[Federal Register Volume 61, Number 87 (Friday, May 3, 1996)]
[Proposed Rules]
[Pages 20084-20094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10997]




[[Page 20083]]


_______________________________________________________________________

Part VI





Department of Transportation





_______________________________________________________________________



Coast Guard



33 CFR Parts 154 and 155



Tank Vessel and Facility Response Plans, and Response Equipment for 
Hazardous Substances; Proposed Rule

  Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed 
Rules  

[[Page 20084]]



DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 154 and 155

[CGD 94-032 and 94-048]
RIN 2115-AE87 and 2115-AE88


Tank Vessel and Facility Response Plans, and Response Equipment 
for Hazardous Substances

AGENCY: Coast Guard, DOT.

ACTION: Advance notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is soliciting comments relating to proposed 
regulations requiring response plans for: certain tank vessels 
operating on the navigable waters of the United States or any marine 
transportation-related (MTR) facility that, because of its location, 
could reasonably be expected to cause substantial or significant and 
substantial harm to the environment by discharging a hazardous 
substance. These regulations are mandated by the Oil Pollution Act of 
1990 (OPA 90), which requires the President to issue regulations 
requiring the preparation of hazardous substance response plans. The 
purpose of requiring response plans is to minimize the impact of a 
discharge or release of hazardous substances into the navigable waters 
of the United States.

DATES: Comments must be received on or before September 3, 1996.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine 
Safety Council [G-LRA-2/3406] (CGD 94-032, 94-048), U.S. Coast Guard 
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may 
be delivered to room 3406 at the above address between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 267-1477.
    The Executive Secretary maintains the public docket for this 
rulemaking. Comments will become part of this docket and will be 
available for inspection or copying at room 3406, U.S. Coast Guard 
Headquarters.

FOR FURTHER INFORMATION CONTACT:
LT Cliff Thomas, Standards Evaluation and Development Division (G-MES), 
(202) 267-1099.

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages interested persons to participate in the 
early stages of this rulemaking by submitting written data, views, or 
arguments. Persons submitting comments should include their names and 
addresses, identify this specific advance notice (CGD 94-032, 94-048), 
and the specific section of the action being addressed or the issue to 
which each comment applies, and give the reason for each comment. 
Please submit two copies of all comments and attachments in an unbound 
format, no larger than 8\1/2\ by 11 inches, suitable for copying and 
electronic filing. Persons wanting acknowledgment of receipt of 
comments should enclose stamped, self-addressed postcards or envelopes.
    The Coast Guard will consider all comments received during the 
comment period. All comments will be considered in drafting the notice 
of proposed rulemaking.
    The Coast Guard plans to hold a public meeting in Washington, DC 
regarding this proposed rulemaking between 45 to 60 days after 
publication of this advance notice of proposed rulemaking (ANPRM). This 
meeting will be conducted for the purpose of receiving views on what 
should be regulated and what appropriate regulations would be. The date 
and time will be announced by a later notice in the Federal Register. 
Persons may request additional public meetings by writing to the Marine 
Safety Council at the address under addresses. The request should 
include the reasons why a meeting would be beneficial. If it determines 
that an additional opportunity for oral presentations will aid this 
rulemaking, the Coast Guard will hold another public meeting at a time 
and place announced by a later notice in the Federal Register.

    Drafting Information. The principal persons involved in drafting 
this document are LT Cliff Thomas, Standards Evaluation Division, 
(G-MES), LCDR Walter (Bud) Hunt, Response Division, (G-MRO), and 
Jacqueline Sullivan, Project Counsel, Office of the Chief Counsel.

Background and Purpose

1. General

    Section 311(j)(5) of the Federal Water Pollution Control Act 
(FWPCA) [33 U.S.C. 1321(j)(5)], as amended by section 4202(a) of OPA 
90, requires owners or operators of tank vessels, offshore facilities, 
and onshore facilities that could reasonably by expected to cause 
substantial harm to the environment to prepare and submit plans for 
responding, to the maximum extent practicable, to a worst case 
discharge, or a substantial threat of such a discharge, of oil or a 
hazardous substance. Section 4202(b)(4) of OPA 90 establishes an 
implementation schedule for these requirements with regard to oil. 
Under section 4202(b)(4), an owner or operator of a tank vessel or 
facility for which a response plan was required under 33 U.S.C. 
1321(j)(5) and which handled, stored, or transported oil was required 
to be operating in compliance with an approved response plan by August 
18, 1993. However, section 4202(b)(4) did not establish a compliance 
date requiring response plans for hazardous substances. For the 
purposes of this ANPRM, discharge and release are synonymous.

2. Oil Response Plan Regulations

    The Coast Guard issued two separate interim final rules (IRS) on 
February 5, 1993: one requiring response plans for tank vessels 
carrying oil in bulk as cargo (VRP IFR) [33 CFR 155] and another 
requiring response plans for MTR facilities that handle, store, or 
transport oil in bulk (FRP IFR) [33 CFR 154]. These IFRs define many 
concepts such as ``marine transportation-related facility,'' ``maximum 
extent practicable,'' and ``worst case discharge.'' The rules also 
provide a specific format for response plans; however, they allow for 
deviations from this format as long as the required information is 
included and there is a cross reference sheet identifying its location. 
The Coast Guard is considering using these concepts or modifying them 
as necessary in the regulations for response plans for hazardous 
substances.

3. Tank Vessels

    The VRP IFR for oil uses the definition of ``tank vessel'' in 46 
U.S.C. 2101. The same definition applies for purposes of implementing 
the OPA 90 provisions for hazardous substance response plans. This 
definition applies the requirement for hazardous substance response 
plans to all tank vessels that carry hazardous substances in bulk as 
cargo. Offshore supply vessels (OSVs) and certain fishing and fish 
tender vessels are exempt from the requirements for hazardous substance 
response plans because, in accordance with section 5209(b) of the Coast 
Guard Authorization Act of 1992 [Pub L. 102-587, 106 Stat. 5039 at 
5076], they are not considered tank vessels for the purposes of any 
law.
    The VRP IFR for oil establishes three categories for tank vessels: 
manned vessels carrying oil as a primary cargo, unmanned tank barges 
carrying oil as a primary cargo, and vessels carrying oil as a 
secondary cargo. The Coast Guard is considering applying this scheme 
for categorizing tank vessels to regulations requiring hazardous 
substance response plans.

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4. Marine Transportation Related Facilities

