20084 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 154 and 155

[CGD 94–032 and 94–048]

RIN 2115–AE87 and 2115–AE88

Tank Vessel and Facility Response

Plans, and Response Equipment for

Hazardous Substances

AGENCY: Coast Guard, DOT.

ACTION: Advance notice of proposed

rulemaking.

SUMMARY: The Coast Guard is soliciting

comments relating to proposed

regulations requiring response plans for:

certain tank vessels operating on the

navigable waters of the United States or

any marine transportation-related (MTR)

facility that, because of its location,

could reasonably be expected to cause

substantial or significant and substantial

harm to the environment by discharging

a hazardous substance. These

regulations are mandated by the Oil

Pollution Act of 1990 (OPA 90), which

requires the President to issue

regulations requiring the preparation of

hazardous substance response plans.

The purpose of requiring response plans

is to minimize the impact of a discharge

or release of hazardous substances into

the navigable waters of the United

States.

DATES: Comments must be received on

or before September 3, 1996.

ADDRESSES: Comments may be mailed to

the Executive Secretary, Marine Safety

Council [G–LRA–2/3406] (CGD 94–032,

94–048), U.S. Coast Guard

Headquarters, 2100 Second Street SW.,

Washington, DC 20593–0001, or may be

delivered to room 3406 at the above

address between 8 a.m. and 3 p.m.,

Monday through Friday, except Federal

holidays. The telephone number is (202)

267–1477.

The Executive Secretary maintains the

public docket for this rulemaking.

Comments will become part of this

docket and will be available for

inspection or copying at room 3406,

U.S. Coast Guard Headquarters.

FOR FURTHER INFORMATION CONTACT:

LT Cliff Thomas, Standards Evaluation

and Development Division (G–MES),

(202) 267–1099.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages

interested persons to participate in the

early stages of this rulemaking by

submitting written data, views, or

arguments. Persons submitting

comments should include their names

and addresses, identify this specific

advance notice (CGD 94–032, 94–048),

and the specific section of the action

being addressed or the issue to which

each comment applies, and give the

reason for each comment. Please submit

two copies of all comments and

attachments in an unbound format, no

larger than 81⁄2 by 11 inches, suitable for

copying and electronic filing. Persons

wanting acknowledgment of receipt of

comments should enclose stamped, selfaddressed postcards or envelopes.

The Coast Guard will consider all

comments received during the comment

period. All comments will be

considered in drafting the notice of

proposed rulemaking.

The Coast Guard plans to hold a

public meeting in Washington, DC

regarding this proposed rulemaking

between 45 to 60 days after publication

of this advance notice of proposed

rulemaking (ANPRM). This meeting will

be conducted for the purpose of

receiving views on what should be

regulated and what appropriate

regulations would be. The date and time

will be announced by a later notice in

the Federal Register. Persons may

request additional public meetings by

writing to the Marine Safety Council at

the address under ADDRESSES. The

request should include the reasons why

a meeting would be beneficial. If it

determines that an additional

opportunity for oral presentations will

aid this rulemaking, the Coast Guard

will hold another public meeting at a

time and place announced by a later

notice in the Federal Register.

Drafting Information. The principal

persons involved in drafting this document

are LT Cliff Thomas, Standards Evaluation

Division, (G–MES), LCDR Walter (Bud) Hunt,

Response Division, (G–MRO), and Jacqueline

Sullivan, Project Counsel, Office of the Chief

Counsel.

Background and Purpose

1. General

Section 311(j)(5) of the Federal Water

Pollution Control Act (FWPCA) [33

U.S.C. 1321(j)(5)], as amended by

section 4202(a) of OPA 90, requires

owners or operators of tank vessels,

offshore facilities, and onshore facilities

that could reasonably by expected to

cause substantial harm to the

environment to prepare and submit

plans for responding, to the maximum

extent practicable, to a worst case

discharge, or a substantial threat of such

a discharge, of oil or a hazardous

substance. Section 4202(b)(4) of OPA 90

establishes an implementation schedule

for these requirements with regard to

oil. Under section 4202(b)(4), an owner

or operator of a tank vessel or facility for

which a response plan was required

under 33 U.S.C. 1321(j)(5) and which

handled, stored, or transported oil was

required to be operating in compliance

with an approved response plan by

August 18, 1993. However, section

4202(b)(4) did not establish a

compliance date requiring response

plans for hazardous substances. For the

purposes of this ANPRM, discharge and

release are synonymous.

2. Oil Response Plan Regulations

The Coast Guard issued two separate

interim final rules (IRS) on February 5,

1993: one requiring response plans for

tank vessels carrying oil in bulk as cargo

(VRP IFR) [33 CFR 155] and another

requiring response plans for MTR

facilities that handle, store, or transport

oil in bulk (FRP IFR) [33 CFR 154].

These IFRs define many concepts such

as ‘‘marine transportation-related

facility,’’ ‘‘maximum extent

practicable,’’ and ‘‘worst case

discharge.’’ The rules also provide a

specific format for response plans;

however, they allow for deviations from

this format as long as the required

information is included and there is a

cross reference sheet identifying its

location. The Coast Guard is considering

using these concepts or modifying them

as necessary in the regulations for

response plans for hazardous

substances.

3. Tank Vessels

The VRP IFR for oil uses the

definition of ‘‘tank vessel’’ in 46 U.S.C.

2101. The same definition applies for

purposes of implementing the OPA 90

provisions for hazardous substance

response plans. This definition applies

the requirement for hazardous substance

response plans to all tank vessels that

carry hazardous substances in bulk as

cargo. Offshore supply vessels (OSVs)

and certain fishing and fish tender

vessels are exempt from the

requirements for hazardous substance

response plans because, in accordance

with section 5209(b) of the Coast Guard

Authorization Act of 1992 [Pub L. 102–

587, 106 Stat. 5039 at 5076], they are not

considered tank vessels for the purposes

of any law.

The VRP IFR for oil establishes three

categories for tank vessels: manned

vessels carrying oil as a primary cargo,

unmanned tank barges carrying oil as a

primary cargo, and vessels carrying oil

as a secondary cargo. The Coast Guard

is considering applying this scheme for

categorizing tank vessels to regulations

requiring hazardous substance response

plans.
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 20085

4. Marine Transportation Related

Facilities

OPA 90 requires hazardous substance

response plans for any offshore facility

or any onshore facility that, because of

its location, could reasonably be

expected to cause substantial or

significant and substantial harm to the

environment by discharging a hazardous

substance. In Executive Order (E.O.)

12777, the President divided the

responsibility for implementing the

provisions of OPA 90 regarding

hazardous substance response plans

among various Federal agencies.

Through a series of delegations, the

Coast Guard was granted the authority

to implement hazardous substance

response plan requirements for fixed

and mobile onshore MTR facilities and

for deepwater ports. The Environmental

Protection Agency (EPA) was granted

the authority to regulate fixed onshore

non-transportation-related facilities. The

Research and Special Programs

Administration (RSPA) was granted the

authority to regulate onshore nonmarine transportation-related facilities

(i.e., pipelines, motor carriers, and

railways). The Department of Interior’s

Minerals Management Service (MMS)

was granted the authority to regulate

offshore facilities and associated

pipelines, other than deepwater ports

subject to the Deepwater Ports Act of

1974.

That segment of the MTR facility that

is over water is considered to be an

‘‘offshore facility’’ under the FWPCA.

Under E.O. 12777, this segment is under

the purview of MMS. A memorandum

of understanding (MOU) between the

Department of Interior (DOI),

Department of Transportation (DOT),

and the EPA establishing Federal

jurisdictional boundaries for offshore

facilities became effective on February

3, 1994 [59 FR 9494; February 28, 1994].

