777 to issue
regulations and review and approve response plan to multiple Federal
agencies reflected agency expertise in the regulated industries and the
traditional jurisdiction of Federal agencies under section 311 of the
FWPCA. This delegation provided each agency with the opportunity to
review response plans and to ensure that the plans reflected industry
practices and were in compliance with statutory requirements.
Today, virtually every facility required to submit response plans
has already done so in compliance with the rules promulgated by the
appropriate agency. It has become apparent that some response plans
unnecessarily duplicate information contained in other plans. Federal
agencies are interested in streamlining the response plan preparation
and submission procedures to reduce significantly the burden when plan
revision and resubmission is required. The Coast Guard believes that
the ``One Plan'' or Integrated Contingency Planning concept has merit
and discussions are ongoing between industry, the appropriate Federal
agencies, and members of the National Response Team (NRT). The NRT is
developing guidance for preparation of integrated response plans that
will satisfy the regulatory requirements of various Federal agencies
while avoiding unnecessary and confusing duplication of standard
response procedures and organizational details. With the completion of
guidance on Integrated Contingency Planning, the Coast Guard will
accept plans developed in accordance with that guidance. The NRT is
also examining the feasibility of vesting response plan review in the
On Scene Coordinator. The NRT is discussing minimizing the number of
Federal agencies involved in reviewing a response plan for those
facilities that, due to their diverse nature, may have to prepare and
submit a response plan to more than one Federal agency. The Coast Guard
is committed to working with the NRT on these issues and working to
minimize the regulatory burden on facilities that have marine
transportation-related mode and non-transportation-related components.
[[Page 7894]]
Section 154.1020 Definitions
The Coast Guard received many comments on the definitions of the
terms used in the IFR. Some comments suggested clarification of certain
terms while others suggested the addition of terms. The following
discussion addresses only those definitions or issues on which the
Coast Guard received comment or made significant revisions.
Adverse weather. The Coast Guard received one comment on ``adverse
weather'' which suggested that wind, tides, and the number of daylight
hours be included as three additional environmental factors that
contribute to adverse weather conditions for a spill response. The
Coast Guard did not intend the listed conditions to be exclusive. To
address this comment's concern, the Coast Guard is adding language to
the definition of ``adverse weather'' to indicate that other relevant
factors including wind, tides, etc., should also be taken into account
when identifying response systems and equipment.
Availability (of response resources). The Coast Guard received one
comment which requested that this term be defined. The comment stated
that the definition should indicate that response organizations often
have contracts with many facilities and, as a result, there may be
instances where the contractor's obligations to one facility may limit
its ability to arrive at the scene of an oil spill at another facility
within the specified times. The Coast Guard recognizes that actual
availability of response resources may be limited by unforeseeable
events such as multiple, simultaneous oil spills. The Coast Guard
stresses that the requirements are not performance standards. They are
intended to be used to develop a plan for responding to a discharge of
oil to the maximum extent practicable in the existing conditions. The
Coast Guard recognizes that actual conditions may not permit the
arrival of resources within the prescribed timelines. The Coast Guard
concludes that there is no need to provide a definition.
Complex. The Coast Guard received one comment suggesting that it
clarify the meaning of ``complex'' and that the Coast Guard definition
be consistent with the definition in EPA regulations. A ``complex'' is
composed of facilities regulated by two or more Federal agencies, and
that are used, or intended to be used, to transfer oil to or from a
vessel. A ``complex'' may include marine transportation-related
portions and other non-marine transportation-related portions. The
Coast Guard has included a definition that is consistent with the FWPCA
and applicable EPA regulations.
Consistency with EPA regulations. Two comments stated that the
definitions in the Coast Guard regulation should be consistent with
those in the EPA regulation. Wherever relevant, the Coast Guard has
consulted other agencies and their regulations to ensure that the Coast
Guard's OPA 90 regulations do not conflict with those of other
agencies. Occasionally, the Coast Guard's definitions diverge from
similar definitions of other agencies. In those cases, the Coast Guard
has examined the other agency regulations and decided upon a different
approach for legal, policy, or technical reasons.
Environmentally Sensitive Area. The Coast Guard received one
comment suggesting that it add a definition of the term
``environmentally sensitive area'' to be consistent with EPA
regulations, the NCP, and OPA 90. The EPA has adopted the term ``fish
and wildlife and sensitive environment.'' For consistency, the Coast
Guard is adopting EPA's term and its definition. However, the Coast
Guard is adding economically important areas to the EPA definition. OPA
90 requires that response plans be consistent with the applicable Area
Contingency Plan (ACP). The ACPs are prepared by Area Committees
composed of qualified personnel from Federal, State and local agencies.
The Coast Guard has provided guidance to the Area Committees on the
preparation of ACPs. Coastal ACPs have been prepared and are available
for preparation of facility response plans. The Area Committees
identify, and prioritize for protection, specific locations that fall
under the category ``fish and wildlife and sensitive environments.''
The ACPs will be revised annually and will identify areas of economic
importance. The completed fish and wildlife and sensitive environments
plans will likely be geographic-specific annexes to the ACPs. The
National Oceanic and Atmospheric Administration (NOAA) published a
notice in the Federal Register on March 29, 1994 entitled ``Guidance
for Facility and Vessel Response Plans Fish and Wildlife and Sensitive
Environments.'' (59 FR 14714) NOAA's notice provides detailed guidance
which facility and vessel owners may use to supplement the information
contained in the applicable Coast Guard regulations. However, the ACP
will still be used to make the final determination regarding fish and
wildlife and sensitive environments.
Full-scale. The Coast Guard received five comments suggesting the
addition of the term ``full scale'' in order to clarify certain
requirements for spill drills. The comments proposed that the term mean
maximum participation by all levels of a facility's response
organization to test major portions of the plan with a high degree of
realism and extensive involvement. The Coast Guard extensively revised
Sec. 154.1055 of subpart F to reflect concerns expressed by comments,
as well as to bring the section into alignment with the vessel response
plan final rule and the applicable EPA regulations. Section 154.1055 is
now entitled ``Exercises'' and requires the owner or operator of a
facility to conduct exercises that will test the entire response plan
every 3 years. The requirements allow the owner or operator to exercise
different elements of the plan (e.g. qualified individual notification,
spill management team, equipment deployment) at different times.
However, the exercises must still test every element of the plan every
3 years and, in addition, an unannounced exercise must also be
conducted every 3 years. The revised Sec. 154.1055 also allows owners
or operators to fulfill the exercise requirements by complying with the
National Preparedness for Response Exercise Program (PREP). In view of
these changes, a definition of ``full scale'' is not necessary.
Functional. The Coast Guard received five comments suggesting that
the term ``functional'' be added to the definitions section in the
final rule to clarify certain requirements for spill drills. The
comments proposed that the term be defined as the limited exercising of
specific functions, such as a command and control, internal
coordination, external coordination, and tests of the functional
planning and response capabilities of personnel and systems. In
response to these, and other comments, the Coast Guard has extensively
revised Sec. 154.1055 which was entitled ``Drills'' in the IFR and is
now entitled ``Exercises.'' The Coast Guard concludes that the
Exercises section now adequately addresses the meaning of the term
functional. The functional areas are laid out in
Sec. 154.1035(b)(3)(iii) of subpart F. Response plans must contain an
organizational structure incorporating the listed functional areas.
Section 154.1035(b)(3)(iv) requires response plans to also contain job
descriptions for the spill management team members in each functional
area identified in the organizational structure described in
Sec. 154.1035(b)(3)(iii).
Group IV oil. The Coast Guard received several comments indicating
that the definition for Group IV oil included Group V oil. The Coast
Guard has revised the definition of Group IV
[[Page 7895]]
oil which is found in the definition of ``persistent oils'' to mean oil
having a specific gravity equal to or greater than .95 and less than or
equal to 1.0.
Higher volume port areas. The Coast Guard received one comment
which proposed to add Cook Inlet, Alaska to the list of higher volume
port areas. The Coast Guard classified higher volume port areas based
upon a study of the relative volumes of oil handled, stored or
transported. The U.S. Army Corps of Engineers reports on ``Waterborne
Commerce of the United States'' provided the statistics for 34 port
areas. The decision to classify some ports as higher volume was based
upon the Coast Guard's analysis of the data from the reports. The data
revealed a distinct break point. Cook Inlet, Alaska falls below the
break point and, as such, does not meet the criteria for designation as
a higher volume port area.
Marine transportation-related facility. The Coast Guard received
three comments on the definition of MTR facility. One comment requested
that the Coast Guard clarify the definition by citing specific types of
facilities to which it refers. The Coast Guard gave examples of MTR
facilities in the preamble to the IFR (e.g., fixed onshore MTR
facilities include marinas; and mobile MTR facilities include tank
trucks and railroad tank cars). Two other comments requested
clarification of Coast Guard and RSPA jurisdiction over pipelines at
MTR facilities. As stated in the preamble to the IFR, the definition of
transportation-related and non-transportation-related facilities
appeared in a 1971 Memorandum of Understanding (MOU) between the
Environmental Protection Agency and the Department of Transportation.