    OPA 90 requires hazardous substance response plans for any offshore 
facility or any onshore facility that, because of its location, could 
reasonably be expected to cause substantial or significant and 
substantial harm to the environment by discharging a hazardous 
substance. In Executive Order (E.O.) 12777, the President divided the 
responsibility for implementing the provisions of OPA 90 regarding 
hazardous substance response plans among various Federal agencies. 
Through a series of delegations, the Coast Guard was granted the 
authority to implement hazardous substance response plan requirements 
for fixed and mobile onshore MTR facilities and for deepwater ports. 
The Environmental Protection Agency (EPA) was granted the authority to 
regulate fixed onshore non-transportation-related facilities. The 
Research and Special Programs Administration (RSPA) was granted the 
authority to regulate onshore non-marine transportation-related 
facilities (i.e., pipelines, motor carriers, and railways). The 
Department of Interior's Minerals Management Service (MMS) was granted 
the authority to regulate offshore facilities and associated pipelines, 
other than deepwater ports subject to the Deepwater Ports Act of 1974.
    That segment of the MTR facility that is over water is considered 
to be an ``offshore facility'' under the FWPCA. Under E.O. 12777, this 
segment is under the purview of MMS. A memorandum of understanding 
(MOU) between the Department of Interior (DOI), Department of 
Transportation (DOT), and the EPA establishing Federal jurisdictional 
boundaries for offshore facilities became effective on February 3, 1994 
[59 FR 9494; February 28, 1994]. To avoid any confusion caused by the 
definition of ``offshore facility'', MMS coordinated an effort to 
establish jurisdictional boundaries for oil spill prevention and 
control, response planning, and response equipment inspection 
activities. The Secretary of the Interior redelegated DOI's functions 
under section 2(i) of E.O. 12777 to give the EPA jurisdiction over non-
transportation-related offshore facilities landward of the coast line 
and to give DOT jurisdiction over transportation-related offshore 
facilities located landward of the coast line. This MOU does not 
include jurisdictional boundaries for oil spill financial 
responsibility.
    The FRP IFR for oil defines an MTR facility as any onshore 
facility, including piping and structures used for the transfer or oil 
to or from a vessel and any deepwater port subject to regulation under 
33 CFR part 150. This definition includes not only large fixed onshore 
facilities but also tank trucks, marinas, and railroad tank cars that 
transfer oil to or from vessels where the vessel has a capacity of 250 
barrels of oil or more. This definition, modified by substituting the 
phrase ``hazardous substance'' for the word ``oil'', could be applied 
to regulations requiring hazardous substance response plans.
    As Coast Guard-regulated fixed onshore MTR facility is generally a 
segment of a larger facility or complex. The FRP IFR for oil describes 
a complex as a facility that contains portions which are regulated by 
two or more Federal agencies. Onshore non-transportation related fixed 
facilities, which can be part of a complex, are already covered by a 
web of existing statutes and regulations at the Federal, state, and 
local levels that address preparedness for, and response to, hazardous 
substance releases. One of the purposes of this ANPRM is to address any 
potential gaps in the coverage of these facilities and to prevent 
imposing duplicative, overlapping, or conflicting regulations.
    OPA 90 makes the distinction between onshore facilities that could 
reasonably be expected to cause substantial harm to the environment 
(substantial harm facilities) and facilities that could reasonably be 
expected to cause significant and substantial harm to the environment 
(significant and substantial harm facilities). Response plans must be 
prepared and submitted for both types of MTR facilities; however, 
response plans for significant and substantial harm MTR facilities also 
must be reviewed and approved by the Coast Guard.
    Under the FRP IFR for oil, all MTR facilities, including mobile 
facilities, that are capable of transferring oil in bulk to or from 
vessels with a capacity of 250 barrels or more, and MTR facilities that 
are specifically so designated by the Coast Guard Captain of the Port 
(COTP) are classified as substantial harm facilities. However, within 
this set of substantial harm facilities, there is a subset of 
significant and substantial harm facilities. Significant and 
substantial harm facilities are fixed onshore MTR facilities, capable 
of transferring oil in bulk to or from vessels with a capacity of 250 
barrels or more, deepwater ports, or facilities that are specifically 
so designated by the COTP. Mobile MTR facilities are not considered to 
be significant and substantial harm facilities unless so designated by 
the COTP.
    The terms substantial harm facility and significant and substantial 
harm facility, as defined in the FRP IFR for oil, could be used in the 
FRP response plan regulations for hazardous substances if the phrase 
``hazardous substances'' were substituted for the word ``oil'' in the 
definitions of those terms.
    The Coast Guard considered developing criteria for designation of 
facilities that handle, store, or transport hazardous substances as 
substantial harm and as significant and substantial harm facilities 
that would be different from those criteria used in the oil FRP IFR. 
The criteria considered would reflect the prospect that discharges of 
hazardous substances present a different type and degree of potential 
damage to human health and the environment than oil discharges.
    EPA uses the concept of a ``reportable quantity'' to set the amount 
of a discharge of a hazardous substance which requires the releaser to 
report the discharge to the government. Section 117.1 of 40 CFR defines 
``reportable quantity'' as that quantity that may be harmful and is a 
violation of section 311(b)(3) of the FWPCA [33 U.S.C. 1321(b)(3)] when 
discharged into or upon navigable waters, adjoining shorelines, the 
contiguous zone, or in conjunction with activities under the Outer 
Continental Shelf Lands Act [43 U.S.C. 1331, et seq.] or Deepwater 
Ports Act of 1974 [33 U.S.C. 1501 through 1524]. Table 117.3 of 40 CFR 
lists the reportable quantities of substances designated as hazardous 
substances under section 311(b)(4) of the FWPCA [33 U.S.C. 1321(b)(4)].
    One criterion considered was to designate an MTR facility that 
handles, stores, or transports a hazardous substance in an amount 
exceeding the reportable quantity of that hazardous substance as a 
substantial harm facility. A criterion considered in designating 
significant and substantial harm facilities was to identify facilities 
that handle, store, or transport hazardous substances above 10 times 
the reportable quantity. Alternately, facilities could be designated as 
significant and substantial harm facilities if they handle, store, or 
transport hazardous substances 100 times above the reportable quantity.
    Using the concept of a reportable quantity to define what 
constitutes a substantial harm facility, and distinguishing it from a 
significant and substantial harm facility has the advantage of building 
a regulatory

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structure with a concept that incorporates quantifiable values that 
already exist and are based on rational decisions through the 
rulemaking process. The added advantage is that the public, industry, 
and Coast Guard are familiar with these concepts. However, it may also 
result in selection criteria that are unnecessarily complicated and 
that are not consistent with those established in the FRP IFR for oil. 
Additionally, the reportable quantity concept may not be applicable to 
non-FWPCA hazardous chemicals. It is also not clear that using this 
criteria will appreciably increase the likelihood of predicting the 
harm that may occur to the environment in the event of a discharge of 
hazardous substances from the MTR portion of a complex facility.
    The applicability criteria established in 33 CFR 154.1015 for the 
FRP oil regulations will be considered in drafting hazardous substances 
response planning regulations. These criteria build on two existing 
regulatory regimes which include pollution prevention regulations for 
oil and hazardous substances and response planning regulations for oil 
spills.
    The applicability in 33 CFR 154.1015 is based on the ability of a 
facility to transfer to or from a vessel with a capacity of 250 barrels 
or more. The determination of substantial harm and significant and 
substantial harm is associated with the capacity of an MTR facility and 
its proximity to navigable waters, adjoining shorelines, or the 
exclusive economic zone (EEZ), as well as other factors such as a 
facility's proximity to public and commercial water supply intakes and 
to areas of economic importance and environmental sensitivity. Such 
determining factors are as relevant for hazardous substances as they 
were for oils.
    Using the FRP applicability for oil for hazardous substances would 
provide that all MTR facilities that are capable of transferring to or 
from a vessel with a capacity of 250 barrels or more could reasonably 
be expected to experience a release of a hazardous substance, into or 
on the navigable waters, adjoining shorelines, or EEZ, which would 
result in substantial harm to the environment. All MTR facilities would 
be classified as substantial harm facilities. Fixed MTR facilities 
would be classified as significant and substantial harm facilities. As 
in the FRP IFR, the COTP would have the authority to upgrade an MTR 
facility classification to substantial harm or significant and 
substantial harm. An owner or operator of an MTR facility who does not 
agree with the initial classification would be provided with a process 
to request review of the MTR facility's classification by the COTP 
using the appeal process established in 33 CFR 154.1075.

