Facility Response Planning

The Environmental Protection Agency's (EPA's) Oil Pollution Prevention Regulation, 40 Code of Federal Regulations (CFR) Part 112 applies to nontransportation-related facilities that could reasonably be expected to discharge oil into or upon the navigable waters of the United States or adjoining shorelines, and that have (1) an aboveground oil storage capacity of more than 660 gallons in a single container; or (2) a total aboveground oil storage capacity of more than 1,320 gallons; or (3) a total underground buried storage capacity of more than 42,000 gallons. All such facilities are required to comply with the SPCC requirements (40 CFR 112.1 through 112.7), which include preparing a Spill Prevention Control and Countermeasure (SPCC) Plan and conducting an initial screening to determine whether they need to develop a facility response plan (FRP), which meets the requirements of 40 CFR 112.20, 112.21 and related Appendices A through F. Those facilities that could cause "substantial harm" to the environment must prepare and submit an FRP.

In 1990, Congress passed the Oil Pollution Act (OPA) that amended Section 311 of the Clean Water Act (CWA) to require "substantial harm" facilities to develop and implement FRPs. EPA's FRP requirements, which were published as a final rule in the Federal Register on July 1, 1994, are codified at 40 CFR 112.20 and 112.21 and include Appendices A through F. This part of the rule requires that owners and operators of facilities that could cause "substantial harm" to the environment by discharging oil into navigable water bodies or adjoining shorelines prepare plans for responding, to the maximum extent practicable, to a worst case discharge and to a substantial threat of such a discharge of oil.

EPA-regulated facilities are required to submit their FRPs and certifications of response resources to implement the Plan to EPA for review. The Agency reviews and approves plans from facilities identified as having the potential to cause "significant and substantial harm" to the environment from oil discharges. Other SPCC-regulated facilities that are not required to prepare FRPs based on their quantities and locations of oil storage are required to document their determination that they do not meet the "substantial harm" criteria using Attachment C-II in Appendix C of 40 CFR Part 112.

The sections of the Oil Pollution Prevention Regulation relevant to facility response planning are summarized in the following chart.

Purpose of a FRP

The primary user of the FRP will be the facility. Facility-specific response plans will help owners and operators develop a response organization and identify the resources needed to respond to an oil spill adequately and in a timely manner. Successful plans will be scenario-based and developed by the preparation of risk analyses of the areas in question; identification of several scenarios that require different levels of response; development of strategies to respond to each scenario; and identification and provision of resources necessary to respond to each scenario.

Facilities that are considered to pose a threat of substantial harm are required to prepare and submit FRPs. EPA recognizes two ways in which a facility may be identified as posing a risk of substantial harm: through a self-determination process, or at the discretion of the EPA Regional Administrator (RA).

Figure 1

Figure 2

Over Water Transfers

The first criterion for substantial harm determination is for facilities that transfer oil over water to and/or from vessels and have a total storage capacity greater than or equal to 42,000 gallons. As defined in 40 CFR 112.2, "vessel" applies to any type of watercraft, other than a public vessel, capable of being used as a means of transportation on water. The capacities of all storage containers (e.g., drums, tanks, electrical equipment), regardless of size, should be added in order to determine the facility's total storage capacity.

Many sites at which oil is transferred in bulk to or from vessels are likely to include both a transportation-related transfer area regulated by the DOT and USCG and a nontransportation-related oil storage area regulated by the EPA. This combination is considered a "complex" and is subject to multiagency jurisdiction (see Figure 3).

Figure 3

In Figure 3, EPA is responsible for the facility except for the piping/pipelines in the jurisdiction of the USCG, OPS, and MMS. OPS has jurisdiction over the inland pipeline. Seaward of the low water mark, MMS is responsible for the offshore nontransportation-related facility and the offshore pipeline from the platform to the coastline, while the USCG is responsible for the marine transfer component including the pipeline from the storage tank area to a vessel or barge.

