

[Federal Register: December 12, 2005 (Volume 70, Number 237)]
[Proposed Rules]               
[Page 73517-73521]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12de05-26]                         


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Part II





Environmental Protection Agency





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40 CFR Part 112



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


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2005-0003; FRL-8007-1]
RIN 2050-AG28

 
Oil Pollution Prevention; Non-Transportation Related Onshore 
Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing to extend the 
dates by which facilities must prepare or amend Spill Prevention, 
Control, and Countermeasure Plans (SPCC Plans), and implement those 
Plans. This action would allow the Agency time to promulgate revisions 
to the July 17, 2002 final SPCC rule before owners and operators are 
required to meet requirements of that rule related to preparing or 
amending, and implementing SPCC Plans. The proposed revisions to the 
2002 final SPCC rule are published elsewhere in today's Federal 
Register.

DATES: Comments must be received on or before January 11, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2005-0003, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 

Follow the on-line instructions for submitting comments.
     Mail: The mailing address of the docket for this 
rulemaking is EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-
2005-0003, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     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. EPA-HQ-OPA-
2005-0003. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, 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 http://www.regulations.gov The http://www.regulations.gov. Web site is an 

``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of the 
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 http://www.regulations.gov
 index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the EPA Docket, EPA/

DC, EPA West, Room B102, 1303 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 
Superfund, TRI, EPCRA, RMP and Oil Information 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 
either Vanessa Rodriguez at (202) 564-7913 (rodriguez.vanessa@epa.gov) 
or Mark W. Howard at (202) 564-1964 (howard.markw@epa.gov), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC, 20460-0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION:

I. 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.

II. Background

    On July 17, 2002, the Agency published a final rule that amended 
the SPCC regulations (see 67 FR 47042). The rule became effective on 
August 16, 2002. The final rule included compliance dates in Sec.  
112.3 for preparing, amending, and implementing SPCC Plans. The 
original compliance dates were amended on January 9, 2003 (see 68 FR 
1348), again on April 17, 2003 (see 68 FR 18890) and a third time on 
August 11, 2004 (see 69 FR 48794).
    Under the current provisions in Sec.  112.3(a) and (b), a facility 
that was in operation on or before August 16, 2002 must make any 
necessary amendments to its SPCC Plan by February 17, 2006, and fully 
implement its SPCC Plan by August 18, 2006; a facility that came into 
operation after August 16, 2002 but before August 18, 2006, must 
prepare and fully implement an SPCC Plan on or before August 18, 2006. 
Thus, for facilities in operation on or before August 16, 2002, the 
regulations provide a six-month period between the compliance date for 
Plan amendment and the compliance date for Plan implementation. In 
addition, Sec.  112.3(c) requires onshore and offshore mobile 
facilities to prepare or amend and implement SPCC Plans on or before 
August 18, 2006.

III. Proposal To Extend the Compliance Dates

    This proposed rule would extend the dates in Sec.  112.3(a) and (b) 
by which a facility must prepare or amend and implement its SPCC Plan. 
As a result of this proposed rule, a facility that was in operation on 
or before August 16, 2002 would have to make any necessary amendments 
to its SPCC Plan, and implement that Plan, on or before October 31, 
2007. In addition, a facility that came into operation after August 16, 
2002 would have to prepare and implement an SPCC Plan on or before 
October 31, 2007.
    This proposed rule would similarly extend the compliance dates in 
Sec.  112.3(c) for mobile facilities. Under this proposal, a mobile 
facility must prepare or amend and implement an SPCC Plan on or before 
October 31, 2007.
    The Agency believes the extension of the compliance dates proposed 
in this notice are warranted for several reasons. The Agency is 
proposing revisions to the 2002 SPCC rule elsewhere in today's Federal 
Register. Those revisions would provide significant regulatory relief 
to some facilities and to some types of oil-filled equipment. The 
Agency believes that the regulatory relief proposed in that Federal 
Register notice is important to ensure that the SPCC regulation remains 
protective of human health and the environment but, at the same time,