5. Defining Hazardous Substances

    OPA 90 does not define the term ``hazardous substance,'' but relies 
on the existing definition of hazardous substance in section 311(a) of 
the FWPCA [33 U.S.C. 1321(a)]. Section 311(a) defines ``hazardous 
substance'' as ``any substance designated pursuant to subsection (b)(2) 
[33 U.S.C. 1321(b)(2)] of this section.'' Under section 311(b)(2), the 
EPA Administrator is tasked with developing, issuing, and revising a 
list of hazardous substances which may affect natural resources or 
present imminent and substantial danger to public health or welfare, 
including but not limited to fish, shellfish, wildlife, shorelines, and 
beaches. The EPA Administrator has designated 296 chemicals as 
hazardous substances under the FWPCA. The list of hazardous substances 
is located at 40 CFR part 116.
    Section 1321(j)(5) of title 33 of the U.S.C., as amended by section 
4202(a) of OPA 90, requires the Coast Guard to issue response plan 
regulations for those hazardous substances designated under the FWPCA. 
The Coast Guard notes that a number of dangerous chemicals other than 
those designated as hazardous substances are carried in bulk as cargo 
in the marine environment.
    The International Maritime Organization (IMO) has begun to address 
response plan requirements for hazardous chemicals. Its intention is to 
use the basic guidelines for vessels contained in Regulation 26 of 
Annex I of MARPOL as a model for such requirements. The approach 
proposed here is consistent with that under consideration by IMO.

6. Maximum Extent Practicable and Worst Case Discharge

    OPA 90 requires vessels and facilities to prepare and submit plans 
for responding, ``to the maximum extent practicable, to a worst case 
discharge, and to a substantial threat of such a discharge.'' For 
regulatory purposes, both maximum extent practicable and worst case 
discharge are defined in the VRP and FRP regulations for oil. These 
concepts could be applied to the requirements for response plans for 
hazardous substances.
    For vessels, the worst case discharge is defined at 33 CFR 155.1020 
as ``a discharge in adverse weather conditions of a vessel's entire oil 
cargo.'' For facilities, the worst case discharge is defined to mean 
``in the case of an onshore facility and deepwater port, the largest 
foreseeable discharge [of oil] in adverse weather conditions * * *'' 
The FRP IFR provides at 33 CFR 154.1029 a formula for calculating the 
worst case discharge for each facility. By substituting the phrase 
``hazardous substances,'' in lieu of ``oil'', the definitions of worst 
case discharge for vessels and facilities could be applied to the 
hazardous substance regulations.
    For vessels and facilities, maximum extent practicable is ``the 
planned capability to respond to a worst case discharge in adverse 
weather.'' Maximum extent practicable is tied to a quantity of 
equipment and personnel needed to respond to a worst case discharge. It 
recognizes the limits on available current technology and private 
response capabilities and places a limit or cap on the worst case 
discharge volumes for which an owner or operator must plan to respond. 
However, this cap does not limit the amount of response resources which 
owners or operators may have to provide during an actual spill 
response.
    For oil, planning to respond to the maximum extent practicable 
generally implies planning for the containment and recovery of spilled 
oil. However, the Coast Guard recognizes that the concept of 
containment and recovery does not apply to all hazardous substances. 
Some hazardous substances that are released in the water will not be 
recoverable. For the hazardous substance regulations, planning to 
respond to the maximum extent practicable will require planning to 
protect the public health and safety, facility and vessel personnel, 
responders, and the environment. This protection may require planning 
for actions other than containment and recovery of discharged hazardous 
substances. Through rulemaking, the Coast Guard would be able to 
determine what types of response strategies would be required to 
address releases of the various types of hazardous substances. The 
Computer-Aided Management of Emergency Operations (CAMEO) appears to be 
the most effective method for determining the appropriateness of a 
response to a hazardous substance release. CAMEO is a computer program 
used by many response organizations to properly prepare for and respond 
to a hazardous substance release. It was developed by the National 
Oceanic and Atmospheric Administration (NOAA), EPA, and the National 
Safety Council. It is kept current by frequent updates, is widely used, 
and is readily available.

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7. Average Most Probable Discharge and Maximum Most Probable Discharge

    Although OPA 90 requires the issuance of regulations that address 
only the worst case discharge from a vessel or a facility, the VRP and 
FRP IFRs for oil require owners or operators to plan also for the 
average most probable discharges and the maximum most probable 
discharges. These concepts were developed to address the majority of 
the spills that occur on vessels and at facilities--spills which are 
significantly lower in volume than the worst case discharge volume 
required to be addressed in response plans by OPA 90.
    In the VRP IFR for oil, the average most probable discharge is 
defined as a discharge of 50 barrels of oil from the vessel during 
transfer operations. The maximum most probable discharge is a discharge 
of (1) 2,500 barrels of oil for vessels with an oil cargo capacity 
equal to or greater than 25,000 barrels; or (2) 10 percent of the 
vessel oil cargo capacity if less than 25,000 barrels.
    If the FRP IFR for oil, the average most probable discharge is 
defined as a discharge of the lesser of 50 barrels or 1 percent of the 
volume of a worst case discharge. The maximum most probable discharge 
is the discharge of the lesser of 1,200 barrels or 10 percent of the 
volume of a worst case discharge.
    The concepts for the average and maximum most probable discharge in 
the VRP and FRP IFRs for oil could be applied to the regulations 
requiring response plans for hazardous substances; however, the 
definitions of the terms may need to be modified to specifically 
address the differences inherent in hazardous substances. These 
definitions in the oil regulations are based on historical spill data 
of the volumes of oil discharged into the marine environment. For 
hazardous substance response plan regulations, the definitions may need 
to be modified to reflect the historical data for the volumes of 
hazardous substances that have been released in the marine environment 
provided that the data is reliable.

8. Other Response Plan Requirements

    Section 4202(a) of OPA 90 requires both oil and hazardous substance 
response plan regulations to address issues such as plan review and 
approval; consistency with the National Contingency Plan and Area 
Contingency Plans; identification of the qualified individual; 
identification by contract or other approved means of private response 
resources; description of training, equipment testing, drills, and 
responsibilities of vessel and facility personnel; periodic updating of 
plans; and resubmission and approval after each significant change of a 
plan. These issues and others (i.e., plan format) are addressed in the 
VRP and FRP IFRs for oil and could be handled similarly for the 
hazardous substance response plan regulations.

9. Developing Effective Response Plans

    A key element in developing effective response plans for hazardous 
substances is the development of an approach for addressing the 
different types of hazardous chemicals. In addition to the 296 
hazardous substances regulated by the FWPCA, there are a number of 
additional hazardous chemicals that are not designated as hazardous 
substances by the EPA under FWPCA but that are transported in bulk in 
the marine environment. Effective response planning should include all 
hazardous chemicals carried in bulk, not just those determined as 
hazardous substances by the EPA. The Coast Guard is interested in the 
views of the regulated community and the general public with respect to 
response plans for hazardous chemicals not regulated under the FWPCA.

Discussion of Areas of Regulation Under Consideration

    Regulations covering the following areas are being considered to 
implement the response plan requirements of section 311(j) of the 
FWPCA. Comments and suggestions from interested parties are invited.

1. Response Plans

    (a) Response plans for MTR facilities would be submitted to the 
cognizant Captain of the Port (COTP) for approval.
    (b) Response plans for vessels would be submitted to the Commandant 
(G-MEP), U.S. Coast Guard Headquarters, Washington, DC for approval.
    (c) Each plan may be required to contain the following information:

--Emergency notification procedures.
--Vessel-specific or facility-specific information.
--Name of qualified individual.
--List and location of release response and fire extinguishing 
equipment (including equipment on board the vessel or equipment located 
at the facility).
--Response personnel, job descriptions for key positions, and their 
training.
--Cargo or commodity hazard identification.
--Emergency response guidelines for each hazardous substance (i.e., 
containment, cleanup, or other appropriate response measures).
--Emergency response guidelines for different scenarios (i.e., large 
and small, fires and explosions, collision, grounding, salvage 
operations, piping failure, releases in sensitive or populated areas, 
offshore and shoreside releases, etc.).
--Salvage operations (vessels only).
--Lightering capabilities (vessels only).
--Waste disposal.
--Worker health and safety.
--Threats to environment or public health and safety.
--Identification of sensitive areas and resources to protect sensitive 
areas (facilities only).