A facility may be determined to be a substantial harm facility if it does not have adequate secondary containment and has a total aboveground storage capacity greater than or equal to one million gallons. A facility must have secondary containment for each AST. The area must be able to contain the capacity of the largest AST within that area plus sufficient freeboard to allow for precipitation. The volume of freeboard should be based on regional rainfall patterns. Some facilities in states such as Washington, Alaska, and Hawaii, among others, and the Commonwealth of Puerto Rico will require secondary containment for much larger volumes of water. Secondary containment may include, but is not limited to, the following preventive systems or their equivalent:

Fish and Wildlife and Sensitive Environments

Substantial harm may be determined if a facility is located at a distance such that a discharge could cause injury to fish and wildlife and sensitive environments and the total storage capacity is greater than or equal to one million gallons. As defined by 40 CFR 112.2, "injury" means a measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource. The change can result either directly or indirectly from exposure to a discharge of oil or from exposure to a product or reactions resulting from a discharge of oil.

The owner or operator should use the EPA's Planning Distance Calculations to estimate the distance that the discharged material may travel from the facility. These formulas for still water, rivers, tidal areas, and over land can be found in Appendix C, Attachment C-III of the regulation. Once this has been determined, the fish and wildlife and sensitive environments existing within that distance should be identified.

Section 112.2 defines fish and wildlife and sensitive environments as areas that may be identified by either their legal designation or by evaluations of area committees or members of the federal on scene coordinator's (OSC) spill response structure. The identification of fish and wildlife and sensitive environments should reflect local scientific knowledge, responder experience and community priorities. The areas identified may include areas sensitive to the effects from a spill event, and areas which, if impacted, may endanger human health. Examples of these environments are wetlands, national and state parks, critical habitats for endangered species, wilderness and natural resource areas, marine sanctuaries and estuarine reserves, conservation areas, preserves, wildlife areas, wildlife refuges, wild and scenic rivers, recreation areas, national forests, federal and state lands that are research natural areas, heritage program areas, land trust areas, and historical and archeological parks.

Additional information concerning fish and wildlife and environmentally sensitive areas can be obtained from Appendices I, II, and III to Department of Commerce/National Oceanic and Atmospheric Administration's (DOC/NOAA's) Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments (59 FR 14713, March 29, 1994). This guidance was developed to aid facilities in the identification of these areas prior to their designation in the Area Contingency Plan (ACP). Some ACPs may identify these resources.

Public Drinking Water Intakes

A facility may also be determined to be of substantial harm if it is located at a distance such that a discharge would shut down a public drinking water intake and it has a total storage capacity equal to or greater than one million gallons. To determine whether a facility would shut down a public drinking water intake, the owner or operator must calculate the distance that oil could travel from the facility before being contained using the Planning Distance Calculations. All public drinking water intakes must be identified within this distance.

Public drinking water intakes are defined by the systems that feed them. As set forth in the Safe Drinking Water Act, a public water system (i.e., a system that provides piped water for human consumption) must have at least 15 service connections or regularly serve at least 25 individuals. Public drinking water systems include collection, treatment, storage, and distribution facilities. In order to identify the location of downstream public drinking water intakes, the facility should consult the appropriate ACP and contact the municipal or county water authority for each area that could be affected by an oil spill from the facility.

Reportable Spills Greater than 10,000 Gallons

The final criterion for substantial harm determination is for facilities that have had a reportable spill in an amount greater than or equal to 10,000 gallons within the last five years and have a total storage capacity equal to or greater than one million gallons. A reportable spill is a discharge that reaches navigable waters or adjoining shorelines in a quantity that may be harmful. Specifically, 40 CFR 110.3 defines a harmful discharge as one that:

If a facility has been significantly upgraded within five years of a spill greater than or equal to 10,000 gallons, the owner/operator can petition the Regional Administrator (RA) to remove the facility from the category of substantial harm. Examples of such upgrading include replacing tanks, adding secondary containment, and making other improvements that greatly reduce the risk to the environment in the event of a spill.

Regional Administrator Determination

In addition to the self-determination criteria, Section 112.20(b) states that the RA may also determine a facility's potential to cause substantial harm. If a facility must prepare and submit a response plan, the RA will further assess the risk posed by the facility in order to determine whether it could cause significant and substantial harm to the environment.

