[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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