Oil Pollution Prevention; Non-Transportation Related Onshore Facilities
[Federal Register: December 12, 2005 (Volume 70, Number 237)]
[Proposed Rules]
[Page 73517-73521]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12de05-26]
[[Page 73518]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2005-0003; FRL-8007-1]
RIN 2050-AG28
Oil Pollution Prevention; Non-Transportation Related Onshore Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency is proposing to extend the
dates by which facilities must prepare or amend Spill Prevention,
Control, and Countermeasure Plans (SPCC Plans), and implement those
Plans. This action would allow the Agency time to promulgate revisions
to the July 17, 2002 final SPCC rule before owners and operators are
required to meet requirements of that rule related to preparing or
amending, and implementing SPCC Plans. The proposed revisions to the
2002 final SPCC rule are published elsewhere in today's Federal Register.
DATES: Comments must be received on or before January 11, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2005-0003, by one of the following methods:
? Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
? Mail: The mailing address of the docket for this
rulemaking is EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-
2005-0003, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
? Hand Delivery: Such deliveries are only accepted during
the Docket's normal hours of operation, and special arrangements should
be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2005-0003. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through
http://www.regulations.gov The http://www.regulations.gov.
Web site is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body of
your comment. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of the
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the EPA Docket,
EPA/DC, EPA West, Room B102, 1303 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is 202-566-1744, and the telephone number to make
an appointment to view the docket is 202-566-0276.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP and Oil Information Center at (800) 424-9346
or TDD (800) 553-7672 (hearing impaired). In the Washington, DC
metropolitan area, call (703) 412-9810 or TDD (703) 412-3323. For more
detailed information on specific aspects of this proposed rule, contact
either Vanessa Rodriguez at (202) 564-7913 (rodriguez.vanessa@epa.gov)
or Mark W. Howard at (202) 564-1964 (howard.markw@epa.gov), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC, 20460-0002, Mail Code 5104A.
SUPPLEMENTARY INFORMATION:
I. Authority
33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 (October 18,
1991), 3 CFR, 1991 Comp., p. 351.
II. Background
On July 17, 2002, the Agency published a final rule that amended
the SPCC regulations (see 67 FR 47042). The rule became effective on
August 16, 2002. The final rule included compliance dates in Sec.
112.3 for preparing, amending, and implementing SPCC Plans. The
original compliance dates were amended on January 9, 2003 (see 68 FR
1348), again on April 17, 2003 (see 68 FR 18890) and a third time on
August 11, 2004 (see 69 FR 48794).
Under the current provisions in Sec. 112.3(a) and (b), a facility
that was in operation on or before August 16, 2002 must make any
necessary amendments to its SPCC Plan by February 17, 2006, and fully
implement its SPCC Plan by August 18, 2006; a facility that came into
operation after August 16, 2002 but before August 18, 2006, must
prepare and fully implement an SPCC Plan on or before August 18, 2006.
Thus, for facilities in operation on or before August 16, 2002, the
regulations provide a six-month period between the compliance date for
Plan amendment and the compliance date for Plan implementation. In
addition, Sec. 112.3(c) requires onshore and offshore mobile
facilities to prepare or amend and implement SPCC Plans on or before
August 18, 2006.
III. Proposal To Extend the Compliance Dates
This proposed rule would extend the dates in Sec. 112.3(a) and (b)
by which a facility must prepare or amend and implement its SPCC Plan.
As a result of this proposed rule, a facility that was in operation on
or before August 16, 2002 would have to make any necessary amendments
to its SPCC Plan, and implement that Plan, on or before October 31,
2007. In addition, a facility that came into operation after August 16,
2002 would have to prepare and implement an SPCC Plan on or before
October 31, 2007.
This proposed rule would similarly extend the compliance dates in
Sec. 112.3(c) for mobile facilities. Under this proposal, a mobile
facility must prepare or amend and implement an SPCC Plan on or before
October 31, 2007.
The Agency believes the extension of the compliance dates proposed
in this notice are warranted for several reasons. The Agency is
proposing revisions to the 2002 SPCC rule elsewhere in today's Federal
Register. Those revisions would provide significant regulatory relief
to some facilities and to some types of oil-filled equipment. The
Agency believes that the regulatory relief proposed in that Federal
Register notice is important to ensure that the SPCC regulation remains
protective of human health and the environment but, at the same time,
[[Page 73519]]
is not overly burdensome to the regulated community. Since the Agency
will not have time to promulgate the proposed regulatory relief before
the current compliance dates for SPCC Plan preparation, amendment, and
implementation, the Agency believes it is appropriate to extend those
dates. This approach would allow facilities opportunity to make changes
to their facilities and to their SPCC Plans necessary to comply with
revised, less burdensome requirements, rather than with the existing
requirements.
Further, the Agency believes that this proposed extension of the
compliance dates would provide facilities time necessary to fully
understand the regulatory relief offered by revisions to the 2002 SPCC
rule. This would allow facilities to take full advantage of any
regulatory revisions the Agency might promulgate. Regarding
modifications of the SPCC regulations, to the extent practicable, EPA
will establish deadlines for compliance implementation that commence
one year after promulgating the regulatory revisions.
In addition, the Agency has issued the ``SPCC Guidance for Regional
Inspectors,'' which is intended to assist regional inspectors in
reviewing a facility's implementation of the SPCC rule. The document is
designed to facilitate an understanding of the rule's applicability, to
help clarify the role of the inspector in the review and evaluation of
the performance-based SPCC requirements, and to provide a consistent
national policy on several SPCC-related issues. The guidance also is
available to both the owners and operators of facilities that may be
subject to the requirements of the SPCC rule and to the general public
on the Agency's Web site at http://www.epa.gov/oilspill. The Agency
believes that this proposed extension would provide the regulated
community opportunity to understand the material presented in that
guidance before preparing or amending their SPCC Plans.