The MOU appears in the appendix to 40 CFR part 112. The Coast Guard
definition of MTR is drawn directly from the MOU. The division point
between the transportation-related portion of a pipeline, and the nontransportation
-related portion of a pipeline is the first design
discontinuance (valve) inside the secondary containment surrounding the
tanks in the non-transportation-related portion of the facility. The
Coast Guard finds that MTR is clearly defined in accordance with the
appropriate legal authority. In a particular situation, if the location
of the division between the MTR portion and the non-MTR portion is
unclear, then the appropriate Federal officials, including the Coast
Guard COTP, should be consulted. As set forth in the definition, these
officials may agree to a specific location for the separation.
Maximum extent practicable. One comment asserted that the
definition of ``maximum extent practicable'' is too rigid and does not
allow for the flexibility that Congress intended. According to the
comment, location, size, configuration, and other similar factors,
should be considered in developing response plans. The Coast Guard has
used a number of factors in determining the need to prepare and submit
a response plan. The planning process also considers other factors as
provided in Secs. 154.1035 and 154.1045.
Maximum most probable discharge. The Coast Guard received four
comments on the definition of maximum most probable discharge
suggesting that the Coast Guard revise the maximum most probable
discharge volume of 1,200 barrels or 10 percent of the volume of the
worst case discharge to be consistent with the EPA maximum most
probable discharge volume of 36,000 gallons. As stated in the preamble
to the IFR, the Coast Guard based its maximum most probable discharge
definition upon historical spill data which indicated that 99 percent
of oil spills from coastal zone facilities were approximately 1,200
barrels or less. The Coast Guard concludes that the existing definition
is appropriate because it protects the environment while not overly
burdening small volume facilities.
Nearshore area. The Coast Guard received two comments on the
definition of nearshore area. One comment stated that the definition
should exclude areas which also meet the definition of rivers and
canals. Another comment requested clarification of the relationship
between nearshore areas and other terms such as ``close-to-shore'' in
Appendix C and ``close to shore response activities in shallow water''
in Sec. 154.1045(e). The definition of ``Nearshore area'' does not
presently include areas which meet the definition of rivers and canals
because ``Rivers and canals'' is a subset of the definition of ``Inland
areas'' not ``Nearshore areas.'' The precise meaning of ``close-toshore''
is specified at the point where the term is used. Close-toshore
refers to waters six feet or less in depth.
Notification drill. The Coast Guard received five comments that
suggested the addition of the term ``notification drill'' to the
definition section of the final rule. The comments suggested defining
the term to mean a test of the facility's system of notifying or
activating, according to the facility's response plan, appropriate
agencies, the facility spill management team, the oil spill removal
organization, and the next higher level of the facility owner's or
operator's organization. A notification drill tests the facility's
ability to start activation of its plan. To be successful, a
notification drill need not result in calls to the top of the
facility's response organization. The Coast Guard has extensively
revised Sec. 154.1055 which was previously entitled ``Drills'' and is
now entitled ``Exercises.'' The revised section includes a ``Qualified
Individual notification exercise'' and specifies that compliance with
the National Preparedness for Response Exercise Program (PREP) fulfills
all exercise requirements. The Coast Guard concludes that these changes
adequately address the points raised by the comments.
Oil. The Coast Guard received seven comments on this definition.
One comment requested that the Coast Guard narrow the definition of oil
to exclude substances which contain small percentages of oil such as
ship bilge and ballast water. One comment indicated that the definition
of oil in the regulations should be consistent with the definition in
OPA 90, which excludes hazardous substances subject to CERCLA. Four
comments stated that oil should be limited only to petroleum oils which
are liquid under the range of ambient conditions which exist at a
facility and which are not considered CERCLA substances. OPA 90 did not
amend the definition of oil in section 311 of the FWPCA. The Coast
Guard's definition of ``oil'' is the same definition used by the FWPCA.
The statutory definition refers to oil in any form. That includes oily
bilge and ballast water because they have been shown to be sources of
oil pollution and discharges may result in substantial harm to the
environment. The Coast Guard has determined that it is appropriate for
response plans to include provisions covering oils which may not be
liquid in all conditions. Such oils may sink to the bottom or remain
suspended in the water column. In either case, they may cause
substantial harm to the environment if not cleaned up as soon as
possible. The Coast Guard concludes that the current definition of oil
meets both the letter and the spirit of the FWPCA and therefore is not
changing the definition of oil.
Another comment stated that the response plan regulations should
not apply to edible oils. The comment contended that if edible oils
were excluded from the regulations, the owner or operator of a facility
handling edible oils still would be required to report and cleanup a
spill under the Clean Water Act (CWA). The Coast Guard definition of
``oil'' is the same definition that is used by the FWPCA. That
definition includes edible oils. The
[[Page 7896]]
Coast Guard has created new subparts in the final rule to distinguish
non-petroleum oils, including edible oils such as animal fats and
vegetable oils, from petroleum oils. The scientific data currently
available to the Coast Guard strongly indicate that these oils may have
an adverse impact upon the environment that is similar to the impact of
petroleum oils. As a result, the Coast Guard is not exempting nonpetroleum
oils from response planning in the final rule. The Coast
Guard will continue to assess its position as further data become
available on the subject.
Oil spill removal organization. The Coast Guard received two
comments on the definition of oil spill removal organization which
suggested that the definition be revised to be more specific. The Coast
Guard crafted the definition if oil spill removal organization to be
flexible enough to apply to varying types of organizations which may be
called upon to respond to a discharge of oil while complying with OPA
90 requirements. A more specific definition, while useful to some in
the industry, might exclude organizations which are able to provide
useful and needed response capabilities. The Coast Guard is not
changing the definition of oil spill removal organization and suggests
that any questions regarding the suitability of a particular
organization be directed to the COTP for the area in which the facility
is located.
Other non-petroleum oil. The Coast Guard has added a definition of
``other non-petroleum oil.'' Other non-petroleum oil means a nonpetroleum
oil of any kind that is not generally an animal fat or
vegetable oil.
Persistent oil. The Coast Guard received two comments on the
definition of persistent oil. Both comments indicated that the
definition proposed in the IFR does not account for oils that have a
specific gravity greater than 1.0 that do not sink in salt water. The
comments suggest that the definition be revised to include all products
which could reasonably be expected to sink in the environment in which
they are likely to be discharged. The definition of persistent oils is
subdivided based upon specific gravity into Groups II, III, IV and V.
The Coast Guard finds that further subdivision is unnecessary because
the definition currently includes all oils with a specific gravity of
greater than 1.0, regardless of whether or not they sink in salt water.
Furthermore, the Coast Guard concludes that, in combination with other
factors, even those oils referred to in the comments are very likely to
sink in salt water.
Private shore-based personnel. The Coast Guard received one comment
suggesting the addition of this term to the regulation. The comment
indicated that certain Occupational Safety and Health Administration
(OSHA) standards are not enforced. The Coast Guard is not tasked with
enforcement of OSHA standards except in very specific instances. In the
context of pollution control regulations such as OPA 90, the Coast
Guard is not responsible for enforcing OSHA standards. Therefore, it is
unnecessary for the Coast Guard to add this term to the final rule.
Rivers and canals. The Coast Guard received 8 comments on this
definition. All eight comments questioned the use of the 12 foot
project depth as a criterion for determining whether a waterway is a
river or canal. One comment suggested that a project depth of 18 feet
be applied as the standard. Four comments suggested that the COTP
should be given the discretion to determine which waterways will be
determined to be rivers or canals. The 4 comments also stated that the
terms rivers and canals should be applied only to certain areas with
definite geographical demarcations. Two comments requested
clarification on whether the 12-foot project depth criterion applies
only to artificially created waterways. Additionally, these 2 comments
indicated that the definition of rivers and canals excludes certain
rivers. The definition of rivers and canals applies to all waterways
with a project depth of 12 feet or less including both naturally and
artificially occurring ones. The Coast Guard finds that the 12-foot
depth is appropriate to define the inland areas where shallow draft
vessels may call at MTR facilities and has not changed it in the final
rule. The COTP has the authority to redefine specific operating
environments within his or her jurisdiction. This provisions is
continued in the final rule.
Specific gravity. Several comments encouraged the Coast Guard to
define specific gravity in the final rule. The Coast Guard agrees and
has used the definition of specific gravity found in ASTM Standard D
1298 entitled ``Standard Practice for Density, Relative Density
(Specific Gravity), or API Gravity of Crude Petroleum and Liquid
Petroleum Projects by Hydrometer Method.''