To avoid any confusion caused by the

definition of ‘‘offshore facility’’, MMS

coordinated an effort to establish

jurisdictional boundaries for oil spill

prevention and control, response

planning, and response equipment

inspection activities. The Secretary of

the Interior redelegated DOI’s functions

under section 2(i) of E.O. 12777 to give

the EPA jurisdiction over nontransportation-related offshore facilities

landward of the coast line and to give

DOT jurisdiction over transportationrelated offshore facilities located

landward of the coast line. This MOU

does not include jurisdictional

boundaries for oil spill financial

responsibility.

The FRP IFR for oil defines an MTR

facility as any onshore facility,

including piping and structures used for

the transfer or oil to or from a vessel and

any deepwater port subject to regulation

under 33 CFR part 150. This definition

includes not only large fixed onshore

facilities but also tank trucks, marinas,

and railroad tank cars that transfer oil to

or from vessels where the vessel has a

capacity of 250 barrels of oil or more.

This definition, modified by

substituting the phrase ‘‘hazardous

substance’’ for the word ‘‘oil’’, could be

applied to regulations requiring

hazardous substance response plans.

As Coast Guard-regulated fixed

onshore MTR facility is generally a

segment of a larger facility or complex.

The FRP IFR for oil describes a complex

as a facility that contains portions

which are regulated by two or more

Federal agencies. Onshore nontransportation related fixed facilities,

which can be part of a complex, are

already covered by a web of existing

statutes and regulations at the Federal,

state, and local levels that address

preparedness for, and response to,

hazardous substance releases. One of

the purposes of this ANPRM is to

address any potential gaps in the

coverage of these facilities and to

prevent imposing duplicative,

overlapping, or conflicting regulations.

OPA 90 makes the distinction

between onshore facilities that could

reasonably be expected to cause

substantial harm to the environment

(substantial harm facilities) and

facilities that could reasonably be

expected to cause significant and

substantial harm to the environment

(significant and substantial harm

facilities). Response plans must be

prepared and submitted for both types

of MTR facilities; however, response

plans for significant and substantial

harm MTR facilities also must be

reviewed and approved by the Coast

Guard.

Under the FRP IFR for oil, all MTR

facilities, including mobile facilities,

that are capable of transferring oil in

bulk to or from vessels with a capacity

of 250 barrels or more, and MTR

facilities that are specifically so

designated by the Coast Guard Captain

of the Port (COTP) are classified as

substantial harm facilities. However,

within this set of substantial harm

facilities, there is a subset of significant

and substantial harm facilities.

Significant and substantial harm

facilities are fixed onshore MTR

facilities, capable of transferring oil in

bulk to or from vessels with a capacity

of 250 barrels or more, deepwater ports,

or facilities that are specifically so

designated by the COTP. Mobile MTR

facilities are not considered to be

significant and substantial harm

facilities unless so designated by the

COTP.

The terms substantial harm facility

and significant and substantial harm

facility, as defined in the FRP IFR for

oil, could be used in the FRP response

plan regulations for hazardous

substances if the phrase ‘‘hazardous

substances’’ were substituted for the

word ‘‘oil’’ in the definitions of those

terms.

The Coast Guard considered

developing criteria for designation of

facilities that handle, store, or transport

hazardous substances as substantial

harm and as significant and substantial

harm facilities that would be different

from those criteria used in the oil FRP

IFR. The criteria considered would

reflect the prospect that discharges of

hazardous substances present a different

type and degree of potential damage to

human health and the environment than

oil discharges.

EPA uses the concept of a ‘‘reportable

quantity’’ to set the amount of a

discharge of a hazardous substance

which requires the releaser to report the

discharge to the government. Section

117.1 of 40 CFR defines ‘‘reportable

quantity’’ as that quantity that may be

harmful and is a violation of section

311(b)(3) of the FWPCA [33 U.S.C.

1321(b)(3)] when discharged into or

upon navigable waters, adjoining

shorelines, the contiguous zone, or in

conjunction with activities under the

Outer Continental Shelf Lands Act [43

U.S.C. 1331, et seq.] or Deepwater Ports

Act of 1974 [33 U.S.C. 1501 through

1524]. Table 117.3 of 40 CFR lists the

reportable quantities of substances

designated as hazardous substances

under section 311(b)(4) of the FWPCA

[33 U.S.C. 1321(b)(4)].

One criterion considered was to

designate an MTR facility that handles,

stores, or transports a hazardous

substance in an amount exceeding the

reportable quantity of that hazardous

substance as a substantial harm facility.

A criterion considered in designating

significant and substantial harm

facilities was to identify facilities that

handle, store, or transport hazardous

substances above 10 times the

reportable quantity. Alternately,

facilities could be designated as

significant and substantial harm

facilities if they handle, store, or

transport hazardous substances 100

times above the reportable quantity.

Using the concept of a reportable

quantity to define what constitutes a

substantial harm facility, and

distinguishing it from a significant and

substantial harm facility has the

advantage of building a regulatory
20086 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

structure with a concept that

incorporates quantifiable values that

already exist and are based on rational

decisions through the rulemaking

process. The added advantage is that the

public, industry, and Coast Guard are

familiar with these concepts. However,

it may also result in selection criteria

that are unnecessarily complicated and

that are not consistent with those

established in the FRP IFR for oil.

Additionally, the reportable quantity

concept may not be applicable to nonFWPCA hazardous chemicals. It is also

not clear that using this criteria will

appreciably increase the likelihood of

predicting the harm that may occur to

the environment in the event of a

discharge of hazardous substances from

the MTR portion of a complex facility.

The applicability criteria established

in 33 CFR 154.1015 for the FRP oil

regulations will be considered in

drafting hazardous substances response

planning regulations. These criteria

build on two existing regulatory regimes

which include pollution prevention

regulations for oil and hazardous

substances and response planning

regulations for oil spills.

The applicability in 33 CFR 154.1015

is based on the ability of a facility to

transfer to or from a vessel with a

capacity of 250 barrels or more. The

determination of substantial harm and

significant and substantial harm is

associated with the capacity of an MTR

facility and its proximity to navigable

waters, adjoining shorelines, or the

exclusive economic zone (EEZ), as well

as other factors such as a facility’s

proximity to public and commercial

water supply intakes and to areas of

economic importance and

environmental sensitivity. Such

determining factors are as relevant for

hazardous substances as they were for

oils.

Using the FRP applicability for oil for

hazardous substances would provide

that all MTR facilities that are capable

of transferring to or from a vessel with

a capacity of 250 barrels or more could

reasonably be expected to experience a

release of a hazardous substance, into or

on the navigable waters, adjoining

shorelines, or EEZ, which would result

in substantial harm to the environment.

All MTR facilities would be classified as

substantial harm facilities. Fixed MTR

facilities would be classified as

significant and substantial harm

facilities. As in the FRP IFR, the COTP

would have the authority to upgrade an

MTR facility classification to substantial

harm or significant and substantial

harm. An owner or operator of an MTR

facility who does not agree with the

initial classification would be provided

with a process to request review of the

MTR facility’s classification by the

COTP using the appeal process

established in 33 CFR 154.1075.