    (d) Response plans would be required to be consistent with the 
National Contingency Plan (NCP) [40 CFR part 300], as required by 33 
U.S.C. 1321(c)(2), and the Area Contingency Plan (ACP) as required by 
section 311(j)(4) of the FWPCA [33 U.S.C. 1321(j)(4)], as amended by 
section 4202(a) of OPA 90.
    All plans may be required to follow a general format. Certain 
aspects of the response plan for vessels, such as on board emergency 
response procedures would be ``generic'' in form, regardless of the 
vessel's port of call. These generic aspects would form the main 
``core'' of the response plan. Information that is unique to a port of 
call, however, such as clean up contractors or local contracting 
representatives, would be included in the response plan as appendices.
    (e) A qualified individual would have to be identified in the 
response plan. A ``qualified individual'' is a representative of a 
vessel or facility with written authority to engage in contracting with 
response companies and to activate necessary funds from the owner or 
operator to carry out cleanup activities. This individual should have 
sufficient training to direct response contractors pending the arrival 
of a company representative. The qualified individual must have the 
means for immediate communication with the appropriate Federal official 
and the persons providing personnel and equipment for release response.
    (f) A communications network, such as a release response telephone 
list, would be required to identify which parties must be contacted 
(i.e., Federal agencies, contractors, a call-up tree) and how those 
communications would be established.
    (g) Vessel and facility owners or operators would be required to 
identify and ensure by contract or other approved means, the 
availability of private personnel and equipment necessary to respond to 
a release. When

[[Page 20088]]

appropriate, the Coast Guard would provide guidelines regarding what 
type and amounts of equipment are required for an average most 
probable, maximum most probable, and worst case discharge.
    The Coast Guard would maintain an oversight and enforcement role in 
verifying the contractual availability of equipment and personnel 
between pollution contractors and owners or operators of tank vessels 
or facilities. The local COTP representative would determine that local 
contractors possess the necessary qualifications and resources to 
address hazardous substance releases for which they are contracted. In 
addition, the Coast Guard could review the contract arrangements 
between the vessel or facility and contractor for the interim period 
when the response plans are submitted but not yet approved.
    (h) The plan would be required to address training, equipment 
testing, periodic unannounced drills, and the response actions of 
vessel or facility personnel. The regulations would specify criteria 
describing acceptable levels for approval. For vessels, response 
actions and persons assigned would be listed in the ship's station 
bills and muster list, which is currently required under 46 CFR subpart 
35.10--Fire and Emergency Requirements.
    (i) Response plans would be submitted for initial approval as well 
as for approval of each significant change. Significant changes would 
include changes in a vessel's or facility's configuration; changes in 
hazardous substance handled, stored, or transported; changes in the 
name and authority of a person in charge; changes of the owners or 
operators (depending on who received approval of the plan); or changes 
in the identification of cleanup operators.
    (j) Response plans would be required to be updated periodically.

2. Response Equipment

    The response planning requirements for the response equipment would 
address the following areas:
    (a) The type, quantity, and capacity of response equipment to be 
carried on tank vessels or staged at locations ashore.
    (b) The periodic inspection of response equipment, including the 
standards of inspection.
    (c) The method for enforcement, whether through required 
recordkeeping or other means.
    The regulations regarding vessel and facility response plans for 
discharges of hazardous substances may closely parallel those 
regulations for vessel and facility response plans for discharges of 
oil. Because the physical properties of these various hazardous 
substances are different from those of oil, alternative cleanup 
measures will need to be considered.

3. Federal Response and Contingency Plan Requirements

    OPA 90 is the latest of a series of statutes that regulate 
hazardous chemicals. An onshore facility is required to comply with 
numerous planning requirements associated with the handling, storage, 
transportation, and manufacturing of various hazardous chemicals. The 
following discussion is a brief summary of the various Federal planning 
requirements for hazardous chemicals.
    Section 311(j)(5)(c) of the FWPCA [33 U.S.C. 1321(j)(5)(c)], as 
amended by the Oil Pollution Act of 1990 (OPA 90), sets forth certain 
minimum requirements for vessel and facility response plans for FWPCA 
hazardous substances. The plans must--

--Be consistent with the requirements of the National Oil and Hazardous 
Substances Pollution Contingency Plan (NCP) and Area Contingency Plans 
(ACPs);
--Identify the qualified individual having full authority to implement 
response actions, and require immediate communications between that 
individual and the appropriate Federal official and the persons 
providing response personnel and equipment;
--Identify and ensure by contract or other approved means the 
availability of private personnel and equipment necessary to respond, 
to the maximum extent practicable, to a worst case discharge (including 
a discharge resulting from fire or explosion), and to mitigate or 
prevent a substantial threat of such a discharge;
--Describe the training, equipment testing, periodic unannounced 
drills, and response actions of persons at the facility, to be carried 
out under the plan to ensure the safety of the facility and to mitigate 
or prevent a discharge or the substantial threat of a discharge;
--Be updated periodically; and
--Be resubmitted for approval of each significant change.

    In the case of onshore facilities, the OPA 90 Conference Report 
recognizes that a ``substantial number of facilities that handle, store 
or transport hazardous substances are subject to emergency planning 
requirements under the Solid Waste Disposal Act, the Comprehensive 
Environmental Response, Compensation, and Liability Act, the 
Occupational Safety and Health Act, and other Federal statutes.'' [H.R. 
Rep. No. 101-653, 101st Cong. 2nd Sess. 1990 at p. 151] Additionally, 
the Conference Report recognizes that chemical emergency planning 
requirements are in effect for communities under the Emergency Planning 
and Community Right to Know Act (EPCRA). The Report also states that 
the President should select onshore facility response plans in a manner 
that will avoid duplicative or conflicting response plan review 
requirements and should ensure that such plans are coordinated with the 
community emergency planning effort under EPCRA.

Resource Conservation and Recovery Act (RCRA)

    EPA regulations at 40 CFR part 264, subpart D issued under RCRA 
establish requirements for owners and operators of hazardous waste 
facilities to use in developing facility-specific contingency plans. 
The plans must include response procedures; a list of all persons 
qualified to act as a facility emergency coordinator; a list of all 
emergency equipment and, when required, decontamination equipment at 
the facility; evacuation plans, when evacuation could be necessary; and 
arrangements upon which local police departments, fire departments, 
hospitals, contractors, and State and local emergency response teams 
have agreed to coordinate emergency services. The regulations pertain 
to facilities that treat, store, or dispose of hazardous wastes as 
defined in 40 CFR 261.3. Hazardous wastes include characteristics 
wastes (see 40 CFR part 261, subpart C) and listed wastes (see 40 CFR 
part 261, subpart D).