Spill management team. The Coast Guard received 5 comments on this
definition. Four comments stated that the definition of spill
management team should reflect the allowance for tiered spill
management teams. Another comment indicated that the FRP regulation
should be consistent with the VRP regulation which permits the spill
management team function to be fulfilled by an organization outside the
planning area of the spill. A ``tiered'' spill management team is not
prohibited by the regulations as they appeared in the IFR and remain in
the final rule. The definition is identical in both the VRP and FRP
final rules to ensure consistency in spill management team
requirements.
The Coast Guard received 5 comments suggesting that it define the
term ``corporate spill management team.'' One comment suggested that
this term be defined to mean a national team of operational and
functional experts and consultants responsible for moving quickly to a
spill site to replace or support a facility response team in managing a
response. The Coast Guard also received 5 comments requesting that it
add the term ``facility spill management team'' to the regulation. The
comments suggested that the term be defined to mean a team responsible
for initiating and managing a response to a spill to its conclusion or
until a team member from a higher tier in the overall response
organization is activated and on-scene to support the facility team or
manage the response until its conclusion.
The Coast Guard concludes that the existing definition of ``spill
management team'' already incorporates the elements that the comments
suggest. The Coast Guard therefore finds that it is both unnecessary
and undesirable to complicate the regulation by subdividing the
definition of spill management team. Section 154.1035(b) contains
detailed requirements regarding plan content including the spill
management team. The spill management team may include all persons
relevant to an effective spill response except Federal, State and local
authorities. It may include local, as well as regional or national
corporate officials, operational, as well as functional experts, and
representatives of OSROs. The local or on-site spill response team
members can, and should, be prepared to integrate other persons, such
as regional and national corporate officials, into their spill response
team structure.
Table top. The Coast Guard received 5 comments requesting that it
add the term ``table top'' to the final rule to clarify certain spill
drill requirements. The comments suggested that the term be defined as
a verbal walk-through to discuss action to be taken during simulated
emergency situations, designed to elicit constructive discussion by the
participants without time constraints. A table top drill does
[[Page 7897]]
not involve the movement of equipment or people. The Coast Guard has
extensively revised Sec. 154.1055 which was previously entitled
``Drills'' and is now entitled ``Exercises.'' The revised section
specifies that compliance with the National Preparedness for Response
Exercise Program (PREP) fulfills all exercise requirements. The Coast
Guard concludes that the changes adequately address the points raised
by the comments.
Tier. The Coast Guard received one comment which stated that the
use of ``tier'' in the IFR was unclear, and suggested that the Coast
Guard define the term in the final rule. The Coast Guard agrees and has
defined ``tier'' in the final rule.
The requirements for response to a worst case discharge to the
maximum extent practicable are based on the tiering of response
resources. The concept of ``tier'' has two primary components: The
amount of equipment and personnel required for a response to a worst
case discharge, and the amount of time in which these response
resources are required to be on-scene from the time of discovery of an
oil discharge. Tiering allows for the arrival of response resources at
various stages of the response effort. Tiering the mobilization of
response resources recognizes the need for a rapid initial response to
an oil spill, yet allows for the identification of response resources
from outside the area of the facility to meet the response resource
planning requirements.
Sections 154.1045(e) and 154.1047(a)(1) of subpart F of the final
rule require a facility owner or operator to identify, by contract or
other approved means, equipment and personnel to respond to the
facility's worst case discharge for Group I-IV oils and Group V oils,
respectively. Appendix C and especially Tables 2, 3, and 4 provide
specific guidance on calculating the amount of response equipment
required by these sections. Table 4 provides mobilization factors used
to calculate the amount of response resources required for on-water
recovery for each tier. Table 5 establishes caps to the amount of
response resources for which a facility owner or operator must contract
in advance. Caps have been established for response resources required
for Tiers 1, 2, and 3. The caps recognize the current limits on
technology and private removal capabilities. The caps are for planning
purposes only; in no way do the caps limit the amount of resources
which a facility owner or operator may be required to mobilize during
an actual spill response.
Section 154.1045(f) of subpart F establishes three time tiers for
the on-scene arrival of response resources for the different operating
environments for Group I-IV oils.
Section 154.1025 Operating Restrictions and Interim Operating
Authorization
The Coast Guard received 10 comments on this section of the
regulation. One comment requested that the Coast Guard clarify the
requirement for facilities to submit response plans meeting the
requirements of Sec. 154.1030 for review and approval to the Coast
Guard COTP and the requirement to operate in full compliance with the
approved plans.
Section 154.1017 requires all facilities which could reasonably be
expected to cause at least substantial harm to the environment to
prepare and submit response plans to the Coast Guard. Only facilities
which could reasonably be expected to cause significant and substantial
harm to the environment are required to submit response plans for
review and approval by the Coast Guard. Section 154.1025(b) requires
all facilities that are required to prepare response plans to operate
in compliance with their plans.
The Coast Guard has added to the final rule a provision that
requires facility owners or operators making initial response plan
submissions after May 29, 1996, to comply with the requirements of the
final rule. The Coast Guard is not requiring facility owners or
operators who submitted response plans under the IFR or NVIC to revise
their response plans to conform with the requirements of the final rule
until the plan's 5-year resubmission date. However, a facility owner or
operator who has prepared a response plan under the NVIC or the IFR may
comply with any of the provisions of this final rule by revising the
appropriate section of the previously submitted plan in accordance with
the revision and amendment procedures in Sec. 154.1065. An owner or
operator who elects to comply with all of the requirements of the final
rule must resubmit the entire plan for review and approval, if
appropriate, in accordance with Sec. 154.1060.
One comment suggested that Sec. 154.1025(d) be revised to give the
Coast Guard authority to prohibit a facility from operating if the COTP
determines that a previously approved plan has not been properly
revised or updated. The Coast Guard finds that Sec. 154.1065 provides
the COTP with adequate authority to enforce the requirements for
response plan amendments and revisions. Under Sec. 154.1065(c), the
COTP may require a facility owner or operator to revise a response plan
at any time if the COTP determines that the plan does not meet the
requirements of this regulation.
Section 154.1025(d) provides four specific circumstances under
which a facility may not handle, store, or transport oil including a
COTP determination that owner-certified response resources or a
submitted response plan do not meet the requirements of the subpart.
One comment indicated that the Coast Guard should limit its review
and approval of response plans to 30 days for those plans submitted by
February 18, 1993, the deadline for plan submission under the IFR.
Limited resources prevented the Coast Guard from guaranteeing a review
of every submitted response plan within 30 days. However, to facilitate
the operations of facilities requiring Coast Guard review and approval
under Sec. 154.1025(c), the Coast Guard permitted these facilities to
continue operations for up to 2 years from the date of plan submission.
This procedure is in accordance with Sec. 311(j)(5)(F) of the FWPCA.
The same comment suggested that a facility owner or operator should
have no more than 30 days to make corrections to a plan if the plan is
not approved by the COTP. Because of the varying degrees of plan
deficiencies, the Coast Guard has determined that the COTP must have
the flexibility to specify the period in which the facility owner or
operator could reasonably be expected to correct the deficiencies.
One comment stated that, to be consistent with EPA and RSPA
regulations, the Coast Guard should not formally review the letter from
a facility owner or operator certifying the availability of response
resources. Conversely, another comment indicated that a facility owner
or operator should be required to certify in writing not only that he
or she has ensured the availability of the necessary response
resources, but also that the response resources are capable of being
on-scene within the specified response times. The Coast Guard has
determined that, until it is able to complete the review of the
submitted response plans, its review and acceptance of the
certification letters is its primary means of ensuring that facilities
are in compliance with the statutory provisions of OPA 90 requiring the
identification of response resources. The Coast Guard requires facility
owners or operators to indicate in the certification letter that the
response resources identified are in compliance with subpart F, G, or H
as appropriate.
[[Page 7898]]
Section 154.1028(a) requires response resources to be capable of being
on-scene within specified times.
One comment indicated that response contractors probably would not
have all of the spill response equipment in stock that is necessary to
meet the August 18, 1993 deadline in the IFR, particularly the
equipment used for recovering oil in shallow waters. The comment
requested that the Coast Guard exempt this type of equipment from the
response plan requirements. The Coast Guard found that at the time of
the comment there was no evidence to indicate that facility owners or
operators were unable to identify adequate response resources for
recovering oil in shallow water.
Another comment suggested that the Coast Guard clarify the language
in Sec. 154.1025(c) permitting interim operating requirements prior to
Coast Guard approval of a response plan. The Coast Guard has updated
and clarified Sec. 154.1025(c). Additionally, the comment indicated
that this paragraph should apply also to substantial harm facilities.
Section 154.1025(c) applies only to the owners or operators of
facilities for which the Coast Guard must review and approve response
plans. Under section 311(j) of the FWPCA and 33 CFR 154.1017(b), only
significant and substantial harm facilities are required to submit
response plans for Coast Guard review and approval.
Section 154.1026 Qualified Individual and Alternate Qualified
Individual
The Coast Guard received 9 comments on this section of the IFR.