5. Defining Hazardous Substances

OPA 90 does not define the term

‘‘hazardous substance,’’ but relies on the

existing definition of hazardous

substance in section 311(a) of the

FWPCA [33 U.S.C. 1321(a)]. Section

311(a) defines ‘‘hazardous substance’’ as

‘‘any substance designated pursuant to

subsection (b)(2) [33 U.S.C. 1321(b)(2)]

of this section.’’ Under section 311(b)(2),

the EPA Administrator is tasked with

developing, issuing, and revising a list

of hazardous substances which may

affect natural resources or present

imminent and substantial danger to

public health or welfare, including but

not limited to fish, shellfish, wildlife,

shorelines, and beaches. The EPA

Administrator has designated 296

chemicals as hazardous substances

under the FWPCA. The list of hazardous

substances is located at 40 CFR part 116.

Section 1321(j)(5) of title 33 of the

U.S.C., as amended by section 4202(a) of

OPA 90, requires the Coast Guard to

issue response plan regulations for those

hazardous substances designated under

the FWPCA. The Coast Guard notes that

a number of dangerous chemicals other

than those designated as hazardous

substances are carried in bulk as cargo

in the marine environment.

The International Maritime

Organization (IMO) has begun to

address response plan requirements for

hazardous chemicals. Its intention is to

use the basic guidelines for vessels

contained in Regulation 26 of Annex I

of MARPOL as a model for such

requirements. The approach proposed

here is consistent with that under

consideration by IMO.

6. Maximum Extent Practicable and

Worst Case Discharge

OPA 90 requires vessels and facilities

to prepare and submit plans for

responding, ‘‘to the maximum extent

practicable, to a worst case discharge,

and to a substantial threat of such a

discharge.’’ For regulatory purposes,

both maximum extent practicable and

worst case discharge are defined in the

VRP and FRP regulations for oil. These

concepts could be applied to the

requirements for response plans for

hazardous substances.

For vessels, the worst case discharge

is defined at 33 CFR 155.1020 as ‘‘a

discharge in adverse weather conditions

of a vessel’s entire oil cargo.’’ For

facilities, the worst case discharge is

defined to mean ‘‘in the case of an

onshore facility and deepwater port, the

largest foreseeable discharge [of oil] in

adverse weather conditions * * *’’ The

FRP IFR provides at 33 CFR 154.1029 a

formula for calculating the worst case

discharge for each facility. By

substituting the phrase ‘‘hazardous

substances,’’ in lieu of ‘‘oil’’, the

definitions of worst case discharge for

vessels and facilities could be applied to

the hazardous substance regulations.

For vessels and facilities, maximum

extent practicable is ‘‘the planned

capability to respond to a worst case

discharge in adverse weather.’’

Maximum extent practicable is tied to a

quantity of equipment and personnel

needed to respond to a worst case

discharge. It recognizes the limits on

available current technology and private

response capabilities and places a limit

or cap on the worst case discharge

volumes for which an owner or operator

must plan to respond. However, this cap

does not limit the amount of response

resources which owners or operators

may have to provide during an actual

spill response.

For oil, planning to respond to the

maximum extent practicable generally

implies planning for the containment

and recovery of spilled oil. However,

the Coast Guard recognizes that the

concept of containment and recovery

does not apply to all hazardous

substances. Some hazardous substances

that are released in the water will not be

recoverable. For the hazardous

substance regulations, planning to

respond to the maximum extent

practicable will require planning to

protect the public health and safety,

facility and vessel personnel,

responders, and the environment. This

protection may require planning for

actions other than containment and

recovery of discharged hazardous

substances. Through rulemaking, the

Coast Guard would be able to determine

what types of response strategies would

be required to address releases of the

various types of hazardous substances.

The Computer-Aided Management of

Emergency Operations (CAMEO)

appears to be the most effective method

for determining the appropriateness of a

response to a hazardous substance

release. CAMEO is a computer program

used by many response organizations to

properly prepare for and respond to a

hazardous substance release. It was

developed by the National Oceanic and

Atmospheric Administration (NOAA),

EPA, and the National Safety Council. It

is kept current by frequent updates, is

widely used, and is readily available.
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 20087

7. Average Most Probable Discharge and

Maximum Most Probable Discharge

Although OPA 90 requires the

issuance of regulations that address only

the worst case discharge from a vessel

or a facility, the VRP and FRP IFRs for

oil require owners or operators to plan

also for the average most probable

discharges and the maximum most

probable discharges. These concepts

were developed to address the majority

of the spills that occur on vessels and

at facilities—spills which are

significantly lower in volume than the

worst case discharge volume required to

be addressed in response plans by OPA

90.

In the VRP IFR for oil, the average

most probable discharge is defined as a

discharge of 50 barrels of oil from the

vessel during transfer operations. The

maximum most probable discharge is a

discharge of (1) 2,500 barrels of oil for

vessels with an oil cargo capacity equal

to or greater than 25,000 barrels; or (2)

10 percent of the vessel oil cargo

capacity if less than 25,000 barrels.

If the FRP IFR for oil, the average

most probable discharge is defined as a

discharge of the lesser of 50 barrels or

1 percent of the volume of a worst case

discharge. The maximum most probable

discharge is the discharge of the lesser

of 1,200 barrels or 10 percent of the

volume of a worst case discharge.

The concepts for the average and

maximum most probable discharge in

the VRP and FRP IFRs for oil could be

applied to the regulations requiring

response plans for hazardous

substances; however, the definitions of

the terms may need to be modified to

specifically address the differences

inherent in hazardous substances. These

definitions in the oil regulations are

based on historical spill data of the

volumes of oil discharged into the

marine environment. For hazardous

substance response plan regulations, the

definitions may need to be modified to

reflect the historical data for the

volumes of hazardous substances that

have been released in the marine

environment provided that the data is

reliable.

8. Other Response Plan Requirements

Section 4202(a) of OPA 90 requires

both oil and hazardous substance

response plan regulations to address

issues such as plan review and

approval; consistency with the National

Contingency Plan and Area Contingency

Plans; identification of the qualified

individual; identification by contract or

other approved means of private

response resources; description of

training, equipment testing, drills, and

responsibilities of vessel and facility

personnel; periodic updating of plans;

and resubmission and approval after

each significant change of a plan. These

issues and others (i.e., plan format) are

addressed in the VRP and FRP IFRs for

oil and could be handled similarly for

the hazardous substance response plan

regulations.

9. Developing Effective Response Plans

A key element in developing effective

response plans for hazardous substances

is the development of an approach for

addressing the different types of

hazardous chemicals. In addition to the

296 hazardous substances regulated by

the FWPCA, there are a number of

additional hazardous chemicals that are

not designated as hazardous substances

by the EPA under FWPCA but that are

transported in bulk in the marine

environment. Effective response

planning should include all hazardous

chemicals carried in bulk, not just those

determined as hazardous substances by

the EPA. The Coast Guard is interested

in the views of the regulated community

and the general public with respect to

response plans for hazardous chemicals

not regulated under the FWPCA.

Discussion of Areas of Regulation

Under Consideration

Regulations covering the following

areas are being considered to implement

the response plan requirements of

section 311(j) of the FWPCA. Comments

and suggestions from interested parties

are invited.

1. Response Plans

(a) Response plans for MTR facilities

would be submitted to the cognizant

Captain of the Port (COTP) for approval.

(b) Response plans for vessels would

be submitted to the Commandant (G–

MEP), U.S. Coast Guard Headquarters,

Washington, DC for approval.

(c) Each plan may be required to

contain the following information:

—Emergency notification procedures.

—Vessel-specific or facility-specific

information.

—Name of qualified individual.

—List and location of release response

and fire extinguishing equipment

(including equipment on board the

vessel or equipment located at the

facility).

—Response personnel, job descriptions

for key positions, and their training.

—Cargo or commodity hazard

identification.

—Emergency response guidelines for

each hazardous substance (i.e.,

containment, cleanup, or other

appropriate response measures).

