Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities
[Federal Register: January 9, 2003 (Volume 68, Number 6)]
[Rules and Regulations]
[Page 1347-1351]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja03-11]
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Part V
Environmental Protection Agency
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40 CFR Part 112
Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities; Final Rule and Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[FRL-7437-3]
RIN 2050-AC62
Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: The Environmental Protection Agency (EPA or we) is extending
for a period of sixty days the dates for a facility to amend its Spill
Prevention, Control, and Countermeasure (SPCC) Plan and implement the
amended Plan (or, in the case of facilities becoming operational after
August 16, 2002, prepare and implement a Plan that complies with the
newly amended requirements). We are taking this action to avoid the
flood of individual extension requests it has become apparent we will
otherwise receive from regulated facilities, and to allow for adequate
consideration of comments we expect to receive on a proposed one-year
extension of the dates published elsewhere in this issue of the Federal
Register.
DATES: This interim final rule is effective on January 9, 2003.
ADDRESSES: The docket for this rulemaking is located in the EPA Docket
Center at 1301 Constitution Ave., NW., EPA West, Suite B-102,
Washington, DC 20460. The docket number for the final rule is OPA-2002-
001. The docket is contained in the EPA Docket Center and is available
for inspection by appointment only, between the hours of 8:30 a.m. and
4:30 p.m., Monday through Friday, excluding legal holidays. You may
make an appointment to view the docket by calling 202-566-0276. You may
copy a maximum of 100 pages from any regulatory docket at no cost. If
the number of pages exceeds 100, however, we will charge you $0.15 for
each page after 100. The docket will mail copies of materials to you if
you are outside of the Washington, DC metropolitan area.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing
impaired). In the Washington, DC metropolitan area, call 703-412-9810
or TDD 703-412-3323. For more detailed information on specific aspects
of this rule, contact Hugo Paul Fleischman at 703-603-8769
fleischman.hugo@epa.gov); or Mark W. Howard at 703-603-8715
howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW, Washington, DC 20460-0002, Mail Code 5203G.
SUPPLEMENTARY INFORMATION: The contents of this preamble are as
follows:
I. General Information
II. Entities Affected by This Rule
III. Statutory Authority
IV. Background
V. Today's Action
VI. Statutory and Executive Order Reviews
I. General Information
Introduction. By this interim final rule, the Environmental
Protection Agency is extending by sixty days the dates in 40 CFR
112.3(a) and (b) for a facility to amend its Spill Prevention, Control,
and Countermeasure (SPCC) Plan and implement the amended Plan (or, in
the case of facilities becoming operational after August 16, 2002,
prepare and implement a Plan that complies with the newly amended
requirements). During the period of this sixty-day extension, it will
not be necessary for a facility owner or operator to file an extension
request pursuant to Sec. 112.3(f). Furthermore, for facilities that
have already applied for an extension pursuant to Sec. 112.3(f),
today's interim final rule should render such requests moot.
A. How Can I Get Copies of the Background Materials Supporting Today's
Interim Final Rule or Other Related Information?
1. EPA has established an official public docket for this interim
final rule under Docket ID No. OPA-2002-001. The official public docket
consists of the documents specifically referenced in this interim final
rule and other information related to this interim final rule. Although
a part of the official docket, the public docket does not include
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. The official public docket is the
collection of materials that is available for public viewing at the EPA
Docket Center located at 1301 Constitution Ave., NW., EPA West
Building, Room B-102, Washington, DC 20004. This Docket Facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
federal holidays. To review docket materials, it is recommended that
the public make an appointment by calling (202) 566-0276. The public
may copy a maximum of 100 pages from any regulatory docket at no
charge. Additional copies cost $0.15/page.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr.
You may use EPA Dockets at http://www.epa.gov/edocket/ to access
the index listing of the contents of the official public docket, and to
access those documents in the public docket that are available
electronically. Once in the system, select ``search,'' then key in the
docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI, and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified above.
II. Entities Affected by This Rule
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Industry category NAICS code
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Crop and Animal Production............................. 111-112
Crude Petroleum and Natural Gas Extraction............. 211111
Coal Mining, Non-Metallic Mineral Mining and Quarrying. 2121/2123/213114/213116
Electric Power Generation, Transmission, and 2211
Distribution.
Heavy Construction..................................... 234
Petroleum and Coal Products Manufacturing.............. 324
Other Manufacturing.................................... 31-33
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Petroleum Bulk Stations and Terminals.................. 42271
Automotive Rental and Leasing.......................... 5321
Heating Oil Dealers.................................... 454311
Transportation (including Pipelines), Warehousing, and 482-486/488112-48819/4883/48849/492-493/71393
Marinas.
Elementary and Secondary Schools, Colleges............. 6111-6113
Hospitals/Nursing and Residential Care Facilities...... 622-623
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The list of potentially affected entities in the above table may
not be exhaustive. Our aim is to provide a guide for readers regarding
those entities that EPA is aware potentially could be affected by this
action. However, this action may affect other entities not listed in
the table. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
III. Statutory Authority
33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 (October 18,
1991), 3 CFR, 1991 Comp., p. 351
IV. Background
On July 17, 2002, at 67 FR 47042, EPA published final amendments to
the Spill Prevention, Control, and Countermeasure (SPCC) rule. The rule
was effective August 16, 2002. The rule included dates in Sec.
112.3(a) and (b), by which a facility would have time to amend its SPCC
Plan and implement its amended Plan (note that for facilities becoming
operational after August 16, 2002, the rule contains dates for the
preparation and implementation of a Plan in compliance with the amended
rule). In light of new information, we have decided to extend those
dates for a period of sixty days.