Four of the comments contended that the Coast Guard should permit the
qualified individual to be identified in the plan by his or her title,
rather than his or her name. Two comments suggested that the Coast
Guard establish a mechanism by which the qualified individual can be
chosen from a group of individuals among whom the responsibility of the
qualified individual rotates. Another comment stated that the facility
owner or operator should not be required to provide documentation to
the qualified individual in order to activate his or her authority as
the qualified individual. The Coast Guard finds that the amount of
authority vested in the qualified individual warrants that the response
plan identify the specific individual(s) assuming this position. For
this reason, the Coast Guard also requires the qualified individual to
have documentation which clearly indicates his or her role in the
facility's response activities.
Five comments requested clarification on the responder immunity
provisions in Sec. 154.1026 (e) and (f). Three of the comments
specifically requested that the Coast Guard clarify who is immune from
liability under the provisions. Two comments suggested that the Coast
Guard address the immunity of the qualified individual in the
regulatory text. One comment suggested that the potential liability for
the qualified individual is too significant to attract many capable and
qualified persons for the position.
As discussed in the preamble to the IFR, section 311(c)(4) of the
FWPCA provides that only a responsible party is liable for the removal
costs or damages which result from actions taken or omitted in the
course of rendering care, assistance, or advice consistent with the
National Response Plan or as otherwise directed by the President. A
person does not become a responsible party under section 311(c) of the
FWPCA by being designated as a qualified individual for response plan
purposes. However, a person whose acts or omissions are grossly
negligent, or who engages in willful misconduct may, as a result,
become liable for the resulting damages. The Coast Guard does not have
the authority to grant immunity to the qualified individual and,
therefore, cannot establish immunity provisions in the final rule.
However, the Coast Guard does recognize that the qualified individual
is not responsible for the adequacy of response plans, nor is he or she
responsible for contracting response resources beyond the authority
delegated from the facility owner or operator. These points are
reflected in the regulatory text.
Seven comments addressed the facility owner's or operator's ability
to substitute a person from a higher level of management for the
designated qualified individual. Four comments requested that the Coast
Guard state this option in the regulatory text. Additionally, three
comments questioned whether the person from a higher level of
management who is assuming the responsibilities of the qualified
individual is considered to be the qualified individual during an
actual spill response. The Coast Guard does not intend to limit the
discretion of the facility owner or operator to select any qualified
person to assume the full range of responsibilities of the qualified
individual. A facility owner or operator may, at any time, substitute
the designated qualified individual or alternate qualified individual
with a person from a higher organizational level who meets the
requirements of Sec. 154.1026. In order for that person to be
recognized as the qualified individual, the facility owner or operator
must provide the individual with a document designating them as the
qualified individual as required by Sec. 154.1026(c). The Coast Guard
has changed the language in Sec. 154.1026 to clarify that the Qualified
Individual or an Alternate Qualified Individual must be available on a
24-hour basis and must be able to arrive at the facility within a
reasonable time.
One comment requested a more stringent English language requirement
for the qualified individual and suggested that the qualified
individual be required not only to speak fluent English, but also be
required to read, comprehend, and write in English at a level of high
school equivalency. Although the regulation states only that the
qualified individual must speak fluent English, the Coast Guard
concludes that this requirement will restrict the designation of the
qualified individuals to persons who can communicate effectively with
the On-Scene Coordinator during a response effort.
One comment objected to the requirement that both the qualified
individual and the alternate qualified individual be available on a 24-
hour basis. The preamble to the IFR stated that the Coast Guard's
intent is to ensure that either the qualified individual or the
alternate qualified individual be available to respond to an oil spill
on a 24-hour basis. In response to this comment, the Coast Guard has
reworded Sec. 154.1026(a) to make it clear that either the qualified
individual or the alternate, but not both, must be available on a 24-
hour basis. This conforms with both the intent stated in the IFR
preamble and the related section of the VRP rule.
One comment stressed that the qualified individual should be
knowledgeable about not only the financial aspect of an oil spill
response, but also the technical issues pertaining to an oil spill
response. The Coast Guard agrees that familiarity with response methods
is an asset to a Qualified Individual and encourages facility owners or
operators to designate such persons as qualified individuals; however
the ability to commit response resources is the primary requirement.
Under the regulations, the facility owner or operator is required
to identify a qualified individual who is capable of arriving at the
facility in a reasonable time. To ensure this, the Coast Guard has
amended this section to require the qualified individual to be located
in the United States. This issue was previously discussed in the
preamble to the IFR.
[[Page 7899]]
Section 154.1028 Methods for Ensuring the Availability of Response
Resources by Contract or Other Approved Means
The Coast Guard received 11 comments on this section of the IFR.
Four comments suggested that Sec. 154.1028(a)(1), the first means of
identifying response resources by contract or other approved means, be
revised to indicate that an oil spill removal organization is unable to
guarantee the availability of identified response resources to respond
to a spill at a facility. The regulations require the owner or operator
of a facility to ``ensure'' the availability of response resources
because this is the terminology used in the statute. The Coast Guard
has emphasized that response plans are planning documents, not
performance criteria, and that neither the owner or operator nor the
spill removal organization can guarantee the availability of resources
at all times. Acts of God, extremes of weather, labor disputes, the
prior commitment of resources, and other events may preclude
performance as planned. The Coast Guard also expects certain caveats to
be placed in a contract indicating that the response resources
identified are not guaranteed to perform response activities at a
facility. The Coast Guard expects that the contract will provide for
prompt notification of impaired ability to perform and that, when
appropriate, facility owners and operators will seek alternate response
resources. Notification of changes in response resources may be
required under Sec. 154.1065(b)(3).
Another comment stated the Coast Guard should require a facility
owner or operator who ensures the availability of response resources by
certifying his or her active membership in an oil spill removal
organization under Sec. 154.1028(a)(3) also to certify that the oil
spill removal organization has committed to respond to an oil spill
from the facility. The Coast Guard finds that a facility's active
membership in a spill removal organization that has identified
specified personnel and equipment required by the regulation to arrive
at the specified times is adequate assurance that the spill removal
organization will respond to an oil spill at the facility.
Four comments questioned whether an oil spill removal organization
that has identified specific response resources to respond to an oil
spill at one facility can list the same resources to respond to a spill
at another facility. The Coast Guard recognizes that there are current
limits on the amount of available response resources in the U.S.
Facilities would be unable to operate due to their inability to
identify available response resources which were not contracted for by
other facilities. In addition, prohibiting oil spill removal
organizations from contracting response resources for more than one
facility is economically prohibitive for oil spill removal
organizations.
One comment suggested that the Coast Guard remove the fourth method
of ensuring by contract or other approved means in Sec. 154.1028(a)(4).
Section 154.1028(a)(4) permits the facility owner or operator to ensure
the availability of response resources by providing a document that:
(1) Identifies response resources to be provided by an oil spill
removal organization in the stipulated response times in specific
geographic areas; (2) sets out the parties' acknowledgment that the oil
spill removal organization intends to commit the resources in the case
of a spill; (3) permits the Coast Guard to verify the availability of
the response resources through tests, inspections, and drills; and (4)
is referenced in the response plan. The comment indicated that this
provision is not necessary. The Coast Guard disagrees. Section
154.1028(a)(4) provides the owner or operator of a facility with an
alternate means of identifying and ensuring the availability of
response resources. This flexibility may prove to be economically
essential for certain facilities.
Four comments stated that an oil spill removal organization should
not be required to list the names of the response personnel who are
identified to be available to respond to an oil spill. The comments
contend that OSROs are responsible for maintaining sufficient numbers
of trained personnel to respond to any potential spills to which it has
committed to respond. The Coast Guard agrees. An OSRO is not required
to list the names of persons who are identified to be available to
respond to an oil spill; however, an oil spill removal organization
must specify the response personnel available to respond to an oil
spill.
One comment indicated that a signed service agreement should be
sufficient to meet the requirements of Sec. 154.1028(a)(5). As long as
the ``signed service agreement'' meets the requirements of
Sec. 154.1028 it is acceptable to the Coast Guard. Such an agreement,
to be valid under Sec. 154.1028(a)(5), would need to identify specified
equipment and personnel available within the applicable stipulated
response times; and, the OSRO would need to consent to being identified
in the plan.
Another comment stated that the Coast Guard should require a
facility owner or operator to ensure that identified response resources
not only are available to arrive at stipulated times, but also are
capable of sustaining a response effort. The comment indicated that the
Coast Guard should analyze the adequacy of response resources on a
systems basis to ensure that all identified resources are capable of
functioning together. The Coast Guard finds that the response resource
requirements are sufficient as set forth in this final rule. The
requirements are for planning purposes only and are not intended to be
performance standards. Where the Coast Guard has determined that it is
both appropriate and necessary it has included times for sustained
response effort (see Appendix C).
One comment indicated that a facility that operates only on a
seasonal basis should not be required to ensure the availability of
response resources when it is not operating. Under the provisions of
Sec. 154.100(a), a facility which is in caretaker status is exempt from
the requirements of this regulation and, therefore, is not required to
ensure the availability of response resources when it is in caretaker
status.