EPCRA or Title III of the Superfund Amendments and Reauthorization Act 
of 1986 (SARA)

    EPCRA requires Local Emergency Planning Committees (LEPCs) to 
develop local emergency response plans for their community and review 
them at least annually. Under EPCRA, facilities are required to notify 
the State Emergency Response Commission (SERC) and Local Emergency 
Planning Committee (LEPC) if they have ``extremely hazardous 
substances'' (see 40 CFR part 355 for a list of the 360 ``extremely 
hazardous substances'') present above threshold planning quantities. In 
addition, upon request of the SERC or LEPC, the facility is required to 
provide the LEPC with any information necessary to develop and

[[Page 20089]]

implement the LEPC plan. Local emergency response plans must identify 
regulated facilities; describe procedures, equipment, and personnel to 
respond to releases; and include evacuation plans. Because of this 
requirement that certain facilities participate in emergency planning 
under EPCRA, it is likely that some overlap may exist with OPA 90 
response plan requirements. In addition, under some state EPCRA laws 
facilities are required to prepare contingency plans.

Clean Air Act

    Under section 112(r) of the Clean Air Act (CAA), as amended, owners 
and operators of stationary sources with ``regulated substances'' above 
specified threshold quantities will be required to prepare risk 
management plans (RMPs), which must include a hazard assessment 
(including, among other things, an evaluation of worst-case accidental 
releases), a prevention program, and a response program. Owners and 
operators are to provide a copy of the RMPs to the State, local 
planning and response authorities, and the Chemical Safety and Hazard 
Investigation Board. The list of ``regulated substances'' promulgated 
under section 112(r) authority includes a diverse array of toxins (77), 
flammables (63), and high explosives [see 59 FR 4493; January 31, 
1994].
    Section 112(r)(7) of the CAA requires that the hazard assessment 
evaluate worst case accidental releases, estimate potential release 
quantities, and determine downwind effects including potential 
exposures to affected populations. Owners or operators must also 
develop an emergency response program that includes specific actions to 
be taken in response to a release including procedures for notifying 
the public and response agencies, emergency health care, and employee 
training measures. EPA is currently developing regulations to implement 
the new CAA RMP requirements. In addition, some states already have RMP 
rules in place that require facilities to develop emergency plans.
    In addition, section 112(r)(1) of the CAA, as amended, indicates 
that stationary sources have a general duty in the same manner and to 
the same extent as under the Occupational Safety and Health Act to--

--Identify hazards that may result from accidental releases of 
regulated substances or other extremely hazardous substances;
--Design and maintain a safe facility, taking such steps as are 
necessary to prevent releases; and
--Minimize the consequences of accidental releases which do occur.

    Section 112(r)(1) imposes upon owners and operators of facilities 
emergency response duties for a broad range of hazardous chemicals not 
restricted to a named list. Also under CAA section 112(r)(9), the EPA 
Administrator may issue an administrative order to seek such judicial 
relief as is necessary to abate an actual or threatened accidental 
release when the Administrator determines there may be an imminent and 
substantial endangerment to human health or the environment.

Occupational Safety and Health Act (OSHA)

    OSHA has several sets of standards that envision some form of 
emergency response planning for facilities that handle, store, or 
transport hazardous substances. These requirements are directed mostly 
at the protection of facility employees and emergency responders. The 
OSHA Process Safety Management Standard (see 29 CFR 1910.119) requires 
the preparation of emergency response plans under 29 CFR 1910.38(a) or 
29 CFR 1910.120 for employers to prevent or minimize the consequences 
of catastrophic releases of certain chemicals in the workplace. 
Employers must develop formal process safety management program for 
facility processes that involve a listed highly hazardous substance at 
or above the threshold quantity. The list of highly hazardous 
substances (see 29 CFR 191.119) includes 125 toxic and reactive 
chemicals as well as several mixtures. The program covers employee 
participation, process safety information, process hazard analysis, 
operating procedures, training, contractors, pre-start up review, 
mechanical integrity, hot work permits, management of change, incident 
investigation, emergency planning and response, and compliance audits.
    The EPA/OSHA Hazardous Waste Operations and Emergency Response 
(HAZWOPER) Standard (see 29 CFR 1910.120) establishes requirements for 
employers and organizations to protect the safety and health of workers 
involved in such operations. The operations covered by this standard 
are cleanups at uncontrolled hazardous waste sites, corrective actions 
and routine hazardous waste operations at RCRA treatment, storage, or 
disposal (TSD) facilities, and emergency response operations without 
regard to location. Employers must implement a written safety and 
health program that includes an organizational work plan, site 
evaluation and control, information and training, personal protective 
equipment, monitoring, medical surveillance, decontamination 
procedures, and an emergency response program. The HAZWOPER list of 
substances is broad and includes all 296 FWPCA hazardous substances.

Coordination of Planning Requirements

    The issue of coordinating multiple contingency planning 
requirements in an attempt to minimize duplication on the regulated 
community is a focal point of the recently published Presidential 
review of Federal agency authorities and coordination responsibilities 
for release prevention, mitigation, and response required by section 
112(r)(10) of CAA. EPA's Chemical Emergency Preparedness and Prevention 
Office, in cooperation with the National Response Team, conducted a 
study titled A Review of Federal Authorities for Hazardous Materials 
Accident Safety (EPA550-R-93-002) to fulfill the Congressional mandate. 
The review concludes that, while achieving its statutory goals, the 
existing regulatory scheme is both complex and costly.
    With respect to contingency planning, the report notes that the 
previously mentioned statutes were enacted independently of one another 
resulting in inconsistent components in the regulatory process. Some 
planning requirements are more stringent than others; some require 
specific technical features; and some require submission of the 
contingency plans for Federal or State and local review. Also, because 
different statutes address slightly different hazards using different 
lists of substances, the number and type of facilities required to 
develop these plans varies. Moreover, there is seldom harmony in the 
required formats or elements of particular plans. Although the study 
team did not find many actual conflicts among planning requirements, 
there were numerous differences in terminology and emphases: these 
differences have resulted in facilities preparing multiple plans to 
ensure compliance.
    To provide relief for the redundant and overlapping federal 
response planning requirements faced by facility operators, under the 
leadership of the Environmental Protection Agency (EPA), the National 
Response Team is producing guidance on an integrated planning approach 
which would ultimately result in the ability to prepare one plan to 
cover multiple federal response planning requirements, thereby reducing 
burden and cost for the regulated community. The ``One Plan'' guidance 
is being developed

[[Page 20090]]

