[Federal Register Volume 69, Number 116 (Thursday, June 17, 2004)]
[Proposed Rules]
[Pages 34014-34017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13684]



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Part II





Environmental Protection Agency





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40 CFR Part 112



Oil Pollution Prevention and Response; Non-Transportation-Related 
Onshore and Offshore Facilities; Proposed Rule

  Federal Register / Vol. 69, No. 116 / Thursday, June 17, 2004 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[OPA-2004-0003; FRL-7773-9]
RIN 2050-AF11


Oil Pollution Prevention and Response; Non-Transportation-Related 
Onshore and Offshore Facilities

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or we) is today 
proposing to extend, by twelve months certain upcoming compliance dates 
for the July 2002 Spill Prevention Control and Countermeasure (SPCC or 
Plan) amendments. The dates affected by today's proposal would be the 
date for a facility to amend its Plan and the date for a facility to 
implement that amended Plan in a manner that complies with the newly 
amended requirements (or, in the case of facilities becoming 
operational after August 16, 2002, prepare and implement a Plan that 
complies with the newly amended requirements). In light of a recent 
partial settlement of litigation involving the July 2002 amendments, we 
are proposing this extension to, among other things, provide sufficient 
time for the regulated community to undertake the actions necessary to 
update (or prepare) their plans. The proposed extension is also 
intended to alleviate the need for individual extension requests.

DATES: Written comments must be received by July 7, 2004.

ADDRESSES: Submit your comments, identified by Docket ID No. OPA-2004-
0003, by one of the following methods:
    I. Federal Rulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    II. Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's 
electronic public and comment system, is EPA's preferred method for 
receiving comments. Follow the on-line instructions for submitting 
comments.
    III. Mail: 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 proposed rule is OPA-
2004-0003. 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.
    IV. Hand Delivery: Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. OPA-2004-0003. 
EPA's policy that all comments received will be included in the public 
docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov or e-
mail. The EPA EDOCKET and federal regulations.gov websites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the EPA Docket, EPA/DC, EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number to make an appointment to view the docket is (202) 
566-0276.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
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 proposed rule, contact Hugo Paul Fleischman at 703-603-8769 
([email protected]); or Mark W. Howard at 703-603-8715 
([email protected]), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 5203G.

SUPPLEMENTARY INFORMATION: This proposal concerns a one-year extension 
of the current deadlines contained in 40 CFR 112.3(a) and (b). The 
contents of this preamble are as follows:

I. General Information
II. Entities Affected by This Proposed Rule
III. Statutory Authority
IV. Background
V. Today's Action
VI. Statutory and Executive Order Reviews

I. General Information

    Introduction. For the reasons explained in section V of this 
notice, the Environmental Protection Agency (EPA or we) is proposing to 
extend, for one year, the dates in 40 CFR 112.3(a) and (b) for a 
facility to amend and implement its Plan that complies with the newly 
amended requirements (or, in the case of a facility becoming 
operational after August 16, 2002, prepare and implement a Plan in a 
manner that complies with the newly amended requirements). During the 
period of the proposed extension, if it is finalized, it would 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), if this 
extension is finalized, it should render such requests moot.
    We will address all public comments in a final rule based on this 
proposed rule. Any parties interested in commenting should do so at 
this time.

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II. Entities Affected by This Proposed Rule

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           Industry category                                            NAICS code
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Crop and Animal Production.............  111-112
Crude Petroleum and Natural Gas          211111
 Extraction.
Coal Mining, Non-Metallic Mineral        2121/2123/213114/213116
 Mining and Quarrying.
Electric Power Generation,               2211
 Transmission, and Distribution.
Heavy Construction.....................  234
Petroleum and Coal Products              324
 Manufacturing.
Other Manufacturing....................  31-33
Petroleum Bulk Stations and Terminals..  42271
Automotive Rental and Leasing..........  5321
Heating Oil Dealers....................  454311
Transportation (including Pipelines),    482-486/488112-48819/4883/48849/492-493/71393
 Warehousing, and Marinas.
Elementary and Secondary Schools,        6111-6113
 Colleges.
Hospitals/Nursing and Residential Care   622-623
 Facilities.
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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 SPCC rule. The rule was effective August 16, 2002. The rule 
includes compliance dates in Sec.  112.3(a) and (b); the original 
compliance dates were amended on April 17, 2003 (68 FR 18890).