One comment suggested that the Coast Guard provide a mechanism for
contractors to exercise some control over where they are named as
response resources. This comment expanded upon its suggestion by
stating that the Coast Guard should require some documentation which
validates the relationship between the contractor and the owner or
operator. Section 154.1028 provides for five methods of ensuring the
availability of response resources, including OSROs, by contract or
other approved means. At a minimum, the OSRO must provide written
consent to being identified in a response plan. Under some conditions,
a written contractual agreement must be executed between the OSRO and
the owner or operator of the facility. These contracts must be made
available for review upon request by the Coast Guard. The Coast Guard
contends that this provides adequate documentation that the proper
relationship exists between the OSRO and the owner or operator of the
facility.
One comment argued that contracts should be required as an
outgrowth of comprehensive risk analyses at each potential spill site
rather than the result of an intuitive need to have resources
available. The Coast Guard disagrees. OPA 90 requires the preparation
and submission of a response plan for an onshore facility that, because
of its
[[Page 7900]]
location, could reasonably be expected to cause substantial harm to the
environment by discharging into or on the navigable waters or adjoining
shorelines. The OPA 90 Conference Report (Report 101-653) states that
even small onshore facilities could result in substantial harm under
some circumstances. Therefore, the requirements to prepare and submit a
response plan should be broadly applied. Along with other Federal
agencies, the Coast Guard has established criteria to be considered in
designating a facility as substantial harm. These factors include, but
are not limited to: type and quantity of oils handled in bulk, facility
spill history, proximity to public and commercial water supply intakes;
proximity to navigable water and proximity to areas of economic
importance.
Section 154.1029 Worst Case Discharge
The Coast Guard received a total of 16 comments on this section of
the IFR. Ten comments addressed the relationship between the Coast
Guard's definition of worst case discharge and the term as it is
defined by other Federal agencies. Four comments indicated that the
Coast Guard's definition of worst case discharge should be the same as
the definition found in EPA's response plan regulations. Five comments
indicated the need for consistency among Coast Guard, EPA, and RSPA
definitions of worst case discharge, and suggested that the Coast Guard
adopt RSPA's definition. The Coast Guard disagrees with these comments.
Because the Coast Guard, EPA, and RSPA regulate different portions of
an oil complex, the amount of oil in a worst case discharge volume from
each of these portions of the complex will vary depending on the nature
of the facility's operations. Coast Guard regulations address only the
MTR portion of the complex.
Three comments indicated that the Coast Guard should adopt the EPA
and RSPA policy of giving credit to the facility for the use of
secondary containment and other preventive measures. Seven comments
reiterated the point that Coast Guard regulations should encourage the
use of preventive measures. The Coast Guard strongly encourages
facilities to employ pollution prevention measures including secondary
containment. However, the nature of MTR facilities makes secondary
containment impractical in most cases and therefore very uncommon. For
this reason, the Coast Guard does not require MTR facilities to have
secondary containment. The Coast Guard does not give credit for such
measures because, while these measures will reduce the risk to the
environment from an oil spill, they will not eliminate it altogether.
Subparts A and B of 33 CFR part 154 already contain pollution
prevention regulations. The Coast Guard considers additional pollution
prevention regulations to be outside the scope of this regulation.
The Coast Guard received several comments on the amount of the
worst case discharge volume. All comments indicated that the worst case
discharge volume, as calculated using the formula in
Sec. 154.1029(a)(2), should be reduced. Many of the comments stated
that the Coast Guard's definition of worst case discharge should not
include a total loss of a facility's oil storage capacity and suggested
that it be based on factors such as spill history, the capacity of the
largest single pipeline, or the capacity of pipelines to the single
largest docking pier. Additionally, four comments indicated that the
definition exceeded the congressional intent of this term--the largest
foreseeable discharge from a facility. The Coast Guard disagrees.
Section 4201(b) of OPA 90 defines a worst case discharge as the largest
foreseeable discharge (from a facility) in adverse weather conditions.
The Coast Guard has interpreted this to mean the largest probable
discharge that could occur from a facility and has determined that the
worst case discharge includes the volumes of oil from all pipelines
between the dock and the storage tanks. Additionally, the formula for
calculating the worst case discharge in Sec. 154.1029(a)(2) accounts
for the time to detect a spill from the piping and the time to secure
the operation.
One comment contended that the Coast Guard should not deny the
validity of a response time calculation without substantial evidence
that it cannot be accomplished in the time stated. The Coast Guard
disagrees. Section 154.1045 and appendix C of the final rule provide
requirements on which to base on-water and on-land response times. A
facility owner or operator proposing to use more rapid response times
bears the burden of proving the validity of the alternate calculation.
One comment suggested that both human and mechanical systems should
be considered for detecting spills during transfer operations. The
comment notes that, in the preamble to the IFR for this section, the
Coast Guard referred only to ``fail-safe features designed into the
operation such as leak detection and mechanical methods of isolating
segments of the pipeline.''
The Coast Guard is concerned that undue reliance on fail-safe
features may lead to an underestimation of necessary response resources
in the event of a discharge from the facility. The Coast Guard
concludes that it is reasonable to base the worst case discharge
planning volume on the failure of such fail-safe features since it has
been the Coast Guard's experience that these features do not always
work as expected.
One comment argued that worst case discharge calculation methods
should be maintained separate from the facility response plan to keep
the document from becoming too bulky. The Coast Guard agrees. It is not
required that the response plan contain the method or numbers used in
calculating the worst case discharge. Only the volume of the average
most probable, maximum most probable, and worst case discharges need be
provided. However, providing the numbers used to arrive at the worst
case discharge will facilitate review of the response plan.
Section 154.1030 General Response Plan Contents
The Coast Guard received 10 comments on the requirements for
general response plan contents. Two comments expressed approval of the
plan format requirements established in the IFR and indicated that
other Federal agencies should adopt these requirements. Another
comment, however, expressed that the order of the sections required in
the plan is inappropriate and should be changed. The Coast Guard has
reviewed the response plan formatting requirements and has determined
that the current response plan format facilitates easy use of the
response plan; therefore, the Coast Guard has made no changes to the
formatting requirements in the final rule. Section 154.1030(e),
however, does permit a facility owner or operator to submit a response
plan that does not follow the format specified in the regulation as
long as the plan is supplemented with a detailed cross-reference
section identifying the location of the applicable sections required by
the regulation.
One comment stated that a facility owner or operator should be
permitted to reference previously established procedures in the plan's
appendices rather than restating them in the plan. The Coast Guard
disagrees. The Coast Guard intends for the response plan to serve as
the primary document referenced by facility personnel during a spill
response. In the event of an oil discharge, facility personnel should
be required to refer to only one comprehensive manual for instruction
[[Page 7901]]
on spill response activities and procedures. The regulation, however,
does not preclude a facility owner or operator from referencing
previously established material in the plan as long as the information
required by the regulation is contained in the appropriate section on
the response plan.
Many comments addressed the requirements for response plan
contents. One comment suggested that response plans be expanded to
include measures for prevention, control, containment, and restoration
as well as methods for cleanup and disposal. The regulation currently
addresses these issues, with the exception of prevention and
restoration methods. Section 4202 of OPA 90, the authorizing provision
for response plan requirements, grants the Coast Guard authority to
issue regulations addressing only spill response activities. It does
not address spill prevention or restoration and, therefore, these
issues are not addressed by this regulation.
Four comments suggested that the plans address company or sitespecific
information. Section 154.1035(g) requires facility specific
information to be included as an appendix to the plan. A facility owner
or operator may also include company specific information as a separate
appendix to the plan.
One comment suggested that the Coast Guard reduce the amount of
information required in the plan and indicated that the Coast Guard
should require only vital emergency response information in the plan to
streamline the initial notification process. The regulations establish
minimum content requirements for response plans and require information
that the Coast Guard has determined to be essential for the plan to be
of significant use by facility personnel. The Coast Guard, however,
encourages facility owners or operators to develop response plans which
incorporate flowcharts and checklists to facilitate the use of the plan
in an emergency.
Several comments addressed the requirement for response plans to be
consistent with the NCP and the ACPs, particularly as it applies to the
identification of sensitive areas under Sec. 154.1035(b)(4). Some
comments pointed out the difficulties of developing response plans that
are consistent with the ACPs when many of the ACPs are not yet
published. In the preamble to the IFR, the Coast Guard recognized that
many of the ACPs were not complete when the IFR was published. The
Coast Guard indicated that, in these cases, the facility owner or
operator would be required to identify the fish and wildlife and
sensitive environments described in the applicable local contingency
plans. Additionally, Appendix D of part 154 was developed to assist
facility owners or operators in identifying fish and wildlife and
sensitive environments which could be impacted by a worst case
discharge from the facility. Because the coastal ACPs are now complete,
in this final rule the Coast Guard has replaced appendix D of part 154
which provided guidance in identifying fish and wildlife and sensitive
environments with a new appendix D which covers training. On March 29,
1994, the National Oceanic and Atmospheric Administration (NOAA) of the
Department of Commerce published a notice establishing guidelines for
the identification of fish and wildlife and sensitive environments to
further assist facility owners or operators in identifying areas
requiring additional protection from discharged oil (59 FR 14714). This
interim guidance was to be used by a facility owner or operator until
the applicable ACPs were completed.