through a cooperative effort among numerous NRT agencies, state and 
local officials, and industry and community representatives. Response 
plans developed in accordance with One Plan guidance will be acceptable 
to the federal agencies responsible for reviewing and/or approving 
response plans developed to comply with the following regulations:
    (a) EPA Oil Pollution Prevention Regulation (Spill Prevention, 
Control and Countermeasure and Facility Response Plan Requirements)--40 
CFR part 112;
    (b) MMS Facility Responses Plan Regulation--30 CFR part 254;
    (c) RSPA Pipeline Response Plan Regulation--49 CFR part 194;
    (d) USCG Facility Response Plan Regulation--33 CFR part 154, 
Subpart F;
    (e) EPA Risk Management Programs Regulation--40 CFR part 68 
(proposed);
    (f) OSHA Emergency Action Plan Regulation--29 CFR 1910.38(a);
    (g) OSHA Process Safety Standard--29 CFR 1910.119;
    (h) OSHA HAZWOPER Regulation--29 CFR 1910.120; and
    (i) EPA Resource Conservation and Recovery Act Contingency Planning 
Requirement--40 CFR part 264, Subpart D, 40 CFR part 265, Subpart D, 
and 40 CFR 279.52.
    The integrated contingency planning approach is an effective way to 
ensure response procedures are coordinated throughout the facility and 
to avoid duplicative and potentially conflicting plans. The One Plan 
format does not change the actual planning requirements imposed by 
federal statute. The Coast Guard fully expects that any future 
hazardous substance response planning requirements resulting from this 
ANPRM will be accommodated within a facility's ``One Plan''.
    Analysis reveals that there may be a significant degree of overlap 
between the types of facilities and chemicals that would be regulated 
under prospective OPA 90 requirements and those under existing response 
planning requirements. However, the specific intent of OPA 90, with 
respect to hazardous substances, is to address the discharge or 
substantial threat of a discharge of a limited number and type of 
substances (i.e., FWPCA hazardous substances) to U.S. surface waters. 
The other regulatory programs discussed previously, for the most part, 
have slightly different emphases in terms of the type of chemicals 
covered, the primary media considered (e.g., air, land, water), and the 
general purpose of the regulation (i.e., protection of the environment, 
protection of workers, etc.).
    The existence of these related planning requirements provide an 
opportunity for the promulgation of regulations which allow a certain 
degree of flexibility in the way owners or operators meet the OPA 90 
statutory requirements. The Coast Guard requests comment on specific 
examples of how existing Federal and State planning requirements can be 
shown to satisfy one or more of the OPA 90 mandates. The Coast Guard 
also requests comment on which OPA 90 requirements may not be 
adequately addressed in existing plans and how such requirements can be 
implemented in the least burdensome manner. For example, if the Coast 
Guard accepted a plan prepared to meet State or other Federal 
requirements (or the Federal baseline standard mentioned previously) as 
long as it was adopted to meet OPA 90 requirements and cross-referenced 
in an appropriate manner, would owners or operators still choose to 
develop a separate plan?
    The Coast Guard will provide the responses to this ANPRM to other 
Federal agencies so that these agencies may develop options to satisfy 
the OPA 90 mandate while minimizing the burden on facility owners and 
operators.

Assessment

    At this early stage in the rulemaking process, the Coast Guard 
anticipates that any final rule may be considered a significant 
regulatory action under section 3(f) under E.O. 12866. The Coast Guard 
anticipates that any final rule will also require an assessment of 
potential costs and benefits under section 6(a)(3) of that order. It is 
significant under the regulatory policies and procedures of the 
Department of Transportation (44 FR 11030; February 26, 1979).
    This rulemaking may have a substantial effect on States that have 
or are developing response plan requirements. It may also affect 
domestic and international shipment of hazardous substances to and from 
the United States and may generate substantial public interest and 
controversy. The primary economic impact of these regulations would be 
on those tank vessel and facility owners that would have to comply with 
any new requirements. These vessels would include approximately 270 
tank vessels and 540 tank barges carrying hazardous materials: these 
figures represent the number of these vessels that called in United 
States waters in 1990. The Coast Guard estimates that this regulation 
would affect 300 MTR facilities. In addition, these regulations may 
also impact private hazardous substance release response contractors 
and spill cooperatives.
    Several alternative methods of implementing the rulemaking for 
vessel response plans have been identified. These include the 
following: (1) Requiring response plans for specific tank vessels based 
on factors such as vessel route, capacity, or product carried; (2) 
requiring generic response plans for all tank vessels, with port 
specific appendices; and (3) requiring individualized response plans 
for each tank vessel and each facility.
    The full extent of the economic and operational impact cannot be 
quantified at this time. A primary purpose of this advance notice is to 
help the Coast Guard to develop the rule and determine the cost of any 
new requirements, to the extent that they exceed current legal and 
regulatory requirements or current industry practice. The Coast Guard 
anticipates that the public response to this advance notice will assist 
it in writing proposed rule and a draft regulatory impact analysis.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this proposal, if adopted, will have 
a significant economic impact on a substantial number of small 
entities. ``Small entities'' may include (1) Small business and not-
for-profit organizations that are independently owned and operated and 
are not dominant in their fields and (2) governmental jurisdictions 
with populations of less than 50,000.
    Because specific requirements have not yet been proposed, the Coast 
Guard is currently unable to determine the effect of regulations upon 
small entities. Accordingly, an Initial Regulatory Flexibility Analysis 
discussing the impact of this anticipated rulemaking on small entities 
has not been prepared. However, the Coast Guard anticipates that there 
is a potential significant impact on a substantial number of small 
businesses, small not-for-profit organizations, and State and local 
governments. The Coast Guard expects that the comments received on this 
advance notice will assist it in determining the number of affected 
small entities, and in weighing the impacts of various regulatory 
alternatives for the purpose of drafting these regulations.

Collection of Information

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the 
Office of

[[Page 20091]]

Management and Budget (OMB) reviews each proposed rule that contains a 
collection-of-information requirement to determine whether the 
practical value of the information is worth the burden imposed by its 
collection. Collection-of-information requirements include reporting, 
recordkeeping, notification, and other, similar requirements.
    The Coast Guard cannot yet estimate the paperwork burden associated 
with this rulemaking because no regulations have been drafted. However, 
at a future stage, the Coast Guard may require that tank vessel and 
facility owners and operators maintain records of response plan 
approvals and equipment inspections which would be available upon 
request to the Coast Guard as well as developing and maintaining 
response plans. The Coast Guard expects that comments received on this 
advance notice will assist it in estimating the potential paperwork 
burden, as required under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.). Once estimated, the Coast Guard will submit this proposed 
recordkeeping requirement to the Office of Management and Budget (OMB) 
for approval.

Federalism

    This advance notice of proposed rulemaking has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 12612. Based on the information available to it at this time, the 
Coast Guard is unable to determine whether this rulemaking would have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. Some standardization of vessel response plan 
requirements is necessary because affected vessels move from port to 
port in the national marketplace and separate regulations and plans for 
each port would be economically burdensome and potentially unsafe.
    Some standardization of the MTR facility response plans may also be 
necessary. MTR facilities may be regulated by other Federal agencies, 
and some States may impose their own response planning requirements. 
OPA 90 prohibits Federal preemption. Many facilities operate in the 
national marketplace and excessive variation in the requirements would 
be economically burdensome and potentially unsafe. The Coast Guard 
specifically seeks public comment on the federalism implications of 
this proposal.

Environment

    The Coast Guard considered the environment impact of this 
anticipated rulemaking and expects that it should have a positive 
impact on the environment by ensuring that hazardous substance response 
planning has been conducted by owners or operators of tank vessels and 
facilities for the purpose of enhancing preparedness to contain and 
recover releases of these products. Before a proposed rule is 
published, an environment analysis will be prepared in accordance with 
Coast Guard requirements, COMDTINST M16475.1B. That document, which 
will describe the anticipated environmental effects of the proposed 
rulemaking, will be placed in the docket for inspection or copying at a 
location indicated in the proposed rule. The Coast Guard invites 
comments addressing possible effects this proposal may have on the 
human environment, or on potential inconsistencies with any Federal, 
State, or local law or administrative determinations relating to the 
environment. A final determination regarding the possible need for an 
environmental assessment will be made after receipt of relevant written 
comments.

Questions

    To adequately address the issues discussed in this advance notice, 
additional information is needed. Responses to the following questions 
would be particularly useful in developing a future Notice of Proposed 
Rulemaking (NPRM).