The RA may use factors similar to the self-determination criteria or may use other factors to evaluate the facility's potential to cause substantial harm. As set forth in Section 112.20(b), the factors that the RA may consider include, but are not limited to, the following:

EPA has developed guidance for their regional offices to identify substantial harm and significant and substantial facilities based on the above factors.

In addition, if any person, including a member of the public or representative from a federal, state, or local agency, believes a facility may cause substantial harm to the environment from a discharge of oil, he or she may petition the RA to determine whether the facility meets the above-described substantial harm criteria. The RA can make a determination of substantial harm without being petitioned. If EPA determines that a facility poses a threat of substantial harm, the RA will notify the facility in writing that they are required to prepare and submit an FRP.

Once facilities submit an FRP to EPA, it will be reviewed and evaluated for the facility's potential to cause significant and substantial harm to vulnerable areas. Those facilities that meet the criteria for significant and substantial harm will have their FRPs reviewed and their facilities inspected for viability and compliance with the regulations prior to EPA approval.

EPA reviews and approves response plans for those facilities whose discharges may cause "significant and substantial harm" to the environment in order to ensure that facilities believed to pose the highest risk have adequate resources and procedures in place to respond to a spill. Since the statutory deadlines for the submittal of FRPs have passed, EPA performs initial reviews of response plans submitted by "significant and substantial harm" facilities constructed after August 30, 1994, existing facilities that become subject to the response plan requirements as the result of a change in operations (after the effective date of the regulation); and facilities newly designated by the RA as "significant and substantial harm." EPA is required to periodically review the response plans of "significant and substantial harm" facilities that already have submitted a response plan to the Agency, provided that the period between plan reviews does not exceed five years. The Agency will require amendments to any response plan that does not meet the requirements. EPA also will use the facility-specific information provided in the response plans to continue to update ACPs as required by the OPA.

Facility Response Plan Development

Facility personnel must use background information such as the location, quantities, and types of material stored and a geographic description of the site (maps, schematic diagrams, latitude and longitude) to develop an FRP. Roles and responsibilities of other members of the response team (both company responders and outside parties) must be clearly established.

To develop an FRP, the facility should perform a hazard analysis, which involves identifying potential hazards based on facility background information, determines the vulnerability of the surrounding area given the hazard, and assesses the risk of a release. The results of the hazard analysis are used to develop spill scenarios. For one scenario, the facility calculates the volume of a worst case discharge and develops an effective response to such a discharge. All aspects of an effective response must be included in the response plan, including containment, countermeasure, and mitigation procedures for different types of incidents, and the provision for proper cleanup and disposal of contaminated material.

Appendix F of the Oil Pollution Prevention Regulation (40 CFR Part 112) includes a model FRP. A checklist for the model plan is located at the end of this guide.

Oil spill response training is an important element in EPA's oil spill prevention and preparedness efforts. Studies indicate that a significant number of oil spills at facilities are caused by operator error, such as failing to close valves or overfilling tanks during transfer operations. Because operator error is often the cause of an oil spill, training and briefings are critical for prevention of a spill as well as response to a spill. Furthermore, proper training of facility personnel can reduce the severity of impacts when a spill does occur. Training encourages up-to-date planning for the control of, and response to, an oil spill and also helps to sharpen operating and response skills, introduces the latest ideas and techniques, and promotes interaction with the emergency response organization and familiarity with the facility's SPCC and FRP plans.

Under 40 CFR 112.20(h)(8), facility response plans must contain information about self-inspection, drills/exercises, and response training, including descriptions of training and drill/exercise programs and documentation of tank inspections, equipment inspections, response training meetings, response training sessions, and drills/exercises. Consequently, facility response plans may be revised based on evaluations of the facility drills and exercises.

Section 112.21 of the Oil Pollution Prevention Regulation requires the development and implementation of facility response training programs. It is recommended that the training program be based on the USCG Training Elements for Oil Spill Response, as applicable to facility operations. An alternative program can also be acceptable, subject to approval of the Regional Administrator. The training must be functional in nature according to job tasks for both supervisory and nonsupervisory operational personnel. Trainers must develop specific lesson plans on subject areas relevant to facility personnel involved in oil spill response and cleanup.