Since the publication of the NOAA guidance, all of the ACPs have
been completed. Facility owners or operators must ensure that their
response plans are in accordance with the ACP in effect 6 months prior
to initial plan submission or the annual plan review required under
Sec. 154.1065(a). The facility owner or operator who submits plan is
not required to, but may, at the owner or operator's option, conform to
an ACP which is less than 6 months old at the time of plan submission.
One comment expressed that the ACPs should be open for public
comment because of their impact on the response plans. Any member of
the public may attend meetings held on the development of the ACP.
One comment urged the Coast Guard to provide guidance as to how an
owner or operator could cover more than one facility in a response
plan. Facility response plans must be developed for a specific facility
and it is not practical for a plan to cover more than one facility.
Portions of a corporate response plan may be appropriate for inclusion
in several facility response plans.
Two comments urged that the facility response plan be part of a
more comprehensive plan and not necessarily a stand-alone document. The
Coast Guard disagrees. The facility response plan must be
comprehensive. While it may reference other documents, it must
demonstrate adequate response planning and outline facility response to
a discharge from the facility.
Section 154.1035 Specific Requirements for Facilities That Could
Reasonably be Expected to Cause Significant and Substantial Harm to the
Environment
The Coast Guard received 19 comments on the response plan
requirements for significant and substantial harm facilities. The
following discussion is divided to address the specific sections of the
response plan on which comments were received.
General. The Coast Guard received 2 comments addressing
Sec. 154.1035(a), the response plan requirements for significant and
substantial harm facilities, in general. One comment stated that the
regulations require too much detail to be continued in the response
plans. Another comment suggested that the response plans be required to
address planning and prevention programs for spills that occur most
frequently. The Coast Guard disagrees. As explained in the discussions
on the requirements of Sec. 154.1030, the regulations require
information that the Coast Guard has determined to be essential for a
response plan to be of significant use to facility personnel for all
reasonably foreseeable discharges. The plans address only spill
response activities; they do not address spill prevention. Although the
Coast Guard encourages facility owners or operators to establish spill
prevention measures, they are beyond the scope of this regulation. The
Coast Guard has issued pollution prevention regulations in 33 CFR part
154.
Notification procedures. Six comments addressed
Sec. 154.1035(b)(1), requirements for notification procedures in the
response plan. One comment suggested that the Coast Guard require the
facility owner or operator to report to the initial notification if
there was an early arrival of response equipment and whether response
equipment was on-site during the transfer. The comment indicated that
this would assist the Coast Guard On-Scene Coordinator (OSC) in
assessing the need for additional response resources and in determining
an appropriate response strategy for the spill.
Under this section, the facility owner or operator is required to
develop a notification sheet, which contains the information identified
in Figure 1, to be transmitted to Federal, State, or local agencies in
the initial and follow-up notifications of an oil discharges. The Coast
Guard limited the required information to the minimum necessary. The
facility owner or operator is not
[[Page 7902]]
required to use the same format as Figure 1, but must develop a
notification sheet that includes space for the information contained in
Figure 1. The notification sheet may include any additional information
that the facility owner or operator determines could be helpful to
responding agencies. For this reason, the Coast Guard will not require
additional information to be included on the notification sheet. The
Coast Guard, however, urges the facility owner or operator to provide
agency officials with any information that will assist them in
developing appropriate spill response strategies.
Five comments question whether the facility owner or operator is
required to notify each individual in the spill management team and oil
spill removal organization. This is not required. However, the facility
owner or operator must notify someone in the management team and a
representative of the oil spill removal organization. The Coast Guard
encourage facility owners or operators to coordinate with the spill
management team and oil spill removal organization to designate a
primary, and an alternate, point-of-contact for notifications in each
organization.
Facility spill mitigation procedures. The Coast Guard received two
comments on Sec. 154.1035(b)(2), facility spill mitigation procedures
which addressed spill prevention measures, secondary containment, and
requirements for complexes. These issues have been addressed in
discussions on Secs. 154.1030, 154.1029, and 154.1017 respectively.
Facility response activities. The Coast Guard received two comments
on Sec. 154.1035(b)(3) which suggested that the Coast Guard require an
OSRO to provide trained personnel necessary to continue operation not
only for the first 7 days of the response, but for the total time
needed to complete the spill response or until the OSRO is released
from its response obligations by the COTP. The comments indicated that
7 days is too short to complete response activities for a large oil
spill. The Coast Guard agrees that 7 days is not long enough to
complete a response to a large spill; however, the requirements of this
section are for planning purposes only. The facility owner or operator
is required only to identify resources for the first 7 days of the
spill response; however, he or she is required to ensure that adequate
response resources are available until all spill response activities
are concluded and the resources are dismissed by the OSC.
One of the comments also suggested that the Coast Guard require the
use of the National Interagency Incident Management System (NIIMS)
Incident Command System (ICS) to standardize incident command in the
United States. Facility owners or operators should refer to the ACPs
for guidance on the use of NIIMS ICS.
The Coast Guard has revised Sec. 154.1035(b)(3)(iii) and (iv) of
the final rule to be consistent with the language found in comparable
sections of the VRP regulation. These revisions do not change the
substantive requirements of this section.
Sensitive environments. The Coast Guard received 14 comments
addressing Sec. 154.1035(b)(4), requirements to protect sensitive
environments.
Two comments stated that the definition of sensitive environments
should be the same in both the Coast Guard and EPA response plan
regulations. As previously stated in the discussion on Sec. 154.1020,
the Coast Guard has added the term ``fish and wildlife and sensitive
environments'' to the definitions in the final rule. This term also has
been adopted by EPA. Accordingly, this subsection has been renamed
``Fish and Wildlife and Sensitive Environments'' in the final rule.
Several comments addressed the identification of fish and wildlife
and sensitive environments, particularly the requirement that these
areas be consistent with those identified in the ACPs. These comments
have been addressed in the preamble discussion on Sec. 154.1030.
Many comments indicated that the requirement in the IFR to identify
areas of economic importance results in the identification of certain
areas that have no significant environmental sensitivity. As an
example, one comment indicated that certain areas such as
transportation routes are economically important, but not
environmentally sensitive. As this comment illustrates, this
requirement is not intended to result in the identification of every
area of economic importance. It is, however, intended to protect those
areas that are not otherwise identified as environmentally sensitive,
such as recreational beaches, parks, and aquaculture sites, industrial
water intakes and other areas important to the economic well-being of
the surrounding community. These areas of economic importance will be
identified by the ACPs.
One comment suggested that the Coast Guard include water intakes
within fish and wildlife and sensitive environments. The Coast Guard
defers to the ACPs for such identifications.
Two comments indicated that this section of the regulation does not
provide enough guidance on determining the adequacy of the planning
distances and the response equipment identified for the protection of
fish and wildlife and sensitive environments. The comments recognized
the utility of spill trajectory models, but indicated that they all are
not equally reliable. Under the regulation, facility owners or
operators are not limited to using spill trajectory models to determine
the location of fish and wildlife and sensitive environments that may
be affected by a discharge of oil from their facility.
Section 154.1035(b)(4)(iii)(B)(1) of the final rule provides
facility owners or operators with a basic formula for calculating the
distances that discharged oil will flow from the facility under certain
conditions at specified times. The Coast Guard recognizes that this
formula may not take into account certain geographic and weatherrelated
conditions that normally exist in some ports which may affect
the distances that discharged oil may travel from the facility;
therefore, the COTP will determine whether the appropriate factors have
been accounted for in the identification of fish and wildlife and
sensitive environments. The adequacy of the identified resources also
will be assessed by the COTP.
The final rule also provides facility owners or operators with a
third means of complying with the requirements of this section. In
addition to using the formula in Sec. 154.1035(b)(4)(iii)(B)(1) or
developing a spill trajectory model, facility owners or operators are
permitted to use the formula in appendix C of Attachment C-III of EPA's
FRP final rule that is most appropriate for the facility (59 FR 34070;
July 1, 1994).
Three comments addressed the planning distances required under the
IFR. Two comments suggested that the Coast Guard expand the provision
in Sec. 154.1035(b)(4)(iii)(B)(1) of the IFR, which requires the
identification of response resources for areas that will be impacted in
48 hours in non-tidal waters, to non-persistent oils. Because of the
rapid rate at which non-persistent oils evaporate, the Coast Guard is
only requiring facility owners or operators to plan to respond to areas
reached by non-persistent oil in 24 hours in non-tidal waters at
maximum current.
