[Federal Register Volume 59, Number 178 (Thursday, September 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22347]
[[Page Unknown]]
[Federal Register: September 15, 1994]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 9 and 300
National Oil and Hazardous Substances Pollution Contingency Plan; Final
Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 300
[FRL-5028-6]
National Oil and Hazardous Substances Pollution Contingency Plan
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this rulemaking, the U.S. Environmental Protection Agency
(EPA or ``the Agency'') is promulgating revisions to the National Oil
and Hazardous Substances Pollution Contingency Plan (NCP). The Oil
Pollution Act of 1990 (OPA) amends existing provisions of the Clean
Water Act (CWA) and creates major new authorities addressing oil and,
to a lesser extent, hazardous substance spill response. The amended CWA
required the President to revise the NCP to reflect these changes. The
OPA specifies a number of revisions to the NCP that enhance and expand
upon the current framework, standards, and procedures for response. The
last revisions to the NCP were promulgated on March 8, 1990 (55 FR
8666). The proposed revisions upon which this rulemaking is based were
published on October 22, 1993 (58 FR 54702). Today's revisions affect
all NCP subparts except F (State Involvement in Hazardous Substance
Response) and I (Administrative Record for Selection of Response
Action).
EFFECTIVE DATE: October 17, 1994.
ADDRESSES: Copies of materials relevant to the rulemaking are contained
in the Superfund Docket, Room M2615, U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460. (Docket Number NCP-R2/
A) This docket is available for inspection between the hours of 9:00 am
and 4:00 pm, Monday through Friday, excluding federal holidays.
Appointments to review the docket may be made by calling 202-260-3046.
The public may copy a maximum 266 pages from any regulatory docket at
no cost. If the number of pages copied exceeds 266, however, a charge
of $0.15 will be incurred for each additional page, plus a $25.00
administrative fee. The docket will mail copies of materials to
requestors who are outside the Washington, DC metropolitan area.
FOR FURTHER INFORMATION CONTACT: Richard Norris, Emergency Response
Division (5202G), U.S. Environmental Protection Agency, 401 M Street,
SW., Washington, DC 20460, or call 703-603-9053.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Introduction.
II. Discussion of Selected Comments and Other Changes by
Subpart.
III. Summary of Supporting Analyses.
I. Introduction
A. Statutory Authority
Under section 311(d) of the Clean Water Act (CWA), as amended by
section 4201 of the Oil Pollution Act of 1990 (OPA), Pub. L. 101-380,
and pursuant to authority delegated by the President in Executive Order
(E.O.) No. 12777, the U.S. Environmental Protection Agency (EPA), in
consultation with the member agencies of the National Response Team
(NRT), is today promulgating revisions to the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300.
Some of the major goals of the OPA that affect the NCP include
expanding prevention and preparedness activities and enhancing response
capability of the federal government.
One of the primary purposes of the NCP is to provide for efficient,
coordinated, and effective action to minimize adverse impact from oil
discharges and hazardous substance releases.1 Today's revisions
incorporate changes made by the OPA that have expanded federal removal
authority, added responsibilities for federal On-Scene Coordinators
(OSCs), and broadened coordination and preparedness planning
requirements.
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\1\Throughout the NCP, ``discharge'' also includes ``substantial
threat of discharge,'' and ``release'' also means ``threat of
release.''
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The OPA was enacted to strengthen the national response system. The
OPA provides for better coordination of spill contingency planning
among federal, state, and local authorities. The addition of the
National Strike Force Coordination Center (NSFCC), for example, is
expected to relieve equipment and personnel shortages that have
interfered with response to oil spills posing particularly significant
environmental or human health threats. Today's rule revises the NCP to
implement a strongly coordinated, multi-level national response
strategy. The national response strategy, contained primarily in
Subparts B and D of the NCP, provides the framework for notification,
communication, logistics, and responsibility for response to discharges
of oil, including worst case discharges and discharges that pose a
substantial threat to the public health or welfare of the United
States. The amended NCP further strengthens the OSC's ability to
coordinate the response on-scene and also incorporates a new OPA-
mandated level of contingency planning--Area Committees and Area
Contingency Plans (ACPs). These committees and plans are designed to
improve coordination among the national, regional, and local planning
levels and to enhance the availability of trained personnel, necessary
equipment, and scientific support that may be needed to adequately
address all discharges.
The major revisions to the NCP being promulgated today reflect OPA
revisions to CWA section 311. These changes increase Presidential
authority to direct cleanup of oil spills and hazardous substance
releases and augment preparedness and planning activities on the part
of the federal government, as well as vessel and facility owners and
operators. For example, revised CWA section 311(c) requires the
President to direct removal actions for discharges and substantial
threats of discharges posing a substantial threat to the public health
or welfare of the United States. Revised section 311(d) requires a
number of specific changes to the NCP, including the establishment of
``criteria and procedures to ensure immediate and effective Federal
identification of, and response to, a discharge, or the threat of a
discharge, that results in a substantial threat to the public health or
welfare of the United States.''
