
[Federal Register: November 26, 2008 (Volume 73, Number 229)]
[Proposed Rules]               
[Page 72016-72022]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no08-43]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2008-0546; FRL-8745-9]
RIN 2050-AG49

 
Oil Pollution Prevention; Non-Transportation Related Onshore 
Facilities

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
amend the dates by which facilities must prepare or amend Spill 
Prevention, Control, and Countermeasure (SPCC) Plans, and implement 
those Plans. The Agency is also proposing to establish dates for farms 
to prepare or amend their Spill Prevention, Control, and Countermeasure 
Plans (SPCC Plans), and implement those Plans. EPA had delayed 
establishing compliance dates for farms pending revisions to the SPCC 
rule that would specifically address this sector. Two different 
extension dates are proposed for farms and production facilities that 
meet the qualified facilities criteria. Elsewhere in this Federal 
Register, the Agency is finalizing certain tailored and streamlined 
requirements for facilities subject to the SPCC requirements.

DATES: Written comments must be received by December 26, 2008.

ADDRESSES: Comments should be directed to Docket ID No. EPA-HQ-OPA-
2008-0546. Comments may be submitted by one of the following methods:
    (1) Federal Rulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments;
    (2) E-mail: Comments may be sent by electronic mail (e-mail) to: 
rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-OPA-2008-0546.
    (3) Fax: Comments may be faxed to 202-566-9744, Attention Docket ID 
No. EPA-HQ-OPA-2008-0546.
    (4) Mail: The mailing address of the docket for this rulemaking is 
EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-2008-0546, mail 
code 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Attention Docket ID No. EPA-HQ-OPA-2008-0546.
    (5) Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room 3334, 
1301 Constitution Ave. NW., Washington DC 20460. Attention Docket ID 
No. EPA-HQ-OPA-2008-0546. 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: Please note that 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 
regulations.gov or e-mail.
    The Federal regulations.gov Web site is an ``anonymous access'' 
system, which means that 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 along with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for

[[Page 72017]]

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. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the docket index 
at http://www.regulations.gov. Although listed in the index, some 
information is not publicly available (i.e., CBI or other information 
whose disclosure is restricted by a statute). Certain 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 at http://www.regulations.gov or in hard copy at the EPA 
Docket Center, EPA/DC, EPA West, Room 3334, 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 
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. General Information

A. Does This Action Apply to Me?

------------------------------------------------------------------------
              Industry sector                        NAICS code
------------------------------------------------------------------------
Oil Production............................                        211111
Farms.....................................                      111, 112
Electric Utility Plants...................                          2211
Petroleum Refining and Related Industries.                           324
Chemical Manufacturing....................                           325
Food Manufacturing........................                      311, 312
Manufacturing Facilities Using and Storing                      311, 325
 Animal Fats and Vegetable Oils...........
Metal Manufacturing.......................                      331, 332
Other Manufacturing.......................                         31-33
Real Estate Rental and Leasing............                       531-533
Retail Trade..............................         441-446, 448, 451-454
Contract Construction.....................                            23
Wholesale Trade...........................                            42
Other Commercial..........................        492, 541, 551, 561-562
Transportation............................                       481-488
Arts Entertainment & Recreation...........                       711-713
Other Services (Except Public                                    811-813
 Administration)..........................
Petroleum Bulk Stations and Terminals.....                          4247
Education.................................                            61
Hospitals & Other Health Care.............                      621, 622
Accommodation and Food Services...........                      721, 722
Fuel Oil Dealers..........................                         45431
Gasoline stations.........................                          4471
Information Finance and Insurance.........                        51, 52
Mining....................................                           212
Warehousing and Storage...................                           493
Religious Organizations...................                        813110
Military Installations....................                        928110
Pipelines.................................                   4861, 48691
Government................................                            92
------------------------------------------------------------------------

    The list of potentially affected entities in the above table may 
not be exhaustive. The Agency's goal is to provide a guide for readers 
to consider regarding entities that potentially could be affected by 
this action. However, this proposed action may affect other entities 
not listed in this table. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding section titled FOR FURTHER INFORMATION CONTACT 
. 
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. 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.