V. Today's Action
EPA is extending for a period of sixty days the dates in Sec.
112.3(a) and (b). Since the promulgation of the SPCC rule in July 2002,
EPA has received numerous complaints that the deadlines in the rule do
not allow enough time for the regulated community to undertake the
actions necessary to update (or prepare) their Plans in accordance with
the amendments. Among the reasons given are that there is a shortage of
Professional Engineers (PEs) in some areas, the need for the PE or his
agent to make visits at sometimes remote facilities, and the need for
the PE to certify that Plans meet requirements for which they have not
yet had adequate training. It has also become apparent that unless the
Agency issues this interim final rule, we will receive an overwhelming
number of requests for individual extensions under 40 CFR 112.3(f).
Thus, the Agency believes that the present compliance dates are too
short, and it would be an inefficient use of scarce Agency resources to
address this problem by processing a great number of individual
extension requests. Because the first deadline in the rule is February
17, 2003, the Agency believes that immediate, near-term relief is
needed, and is therefore extending the current deadlines by sixty days.
We are issuing this interim final rule in conjunction with a
concurrent proposal (published elsewhere in this issue of the Federal
Register) to extend by one year the dates in Sec. 112.3(a) and (b). We
believe a sixty-day extension is needed as quickly as possible to avoid
potential confusion for facility owners and unnecessary administrative
burdens on the Agency. Therefore, EPA is invoking the good cause
exception under the Administrative Procedure Act (APA) in not providing
an opportunity for comment before this action takes effect (5 U.S.C.
553(b)(3)). EPA believes that notice- and comment rulemaking before the
existing compliance dates in the SPCC rule (i.e., February 17, 2003) is
impracticable and contrary to the public interest, inasmuch as there is
insufficient time to offer meaningful opportunity for public comment
and provide appropriate, considered response by the Agency. Therefore,
EPA believes it is necessary to use the interim final rulemaking
process to extend by sixty days the compliance dates in Sec. 112.3(a)
and (b) while we complete a notice-and-comment rulemaking process that
proposes to extend these compliance dates for a period of one year.
Moreover, with respect to the effective date of this interim final
rule, EPA is invoking the good cause exception to the 30-day notice
requirement of the APA because the purpose of this notice is to relieve
a restriction (5 U.S.C. 553(d)(1)).
VI. Statutory and Executive Order Reviews
A. Executive Order 12866--OMB Review
Under Executive Order 12866, (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under the terms of Executive Order 12866, it has been determined
that this interim final rule is not a ``significant regulatory action''
because it would only extend for sixty days the compliance dates in
Sec. 112.3(a) and (b). It would have no other substantive effect.
B. Paperwork Reduction Act
This interim final rule does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (R.F.A.) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq. generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements
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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 interim final rule
on small entities, small entity is defined as: (1) A small business as
defined in the Small Business Administration's (SBA) regulations at 13
CFR 121.201--the SBA defines small businesses by category of business
using North American Industry Classification System (NAICS) codes, and
in the case of farms and production facilities, which constitute a
large percentage of the facilities affected by this rule, generally
defines small businesses as having less than $500,000 in revenues or
500 employees, respectively; (2) a small governmental jurisdiction that
is a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
In determining whether a rule has a significant economic impact on
a substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. This
interim final rule will temporarily reduce regulatory burden on all
facilities by extending for sixty days the compliance dates in Sec.
112.3(a) and (b). Further, the interim final rule will reduce costs for
both existing and new facilities.
After considering the economic impacts of today's interim final
rule on small entities, I certify that this action would 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 interim final rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. Today's interim final rule would reduce
burden and costs on all facilities.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As explained above, the effect of the rule would be to
reduce burden and costs for regulated facilities, including small
governments that are subject to the rule.
E. Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This interim final 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), EPA believes that States are free to 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 program and recognizes that some States
have more stringent requirements. 56 FR 54612 (October 22, 1991). This
interim final rule would not preempt state law or regulations. Thus,
Executive Order 13132 does not apply to this rule.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that
date.
Today's interim final rule would not significantly or uniquely
affect communities of Indian tribal governments. Therefore, we have not
consulted with a representative organization of tribal groups.
G. Executive Order 13045--Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866; and, (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective
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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 interim final 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 interim final rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards such as materials specifications, test methods,
sampling procedures, and business practices that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This interim final rule does not involve technical standards.
Therefore, NTTA is inapplicable.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. EPA has submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 112
Environmental protection, Oil pollution, Penalties, Reporting and
recordkeeping requirements.
Dated: January 3, 2003.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, title 40 CFR, chapter I,
part 112 of the Code of Federal Regulations, is amended as follows:
PART 112--OIL POLLUTION PREVENTION
1. The authority for part 112 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C 2720; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.
2. Section 112.3 is amended by revising paragraphs (a) and (b) to
read as follows:
PART 112--OIL POLLUTION PREVENTION
Subpart A--Applicability, Definitions, and General Requirements for
All Facilities and All Types of Oils
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, on or before April
17, 2003, and must implement the amended Plan as soon as possible, but
not later than October 18, 2003. If your onshore or offshore facility
becomes operational after August 16, 2002, through October 18, 2003,
and could reasonably be expected to have a discharge as described in
Sec. 112.1(b), you must prepare a Plan on or before October 18, 2003,
and fully implement it as soon as possible, but not later than October
18, 2003.
(b) If you are the owner or operator of an onshore or offshore
facility that becomes operational after October 18, 2003, 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.
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[FR Doc. 03-390 Filed 1-8-03; 8:45 am]
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