Finally, the Agency is concerned that the effects of the recent
hurricanes on many industry sectors might adversely impact their
ability to meet the upcoming compliance dates if no extension is provided.
It is important to note that we considered whether to maintain the
six month interim period between the compliance dates for Plan
amendment and implementation or to combine the two dates in order to
allow an additional six months for Plan amendment. Since facilities are
not required to submit SPCC Plans to the Agency at the time of Plan
amendment, the Agency is proposing to combine the compliance dates for
Plan amendment and implementation so that they both coincide on October
31, 2007 in order to allow facilities an additional six months to amend
SPCC Plans in accordance with the requirements under Sec. Sec.
112.3(a) through (c).
The Agency is seeking comment on this proposal to have one date by
which SPCC Plans must be amended and implemented in accordance with the
2002 amendments to the SPCC Rule, and on the extension of these dates
to October 31, 2007 for all facilities. Any alternative approaches
presented must include appropriate rationale and supporting data in
order for the Agency to be able to consider them for final action.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under the terms of Executive Order 12866, this action has been
judged as not a ``significant regulatory action'' because it would
extend the compliance dates in Sec. 112.3, but would have no other
substantive effect. However, because of its interconnection with the
related SPCC rule proposed elsewhere in this Federal Register notice
(see discussion above in section III), which is a significant action
under the terms of Executive Order 12866, this action was nonetheless
submitted to OMB for review.
B. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions. For purposes of assessing the
impacts of today's proposed rule on small entities, small entity is
defined as: (1) A small business as defined in the Small Business
Administration's (SBA) regulations at 13 CFR 121.201--the SBA defines
small businesses by category of business using North American Industry
Classification System (NAICS) codes, and in the case of farms and
production facilities, which constitute a large percentage of the
facilities affected by this proposed rule, generally defines small
businesses as having less than $500,000 in revenues or 500 employees,
respectively; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise that is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, the Agency certifies that this action would not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect
[[Page 73520]]
on all of the small entities subject to the rule.
This proposed rule would relieve the regulatory burden for small
entities by extending the compliance dates in Sec. 112.3.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. This proposed rule would reduce burden
and costs for all facilities.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As was explained above, the effect of the proposed rule
would be to reduce burden and costs for all facilities, including small
governments that are subject to the rule.
E. Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It would
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Under CWA section 311(o), States
may impose additional requirements, including more stringent
requirements, relating to the prevention of oil discharges to navigable
waters. EPA encourages States to supplement the Federal SPCC regulation
and recognizes that some States have more stringent requirements (56 FR
54612, (October 22, 1991). This proposed rule would not preempt State
law or regulations. Thus, Executive Order 13132 does not apply to this
proposed rule.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
On November 6, 2000, the President issued Executive Order 13175
(59 FR 22951) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that date.
Today's proposed rule would not significantly or uniquely affect
communities of Indian tribal governments. Therefore, the Agency has not
consulted with a representative organization of tribal groups.
G. Executive Order 13045--Protection of Children From Environmental
Health and Safety Risk
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866; and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not have reason to believe the environmental health or safety
risks addressed by this action present a disproportionate risk to children.
H. Executive Order 13211--Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355,
May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards such as materials specifications, test methods,
sampling procedures, and business practices that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations
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when the Agency decides not to use available and applicable voluntary
consensus standards.
This proposed rule does not involve technical standards. Therefore,
NTTAA does not apply.
List of Subjects in 40 CFR Part 112
Environmental protection, Oil pollution, Penalties, Reporting and
recordkeeping requirements.
Dated: December 2, 2005.
Stephen L. Johnson,
Administrator.
For the reasons set forth in the preamble, title 40 CFR, chapter I,
part 112 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 112--OIL POLLUTION PREVENTION
1. The authority citation for part 112 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.
2. Section 112.3 is amended by revising paragraphs (a), (b), and
(c) to read as follows:
Sec. 112.3 Requirement to prepare and implement a Spill Prevention,
Control, and Countermeasure Plan.
* * * * *
(a) If your onshore or offshore facility was in operation on or
before August 16, 2002, you must maintain your Plan, but must amend it,
if necessary to ensure compliance with this part, by October 31, 2007,
and implement the Plan no later than October 31, 2007. If your onshore
or offshore facility becomes operational after August 16, 2002, through
October 31, 2007, and could reasonably be expected to have a discharge
as described in Sec. 112.1(b), you must prepare and implement a Plan
on or before October 31, 2007.
(b) If you are the owner or operator of an onshore or offshore
facility that becomes operational after October 31, 2007, and could
reasonably be expected to have a discharge as described in Sec. 112.1(b),
you must prepare and implement a Plan before you begin operations.
(c) If you are the owner or operator of an onshore or offshore
mobile facility, such as an onshore drilling or workover rig, barge
mounted offshore drilling or workover rig, or portable fueling
facility, you must prepare, implement, and maintain a facility Plan as
required by this section. You must maintain your Plan, but must amend
and implement it, if necessary to ensure compliance with this part, on
or before October 31, 2007. If your onshore or offshore mobile facility
becomes operational after October 31, 2007, and could reasonably be
expected to have a discharge as described in Sec. 112.1(b), you must
prepare and implement a Plan before you begin operations. This
provision does not require that you prepare a new Plan each time you
move the facility to a new site. The Plan may be a general Plan. When
you move the mobile or portable facility, you must locate and install
it using the discharge prevention practices outlined in the Plan for
the facility. The Plan is applicable only while the facility is in a
fixed (non-transportation) operating mode.
* * * * *
[FR Doc. 05-23916 Filed 12-9-05; 8:45 am]
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