[[Page 72018]]

III. 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), on April 17, 2003 (see 68 FR 18890), on August 11, 2004 (see 69 
FR 48794), on February 17, 2006 (see 71 FR 8462), and on May 16, 2007 
(see 72 FR 27444).
    On December 26, 2006, EPA finalized a set of SPCC rule amendments 
that address certain targeted areas of the SPCC requirements based on 
issues and concerns raised by the regulated community (71 FR 77266). 
While EPA worked to determine if the agriculture sector warranted 
specific consideration under the SPCC rule, it delayed the compliance 
dates for preparing, or amending and implementing SPCC Plans for farms 
subject to SPCC (see 71 FR 77266, December 26, 2006). Under the current 
provisions in Sec.  112.3(a) and (b), the compliance dates for farms 
are delayed until the effective date of a rule that establishes SPCC 
requirements specifically for this sector or that otherwise establishes 
dates by which farms must comply with the provisions of this part.
    On October 15, 2007 (see 72 FR 58378), EPA proposed to amend the 
SPCC rule in order to provide increased clarity, to tailor requirements 
to particular industry sectors (including farms), and to streamline 
certain requirements for a facility owner or operator subject to the 
rule. Elsewhere in this Federal Register, the Agency is promulgating 
amendments to the SPCC rule that tailor and streamline requirements for 
facilities subject to the SPCC rule.

IV. Proposal To Amend Compliance Dates

    Under the current provisions in Sec.  112.3(a) and (b), the owner 
or operator of a facility that was in operation on or before August 16, 
2002 must make any necessary amendments to its SPCC Plan and fully 
implement it by July 1, 2009; the owner or operator of a facility that 
came into operation after August 16, 2002, but before July 1, 2009, 
must prepare and fully implement an SPCC Plan on or before July 1, 
2009; and the owner or operator of a facility (excluding production 
facilities) that becomes operational after July 1, 2009 must prepare 
and implement a Plan before it begins operations (the owner of operator 
of a production facility must prepare and implement a Plan within six 
months after beginning operations). In addition, Sec.  112.3(c) 
requires onshore and offshore mobile facilities to prepare or amend and 
implement SPCC Plans on or before July 1, 2009.
    This proposed rule would amend the dates in Sec.  112.3(a), (b) and 
(c) by which facilities must prepare or amend their SPCC Plans, and 
implement those Plans to establish a date one year from promulgation of 
the final rule amending 40 CFR part 112 published elsewhere in this 
Federal Register. Two different extension dates are also proposed for 
farms and production facilities that meet the qualified facilities 
criteria in Sec.  112.3(g). Qualified facilities that are farms or 
production facilities would have two or five years respectively from 
promulgation of the final rule amending 40 CFR part 112 published 
elsewhere in this Federal Register.

A. Proposal To Extend Compliance Dates for All Facilities

    Under the proposed revision to Sec.  112.3(a)(1), the owner or 
operator of a facility that was in operation on or before August 16, 
2002 would be required to make any necessary amendments to its SPCC 
Plan and fully implement it by November 20, 2009, while the owner or 
operator of a facility that came into operation after August 16, 2002, 
but before November 20, 2009, would be required to prepare and fully 
implement an SPCC Plan on or before November 20, 2009.
    Under the proposed revision to Sec.  112.3(b)(1), the owner or 
operator of a facility that becomes operational after November 20, 2009 
would be required to prepare and implement an SPCC Plan before 
beginning operations. This rule similarly proposes to extend the 
compliance date in Sec.  112.3(c) for mobile facilities. An owner or 
operator of a mobile facility would be required to prepare or amend and 
implement an SPCC Plan on or after November 20, 2009, or before 
beginning operations if operations begin after November 20, 2009.
    The Agency believes that such an extension of the compliance dates 
is appropriate because it will provide the owner or operator of a 
facility the opportunity to fully understand the regulatory amendments 
offered by revisions to the 2002 SPCC rule promulgated on December 26, 
2006 (71 FR 77266) \1\ and with the revised SPCC requirements 
promulgated elsewhere in this Federal Register. This proposed extension 
will allow those potentially affected in the regulated community one 
full year to make changes to their facilities and to their SPCC Plans 
necessary to comply with the revised SPCC requirements. EPA believes 
that a one-year period provides sufficient time for the regulated 
community to understand the streamlined amendments to the SPCC rule 
finalized elsewhere in this Federal Register.
---------------------------------------------------------------------------

    \1\ As stated in the rule, a facility owner or operator must 
maintain its existing Plan. A facility owner or operator who wants 
to take advantage of the 2002 and 2006 regulatory changes may do so, 
but will need to modify his existing Plan accordingly.
---------------------------------------------------------------------------

    The Agency seeks comment on this proposed compliance date by which 
owners and operators of facilities would be required to prepare, amend, 
and implement SPCC Plans in accordance with amendments to the SPCC 
Rule. Any alternative dates presented must include appropriate 
rationale and supporting data in order for the Agency to be able to 
consider them for final action.