V. Today's Action

    EPA is proposing to extend by one year the compliance dates in 
Sec.  112.3(a) and (b). The Agency is seeking comment only on today's 
proposal to extend these dates by one year. The Agency will not respond 
to comments that are submitted on any other aspect of the SPCC rule.
    After the publication of the July 17, 2002 final rule amending the 
SPCC regulation (67 FR 47042), several members of the regulated 
community filed legal challenges to certain aspects of the rule. See, 
American Petroleum Institute v. Leavitt et al., No. 1:102CV02247 PLF & 
consolidated cases (D.D.C. filed November 14, 2002).\1\ Settlement 
discussions between EPA and the plaintiffs have led to an agreement on 
all issues except one. In a separate notice, EPA recently published 
clarifications developed by the Agency during the course of settlement 
proceedings (and which provided the basis for the settlement agreement) 
regarding the SPCC regulation.
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    \1\ Lead plaintiffs in the cases were American Petroleum 
Institute (API), Marathon Oil Co., and the Petroleum Marketers 
Association of America (PMAA).
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    We believe it is appropriate to provide the members of the 
regulated community with sufficient time to understand these 
clarifications and be able to incorporate them, as appropriate, in 
preparing and updating their SPCC Plans in accordance with the 2002 
amendments. Therefore, we believe that the current compliance dates 
would be insufficient for this purpose, and that it would be 
inefficient to use scarce Agency resources to address this problem by 
processing individual extension requests.

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.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this proposed rule is a ``significant regulatory 
action'' because it contains novel policy issues. As such, this action 
was submitted to the Office of Management and Budget (OMB) for review. 
Changes made in response to OMB suggestions or recommendations are 
documented in the docket for today's proposal.

B. Paperwork Reduction Act

    This proposed rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined in the Small Business Administration's (SBA)

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regulations at 13 CFR 121.201--the SBA defines small businesses by 
category of business using North American Industry Classification 
System (NAICS) codes, and in the case of farms and production 
facilities, which constitute a large percentage of the facilities 
affected by this proposed rule, generally defines small businesses as 
having less than $500,000 in revenues or 500 employees, respectively; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action would not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    This proposed rule would temporarily reduce regulatory burden on 
facilities by extending for one year the compliance dates in Sec.  
112.3(a) and (b). We have therefore concluded that today's proposed 
rule would relieve regulatory burden for small entities and welcome 
comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    EPA has determined that this proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. Today's proposed rule would reduce 
burden and costs on all facilities.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As explained above, the effect of the proposed 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 proposed rule does not have federalism implications. It would 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Under CWA section 311(o), 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 proposed 
rule would not preempt State law or regulations. Thus, Executive Order 
13132 does not apply to this proposed rule.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    On November 6, 2000, the President issued Executive Order 13175 (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 proposed 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 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.

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This proposed rule is not subject to Executive Order 13045 because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children.

H. Executive Order 13211--Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards such as materials specifications, test methods, 
sampling procedures, and business practices that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rule does not involve technical standards. Therefore, 
NTTA is inapplicable.

List of Subjects in 40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: June 10, 2004.
Michael O. Leavitt,
Administrator.

    For the reasons set out in the preamble, title 40 CFR, chapter I, 
part 112 of the Code of Federal Regulations, is proposed to be amended 
as follows:

PART 112--OIL POLLUTION PREVENTION

    1. The authority 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.

Subpart A--Applicability, Definitions, and General Requirements for 
All Facilities and All Types of Oils

    2. Section 112.3 is amended by revising paragraphs (a) and (b) to 
read as follows:


Sec.  112.3  Requirement to prepare and implement a Spill, Prevention, 
Control, and Countermeasure Plan.

* * * * *
    (a) If your onshore or offshore facility was in operation on or 
before August 16, 2002, you must maintain your Plan, but must amend it, 
if necessary, to ensure compliance with this part, on or before August 
17, 2005, and must implement the amended Plan as soon as possible, but 
not later than February 18, 2006. If your onshore or offshore facility 
becomes operational after August 16, 2002, through February 18, 2006, 
and could reasonably be expected to have a discharge as described in 
Sec.  112.1(b), you must prepare a Plan on or before February 18, 2006, 
and fully implement it as soon as possible, but not later than February 
18, 2006.
    (b) If you are the owner or operator of an onshore or offshore 
facility that becomes operational after February 18, 2006, 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. 04-13684 Filed 6-16-04; 8:45 am]
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