—Emergency response guidelines for

different scenarios (i.e., large and

small, fires and explosions, collision,

grounding, salvage operations, piping

failure, releases in sensitive or

populated areas, offshore and

shoreside releases, etc.).

—Salvage operations (vessels only).

—Lightering capabilities (vessels only).

—Waste disposal.

—Worker health and safety.

—Threats to environment or public

health and safety.

—Identification of sensitive areas and

resources to protect sensitive areas

(facilities only).

(d) Response plans would be required

to be consistent with the National

Contingency Plan (NCP) [40 CFR part

300], as required by 33 U.S.C.

1321(c)(2), and the Area Contingency

Plan (ACP) as required by section

311(j)(4) of the FWPCA [33 U.S.C.

1321(j)(4)], as amended by section

4202(a) of OPA 90.

All plans may be required to follow a

general format. Certain aspects of the

response plan for vessels, such as on

board emergency response procedures

would be ‘‘generic’’ in form, regardless

of the vessel’s port of call. These generic

aspects would form the main ‘‘core’’ of

the response plan. Information that is

unique to a port of call, however, such

as clean up contractors or local

contracting representatives, would be

included in the response plan as

appendices.

(e) A qualified individual would have

to be identified in the response plan. A

‘‘qualified individual’’ is a

representative of a vessel or facility with

written authority to engage in

contracting with response companies

and to activate necessary funds from the

owner or operator to carry out cleanup

activities. This individual should have

sufficient training to direct response

contractors pending the arrival of a

company representative. The qualified

individual must have the means for

immediate communication with the

appropriate Federal official and the

persons providing personnel and

equipment for release response.

(f) A communications network, such

as a release response telephone list,

would be required to identify which

parties must be contacted (i.e., Federal

agencies, contractors, a call-up tree) and

how those communications would be

established.

(g) Vessel and facility owners or

operators would be required to identify

and ensure by contract or other

approved means, the availability of

private personnel and equipment

necessary to respond to a release. When
20088 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

appropriate, the Coast Guard would

provide guidelines regarding what type

and amounts of equipment are required

for an average most probable, maximum

most probable, and worst case

discharge.

The Coast Guard would maintain an

oversight and enforcement role in

verifying the contractual availability of

equipment and personnel between

pollution contractors and owners or

operators of tank vessels or facilities.

The local COTP representative would

determine that local contractors possess

the necessary qualifications and

resources to address hazardous

substance releases for which they are

contracted. In addition, the Coast Guard

could review the contract arrangements

between the vessel or facility and

contractor for the interim period when

the response plans are submitted but not

yet approved.

(h) The plan would be required to

address training, equipment testing,

periodic unannounced drills, and the

response actions of vessel or facility

personnel. The regulations would

specify criteria describing acceptable

levels for approval. For vessels,

response actions and persons assigned

would be listed in the ship’s station

bills and muster list, which is currently

required under 46 CFR subpart 35.10—

Fire and Emergency Requirements.

(i) Response plans would be

submitted for initial approval as well as

for approval of each significant change.

Significant changes would include

changes in a vessel’s or facility’s

configuration; changes in hazardous

substance handled, stored, or

transported; changes in the name and

authority of a person in charge; changes

of the owners or operators (depending

on who received approval of the plan);

or changes in the identification of

cleanup operators.

(j) Response plans would be required

to be updated periodically.

2. Response Equipment

The response planning requirements

for the response equipment would

address the following areas:

(a) The type, quantity, and capacity of

response equipment to be carried on

tank vessels or staged at locations

ashore.

(b) The periodic inspection of

response equipment, including the

standards of inspection.

(c) The method for enforcement,

whether through required recordkeeping

or other means.

The regulations regarding vessel and

facility response plans for discharges of

hazardous substances may closely

parallel those regulations for vessel and

facility response plans for discharges of

oil. Because the physical properties of

these various hazardous substances are

different from those of oil, alternative

cleanup measures will need to be

considered.

3. Federal Response and Contingency

Plan Requirements

OPA 90 is the latest of a series of

statutes that regulate hazardous

chemicals. An onshore facility is

required to comply with numerous

planning requirements associated with

the handling, storage, transportation,

and manufacturing of various hazardous

chemicals. The following discussion is

a brief summary of the various Federal

planning requirements for hazardous

chemicals.

Section 311(j)(5)(c) of the FWPCA [33

U.S.C. 1321(j)(5)(c)], as amended by the

Oil Pollution Act of 1990 (OPA 90), sets

forth certain minimum requirements for

vessel and facility response plans for

FWPCA hazardous substances. The

plans must—

—Be consistent with the requirements

of the National Oil and Hazardous

Substances Pollution Contingency

Plan (NCP) and Area Contingency

Plans (ACPs);

—Identify the qualified individual

having full authority to implement

response actions, and require

immediate communications between

that individual and the appropriate

Federal official and the persons

providing response personnel and

equipment;

—Identify and ensure by contract or

other approved means the availability

of private personnel and equipment

necessary to respond, to the

maximum extent practicable, to a

worst case discharge (including a

discharge resulting from fire or

explosion), and to mitigate or prevent

a substantial threat of such a

discharge;

—Describe the training, equipment

testing, periodic unannounced drills,

and response actions of persons at the

facility, to be carried out under the

plan to ensure the safety of the facility

and to mitigate or prevent a discharge

or the substantial threat of a

discharge;

—Be updated periodically; and

—Be resubmitted for approval of each

significant change.

In the case of onshore facilities, the

OPA 90 Conference Report recognizes

that a ‘‘substantial number of facilities

that handle, store or transport hazardous

substances are subject to emergency

planning requirements under the Solid

Waste Disposal Act, the Comprehensive

Environmental Response,

Compensation, and Liability Act, the

Occupational Safety and Health Act,

and other Federal statutes.’’ [H.R. Rep.

No. 101–653, 101st Cong. 2nd Sess.

1990 at p. 151] Additionally, the

Conference Report recognizes that

chemical emergency planning

requirements are in effect for

communities under the Emergency

Planning and Community Right to

Know Act (EPCRA). The Report also

states that the President should select

onshore facility response plans in a

manner that will avoid duplicative or

conflicting response plan review

requirements and should ensure that

such plans are coordinated with the

community emergency planning effort

under EPCRA.

Resource Conservation and Recovery

Act (RCRA)

EPA regulations at 40 CFR part 264,

subpart D issued under RCRA establish

requirements for owners and operators

of hazardous waste facilities to use in

developing facility-specific contingency

plans. The plans must include response

procedures; a list of all persons

qualified to act as a facility emergency

coordinator; a list of all emergency

equipment and, when required,

decontamination equipment at the

facility; evacuation plans, when

evacuation could be necessary; and

arrangements upon which local police

departments, fire departments,

hospitals, contractors, and State and

local emergency response teams have

agreed to coordinate emergency

services. The regulations pertain to

facilities that treat, store, or dispose of

hazardous wastes as defined in 40 CFR

261.3. Hazardous wastes include

characteristics wastes (see 40 CFR part

261, subpart C) and listed wastes (see 40

CFR part 261, subpart D).

EPCRA or Title III of the Superfund

Amendments and Reauthorization Act

of 1986 (SARA)

EPCRA requires Local Emergency

Planning Committees (LEPCs) to

develop local emergency response plans

for their community and review them at

least annually. Under EPCRA, facilities

are required to notify the State

Emergency Response Commission

(SERC) and Local Emergency Planning

Committee (LEPC) if they have

‘‘extremely hazardous substances’’ (see

40 CFR part 355 for a list of the 360

‘‘extremely hazardous substances’’)

present above threshold planning

quantities. In addition, upon request of

the SERC or LEPC, the facility is

required to provide the LEPC with any

information necessary to develop and
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 20089

implement the LEPC plan. Local

emergency response plans must identify

regulated facilities; describe procedures,

equipment, and personnel to respond to

releases; and include evacuation plans.