B. Proposal To Establish Compliance Dates for Farms and Extend 
Compliance Dates for Farms That Meet the Qualified Facility Criteria

    Elsewhere in this Federal Register, EPA is promulgating a final set 
of SPCC rule amendments that targets certain areas of the SPCC 
requirements specific to farms. This proposed rule would establish the 
dates by which a facility, defined as a farm in Sec.  112.2, would be 
required to prepare or amend and implement its SPCC Plan. EPA proposes 
that a farm 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 November 20, 2009 and a farm that came into operation 
after August 16, 2002 would have to prepare and implement an SPCC Plan 
on or before November 20, 2009 (consistent with other facilities, as 
established in Sec.  112.3(a)(1)). A farm that comes into operation 
after November 20, 2009 would have to prepare and implement an SPCC 
Plan before beginning operations (consistent with other facilities in 
Sec.  112.3(b)(1)). However, for farms that meet the criteria for a 
qualified facility as described in Sec.  112.3(g) EPA is proposing a 
separate compliance date in Sec.  112.3(a)(2) and (b)(2). Under section 
Sec.  112.3(g), a qualified facility is one that: has an aggregate 
aboveground storage capacity of 10,000 gallons or less; and has had no 
single discharge as described in Sec.  112.1(b) exceeding 1,000 U.S. 
gallons or no two discharges as described in Sec.  112.1(b) each 
exceeding 42 U.S. gallons within any twelve month period in the three 
years prior to the SPCC Plan certification date, or since becoming

[[Page 72019]]

subject to Part 112 if the facility has been in operation for less than 
three years (other than discharges as described in Sec.  112.1(b) that 
are the result of natural disasters, acts of war, or terrorism). If 
your onshore facility is a farm, as defined in Sec.  112.2, that meets 
the criteria for a qualified facility as described in Sec.  112.3(g), 
and was in operation on or before August 16, 2002, you must maintain 
your Plan, but would be required to amend it, if necessary to ensure 
compliance with this part, and implement the Plan no later than 
November 20, 2010. Likewise, if your onshore facility is a farm, as 
defined in Sec.  112.2, that meets the criteria for a qualified 
facility as described in Sec.  112.3(g), and becomes operational after 
August 16, 2002, through November 20, 2010, and could reasonably be 
expected to have a discharge as described in Sec.  112.1(b), you would 
be required to prepare and implement a Plan on or before November 20, 
2010.
    The Agency is proposing this compliance date for farms proposed in 
this notice for several reasons. The original extension allowed the 
Agency to conduct additional information collection and analyses to 
determine if differentiated SPCC requirements may be appropriate for 
farms. The Agency worked with the U.S. Department of Agriculture (USDA) 
to collect data to more accurately characterize oil handling at these 
facilities, thus allowing the Agency to better tailor and streamline 
the SPCC requirements to address the concerns of the farming sector. 
The proposed compliance date would now provide facilities the necessary 
time to fully understand the regulatory amendments, including the 2002 
and 2006 SPCC rule amendments, in addition to those finalized elsewhere 
in this Federal Register.\2\ The proposed dates will allow this sector 
ample time to make changes to their facilities and to their SPCC Plans 
necessary to comply with the revised requirements.
---------------------------------------------------------------------------

    \2\ As stated in the rules, farms must maintain their existing 
Plans, to the extent they are required to have one. However, farms 
that want to take advantage of the regulatory changes finalized in a 
separate notice in this Federal Register may do so, but the owner 
and operator of the facility will need to modify their existing Plan 
accordingly.
---------------------------------------------------------------------------

