[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Rules and Regulations]
[Pages 79961-79964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32018]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 154 and 155
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[Docket No. USCG-2010-0592; EPA-HQ-OPA-2010-0559]
RIN 1625-AB49; 2050-AG63
Temporary Suspension of Certain Oil Spill Response Time
Requirements To Support Deepwater Horizon Oil Spill of National
Significance (SONS) Response
AGENCIES: Coast Guard, DHS, and Environmental Protection Agency.
ACTION: Notice of no further regulatory action and alternative
arrangements.
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SUMMARY: The Coast Guard and the Environmental Protection Agency (EPA)
announce that we have considered the comments, materials, and evidence
received in response to the joint emergency temporary interim rule
issued on June 30, 2010, and do not intend to take further regulatory
action regarding the rule. As such, the rule will expire as scheduled
on December 31, 2010. The Coast Guard and EPA also provide notice of
the alternative arrangements under the National Environmental Policy
Act used for the joint emergency temporary interim rule.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of dockets USCG-2010-0592 and EPA-HQ-OPA-2010-0559
and are available online by going to http://www.regulations.gov,
inserting USCG-2010-0592 or EPA-HQ-OPA-2010-0559 in the ``Keyword''
box, and then clicking ``Search.'' They are also available for
inspection or copying at the Docket Management Facility (M-30), U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays; and EPA Docket
Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW.,
Washington, DC 20460, Public Reading Room, between 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the EPA Docket Center 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: If you have questions on this
temporary rule, call or e-mail:
Coast Guard: (Facilities) Mr. David Condino, Ports and Facilities
Division, Coast Guard, telephone 202-372-1145, e-mail
[email protected]; (Vessels) LCDR Ryan Allain, Office of Vessel
Activities, Coast Guard, telephone 202-372-1226, e-mail
[email protected]. If you have questions on viewing the USCG-2010-
0952 docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone 202-366-9826.
EPA: Troy Swackhammer, U.S. Environmental Protection Agency,
telephone 202-564-1966, e-mail [email protected].
SUPPLEMENTARY INFORMATION: On April 20, 2010, the Mobile Offshore
Drilling Unit (MODU) ``Deepwater Horizon'' exploded and sank, causing
an unprecedented discharge of crude oil into the Gulf of Mexico, which
was thereafter declared a ``Spill of National Significance'' (SONS). On
April 24, 2010, the Commandant of the Coast Guard designated a Federal
On-Scene Coordinator (FOSC) to coordinate Federal and State responses
to the oil spill.
On June 16, 2010, the FOSC for the Deepwater Horizon SONS
determined, after consulting with appropriate Federal and State
agencies, that an adequate number of available oil spill response
resources could not be employed in a timely manner to recover the oil
released from the Deepwater Horizon SONS. (Memorandum from Rear Admiral
J.A. Watson, FOSC BP Deepwater Horizon Oil Spill, to National Incident
Command (June 16, 2010), available in the docket for this rulemaking).
In response to the FOSC's determination, on June 30, 2010, the
Coast Guard and EPA issued a joint emergency temporary interim rule
permitting oil spill removal organizations (OSROs) and facilities and
vessels with oil spill response resources to relocate those resources
to the Gulf of Mexico Deepwater Horizon SONSat the FOSC's request. 75
FR 37712. The rule also confirmed that the FOSC for the Deepwater
Horizon SONS requested that the Armed Forces relocate response
resources, in particular those of the Navy, from their current
locations within the continental United States to the Gulf of Mexico to
aid in the response to the Deepwater Horizon SONS.
The Navy did relocate response resources to the Deepwater Horizon
SONS. While many spare State and privately owned resources had already
relocated to the Gulf of Mexico before publication of the rule, no
State or private entity relocated response resources to the SONS under
the provisions of the rule.
The Coast Guard and EPA also requested comments on the rule, and
stated that we would consider those comments and any other materials or
evidence received from the field on an ongoing basis every thirty days
to determine if changes to the rule might be necessary. The comment
period closed on August 16, 2010, with the Coast Guard and EPA
receiving 27 comments. We discuss those comments below. Neither the
Coast Guard nor EPA has received comments since the close of the
comment period. Although the rule will expire as scheduled on December
31, 2010, Coast Guard and EPA will continue to consider any new or
additional comments, material or evidence related to the provisions of
the rule until that date. If we decide to make changes to the rule
before its expiration, we will publish another joint notice, or other
appropriate document, in the Federal Register.