Conversely, one comment stated that the planning distances required
by this section are significantly greater than is warranted by the
potential impact of the facility's worst case discharge. The Coast
Guard disagrees and contends that the effects of tides and currents on
discharged oil warrant these planning distances.
[[Page 7903]]
Two comments addressed response activities for wildlife protection.
One comment suggested that response plans be required to address issues
such as wildlife dispersal, collection, cleaning, rehabilitation, and
recovery. Another comment suggested that response personnel be required
to undergo special training for wildlife response. Although the Coast
Guard encourages facility owners or operators to identify resources for
wildlife response, it will not require these resources to be identified
by contract or other approved means. The applicable ACP identifies
these private and public sector resources.
One comment states that the facility owner or operator should be
permitted to estimate the amount of shoreline requiring protection and
suggested that the estimate be reviewed and approved by the COTP. The
regulation requires the owner or operator to identify required
quantities of boom for the protection of fish and wildlife and
sensitive environments. Facility owners or operators will be expected
to identify enough boom to adequately protect each of the fish and
wildlife and sensitive environments identified in their plan.
Another comment indicated that 1 day should be reduced from the
planning requirement if the response equipment is determined to be
capable of arriving in less than half of the maximum required arrival
time. The Coast Guard encourages the early arrival of response
resources; however, it does not plan to reduce the requirements of this
section.
Hazard Evaluation and Spill Scenarios. The Coast Guard received a
total of four comments on these two topics. The comments indicated that
the final rule should include information on hazard evaluations and
spill scenarios. Sections 154.1035(c) and (d) has been reserved for
these topics to ensure consistent formatting of Coast Guard and EPA
response plan regulations and to prevent plans which contained
information required by the EPA regulations from being rejected by the
Coast Guard. However, because the Coast Guard does not intend to
provide guidance on hazard evaluation or spill scenarios at this time,
it has removed these reserved paragraphs from the final rule and has
redesignated the remaining paragraphs of this section accordingly. It
will continue to accept plans prepared to comply with both EPA and
Coast Guard response plan regulations.
Training and Exercises. The Coast Guard received one comment on
Sec. 154.1035(c) of the regulation. It is addressed in the preamble
discussion on Sec. 154.1055.
Appendices. The Coast Guard received one comment on
Sec. 154.1035(e) which contended that the information in the appendices
is redundant with information found elsewhere in the plan and suggested
that the appendices should not be required. The Coast Guard disagrees.
However, it recognizes that some of the information in the appendices
may be found in other sections of the plan; telephone numbers need not
be listed elsewhere in the response plan if provided in the appendices.
Facility specific information. The Coast Guard received three
comments on Sec. 154.1035(e)(1). Two comments suggested that the Coast
Guard should not require material safety data sheets for materials
which are not handled by the MTR portion of the facility. The Coast
Guard agrees and does not require this information for substances that
are not handled by the MTR portion of the facility. The third comment
addressed firefighting capabilities and is discussed in the appropriate
section of Sec. 154.1045.
Equipment lists and records. The Coast Guard received one comment
on the Sec. 154.1035(e)(3) requirement to include equipment lists and
records in the response plan. The comment stated that the Coast Guard
should require the identification of equipment that would be used to
respond to the maximum most probable discharge in addition to the
equipment used to respond to the average most probable discharge, as
currently required by the regulation. The Coast Guard agrees and, under
the final rule, requires facility owners or operators to list all the
major equipment belonging to the oil spill removal organization for
response to a maximum most probable discharge.
Four comments were received addressing the issue of contractor
classification and one of these comments also addressed classification
as outlined in NVIC 12-92. One comment urged the Coast Guard not to
require plans to list specific quantities of equipment when listing a
Coast Guard classified oil spill response organization (OSRO) for
recovering volumes above the caps. This same comment urged that the
Coast Guard and the EPA extend the classification program to include
both coastal and inland contractors, arguing that this extension would
enhance uniformity and improve response capabilities for large oil
spills.
Section 154.1035(g)(3)(iii) of the final rule states that it is not
necessary to list response equipment from an OSRO when the OSRO has
been classified by the Coast Guard and its capacity has been determined
to equal or exceed the response capability needed by the facility. The
Coast Guard will accept the listing of an appropriate OSRO for response
resources up to and beyond the listed caps. The EPA has determined that
it will utilize the OSRO classification system established by the Coast
Guard. An OSRO may be classified for certain size discharges and
operations in certain specified geographic areas. Both coastal and
inland contractors may apply for classification by the Coast Guard.
One comment argued that industry rather than the Coast Guard should
certify contractors. The Coast Guard finds that this is impractical.
The Coast Guard is concerned that inconsistencies may occur in the
classification of OSROs unless it is conducted by one organization. At
the present time, the Coast Guard is the appropriate agency to conduct
on OSRO classification program. The Coast Guard plans to explore using
third parties to inspect or approve OSROs.
Section 154.1040 Specific Requirements for Facilities That Could
Reasonably be Expected to Cause Substantial Harm to the Environment
The Coast Guard received 2 comments on this section of the IFR. One
comment indicated that the requirement for significant and substantial
harm facilities to identify a corporate organizational structure that
would be used to manage the oil spill response under
Sec. 154.1035(b)(3)(iii) should be applied to substantial harm
facilities. Additionally, the comment suggested that the Coast Guard
require contacts for wildlife response resources; however, another
comment stated that these facilities should be required to use legally
binding contracts for the identification of all responses resources.
The Coast Guard disagrees. The requirements of this section were
developed to lessen the regulatory burden and economic impact on
substantial harm facilities. The Coast Guard has determined that the
costs of identifying a corporate organizational structure and
contracting for response resources outweigh the benefits for
substantial harm facilities.
The IFR required the owners or operators of substantial harm
facilities to have at least 200 feet of containment boom immediately
available to respond to the average most probable discharge. The IFR
was unintentionally more stringent for substantial harm facilities than
for significant and substantial harm facilities. However, under the
final rule, the requirement has been reduced to permit facility owner
or operators to identify 200 feet of boom and the means
[[Page 7904]]
of deploying it that is capable of arriving at the spill site within 1
hour of the detection of the spill.
Section 155.1041 Specific Response Information to be Maintained on
Mobile MTR Facilities
The Coast Guard received one comment on this section of the IFR
which addresses contracts or training permits for wildlife response.
This issue is addressed in the discussion of fish and wildlife and
sensitive environment requirements in Sec. 154.1035.
Section 154.1045 Response Plan Development and Evaluation Criteria for
Facilities That Handle, Store, or Transport Group I Through Group IV
Petroleum Oils
The Coast Guard received several comments addressing this section
which concerns the inclusion of certain information in the response
plans for facilities handling, storing, or transporting Group I through
Group IV petroleum oils. Two of these comments addressed this section
generally. One comment argued that the Coast Guard should require
contracts or training and permits, for wildlife response. As indicated
in the discussion on fish and wildlife and sensitive environments in
Sec. 154.1035, the Coast Guard will not require these resources to be
contracted for in the final rule.
Another comment contended that the regulations should provide
further guidance on matching response equipment with the grade of
petroleum oil spilled, arguing that the groups of petroleum oil do not
necessarily correspond to the grades of petroleum oil and that the
grade spilled is not necessarily the grade recovered. Response
equipment must be certified for the grade of oil handled, stored or
transported by any facility for which the equipment is identified as a
response resource. The Coast Guard expects that discharged petroleum
oil will weather and that the grade of petroleum oil discharged will
weather sufficiently to be recovered by response equipment.
Reclassification of bodies of water. Six comments were received
specifically addressing the COTP's reclassification of specific bodies
of water as being operating environments needing more or less stringent
response resource planning in Sec. 154.1045(a)(3). Four comments argued
that significant wave height may be such that it is unsafe to conduct
recovery operations, making more response equipment moot. These
comments suggested that the regulation allow less response equipment if
operation would be unsafe in wave conditions exceeding the significant
wave height criteria during more than 35 percent of the year. The Coast
Guard requires the facility owner or operator to plan to recover the
oil in the operating environment in which the facility is located. As
stated in Sec. 154.1010, the regulation establishes a planning standard
and not a performance standard. Decisions on whether to deploy
equipment at the time of a discharge will remain with the COTP in
consultation with the responsible party and OSRO.
Two comments argued that significant wave height is only one
criterion which should be considered during the reclassification
determination. These comments stated that the presence of debris, ice,
currents, wind, and darkness should also be determining factors. These
comments further argued that the standard for reducing classification
should be the presence of prevailing wave conditions not exceeding the
significant wave height criteria for the less stringent operating
environment during 85 percent of the year while the standard for
increasing classification should remain the presence of prevailing wave
conditions exceeding the significant wave height criteria for more than
35 percent of the year.
The Coast Guard has retained the percentages from the IFR. The 35
percent threshold provides balance between anticipated area
environmental conditions and equipment available to operate in those
conditions. Setting a lower threshold would require new areas to
stockpile equipment with the capability of operating in unlikely
conditions. The rule requires that ice conditions, debris, and other
conditions as determined by the COTP must also be considered in the
area where the facility operates.