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is not overly burdensome to the regulated community. Since the Agency 
will not have time to promulgate the proposed regulatory relief before 
the current compliance dates for SPCC Plan preparation, amendment, and 
implementation, the Agency believes it is appropriate to extend those 
dates. This approach would allow facilities opportunity to make changes 
to their facilities and to their SPCC Plans necessary to comply with 
revised, less burdensome requirements, rather than with the existing 
requirements.
    Further, the Agency believes that this proposed extension of the 
compliance dates would provide facilities time necessary to fully 
understand the regulatory relief offered by revisions to the 2002 SPCC 
rule. This would allow facilities to take full advantage of any 
regulatory revisions the Agency might promulgate. Regarding 
modifications of the SPCC regulations, to the extent practicable, EPA 
will establish deadlines for compliance implementation that commence 
one year after promulgating the regulatory revisions.
    In addition, the Agency has issued the ``SPCC Guidance for Regional 
Inspectors,'' which is intended to assist regional inspectors in 
reviewing a facility's implementation of the SPCC rule. The document is 
designed to facilitate an understanding of the rule's applicability, to 
help clarify the role of the inspector in the review and evaluation of 
the performance-based SPCC requirements, and to provide a consistent 
national policy on several SPCC-related issues. The guidance also is 
available to both the owners and operators of facilities that may be 
subject to the requirements of the SPCC rule and to the general public 
on the Agency's Web site at http://www.epa.gov/oilspill. The Agency 

believes that this proposed extension would provide the regulated 
community opportunity to understand the material presented in that 
guidance before preparing or amending their SPCC Plans.
    Finally, the Agency is concerned that the effects of the recent 
hurricanes on many industry sectors might adversely impact their 
ability to meet the upcoming compliance dates if no extension is 
provided.
    It is important to note that we considered whether to maintain the 
six month interim period between the compliance dates for Plan 
amendment and implementation or to combine the two dates in order to 
allow an additional six months for Plan amendment. Since facilities are 
not required to submit SPCC Plans to the Agency at the time of Plan 
amendment, the Agency is proposing to combine the compliance dates for 
Plan amendment and implementation so that they both coincide on October 
31, 2007 in order to allow facilities an additional six months to amend 
SPCC Plans in accordance with the requirements under Sec. Sec.  
112.3(a) through (c).
    The Agency is seeking comment on this proposal to have one date by 
which SPCC Plans must be amended and implemented in accordance with the 
2002 amendments to the SPCC Rule, and on the extension of these dates 
to October 31, 2007 for all facilities. Any alternative approaches 
presented must include appropriate rationale and supporting data in 
order for the Agency to be able to consider them for final action.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and 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.
    Under the terms of Executive Order 12866, this action has been 
judged as not a ``significant regulatory action'' because it would 
extend the compliance dates in Sec.  112.3, but would have no other 
substantive effect. However, because of its interconnection with the 
related SPCC rule proposed elsewhere in this Federal Register notice 
(see discussion above in section III), which is a significant action 
under the terms of Executive Order 12866, this action was nonetheless 
submitted to OMB for review.

B. Paperwork Reduction Act

    This 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) 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 that 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, the Agency certifies 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

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on all of the small entities subject to the rule.
    This proposed rule would relieve the regulatory burden for small 
entities by extending the compliance dates in Sec.  112.3.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

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. This proposed rule would reduce burden 
and costs for all facilities.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As was explained above, the effect of the proposed rule 
would be to reduce burden and costs for all 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), States 
may 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 regulation 
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, the Agency has not 
consulted with a representative organization of tribal groups.

G. Executive Order 13045--Protection of Children From Environmental 
Health and Safety Risk

    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. 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

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when the Agency decides not to use available and applicable voluntary 
consensus standards.
    This proposed rule does not involve technical standards. Therefore, 
NTTAA does not apply.

List of Subjects in 40 CFR Part 112

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

    Dated: December 2, 2005.
Stephen L. Johnson,
Administrator.

    For the reasons set forth 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 citation 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.

    2. Section 112.3 is amended by revising paragraphs (a), (b), and 
(c) 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, by October 31, 2007, 
and implement the Plan no later than October 31, 2007. If your onshore 
or offshore facility becomes operational after August 16, 2002, through 
October 31, 2007, and could reasonably be expected to have a discharge 
as described in Sec.  112.1(b), you must prepare and implement a Plan 
on or before October 31, 2007.
    (b) If you are the owner or operator of an onshore or offshore 
facility that becomes operational after October 31, 2007, 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.
    (c) If you are the owner or operator of an onshore or offshore 
mobile facility, such as an onshore drilling or workover rig, barge 
mounted offshore drilling or workover rig, or portable fueling 
facility, you must prepare, implement, and maintain a facility Plan as 
required by this section. You must maintain your Plan, but must amend 
and implement it, if necessary to ensure compliance with this part, on 
or before October 31, 2007. If your onshore or offshore mobile facility 
becomes operational after October 31, 2007, 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. This 
provision does not require that you prepare a new Plan each time you 
move the facility to a new site. The Plan may be a general Plan. When 
you move the mobile or portable facility, you must locate and install 
it using the discharge prevention practices outlined in the Plan for 
the facility. The Plan is applicable only while the facility is in a 
fixed (non-transportation) operating mode.
* * * * *
[FR Doc. 05-23916 Filed 12-9-05; 8:45 am]

BILLING CODE 6560-50-P