For this emergency rulemaking, and in accordance with Council On
Environmental Quality (CEQ) Regulations Implementing the Procedural
Requirements of the National Environmental Policy Act (40 CFR parts
1500-1508) and the National Environmental Policy Act of 1969 (NEPA) (43
U.S.C. 4321-4370f), the Coast Guard, with the assistance of EPA,
consulted with CEQ about alternative arrangements pursuant to 40 CFR
1506.11. The Coast Guard, with the assistance of EPA, continued to
consult with CEQ as well as with the National Oceanic and Atmospheric
Administration (NOAA) and other key authorities in order to determine
appropriate environmental impact analysis. A discussion of these
consultations and determinations is below in B. Alternative
Arrangements under NEPA. As stated above and discussed in greater
detail below, the rule will expire as scheduled on December 31, 2010,
without changes.
A. Discussion of Comments
The Coast Guard and EPA received 8 letters containing 27 comments
in response to the request for comments on the rule. Commenters
included individuals; an organization that represents companies that
own, operate or charter tankers, ships, and other merchant vessels
engaged in domestic
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and international trade; an organization representing State
environmental and health agencies; and a trade association representing
companies involved in all aspects of the oil and natural gas industry.
We also received comments from the Makah Tribal Council (MTC), and
joint comments from the Governor of Washington and the Governor of
Oregon. The Coast Guard and EPA responded directly in writing to MTC
and the Governors. Those comments and responses, together with all
other public comments, are available in the docket for this rulemaking.
Also in the docket is a summary of an in-person communication that
occurred on July 1, 2010, between Coast Guard personnel and OSRO
community representatives regarding the rule. The in-person
communication touched on concerns and questions about the substance of
the rule, as well as questions relating to implementation of the rule.
These concerns and questions and Coast Guard responsive comments are
included in the summary of the communication, and are covered in the
discussion below.
Several of the comments expressed support for the Coast Guard and
EPA efforts to respond to the Deepwater Horizon SONS, and we appreciate
the statements of support. Several other comments provided opinions
about the causes and effects of the oil spill. The Coast Guard and EPA
appreciate these commenters' participation in this rulemaking, however,
such comments are beyond the scope of this rulemaking and are not
addressed in this document. The remaining comments addressed the rule
and are discussed by topic below.
1. Plan Holder Liability
Commenters were concerned about plan holder liability for damages
and penalties if a spill occurred in their original location after the
plan holder already contractually released its spill response providers
and equipment for use in the response to the Deepwater Horizon SONS.
Commenters were also concerned about liability under State requirements
as well as other penalties, such as natural resource damages, under
other Federal and State law.
Response: The intent of the rule is to make available more response
resources for use in responding to the Deepwater Horizon SONS by
relieving certain Coast Guard and EPA regulatory requirements. Through
this rule, the Coast Guard and EPA encouraged plan holders to relieve
their contracted-OSROs of certain responsibilities in order for those
OSROs to be available to aid in responding to the Deepwater Horizon
SONS. The Coast Guard and EPA coordinated on the rule because many oil
spill response plans address both Coast Guard and EPA oil spill
response requirements. The rule was not meant to address all sources of
potential plan holder liability, including other Federal requirements
or State requirements.
2. Oil Spill Response Resources Return Time
Several comments noted concerns about the return of assets to
original locations. One comment expressed concern that the rule does
not contain a timetable for returning assets used in response to the
Deepwater Horizon SONS. Other comments noted the distances and travel
time for response assets from the West Coast, especially for larger
vessels, to deploy to the Gulf in response to the Deepwater Horizon
SONS and to return to the assets' original locations if needed to
respond to an oil spill in those locations.
Response: The rule does not address return times for assets
relocated in support of the response to the Deepwater Horizon SONS,
because under the rule such issues, including the relative
environmental impacts and other risks and impacts of the FOSC
requesting and accepting offers for specific response resources from
locations outside the Gulf of Mexico, are coordinated at the local
level with the cognizant Captains of the Port (COTPs), Regional
Response Teams, and Area Committees.