Reponse Plans

    1. Are there any historical data existing on hazardous substance 
discharges in the marine environment (e.g., causes of discharges, 
resulting injuries or fatalities, number of hazardous substances 
discharged, volume of discharges, need to evacuate, and resulting 
natural resource and property damage? If so, where can such data be 
found? Are there any restrictions on the accessibility of this data?
    2. Are there any data regarding the effectiveness of hazardous 
substance response planning in terms of preventing occurrences of 
casualties and incidents, reducing the volume of releases after the 
occurrences of casualties and incidents, improving containment and 
recovery, if possible, and avoiding injuries and fatalities)?
    3. How many companies operate tank vessels that carry, or 
facilities that store or transport hazardous substances? On the 
average, how many vessels or facilities are operated by a single 
company?
    4. How should response plans for non-FWPCA hazardous chemicals 
which are carried in bulk (e.g., noxious liquid substances as listed in 
Annex II of MARPOL) be addressed?
    5. How many different types of hazardous substances are carried 
during a single voyage? How many different types of hazardous 
substances are handled, stored, or transported by a single MTR 
facility?
    6. What are appropriate hazardous substance storage and throughout 
thresholds for selecting facilities that could cause substantial harm 
to the environment and for selecting the subset of those facilities 
that could reasonably be expected to cause significant and substantial 
harm to the environment? Should the Coast Guard use the capacity of a 
vessel calling at an MTR facility as a means of selecting facilities 
that could reasonably be expected to cause significant and substantial 
harm to the environment?
    7. Should the CAMEO program be used to determine the appropriate 
response strategies for the various hazardous substances which may be 
involved in a potential release? What alternative guidance is 
available? Would you consider it more appropriate? If so, why?
    8. For MTR facilities that are part of an onshore non-
transportation related fixed facility complex, are there potential 
conflicts in the areas of hazardous substances regulated and the amount 
of a worst case discharge?
    9. Are there potential gaps in existing Federal regulatory coverage 
for hazardous substance response plans for the onshore non-
transportation fixed facility portion of an MTR complex?
    10. What information should be required in the tank vessel and 
facility response plans?
    11. Should the information provided in response plans for vessels 
carrying hazardous substances and for facilities handling hazardous 
substances vary depending on the type of substances transported? How 
should substances be classified? Should each class of hazardous 
substance have a different plan? Should vessel owners and facility 
owners have a separate plan for each product they handle or should they 
have product groups within the plan? How would response strategies 
differ for the various types of hazardous substances?
    12. Should all FWPCA hazardous substance be regulated at the same 
threshold or should thresholds for individual substances be set based 
upon the specific considerations associated with each substance? Should 
the threshold level be based upon the reportable quantity (i.e., 
quantities of hazardous substances that may be harmful as set forth in 
40 CFR 117.3, the

[[Page 20092]]

discharge of which is a violation of section 311(b)(3) of the FWPCA [33 
U.S.C. 1321(b)(3)] and requires notice as set forth in 40 CFR 117.21 
for the substance) or a multiple of the reportable quantity? What would 
be an appropriate multiplier for such a determination?
    13. How should the concept of ``responding to the maximum extent 
practicable'' be applied for purposes of planning the response to a 
worst case discharge of a hazardous substance? Should it be the same 
for hazardous substances as it is for oil in 33 CFR parts 154 and 155?
    14. How many U.S. companies provide response services for hazardous 
substance releases and in what geographic areas would these services be 
available? What response capabilities do these services have in terms 
of amount and type of equipment and personnel available?
    15. How should the concept of ``contracts or other approved means'' 
be applied for the purposes of planning the response to a worst case 
discharge of a hazardous substance? What aspects of hazardous substance 
spill response may warrant treatment different form oil spill 
responses? What role do public responders (e.g., local fire department 
personnel) play in response to releases of FWPCA hazardous substances 
and how should their involvement be reflected in the planning 
requirements?
    16. What format should be used for the response plans?
    17. For vessel response plans, what information should be required 
in the ``core plans'' and in port specific annexes?
    18. How often should the response plans be reviewed and updated by 
vessel and facility owners and the Coast Guard? Should there be any 
other reviewing entity? Should the frequency of review be dependent on 
the type of substance transported?
    19. Where should the response plans be kept on an unmanned tank 
barge or a tank barge that is at anchor or underway? Should the plans 
be kept on board a towboat when engaged in towing a barge with a 
hazardous substance in bulk as cargo?
    20. Are there vessels and facilities which have voluntarily 
prepared response plans addressing a potential release of a hazardous 
substance? Are there response plans for hazardous substances which were 
prepared in response to other U.S. or international regulations or 
policies?
    21. Should the owner or operator of a facility that has already 
prepared an emergency or contingency plan under Title III of the 
Superfund Amendments and Reauthorization Act of 1986 (SARA) [Pub. L. 
99-499, 100 Stat. 1613] or other applicable statute (EPCRA, RCRA, CAA, 
and HAZWOPER) be permitted to amend that plan to incorporate hazardous 
substance response plan provisions to comply with the requirements of 
OPA 90?
    22. If requested, the owner or operator of a facility must submit 
Tier Two information forms to local authorities with jurisdiction over 
the facility under Title III of SARA. Could the Title III, Tier Two 
form be supplemented to comply with the requirements of OPA 90 
regulations?
    23. Should the term ``qualified individual'' be define differently 
from its definition in oil response plan regulations? If so, why?
    24. In addition to navigating the vessel, should the vessel crew be 
required to do more than attempt to control or stop the discharge and 
report it to the proper authorities?
    25. Should hazardous substance response contractors listed by a 
vessel or a facility (as a condition of approval of the vessel's or 
facility's plan) be required to develop a local response plan 
consistent with the Area Contingency Plan?
    26. How should worst case discharges be determined for an MTR 
facility? Should it be the same for hazardous substances as it is for 
oil? If not, upon what should this determination be based? Should worst 
case discharge quantities be based on probable accident or incident 
scenarios and resulting releases?
    27. How should adverse weather be defined and considered in 
determining a worst case discharge of a FWPCA hazardous substance? How 
might weather concerns differ when responding to a hazardous substance 
discharge versus an oil discharge? For example, could a lack of wind, 
rain, and strong currents result in a riskier situation when a 
discharge of a hazardous substance is involved because of the potential 
for the substance to accumulate due to lack of dispersion?
    28. What should the definition of average most probable and maximum 
most probable discharge be for vessels and facilities?
    29. Do discharges that are smaller than a worst case discharge 
dictate different response strategies and resource commitments?
    30. What is an appropriate response action for releases of 
hazardous substances as defined in the National Contingency Plan [40 
CFR 300.5] as minor, medium, major, or catastrophic releases, or for a 
worst case discharge, as defined in section 311(a) of the FWPCA [33 
U.S.C. 1321(a)], as amended by section 4201 of OPA 90? How would the 
appropriate response action be determined? Would it be measured by 
distance from the release, distance from the closest equipment 
launching facility, type of substance discharged, or by another means? 
Should response action planning requirements reflect consideration of 
the hazardous substance properties and hazards?
    31. Should vessel damage stability and general arrangement plans be 
maintained off the vessel as well as on board for salvage and 
firefighting purposes? Where should they be located (i.e., Coast Guard 
Marine Safety Center, local COTP, classification societies)? How 
accessible should they be?
    32. Should each vessel owner be required to maintain a response 
plan for each U.S. port of call? Should the vessel owner or agent 
representative in each port maintain a local plan which would be 
sufficient for the vessels calling under his control?
    33. What involvement, if any, should State or local authorities 
have in the review or approval of vessel and facility response plans?
    34. Using the definition of ``tank vessel'' in 46 U.S.C. 2101, what 
impact will these regulations have on vessels that carry limited 
quantities of hazardous substances in bulk as cargo or cargo residue 
(passenger, cargo, or miscellaneous vessels)? Should any vessels be 
exempt from these requirements? If so, what types, tonnages, and 
capacities should these exemptions cover and why?
    35. For certain classes of materials should the response plan 
include evacuation and public notification procedures for areas 
affected by the release as appropriate? How should plans address 
threats to public health and safety, including bodies of water used for 
drinking supplies? How should plans address threats to air quality?
    36. Should a facility be required to plan for possible releases of 
all hazardous substances carried by vessels calling at the facility 
even if the facility does not typically handle those substances?
    37. What type of response equipment should be required at 
facilities? To what size discharge, if any, should the facility be 
prepared to respond?
    38. Should dispersion modeling (air and water) be required? Should 
a minimum standard be set? What models are available to estimate the 
dispersion of hazardous substances in the air or water?
    39. Following an incident, what requirements should be in place for

[[Page 20093]]

taking samples of the water and the air? Should response plans include 
requirements for air and water sampling?

