Water programs: Oil pollution prevention and response; non-transportation-related onshore and offshore facilities,

[Federal Register: June 17, 2004 (Volume 69, Number 116)]

[Proposed Rules]

[Page 34013-34017]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr17jn04-24]

[[Page 34013]]

Part II

Environmental Protection Agency

40 CFR Part 112

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

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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.

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:

1. Federal Rulemaking Portal: http://www.regulations.gov. Follow

   the on-line instructions for submitting comments.

2. 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.

3. 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.

4. 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 fleischman.hugo@epa.gov); or Mark W. Howard at 703-603-8715 howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 5203G.

   SUPPLEMENTARY INFORMATION: 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:

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

1. 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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2. Entities Affected by This Proposed Rule

   Industry category

   NAICS code

   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.

   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.

3. 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.

4. 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).

5. 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.

   \1\ Lead plaintiffs in the cases were American Petroleum Institute (API), Marathon Oil Co., and the Petroleum Marketers Association of America (PMAA).

   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.

6. Statutory and Executive Order Reviews

   1. 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.

   2. 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.).

   3. 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.

   4. 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.

   5. 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.

   6. 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.

   7. 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.

   8. 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.

1. 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. * * * * *

      [FR Doc. 04-13684 Filed 6-16-04; 8:45 am]

      BILLING CODE 6560-50-P