Because of this requirement that certain

facilities participate in emergency

planning under EPCRA, it is likely that

some overlap may exist with OPA 90

response plan requirements. In addition,

under some state EPCRA laws facilities

are required to prepare contingency

plans.

Clean Air Act

Under section 112(r) of the Clean Air

Act (CAA), as amended, owners and

operators of stationary sources with

‘‘regulated substances’’ above specified

threshold quantities will be required to

prepare risk management plans (RMPs),

which must include a hazard

assessment (including, among other

things, an evaluation of worst-case

accidental releases), a prevention

program, and a response program.

Owners and operators are to provide a

copy of the RMPs to the State, local

planning and response authorities, and

the Chemical Safety and Hazard

Investigation Board. The list of

‘‘regulated substances’’ promulgated

under section 112(r) authority includes

a diverse array of toxins (77),

flammables (63), and high explosives

[see 59 FR 4493; January 31, 1994].

Section 112(r)(7) of the CAA requires

that the hazard assessment evaluate

worst case accidental releases, estimate

potential release quantities, and

determine downwind effects including

potential exposures to affected

populations. Owners or operators must

also develop an emergency response

program that includes specific actions to

be taken in response to a release

including procedures for notifying the

public and response agencies,

emergency health care, and employee

training measures. EPA is currently

developing regulations to implement the

new CAA RMP requirements. In

addition, some states already have RMP

rules in place that require facilities to

develop emergency plans.

In addition, section 112(r)(1) of the

CAA, as amended, indicates that

stationary sources have a general duty

in the same manner and to the same

extent as under the Occupational Safety

and Health Act to—

—Identify hazards that may result from

accidental releases of regulated

substances or other extremely

hazardous substances;

—Design and maintain a safe facility,

taking such steps as are necessary to

prevent releases; and

—Minimize the consequences of

accidental releases which do occur.

Section 112(r)(1) imposes upon

owners and operators of facilities

emergency response duties for a broad

range of hazardous chemicals not

restricted to a named list. Also under

CAA section 112(r)(9), the EPA

Administrator may issue an

administrative order to seek such

judicial relief as is necessary to abate an

actual or threatened accidental release

when the Administrator determines

there may be an imminent and

substantial endangerment to human

health or the environment.

Occupational Safety and Health Act

(OSHA)

OSHA has several sets of standards

that envision some form of emergency

response planning for facilities that

handle, store, or transport hazardous

substances. These requirements are

directed mostly at the protection of

facility employees and emergency

responders. The OSHA Process Safety

Management Standard (see 29 CFR

1910.119) requires the preparation of

emergency response plans under 29 CFR

1910.38(a) or 29 CFR 1910.120 for

employers to prevent or minimize the

consequences of catastrophic releases of

certain chemicals in the workplace.

Employers must develop formal process

safety management program for facility

processes that involve a listed highly

hazardous substance at or above the

threshold quantity. The list of highly

hazardous substances (see 29 CFR

191.119) includes 125 toxic and reactive

chemicals as well as several mixtures.

The program covers employee

participation, process safety

information, process hazard analysis,

operating procedures, training,

contractors, pre-start up review,

mechanical integrity, hot work permits,

management of change, incident

investigation, emergency planning and

response, and compliance audits.

The EPA/OSHA Hazardous Waste

Operations and Emergency Response

(HAZWOPER) Standard (see 29 CFR

1910.120) establishes requirements for

employers and organizations to protect

the safety and health of workers

involved in such operations. The

operations covered by this standard are

cleanups at uncontrolled hazardous

waste sites, corrective actions and

routine hazardous waste operations at

RCRA treatment, storage, or disposal

(TSD) facilities, and emergency

response operations without regard to

location. Employers must implement a

written safety and health program that

includes an organizational work plan,

site evaluation and control, information

and training, personal protective

equipment, monitoring, medical

surveillance, decontamination

procedures, and an emergency response

program. The HAZWOPER list of

substances is broad and includes all 296

FWPCA hazardous substances.

Coordination of Planning Requirements

The issue of coordinating multiple

contingency planning requirements in

an attempt to minimize duplication on

the regulated community is a focal point

of the recently published Presidential

review of Federal agency authorities and

coordination responsibilities for release

prevention, mitigation, and response

required by section 112(r)(10) of CAA.

EPA’s Chemical Emergency

Preparedness and Prevention Office, in

cooperation with the National Response

Team, conducted a study titled A

Review of Federal Authorities for

Hazardous Materials Accident Safety

(EPA550–R–93–002) to fulfill the

Congressional mandate. The review

concludes that, while achieving its

statutory goals, the existing regulatory

scheme is both complex and costly.

With respect to contingency planning,

the report notes that the previously

mentioned statutes were enacted

independently of one another resulting

in inconsistent components in the

regulatory process. Some planning

requirements are more stringent than

others; some require specific technical

features; and some require submission

of the contingency plans for Federal or

State and local review. Also, because

different statutes address slightly

different hazards using different lists of

substances, the number and type of

facilities required to develop these plans

varies. Moreover, there is seldom

harmony in the required formats or

elements of particular plans. Although

the study team did not find many actual

conflicts among planning requirements,

there were numerous differences in

terminology and emphases: these

differences have resulted in facilities

preparing multiple plans to ensure

compliance.

To provide relief for the redundant

and overlapping federal response

planning requirements faced by facility

operators, under the leadership of the

Environmental Protection Agency

(EPA), the National Response Team is

producing guidance on an integrated

planning approach which would

ultimately result in the ability to

prepare one plan to cover multiple

federal response planning requirements,

thereby reducing burden and cost for

the regulated community. The ‘‘One

Plan’’ guidance is being developed
20090 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

through a cooperative effort among

numerous NRT agencies, state and local

officials, and industry and community

representatives. Response plans

developed in accordance with One Plan

guidance will be acceptable to the

federal agencies responsible for

reviewing and/or approving response

plans developed to comply with the

following regulations:

(a) EPA Oil Pollution Prevention

Regulation (Spill Prevention, Control

and Countermeasure and Facility

Response Plan Requirements)—40 CFR

part 112;

(b) MMS Facility Responses Plan

Regulation—30 CFR part 254;

(c) RSPA Pipeline Response Plan

Regulation—49 CFR part 194;

(d) USCG Facility Response Plan

Regulation—33 CFR part 154, Subpart F;

(e) EPA Risk Management Programs

Regulation—40 CFR part 68 (proposed);

(f) OSHA Emergency Action Plan

Regulation—29 CFR 1910.38(a);

(g) OSHA Process Safety Standard—

29 CFR 1910.119;

(h) OSHA HAZWOPER Regulation—

29 CFR 1910.120; and

(i) EPA Resource Conservation and

Recovery Act Contingency Planning

Requirement—40 CFR part 264, Subpart

D, 40 CFR part 265, Subpart D, and 40

CFR 279.52.

The integrated contingency planning

approach is an effective way to ensure

response procedures are coordinated

throughout the facility and to avoid

duplicative and potentially conflicting

plans. The One Plan format does not

change the actual planning

requirements imposed by federal

statute. The Coast Guard fully expects

that any future hazardous substance

response planning requirements

resulting from this ANPRM will be

accommodated within a facility’s ‘‘One

Plan’’.