The requirements for oil spill response training and response drills and exercises are codified at 40 CFR 112.21, for facilities that are required to prepare an FRP.

Under 40 CFR 112.21, facilities are also required to develop and implement a program of response drills and exercises, including evaluation procedures to test the effectiveness of their response plan. A program that follows the National Preparedness for Response Exercise Program (PREP) will meet these requirements. An alternative program can also be acceptable if approved by the Regional Administrator.

The USCG, EPA, OPS, MMS, states and industry developed PREP. The program consists of notification, tabletop and deployment exercises that are both announced and unannounced, as well as participation in larger area drills that exercise the appropriate ACP. Exercises that involve other members of the response community outside of the facility include industry- and government-led area exercises and government-initiated unannounced exercises. These exercises are designed to evaluate the entire response mechanism in a given area to ensure adequate preparedness. The goal of PREP is to conduct approximately 20 area exercises per year. PREP also includes a schedule for the exercise of facility FRPs over a three-year cycle.

Under Sec. 112.20(g), facilities must periodically review their response plans to ensure consistency with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and ACPs. Consequently, owners or operators who have prepared response plans must review relevant portions of the NCP and the applicable ACPs annually and update their facility response plan as appropriate. In addition, under Sec. 112.20(d)(1), the owner or operator must resubmit revised portions of their response plan within 60 days of each facility change, which may materially affect the response to a worst case discharge or the implementation of the response plan. These changes may include:

Recordkeeping

Facilities that determine that the response planning requirements under 40 CFR 112.20 do not apply to them must certify and maintain a record of this determination using Attachment C-II, Appendix C, 40 CFR 112.

Facilities that are subject to the response planning requirements at 40 CFR 112.20 are required to maintain the response plan at the facility. Facilities with response plans also are required to maintain updates to the plan to reflect material changes to the facility and to log activities such as discharge prevention meetings, response training drills and exercises. Facilities must keep the records of these activities for a period of five years.

Certification of the Applicability of the Substantial Harm Criteria Checklist

Facility Name:

Facility Address:

1. Does the facility transfer oil over water to or from vessels and does the facility have a total oil storage capacity greater than or equal to 42,000 gallons?

Yes    No

2. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and does the facility lack secondary containment that is sufficiently large to contain the capacity of the largest aboveground oil storage tank plus sufficient freeboard to allow for precipitation within any aboveground oil storage tank area?

Yes    No

3. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and is the facility located at a distance (calculated using the appropriate formula in Attachment C-III Appendix C, 40 CFR 112 or a comparable formula¹) such that a discharge from the facility could cause injury to fish and wildlife and sensitive environments? For further description of fish and wildlife and sensitive environments, see Appendices I, II, and III to DOC/NOAA's "Guidance for Facility and Vessel Response Plans" (section 10, Appendix E, 40 CFR Part 112 for availability) and the applicable Area Contingency Plan.

Yes    No

4. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and is the facility located at a distance (calculated using the appropriate formula (Attachment C-III, Appendix C, 40 CFR 112 or a comparable formula⁽²⁾) such that a discharge from the facility would shut down a public drinking water intake⁽³⁾?

Yes    No

5. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and has the facility experienced a reportable oil spill in an amount greater than or equal to 10,000 gallons within the last 5 years?

Yes    No

Certification

I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document, and that based on my inquiry of those individuals responsible for obtaining this information, I believe that the submitted information is true, accurate, and complete.

Name (please type or print)

Signature

Title Date

1. The term coastline is defined to mean "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters," e.g., low tide. Along the Gulf Coast, this line has been determined by the courts and runs along the coastal barrier islands. The jurisdiction over facilities along the coastline of the state of Alaska is determined on a case-by-case basis by MMS.

2. If a comparable formula is used, documentation of the reliability and analytical soundness of the comparable formula must be attached to this form.

3. For the purposes of 40 CFR Part 112, public drinking water intakes are analogous to public water systems As described at 40 CFR 143.2(c).