Additionally, in the letter to the Governors of Washington and
Oregon dated September 3, 2010, (available in the docket) the Coast
Guard and EPA specifically stated: ``Any decision to request or accept
[deployment of equipment or personnel that would result in the loss of
response capability below worst case and maximum most probable
discharge response time requirements in the Pacific Northwest] will
consider carefully the distances and travel time from the West Coast to
the Gulf Coast spill.''
3. Adequate Coverage in Regions Outside the Gulf of Mexico
Comments addressed concerns about whether the Average Most Probable
Discharge and Small Discharge standards in the rule provided adequate
coverage, especially for the West Coast and Pacific Northwest, as well
as delays in an adequate number of response resources responding to any
oil spill outside of the Gulf Region. One comment noted that almost all
new response equipment manufactured/built during the Deepwater Horizon
SONS will likely be purchased/deployed for response to the Deepwater
Horizon SONS, further lengthening the time to return other locations to
full preparedness levels under current response plan standards.
Response: As discussed above, under the rule, any decisions about
equipment and personnel deployment are coordinated at the local level
with the cognizant COTPs, Regional Response Teams, and Area Committees.
Additionally, the letter to the Governors of Washington and Oregon
stated that Coast Guard and EPA will continue to work in close
coordination with state and local governments, affected local
industries, Regional Response Teams and Area Committees to maintain a
level of equipment able to best protect all localities.
4. Regional Approach for Moving Response Assets
Two comments suggested that the Coast Guard and EPA develop a
regional approach rather than one nationwide rule for moving response
assets. The comments encouraged developing regional strategies to
ensure sufficient coverage remains in those regions before moving oil
spill response assets outside of those regions. Another comment
specifically requested utilizing Regional Response Teams for such a
regional approach.
Response: The Coast Guard and EPA agree that the decision to
actually move response assets is best made at the local and regional
level. In order to allow those local and regional decisions to be made,
however, this nationwide rule is necessary to temporarily suspend
certain regulatory response time requirements. As stated in the rule,
the Coast Guard and EPA coordinate and consult with Regional Response
Teams and Area Committees, which include State representatives, for
such decisions. Additionally, in a letter to the Governors of
Washington and Oregon, the Coast Guard and EPA specifically stated:
``If there were to be a scenario in which more response resources were
needed in the Gulf, we would work closely with [state and local
governments and affected local industries] and the Regional Response
Teams and Area Committees, to ensure that we do not deploy equipment or
personnel that would result in the loss of response capability below
worst case and maximum most probable discharge response time
requirements in the Pacific Northwest.''
5. Plan Holders Included in the Decision To Move Assets
At least one comment requested that plan holders be included in any
discussion regarding movement of
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response assets to the Gulf or any future Spill of National
Significance.
Response: The rule only addresses relocating assets in response to
the Deepwater Horizon SONS. The Coast Guard and EPA agree that plan
holders should be included in discussions regarding movement of
response assets in response to the Deepwater Horizon SONS. That is why,
as stated in the rule, any such relocation of assets is done only
through coordination with the cognizant COTPs and Regional Response
Teams and Area Committees, which include oil spill response community
and plan holder representatives.
6. State Consultation
One comment requested that Coast Guard and EPA formally consult
with state environmental agencies prior to approving the deployment of
additional equipment and personnel out of their region that would
result in the loss of response capability below the federal Maximum
Most Probable Discharge standards.
Response: As stated in the rule, States are involved in any
decisions about equipment and personnel deployment. The Coast Guard and
EPA stated that we coordinate and consult with Regional Response Teams
and Area Committees, which include State representatives, for such
decisions. Additionally, in the letter to the Governors of Washington
and Oregon, the Coast Guard and EPA stated that we will continue to
work in close coordination with state and local governments and
affected local industries.
7. Other Federal Laws and State and Local Laws
Several comments noted that the rule addresses only Coast Guard and
EPA requirements, but that plan holders are also covered by other
Federal regulatory requirements as well as State and local laws. One
comment suggested revising the rule to address other Federal
requirements as well as State and local requirements. Another comment
suggested creating a permanent rule to address all Federal and State
response standards for use in such emergency situations. This comment
suggested working with States and Congress for a legislatively
established emergency procedure for such situations.