Analysis reveals that there may be a

significant degree of overlap between

the types of facilities and chemicals that

would be regulated under prospective

OPA 90 requirements and those under

existing response planning

requirements. However, the specific

intent of OPA 90, with respect to

hazardous substances, is to address the

discharge or substantial threat of a

discharge of a limited number and type

of substances (i.e., FWPCA hazardous

substances) to U.S. surface waters. The

other regulatory programs discussed

previously, for the most part, have

slightly different emphases in terms of

the type of chemicals covered, the

primary media considered (e.g., air,

land, water), and the general purpose of

the regulation (i.e., protection of the

environment, protection of workers,

etc.).

The existence of these related

planning requirements provide an

opportunity for the promulgation of

regulations which allow a certain degree

of flexibility in the way owners or

operators meet the OPA 90 statutory

requirements. The Coast Guard requests

comment on specific examples of how

existing Federal and State planning

requirements can be shown to satisfy

one or more of the OPA 90 mandates.

The Coast Guard also requests comment

on which OPA 90 requirements may not

be adequately addressed in existing

plans and how such requirements can

be implemented in the least

burdensome manner. For example, if the

Coast Guard accepted a plan prepared to

meet State or other Federal

requirements (or the Federal baseline

standard mentioned previously) as long

as it was adopted to meet OPA 90

requirements and cross-referenced in an

appropriate manner, would owners or

operators still choose to develop a

separate plan?

The Coast Guard will provide the

responses to this ANPRM to other

Federal agencies so that these agencies

may develop options to satisfy the OPA

90 mandate while minimizing the

burden on facility owners and operators.

Assessment

At this early stage in the rulemaking

process, the Coast Guard anticipates that

any final rule may be considered a

significant regulatory action under

section 3(f) under E.O. 12866. The Coast

Guard anticipates that any final rule

will also require an assessment of

potential costs and benefits under

section 6(a)(3) of that order. It is

significant under the regulatory policies

and procedures of the Department of

Transportation (44 FR 11030; February

26, 1979).

This rulemaking may have a

substantial effect on States that have or

are developing response plan

requirements. It may also affect

domestic and international shipment of

hazardous substances to and from the

United States and may generate

substantial public interest and

controversy. The primary economic

impact of these regulations would be on

those tank vessel and facility owners

that would have to comply with any

new requirements. These vessels would

include approximately 270 tank vessels

and 540 tank barges carrying hazardous

materials: these figures represent the

number of these vessels that called in

United States waters in 1990. The Coast

Guard estimates that this regulation

would affect 300 MTR facilities. In

addition, these regulations may also

impact private hazardous substance

release response contractors and spill

cooperatives.

Several alternative methods of

implementing the rulemaking for vessel

response plans have been identified.

These include the following: (1)

Requiring response plans for specific

tank vessels based on factors such as

vessel route, capacity, or product

carried; (2) requiring generic response

plans for all tank vessels, with port

specific appendices; and (3) requiring

individualized response plans for each

tank vessel and each facility.

The full extent of the economic and

operational impact cannot be quantified

at this time. A primary purpose of this

advance notice is to help the Coast

Guard to develop the rule and

determine the cost of any new

requirements, to the extent that they

exceed current legal and regulatory

requirements or current industry

practice. The Coast Guard anticipates

that the public response to this advance

notice will assist it in writing proposed

rule and a draft regulatory impact

analysis.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Coast Guard

must consider whether this proposal, if

adopted, will have a significant

economic impact on a substantial

number of small entities. ‘‘Small

entities’’ may include (1) Small business

and not-for-profit organizations that are

independently owned and operated and

are not dominant in their fields and (2)

governmental jurisdictions with

populations of less than 50,000.

Because specific requirements have

not yet been proposed, the Coast Guard

is currently unable to determine the

effect of regulations upon small entities.

Accordingly, an Initial Regulatory

Flexibility Analysis discussing the

impact of this anticipated rulemaking

on small entities has not been prepared.

However, the Coast Guard anticipates

that there is a potential significant

impact on a substantial number of small

businesses, small not-for-profit

organizations, and State and local

governments. The Coast Guard expects

that the comments received on this

advance notice will assist it in

determining the number of affected

small entities, and in weighing the

impacts of various regulatory

alternatives for the purpose of drafting

these regulations.

Collection of Information

Under the Paperwork Reduction Act

(44 U.S.C. 3501 et seq.), the Office of
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Management and Budget (OMB) reviews

each proposed rule that contains a

collection-of-information requirement to

determine whether the practical value of

the information is worth the burden

imposed by its collection. Collection-ofinformation requirements include

reporting, recordkeeping, notification,

and other, similar requirements.

The Coast Guard cannot yet estimate

the paperwork burden associated with

this rulemaking because no regulations

have been drafted. However, at a future

stage, the Coast Guard may require that

tank vessel and facility owners and

operators maintain records of response

plan approvals and equipment

inspections which would be available

upon request to the Coast Guard as well

as developing and maintaining response

plans. The Coast Guard expects that

comments received on this advance

notice will assist it in estimating the

potential paperwork burden, as required

under the Paperwork Reduction Act (44

U.S.C. 3501 et seq.). Once estimated, the

Coast Guard will submit this proposed

recordkeeping requirement to the Office

of Management and Budget (OMB) for

approval.

Federalism

This advance notice of proposed

rulemaking has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612. Based on the information

available to it at this time, the Coast

Guard is unable to determine whether

this rulemaking would have sufficient

federalism implications to warrant the

preparation of a Federalism Assessment.

Some standardization of vessel response

plan requirements is necessary because

affected vessels move from port to port

in the national marketplace and separate

regulations and plans for each port

would be economically burdensome and

potentially unsafe.

Some standardization of the MTR

facility response plans may also be

necessary. MTR facilities may be

regulated by other Federal agencies, and

some States may impose their own

response planning requirements. OPA

90 prohibits Federal preemption. Many

facilities operate in the national

marketplace and excessive variation in

the requirements would be

economically burdensome and

potentially unsafe. The Coast Guard

specifically seeks public comment on

the federalism implications of this

proposal.

Environment

The Coast Guard considered the

environment impact of this anticipated

rulemaking and expects that it should

have a positive impact on the

environment by ensuring that hazardous

substance response planning has been

conducted by owners or operators of

tank vessels and facilities for the

purpose of enhancing preparedness to

contain and recover releases of these

products. Before a proposed rule is

published, an environment analysis will

be prepared in accordance with Coast

Guard requirements, COMDTINST

M16475.1B. That document, which will

describe the anticipated environmental

effects of the proposed rulemaking, will

be placed in the docket for inspection or

copying at a location indicated in the

proposed rule. The Coast Guard invites

comments addressing possible effects

this proposal may have on the human

environment, or on potential

inconsistencies with any Federal, State,

or local law or administrative

determinations relating to the

environment. A final determination

regarding the possible need for an

environmental assessment will be made

after receipt of relevant written

comments.

Questions

To adequately address the issues

discussed in this advance notice,

additional information is needed.

Responses to the following questions

would be particularly useful in

developing a future Notice of Proposed

Rulemaking (NPRM).

Reponse Plans

1. Are there any historical data

existing on hazardous substance

discharges in the marine environment

(e.g., causes of discharges, resulting

injuries or fatalities, number of

hazardous substances discharged,

volume of discharges, need to evacuate,

and resulting natural resource and

property damage? If so, where can such

data be found? Are there any restrictions

on the accessibility of this data?

2. Are there any data regarding the

effectiveness of hazardous substance

response planning in terms of

preventing occurrences of casualties and

incidents, reducing the volume of

releases after the occurrences of

casualties and incidents, improving

containment and recovery, if possible,

and avoiding injuries and fatalities)?