    The Agency believes the compliance date proposed in this notice for 
farms that meet the criteria for a qualified facility as described in 
Sec.  112.3(g) is warranted to ensure adequate time for specific 
outreach activities by the United States Department of Agriculture 
(USDA) and others to the widely dispersed farming community. The 
qualified facility provisions allow individual owners or operators to 
develop their own SPCC Plans specific to their operations, and 
organized education programs at the farm level will be helpful to 
ensure successful utilization of these provisions of the SPCC 
regulation. Qualified facility farms are located throughout the country 
and, given this broad geographic reach, additional time is needed to 
conduct education programs and provide information to farms about their 
eligibility for qualified facility status and its provisions. The USDA, 
in concert with others, such as state extension services and the 
National Resources Conservation Service, will seek to provide this 
training and information in most counties across the country to the 
diverse farming community within the additional time proposed in this 
notice. The Agency seeks comment on the proposed compliance dates by 
which owners and operators of farms including those that meet the 
qualified facilities criteria, would be required to prepare or amend 
and implement their SPCC Plans in accordance with amendments to the 
SPCC rule. Any alternative dates presented must include appropriate 
rationale and supporting data in order for the Agency to be able to 
consider them for final action.

C. Proposal To Extend Compliance Dates for Production Facilities That 
Meet the Qualified Facility Criteria

    The final set of SPCC rule amendments promulgated elsewhere in this 
Federal Register, also targets certain areas of the SPCC requirements 
specific to production facilities. EPA is proposing a separate 
compliance date for production facilities that meet the criteria for a 
qualified facility as described in 112.3(g). If your onshore facility 
is a production facility, as defined in Sec.  112.2, that meets the 
criteria for a qualified facility as described in Sec.  112.3(g), and 
was in operation on or before August 16, 2002, you must maintain your 
Plan, but would be required to amend it, if necessary to ensure 
compliance with this part, and implement the Plan no later than 
November 20, 2013. Likewise, if your onshore facility is a production 
facility, as defined in Sec.  112.2, that meets the criteria for a 
qualified facility as described in Sec.  112.3(g), and becomes 
operational after August 16, 2002, through November 20, 2013, and could 
reasonably be expected to have a discharge as described in Sec.  
112.1(b), you would be required to prepare and implement a Plan on or 
before November 20, 2013. If you are the owner or operator of an oil 
production facility, as defined in Sec.  112.2, that meets the criteria 
for a qualified facility as described in Sec.  112.3(g), and becomes 
operational after November 20, 2013, and could reasonably be expected 
to have a discharge as described in Sec.  112.1(b), you must prepare 
and implement a Plan within six months after you begin operations.
    The Agency is proposing this compliance date for production 
facilities for several reasons. The original extension allowed the 
Agency to conduct additional information collection and analyses to 
determine if additional differentiated SPCC requirements may be 
appropriate for production facilities. The proposed compliance date 
would now provide these facilities the necessary time to fully 
understand the regulatory amendments, including the 2002 and 2006 SPCC 
rule amendments, in addition to those finalized elsewhere in this 
Federal Register. The proposed dates will allow this sector ample time 
to make changes to their facilities and to their SPCC Plans necessary 
to comply with the revised requirements. This extension will also 
provide the Agency with sufficient time to initiate work with relevant 
trade associations, the Interstate Oil and Gas Compact Commission 
(IOGCC) and the Department of Energy (DOE) on outreach and compliance 
assistance tools to help qualified oil production facilities develop 
their self-certified Plans. Finally, given: (1) The large number of 
marginal or stripper wells in the U.S.\3\; (2) that they contribute a 
significant portion of the country's oil production; and (3) EPA's 
understanding of the production process, the particular aboveground oil 
storage container capacities, and the nature of the fluids handled and 
operations conducted at certain small oil production facilities, the 
Agency is proposing additional time for these facilities to come into 
compliance.
---------------------------------------------------------------------------

    \3\ The Interstate Oil and Gas Compact Commission estimates that 
there are 422,255 marginal oil wells as of January 1, 2007 (IOGCC 
Marginal Wells: 2007 Report)
---------------------------------------------------------------------------

    The Agency seeks comment on the proposed compliance dates by which 
owners and operators of production facilities that meet the qualified 
facilities criteria, would be required to prepare or amend and 
implement their SPCC Plans in accordance with amendments to the SPCC 
rule. Any alternative dates presented must include appropriate 
rationale and supporting data in order for the Agency to be able to 
consider them for final action.

[[Page 72020]]

IV. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    This proposed action is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. Burden is defined at 5 CFR 1320.3(b). This proposed rule 
would merely extend the compliance dates for facilities subject to the 
rule.