Carriage and Inspection of Response and Firefighting Equipment

    40. What types and how much hazardous substance response equipment 
and firefighting equipment currently are carried on board tank vessels 
or located at facilities?
    41. Should all vessels required to have response plans also be 
required to carry response equipment? Should some vessels be exempt 
from equipment requirements?
    42. What firefighting equipment would be necessary to have on board 
a vessel or staged at a facility to respond to a possible fire 
associated with the discharge of hazardous substances? Would the type 
of equipment needed vary dependent upon the type of substance 
discharged? What are the various firefighting options?
    43. What equipment other than response and firefighting equipment 
(e.g., transfer equipment, rescue equipment, and monitoring equipment) 
should be addressed in response plans to prevent or mitigate a 
potential hazardous substance release?
    44. What response equipment is appropriate for vessels or manned 
tank barges to carry, if any? Would the type of response equipment 
needed vary dependent upon the type of substances carried?
    45. What response equipment should be carried on board unmanned 
tank barges, if any?
    46. What are the appropriate capabilities of the equipment?
    47. Should MTR facilities be required to have response equipment 
staged at the facility?
    48. If facilities are not required to stage equipment at the 
facility, how much time should be allowed to bring response resources 
to the facility?
    49. How large a discharge should the response equipment be capable 
of handling?
    50. What equipment-inspection requirements are appropriate?
    51. What equipment needs to be inspected?
    52. Should the inspection be the responsibility of the owner or 
operator and who should be required to maintain a record of that 
inspection?
    53. Should spot inspections of the equipment be made by Coast Guard 
personnel as part of the vessel and facility inspection?
    54. Should third-party inspection be used?
    55. What action should be taken if required equipment is missing or 
in disrepair?
    56. What inspection requirements are appropriate for equipment 
maintained by a cooperative or an independent organization?
    57. Should the required equipment be approved by the Coast Guard?
    58. Should the area of the vessel's operation or the regional 
availability of support equipment affect the on board equipment-
carriage requirements?
    59. Should tank barges in the same tow or fleeting area be 
permitted to share equipment?
    60. How should response equipment be deployed on unmanned tank 
barges? Who should deploy the response equipment?
    61. If containment boom is required, how much should be carried? 
Should it be sufficient to completely encircle the vessel?
    62. Should plans require an assessment of a local port's municipal 
capabilities to respond to a hazardous substance release, including 
firefighting capabilities?
    63. What involvement, if any, should State or local authorities 
have in the approval or inspection of response equipment?
    64. Are there methods available to rate the capabilities of the 
response and containment equipment?
    65. Should frequency of inspections be the same as in the existing 
oil response planning regulations?
    66. How would compliance with this proposed regulation impact 
compliance with other existing hazardous substance requirements?
    67. Is there sufficient response equipment available to respond to 
a worse case discharge? What, if any, caps should be placed on 
equipment requirements?
    68. Where is response equipment currently located? How should 
required response times take into consideration the location of the 
equipment? Are the response times established in the VRP and FRP IFRs 
for oil appropriate for hazardous substance response planning in rivers 
and canals, inland, nearshore, offshore, ocean, and Great Lakes waters? 
If not, what other response times are appropriate?

Training

    69. At the present time, what type of training do vessel and 
facility personnel receive in the worker safety and response aspects to 
hazardous substance releases? How many vessel and facility personnel 
receive such training?
    70. What training in the use of response equipment should be 
required for vessel and facility personnel?
    71. Should the Coast Guard or another entity certify providers of 
this training?
    72. Who should be required to have response training (i.e., 
licensed, unlicensed, deck or engine department personnel on board 
vessels) among the vessel's crew and the facility's employees?
    73. Should mariners be required to have their licenses or merchant 
mariners' documents endorsed to show that the mariners have completed 
emergency response training?
    74. How can mariners and facility personnel demonstrate completion 
of emergency response training?
    75. What training in the implementation of the required response 
plans should be included?
    76. What specialized firefighting training should be required for 
the crew of vessels carrying hazardous substances and personnel of 
facilities that handle, store, or transport hazardous substances? How 
will the training vary dependent upon the type of substances 
transported by the vessel or handled, stored, or transported by the 
facility?
    77. What level of training will be required for qualified 
individuals and responders?
    78. Should hazardous substance response contractors be separately 
classified by the Coast Guard? if yes, what should the criterion be?

Drills

    79. Should drills be required in accordance with existing 
regulations, i.e., as required in 33 CFR parts 154 and 155?
    80. Should the Coast Guard adopt the National Preparedness for 
Response Exercise Program (PREP) guidelines for hazardous substances?
    81. Should there be a requirement to maintain a record of drills 
conducted? Assuming records of drills will be required, where should 
they be maintained? Should they be maintained on board vessels and at 
facilities?
    82. How should drill performance be measured?
    83. What should the drill requirements be and should they be 
different for different classes of substances?
    84. How should drill performance be measured? What should be 
considered acceptable performance (i.e., notification time, response 
mobilization time, etc.)?

Economic Issues

    85. What would be the economic impact of requiring each tank vessel 
and facility to develop and implement a hazardous substance release 
response plan? How would this impact vary

[[Page 20094]]

dependent upon the type of hazardous substances transported or handled?
    86. How much would it cost to develop a hazardous substance 
response plan, as described in this ANPRM, for single tank vessel or 
facility? How would this cost vary depending upon the size and type of 
tank vessel or facility? How would this cost vary by type of hazardous 
substance transported, handled, or stored?
    87. Would the per vessel or per facility cost to develop a response 
plan for a fleet or tank vessels or group of facilities be lower than 
the cost to prepare a response plan for a single vessel or facility?
    88. What would be the cost to owners and operators of vessels and 
facilities to annually review and update response plans?
    89. What would be the economic impact for tank vessel or facility 
owners or operators of maintaining on board or on site specialized 
firefighting equipment?
    90. What would be the economic impact on tank vessel or facility 
owners or operators of reviewing and updating hazardous substance 
release response plans?
    91. What would be the economic impact on tank vessel or facility 
owners or operators of maintaining on board or on site hazardous 
substance release response equipment?
    92. What would be the economic impact of these requirements on 
small entities, as defined by section 605(b) of the Regulatory 
Flexibility Act [5 U.S.C. 605(b)]?
    93. What would be the economic impact for tank vessel and facility 
owners or operators of maintaining contracts with release response 
companies in each port they utilize?
    94. What would be the economic impact on the cleanup industry of 
enhancing hazardous substance response capabilities?
    95. How much would it cost annually for a facility or tank vessel 
to retain the services of a hazardous substance spill response 
contractor to address its worst case discharge? How would this cost 
vary by size and type of facility or vessel?
    96. What would be the economic impact of requiring tank vessel and 
facility owners or operators to train and drill personnel in worker 
safety and release response?
    Comments are not limited to the preceding questions and are invited 
on any aspect of implementing the response planning requirements for 
hazardous substance releases and the carriage of response and 
firefighting equipment.

    Dated: April 24, 1996.
Robert E. Kramek,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 96-10997 Filed 5-2-96; 8:45 am]
BILLING CODE 4910-14-M