3. How many companies operate tank

vessels that carry, or facilities that store

or transport hazardous substances? On

the average, how many vessels or

facilities are operated by a single

company?

4. How should response plans for

non-FWPCA hazardous chemicals

which are carried in bulk (e.g., noxious

liquid substances as listed in Annex II

of MARPOL) be addressed?

5. How many different types of

hazardous substances are carried during

a single voyage? How many different

types of hazardous substances are

handled, stored, or transported by a

single MTR facility?

6. What are appropriate hazardous

substance storage and throughout

thresholds for selecting facilities that

could cause substantial harm to the

environment and for selecting the subset

of those facilities that could reasonably

be expected to cause significant and

substantial harm to the environment?

Should the Coast Guard use the capacity

of a vessel calling at an MTR facility as

a means of selecting facilities that could

reasonably be expected to cause

significant and substantial harm to the

environment?

7. Should the CAMEO program be

used to determine the appropriate

response strategies for the various

hazardous substances which may be

involved in a potential release? What

alternative guidance is available? Would

you consider it more appropriate? If so,

why?

8. For MTR facilities that are part of

an onshore non-transportation related

fixed facility complex, are there

potential conflicts in the areas of

hazardous substances regulated and the

amount of a worst case discharge?

9. Are there potential gaps in existing

Federal regulatory coverage for

hazardous substance response plans for

the onshore non-transportation fixed

facility portion of an MTR complex?

10. What information should be

required in the tank vessel and facility

response plans?

11. Should the information provided

in response plans for vessels carrying

hazardous substances and for facilities

handling hazardous substances vary

depending on the type of substances

transported? How should substances be

classified? Should each class of

hazardous substance have a different

plan? Should vessel owners and facility

owners have a separate plan for each

product they handle or should they

have product groups within the plan?

How would response strategies differ for

the various types of hazardous

substances?

12. Should all FWPCA hazardous

substance be regulated at the same

threshold or should thresholds for

individual substances be set based upon

the specific considerations associated

with each substance? Should the

threshold level be based upon the

reportable quantity (i.e., quantities of

hazardous substances that may be

harmful as set forth in 40 CFR 117.3, the
20092 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

discharge of which is a violation of

section 311(b)(3) of the FWPCA [33

U.S.C. 1321(b)(3)] and requires notice as

set forth in 40 CFR 117.21 for the

substance) or a multiple of the

reportable quantity? What would be an

appropriate multiplier for such a

determination?

13. How should the concept of

‘‘responding to the maximum extent

practicable’’ be applied for purposes of

planning the response to a worst case

discharge of a hazardous substance?

Should it be the same for hazardous

substances as it is for oil in 33 CFR parts

154 and 155?

14. How many U.S. companies

provide response services for hazardous

substance releases and in what

geographic areas would these services

be available? What response capabilities

do these services have in terms of

amount and type of equipment and

personnel available?

15. How should the concept of

‘‘contracts or other approved means’’ be

applied for the purposes of planning the

response to a worst case discharge of a

hazardous substance? What aspects of

hazardous substance spill response may

warrant treatment different form oil

spill responses? What role do public

responders (e.g., local fire department

personnel) play in response to releases

of FWPCA hazardous substances and

how should their involvement be

reflected in the planning requirements?

16. What format should be used for

the response plans?

17. For vessel response plans, what

information should be required in the

‘‘core plans’’ and in port specific

annexes?

18. How often should the response

plans be reviewed and updated by

vessel and facility owners and the Coast

Guard? Should there be any other

reviewing entity? Should the frequency

of review be dependent on the type of

substance transported?

19. Where should the response plans

be kept on an unmanned tank barge or

a tank barge that is at anchor or

underway? Should the plans be kept on

board a towboat when engaged in

towing a barge with a hazardous

substance in bulk as cargo?

20. Are there vessels and facilities

which have voluntarily prepared

response plans addressing a potential

release of a hazardous substance? Are

there response plans for hazardous

substances which were prepared in

response to other U.S. or international

regulations or policies?

21. Should the owner or operator of

a facility that has already prepared an

emergency or contingency plan under

Title III of the Superfund Amendments

and Reauthorization Act of 1986 (SARA)

[Pub. L. 99–499, 100 Stat. 1613] or other

applicable statute (EPCRA, RCRA, CAA,

and HAZWOPER) be permitted to

amend that plan to incorporate

hazardous substance response plan

provisions to comply with the

requirements of OPA 90?

22. If requested, the owner or operator

of a facility must submit Tier Two

information forms to local authorities

with jurisdiction over the facility under

Title III of SARA. Could the Title III,

Tier Two form be supplemented to

comply with the requirements of OPA

90 regulations?

23. Should the term ‘‘qualified

individual’’ be define differently from

its definition in oil response plan

regulations? If so, why?

24. In addition to navigating the

vessel, should the vessel crew be

required to do more than attempt to

control or stop the discharge and report

it to the proper authorities?

25. Should hazardous substance

response contractors listed by a vessel

or a facility (as a condition of approval

of the vessel’s or facility’s plan) be

required to develop a local response

plan consistent with the Area

Contingency Plan?

26. How should worst case discharges

be determined for an MTR facility?

Should it be the same for hazardous

substances as it is for oil? If not, upon

what should this determination be

based? Should worst case discharge

quantities be based on probable accident

or incident scenarios and resulting

releases?

27. How should adverse weather be

defined and considered in determining

a worst case discharge of a FWPCA

hazardous substance? How might

weather concerns differ when

responding to a hazardous substance

discharge versus an oil discharge? For

example, could a lack of wind, rain, and

strong currents result in a riskier

situation when a discharge of a

hazardous substance is involved

because of the potential for the

substance to accumulate due to lack of

dispersion?

28. What should the definition of

average most probable and maximum

most probable discharge be for vessels

and facilities?

29. Do discharges that are smaller

than a worst case discharge dictate

different response strategies and

resource commitments?

30. What is an appropriate response

action for releases of hazardous

substances as defined in the National

Contingency Plan [40 CFR 300.5] as

minor, medium, major, or catastrophic

releases, or for a worst case discharge,

as defined in section 311(a) of the

FWPCA [33 U.S.C. 1321(a)], as amended

by section 4201 of OPA 90? How would

the appropriate response action be

determined? Would it be measured by

distance from the release, distance from

the closest equipment launching

facility, type of substance discharged, or

by another means? Should response

action planning requirements reflect

consideration of the hazardous

substance properties and hazards?

31. Should vessel damage stability

and general arrangement plans be

maintained off the vessel as well as on

board for salvage and firefighting

purposes? Where should they be located

(i.e., Coast Guard Marine Safety Center,

local COTP, classification societies)?

How accessible should they be?

32. Should each vessel owner be

required to maintain a response plan for

each U.S. port of call? Should the vessel

owner or agent representative in each

port maintain a local plan which would

be sufficient for the vessels calling

under his control?

33. What involvement, if any, should

State or local authorities have in the

review or approval of vessel and facility

response plans?

34. Using the definition of ‘‘tank

vessel’’ in 46 U.S.C. 2101, what impact

will these regulations have on vessels

that carry limited quantities of

hazardous substances in bulk as cargo or

cargo residue (passenger, cargo, or

miscellaneous vessels)? Should any

vessels be exempt from these

requirements? If so, what types,

tonnages, and capacities should these

exemptions cover and why?

35. For certain classes of materials

should the response plan include

evacuation and public notification

procedures for areas affected by the

release as appropriate? How should

plans address threats to public health

and safety, including bodies of water

used for drinking supplies? How should

plans address threats to air quality?