Requirements pertaining to average most probable discharges. The
Coast Guard received one comment which responded to the requirements of
Sec. 154.1045(c). It argued that the Coast Guard should clarify that
facilities are not responsible or obligated to respond to spills from
vessels they do not own or operate. While the Coast Guard requires the
facility to plan for responding to an average most probable discharge
at the facility, it remains the responsibility of the owner or operator
of the source of the discharge to initiate effective response at the
time of the discharge. The regulation does not require the facility to
respond to a discharge from a vessel and the regulation has not been
changed to state otherwise.
Under Sec. 154.1045(c) (1) and (2) of the IFR, facility owners or
operators are required to identify certain equipment such as
containment boom and means of deploying and anchoring the boom, oil
recovery devices, and recovered oil storage capacity that are capable
of arriving at the facility within specified times to respond to the
average most probable discharge. Upon review of the IFR, the Coast
Guard determined that the phrase ``at the facility'' does not indicate
that this response equipment must be available at the scene of the oil
discharge in the specified times. Accordingly, the Coast Guard has
revised these provisions of the final rule to require the
identification of response equipment that is capable of arriving at the
spill site within the times specified by this section. This change also
applies to comparable sections in Sec. 154.1047 of subpart F,
Sec. 154.1225 of subpart H, and Sec. 154.1325 of subpart I.
Requirements pertaining to response to maximum most probable
discharges. The Coast Guard received three comments in response to the
requirements of Sec. 154.1045(d). One comment argued that the planned
response time for possible spills in the Great Lakes should not be
lower than it is for other bodies of water. The Coast Guard disagrees
and has retained the 6-hour requirement for response to a maximum most
probable discharge. The Great Lakes are unique, self-contained, bodies
of fresh water especially vulnerable to spills. Because of this, it is
especially important that the response capability be available to
respond rapidly. The maximum most probable discharge response
capability provides a base capability that can be deployed rapidly to
the scene of a discharge to mitigate its effects.
Several comments argued that the Coast Guard should allow resources
located in one or more COTP zones to be moved to another zone as part
of a response effort. The Coast Guard expects that response resources
may be shifted in response to large pollution incidents. The rule does
not prohibit this shifting of resources. It may be necessary for the
facility owner or operator to confirm the availability of other
response resources or those response resources identified in the
response plan above the caps. The Coast Guard reserves the right to
invalidate a plan due to the absence of available response resources to
respond to a maximum most probable discharge or the worst case
discharge. However, under the final rule, the COTP may impose
operational restrictions on a case-by-case basis, such as limitations
on the number of transfers at the facility, or, where appropriate, may
permit the facility to operate with temporarily modified response plan
[[Page 7905]]
development and evaluation criteria (e.g., modified response times,
alternate response resources, etc.).
The Coast Guard has made minor organizational changes to this
section of the final rule to clarify the planning requirements for the
maximum most probable discharge. These changes more clearly indicate
that resources identified to respond to the maximum most probable
discharge include all equipment and personnel identified to respond to
the average most probable discharge.
Requirements pertaining to response to a worst case discharge to
the maximum extent practicable. The Coast Guard received 3 comments
responding to the requirements of Sec. 154.1045(e). One comment argued
that owners and operators should be required to plan only for a worst
case discharge.
The Coast Guard's authority to regulate is broader than OPA 90.
Section 311(j)(1)(C) of the FWPCA authorizes the Coast Guard to require
planning for discharges other than the worst case. Based on the
recommendations of the Oil Spill Response Plan Negotiated Rulemaking
Committee, the Coast Guard determined that the rule also should address
operational discharges. The Coast Guard is using its FWPCA authority to
require planning for spills other than a worst case discharge.
Response times and tiers. The Coast Guard received 12 comments
addressing the response time and tier requirements for worst case
discharges (Sec. 154.1045(f)). Two of these comments dealt with the
issue of giving credit for early arrival of response resources. One
comment argued in favor of this proposal and suggested that such credit
take the form of a reduction of monetary liability for a spill, a
reduction in liability for natural resource damage assessments, or a
reduction in drill requirements. One comment argued against issuing
credit for early arrival. This comment specifically argued that credit
should not be given for dispersants if such credit would result in
planning to use a lesser amount of mechanical recovery equipment during
a spill. The other comment argued that the Coast Guard should encourage
early arrival of response equipment but that it should not issue credit
for meeting an early or minimum arrival time.
The rule is written to require the arrival of resources in a timely
manner to contain and remove discharged oil before it has the
opportunity for greater dispersal. The Coast Guard cannot lessen the
monetary liability or the liability for damage to natural resources
based on the arrival times of response resources. The early arrival of
these resources will lessen the likelihood of damage to natural
resources.
The use of dispersants is a valid response technique in certain
circumstances. A facility that handles, stores, or transports Group II
or III petroleum oils can receive up to 25 percent credit against onwater
recovery capability in any environment with year-round
preapproval for use of dispersants. The response plan must address the
arrival of these dispersants within 12 hours. The Coast Guard's
position is that the rule strikes a proper balance in planning for the
use of dispersants and mechanical recovery.
One comment addressed the tiering of response resources. The
comment indicated that this approach is not useful because it does not
allow for an initial response with all available resources. The tiering
requirements provide a maximum time in which certain response resources
are capable of arriving at the scene of a petroleum oil spill; they do
not preclude the early arrival of response resources and, therefore, do
not preclude an initial spill response with all available resources.
The same comment also indicated that the evaluation of the
equipment's recovery capacity should not be based on the equipment's
operability in the different operating environments because those
conditions may not exist during an actual spill response. The Coast
Guard recognizes that the conditions and assumptions on which a
response plan is based may not exist during an actual spill response.
However, to develop an effective response plan, a facility owner or
operator must identify and plan to respond in the conditions which
normally exist in the port or at the facility. As Sec. 154.1010
indicates, the regulation establishes a planning standard and not a
performance standard. During an actual spill response, a final
assessment as to the type of equipment to be deployed for response to a
discharge will be made by the COTP in the consultation with the
responsible party and OSRO.
Eight comments addressed various issues concerning the amounts of
time allotted for responding to an oil spill. Two comments argued that
facilities in higher volume port areas and the Great Lakes should plan
using 48-hour response times for Tier 3 response resources. Two
comments urged the Coast Guard to increase the Tier 1 response time to
12 hours as opposed to 6 hours for higher volume port areas. Four
comments argued that the response times should be the same regardless
of the location of the spill. These comments further contended that the
major reason for requiring shorter times should be for fish and
wildlife and sensitive environment purposes, which varies for vessels
but seems irrelevant for stationary facilities. Two comments argued
that the response times were too low in light of the levels agreed upon
at the Negotiated Rulemaking meetings. One of these comments urged the
Coast Guard to reconsider these response times because current response
times are difficult and expensive to achieve. One comment urged the
Coast Guard to review and revise the response times in light of
response capability. This comment also urged the Coast Guard to clarify
that response times apply to arrival on-scene rather than deployment of
response resources and argued that the Coast Guard should only require
first tier dispersants to be on-scene within 12 hours, with more
dispersants being available as needed.
The Coast Guard contends that the tiering concept is valid and
adequately approximates the availability of response resources. The
tiering process reflects the arrival of available response resources
from nearby and more distant locations. The response times in this rule
are different than those applicable to vessels. The response times for
vessels are predicated on responding to an incident at the outermost
boundaries of the applicable areas, including up to 6 hours on-water
transit of response equipment. Since MTR facilities are located on or
along the shoreline, it will not be necessary to account for extensive
over-water transit times. The response times provided in the final rule
are for the planned arrival of response resources at the MTR facility
which is the likely site of the initial cleanup activity and does not
account for on-water deployment time. Therefore, the transit times in
this final rule are less than those provided for vessel response plans.
One comment addressed the definition of tiers and urged the Coast
Guard to adopt the EPA terminology and definitions of tiers to avoid
confusion and duplication. The EPA and the Coast Guard have used the
same approach to the concept of tiering response resources. Tier has
been defined under Sec. 154.1020 of the final rule.
Identification of firefighting capability. The Coast Guard received
several comments on firefighting capability requirements
(Sec. 154.1045(j)). Because many of the requirements for firefighting
capability in this section also are contained in Secs. 154.1047 and
154.1049, comments addressing those sections also will be discussed.
[[Page 7906]]
Two comments suggested that the coordinator of firefighting
activities for a facility should be extremely familiar with the
facility and its operations. Additionally, one comment argued that
``sufficient firefighting capacity'' would be difficult to define and
should not be included in the rule. Another comment urged the Coast
Guard to develop more specific firefighting requirements.
The many variables involved in the design and construction of MTR
facilities, the products handled, and the conditions encountered in an
actual fire, preclude the developm ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}