Response: The Coast Guard and EPA coordinated on the rule because
many oil spill response plans address both Coast Guard and EPA oil
spill response requirements. The rule was not meant to address all
Federal requirements or State requirements. In the rule, we
specifically stated that States are authorized to establish oil spill
response standards more stringent than Coast Guard and EPA, and Coast
Guard and EPA coordinate and consult with State representatives,
regarding implementation of the rule. The rule will expire on December
31, 2010. The Coast Guard and EPA are considering whether a permanent
rule addressing this issue is necessary, but would initiate a separate
rulemaking for any such permanent rule.
8. Tribal Implications
The MTC disagreed with the finding in the rule that the rule does
not have tribal implications under EO 13175 because tribal marine
resources could be significantly jeopardized by an uncontained oil
spill due to the depletion of government and private oil spill response
assets in this region.
Response: In a letter to the MTC dated August 24, 2010, (available
in the docket), the Coast Guard reaffirmed its determination that the
rule does not have any tribal implications because the rule does not
require the movement of any oil spill response resources away from
current locations. Additionally, the letter noted that the MTC has been
appointed to the Northwest Area Committee and will be part of any
decision on whether to relocate oil spill response resources away from
that Committee's area. EPA has also reaffirmed, through a letter to the
MTC dated October 25, 2010, its determination that the rule does not
have any tribal implications because the rule does not require the
movement of any oil spill response resources away from current
locations.
9. Plan Holder Input Into the Rule
One commenter felt that plan holders did not have sufficient input
into the development of the rule.
Response: The Coast Guard and EPA note that the rule was issued as
an emergency rulemaking in response to the exigent circumstances
presented by the Deepwater Horizon SONS. Plan holders were given an
opportunity to comment on the rule during the comment period. All
comments, materials and evidence received on the rule are discussed
above in this section.
B. Alternative Arrangements Under NEPA
Coast Guard and DHS, with the assistance of EPA, consulted with CEQ
pursuant to NEPA regulations found in 40 CFR 1506.11 to develop
alternative NEPA arrangements for implementation of this rule. These
alternative arrangements, which take the place of an Environmental
Impact Statement, provide that Coast Guard and DHS will consider the
potential for significant impacts to the human environment from this
rule during implementation of the rule. The Alternative Arrangements
were posted to the Deepwater Horizon Web site (http://www.dhs.gov/xabout/laws/gc_1283521666674.shtm) on July 13, 2010, and remain
available to interested parties at this Web site. The Alternative
Arrangements are also available in the docket as indicated under
ADDRESSES above.
Under the alternative arrangements, each COTP consults with the
Area Committee and pertinent Regional Response Teams to determine what
assets may be made available to address the SONS using the Area
Contingency Plans (ACP). Each ACP includes an annex containing a Fish
and Wildlife and Sensitive Environments Plan prepared in consultation
with the U.S. Fish and Wildlife Service and NOAA and other interested
natural resource management agencies and parties (including coastal
zone management agencies). The annex addresses fish and wildlife
resources and their habitat, and other areas the Area Committee
recommends be considered sensitive environments. The annex provides the
information and procedures to immediately and effectively respond to
discharges that may adversely affect fish and wildlife and their
habitat and sensitive environments. Determination of the needed
response resources considers local and regional factors such as
environmental risks, logistic limitations, and unique local or regional
circumstances.
The determination by each COTP regarding available assets in the
area includes considering the development of equipment relocation and
backfilling (i.e., cascade plans) which will expand the interlocking
response back up of the various OSROs, and integrates military
resources which have previously been kept independent of supporting the
civilian OSROs. The COTP also considers available information on the
availability of current response resources, particularly in areas with
large vessel traffic lanes, heavy vessel traffic, oil refineries, oil
storage and pipeline facilities, seasonal risks associated with
weather, and trends associated with weather, currents and tides.
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Dated: December 2, 2010.
Robert Papp,
Admiral, U.S. Coast Guard, Commandant.
Lisa P. Jackson,
Administrator, U.S. Environmental Protection Agency.
[FR Doc. 2010-32018 Filed 12-20-10; 8:45 am]
BILLING CODE 9110-04-P; 6560-50-P