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.
    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 this proposed rule on 
small entities, the Agency concludes that this proposed 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 defer the regulatory burden for small 
entities by extending the compliance dates in Sec.  112.3. After 
considering the economic impacts of this 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

    This proposed action contains no Federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or 
the private sector. The action imposes no enforceable duty on any 
State, local or tribal governments or the private sector. Therefore, 
this action is not subject to the requirements of sections 202 or 205 
of the UMRA. This action is also not subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments. This proposed 
rule would merely extend the compliance dates for facilities 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

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000). 
Today's proposed rule would not significantly or uniquely affect 
communities of Indian tribal governments. Thus, Executive Order 13175 
does not apply to this action.

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

    This proposed action is not subject to Executive Order 13045 (62 
FR19885, April 23, 1997) because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not 
believe the environmental health or safety risks addressed by this 
proposed action present a disproportionate risk to children. The public 
is invited to submit comments or identify peer-reviewed studies and 
data that assess effects of early life exposure to oil as affected by 
the proposed revision to compliance dates.

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

    This proposed action is not subject to Executive Order 13211 (66 FR 
28355 (May 22, 2001)), because it is not a significant regulatory 
action under Executive Order 12866.

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 (e.g., materials specifications, test methods, 
sampling procedures, and

[[Page 72021]]

business practices) that are developed or adopted by voluntary 
consensus standards bodies. NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.

List of Subjects in 40 CFR Part 112

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

    Dated: November 20, 2008.
Stephen L. Johnson,
Administrator.
    For the reasons set forth in the preamble, title 40, chapter I, 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)(1) Except as provided in (a)(2), (a)(3), and (a)(4), 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, and implement the Plan no later than 
November 20, 2009. If your onshore or offshore facility becomes 
operational after August 16, 2002, through November 20, 2009, 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 November 
20, 2009.
    (2) If your onshore facility is a farm, as defined in Sec.  112.2, 
that 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, and implement the Plan no later than November 20, 2009. If 
your onshore facility is a farm, as defined in Sec.  112.2, that 
becomes operational after August 16, 2002, through November 20, 2009, 
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 
November 20, 2009.
    (3) If your onshore facility is a farm, as defined in Sec.  112.2, 
that meets the criteria for a qualified facility as described in Sec.  
112.3(g), and 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, and implement the Plan no later than 
November 20, 2010. If your onshore facility is a farm, as defined in 
Sec.  112.2, that meets the criteria for a qualified facility as 
described in Sec.  112.3(g), and becomes operational after August 16, 
2002, through November 20, 2010, 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 November 20, 2010.
    (4) If your onshore facility is a production facility, as defined 
in Sec.  112.2, that meets the criteria for a qualified facility as 
described in Sec.  112.3(g), and 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, and implement the Plan no later 
than November 20, 2013. If your onshore facility is a production 
facility, as defined in Sec.  112.2, that meets the criteria for a 
qualified facility as described in Sec.  112.3(g), and becomes 
operational after August 16, 2002, through November 20, 2013, 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 November 
20, 2013.
    (b)(1) If you are the owner or operator of an onshore or offshore 
facility (excluding oil production facilities) that becomes operational 
after November 20, 2009, 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.
    (2) If your onshore facility is a farm, as defined in Sec.  112.2, 
that becomes operational after November 20, 2009, 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. If your 
onshore facility is a farm, as defined in Sec.  112.2, that meets the 
criteria for a qualified facility as described in Sec.  112.3(g), and 
becomes operational after November 20, 2010, 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.
    (3) If you are the owner or operator of an oil production facility 
that becomes operational after November 20, 2009, and could reasonably 
be expected to have a discharge as described in Sec.  112.1(b), you 
must prepare and implement a Plan within six months after you begin 
operations. If you are the owner or operator of an oil production 
facility, as defined in Sec.  112.2, that meets the criteria for a 
qualified facility as described in Sec.  112.3(g), and becomes 
operational after November 20, 2013, and could reasonably be expected 
to have a discharge as described in Sec.  112.1(b), you must prepare 
and implement a Plan within six months after 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 November 20, 2009. If your onshore or offshore mobile 
facility becomes operational after November 20, 2009, 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

[[Page 72022]]

Plan for the facility. The Plan is applicable only while the facility 
is in a fixed (non-transportation) operating mode.
* * * * *
[FR Doc. E8-28120 Filed 11-25-08; 8:45 am]

BILLING CODE 6560-50-P