36. Should a facility be required to

plan for possible releases of all

hazardous substances carried by vessels

calling at the facility even if the facility

does not typically handle those

substances?

37. What type of response equipment

should be required at facilities? To what

size discharge, if any, should the facility

be prepared to respond?

38. Should dispersion modeling (air

and water) be required? Should a

minimum standard be set? What models

are available to estimate the dispersion

of hazardous substances in the air or

water?

39. Following an incident, what

requirements should be in place for
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 20093

taking samples of the water and the air?

Should response plans include

requirements for air and water

sampling?

Carriage and Inspection of Response

and Firefighting Equipment

40. What types and how much

hazardous substance response

equipment and firefighting equipment

currently are carried on board tank

vessels or located at facilities?

41. Should all vessels required to

have response plans also be required to

carry response equipment? Should some

vessels be exempt from equipment

requirements?

42. What firefighting equipment

would be necessary to have on board a

vessel or staged at a facility to respond

to a possible fire associated with the

discharge of hazardous substances?

Would the type of equipment needed

vary dependent upon the type of

substance discharged? What are the

various firefighting options?

43. What equipment other than

response and firefighting equipment

(e.g., transfer equipment, rescue

equipment, and monitoring equipment)

should be addressed in response plans

to prevent or mitigate a potential

hazardous substance release?

44. What response equipment is

appropriate for vessels or manned tank

barges to carry, if any? Would the type

of response equipment needed vary

dependent upon the type of substances

carried?

45. What response equipment should

be carried on board unmanned tank

barges, if any?

46. What are the appropriate

capabilities of the equipment?

47. Should MTR facilities be required

to have response equipment staged at

the facility?

48. If facilities are not required to

stage equipment at the facility, how

much time should be allowed to bring

response resources to the facility?

49. How large a discharge should the

response equipment be capable of

handling?

50. What equipment-inspection

requirements are appropriate?

51. What equipment needs to be

inspected?

52. Should the inspection be the

responsibility of the owner or operator

and who should be required to maintain

a record of that inspection?

53. Should spot inspections of the

equipment be made by Coast Guard

personnel as part of the vessel and

facility inspection?

54. Should third-party inspection be

used?

55. What action should be taken if

required equipment is missing or in

disrepair?

56. What inspection requirements are

appropriate for equipment maintained

by a cooperative or an independent

organization?

57. Should the required equipment be

approved by the Coast Guard?

58. Should the area of the vessel’s

operation or the regional availability of

support equipment affect the on board

equipment-carriage requirements?

59. Should tank barges in the same

tow or fleeting area be permitted to

share equipment?

60. How should response equipment

be deployed on unmanned tank barges?

Who should deploy the response

equipment?

61. If containment boom is required,

how much should be carried? Should it

be sufficient to completely encircle the

vessel?

62. Should plans require an

assessment of a local port’s municipal

capabilities to respond to a hazardous

substance release, including firefighting

capabilities?

63. What involvement, if any, should

State or local authorities have in the

approval or inspection of response

equipment?

64. Are there methods available to

rate the capabilities of the response and

containment equipment?

65. Should frequency of inspections

be the same as in the existing oil

response planning regulations?

66. How would compliance with this

proposed regulation impact compliance

with other existing hazardous substance

requirements?

67. Is there sufficient response

equipment available to respond to a

worse case discharge? What, if any, caps

should be placed on equipment

requirements?

68. Where is response equipment

currently located? How should required

response times take into consideration

the location of the equipment? Are the

response times established in the VRP

and FRP IFRs for oil appropriate for

hazardous substance response planning

in rivers and canals, inland, nearshore,

offshore, ocean, and Great Lakes waters?

If not, what other response times are

appropriate?

Training

69. At the present time, what type of

training do vessel and facility personnel

receive in the worker safety and

response aspects to hazardous substance

releases? How many vessel and facility

personnel receive such training?

70. What training in the use of

response equipment should be required

for vessel and facility personnel?

71. Should the Coast Guard or another

entity certify providers of this training?

72. Who should be required to have

response training (i.e., licensed,

unlicensed, deck or engine department

personnel on board vessels) among the

vessel’s crew and the facility’s

employees?

73. Should mariners be required to

have their licenses or merchant

mariners’ documents endorsed to show

that the mariners have completed

emergency response training?

74. How can mariners and facility

personnel demonstrate completion of

emergency response training?

75. What training in the

implementation of the required

response plans should be included?

76. What specialized firefighting

training should be required for the crew

of vessels carrying hazardous substances

and personnel of facilities that handle,

store, or transport hazardous

substances? How will the training vary

dependent upon the type of substances

transported by the vessel or handled,

stored, or transported by the facility?

77. What level of training will be

required for qualified individuals and

responders?

78. Should hazardous substance

response contractors be separately

classified by the Coast Guard? if yes,

what should the criterion be?

Drills

79. Should drills be required in

accordance with existing regulations,

i.e., as required in 33 CFR parts 154 and

155?

80. Should the Coast Guard adopt the

National Preparedness for Response

Exercise Program (PREP) guidelines for

hazardous substances?

81. Should there be a requirement to

maintain a record of drills conducted?

Assuming records of drills will be

required, where should they be

maintained? Should they be maintained

on board vessels and at facilities?

82. How should drill performance be

measured?

83. What should the drill

requirements be and should they be

different for different classes of

substances?

84. How should drill performance be

measured? What should be considered

acceptable performance (i.e.,

notification time, response mobilization

time, etc.)?

Economic Issues

85. What would be the economic

impact of requiring each tank vessel and

facility to develop and implement a

hazardous substance release response

plan? How would this impact vary
20094 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

dependent upon the type of hazardous

substances transported or handled?

86. How much would it cost to

develop a hazardous substance response

plan, as described in this ANPRM, for

single tank vessel or facility? How

would this cost vary depending upon

the size and type of tank vessel or

facility? How would this cost vary by

type of hazardous substance

transported, handled, or stored?

87. Would the per vessel or per

facility cost to develop a response plan

for a fleet or tank vessels or group of

facilities be lower than the cost to

prepare a response plan for a single

vessel or facility?

88. What would be the cost to owners

and operators of vessels and facilities to

annually review and update response

plans?

89. What would be the economic

impact for tank vessel or facility owners

or operators of maintaining on board or

on site specialized firefighting

equipment?

90. What would be the economic

impact on tank vessel or facility owners

or operators of reviewing and updating

hazardous substance release response

plans?

91. What would be the economic

impact on tank vessel or facility owners

or operators of maintaining on board or

on site hazardous substance release

response equipment?

92. What would be the economic

impact of these requirements on small

entities, as defined by section 605(b) of

the Regulatory Flexibility Act [5 U.S.C.

605(b)]?

93. What would be the economic

impact for tank vessel and facility

owners or operators of maintaining

contracts with release response

companies in each port they utilize?

94. What would be the economic

impact on the cleanup industry of

enhancing hazardous substance

response capabilities?

95. How much would it cost annually

for a facility or tank vessel to retain the

services of a hazardous substance spill

response contractor to address its worst

case discharge? How would this cost

vary by size and type of facility or

vessel?

96. What would be the economic

impact of requiring tank vessel and

facility owners or operators to train and

drill personnel in worker safety and

release response?

Comments are not limited to the

preceding questions and are invited on

any aspect of implementing the

response planning requirements for

hazardous substance releases and the

carriage of response and firefighting

equipment.

Dated: April 24, 1996.

Robert E. Kramek,

Admiral, U.S. Coast Guard, Commandant.

[FR Doc. 96–10997 Filed 5–2–96; 8:45 am]

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