Section 311(d) also mandates the establishment of procedures and
standards for removing a worst case discharge of oil and for mitigating
or preventing a substantial threat of such a discharge. Furthermore,
this section requires the NCP to establish a fish and wildlife response
plan ``for the immediate and effective protection, rescue, and
rehabilitation of, and the minimization of risk of damage to, fish and
wildlife resources and their habitat that are harmed or that may be
jeopardized by a discharge.'' Section 311(d)(2)(G) authorizes
consideration of ``other spill mitigating devices and substances'' for
inclusion on the NCP Product Schedule, and section 311(d)(2)(L)
requires the establishment of procedures for the coordination of
activities of OSCs, Area Committees, U.S. Coast Guard (USCG) strike
teams, and District Response Groups (DRGs).
Section 311(j)(2) of the CWA requires that a national response
unit, included in today's revisions as the NSFCC, be established in
Elizabeth City, North Carolina. The NSFCC ``shall compile and maintain
a comprehensive computer list of spill removal resources, personnel,
and equipment'' and ``shall provide technical assistance'' to OSCs.
Section 311(j)(2) provides that the NSFCC will also coordinate efforts
to remove worst case discharges. Pursuant to section 311(j)(3), the
USCG must establish DRGs in each of the 10 USCG districts to provide
``technical assistance, equipment, and other resources'' to OSCs to
assist their response activities. Pursuant to CWA section 311(d)(2)(K),
OSCs must be designated for each area for which an ACP is required to
be prepared.
Section 311(j)(4) addresses the development of an expanded national
oil spill response planning system. Under this section, Area
Committees, which are composed of qualified federal, state, and local
agency personnel, are directed to develop ACPs that will address
planning and response-related issues and concerns, including removal of
worst case discharges, responsibilities of owners and operators and
government agencies in removing discharges, and procedures for
obtaining an expedited decision regarding the use of dispersants.
CWA section 311(j)(5) requires that the President issue regulations
within two years of enactment of the OPA for owners or operators of
certain vessels and facilities to prepare response plans to address,
among other matters, response to a worst case discharge to the maximum
extent practicable. These facility response plans are required to be
consistent with the NCP and with ACPs. For onshore facilities that can
cause ``significant and substantial harm'' in the event of a worst case
spill, these plans must be approved by the federal government. Pursuant
to E.O. 12777, EPA developed regulations that include the criteria for
determining which onshore, non-transportation-related facilities are to
submit response plans and which of these plans are to be reviewed and
approved by EPA, requirements for the preparation of those plans, and
criteria for EPA's review and approval of the submitted plans. The
Agency promulgated these regulations on July 1, 1994 (59 FR 34070). EPA
has developed a data base to track facility response plans. The
Department of Transportation (DOT) and the Department of the Interior
(DOI) developed similar regulations, for offshore and transportation-
related facilities, pipelines, and vessels.
B. Background of This Rulemaking
The President signed the OPA on August 18, 1990, after both houses
of Congress passed the Act unanimously. After several similar proposals
had been unsuccessful over the past 15 years, Congress enacted this
legislation partly in response to the Exxon Valdez spill and several
other incidents, including the Mega Borg and the American Trader
spills.
In a Notice of Proposed Rulemaking (NPRM) published on October 22,
1993 (58 FR 54702), EPA proposed the OPA-required revisions to the NCP.
A public meeting on the proposal was held in Seattle, Washington on
January 14, 1994. EPA received 41 comment letters during the public
comment period. A detailed Response to Comments document, providing the
Agency's response to all comments received, is included in the Docket.
II. Discussion of Selected Comments and Other Changes by Subpart
This section of the preamble provides a subpart-by-subpart and
section-by-section summary of all changes that have been made to the
proposed rule published on October 22, 1993. Some of these changes have
resulted from comments received; others have resulted from inter-agency
federal workgroup deliberations, during which it was determined that
additional clarification was needed.
This section also contains responses to selected comments received
on the proposed revisions. In addition to responses to those comments
that resulted in rule language changes, EPA has included responses to
other comments that addressed ``major'' issues and those on which the
Agency thought it was particularly important to clarify its position
for the entire regulated community. Every comment received was reviewed
and a response to all comments can be found in a comprehensive Response
to Comments document which is included in the Docket. For a complete
discussion of the proposed revisions, the majority of which are being
promulgated as final regulations by this action, the reader is referred
to the detailed preamble discussion in the October 22, 1993 NPRM (58 FR
54702).
Subpart A--Introduction
Section 300.3--Scope
One commenter suggested that, rather than stating in
Sec. 300.3(b)(6) that the NCP provides for ``designation'' of federal
trustees, it would be more appropriate to indicate that such
designation occurs through E.O. 12580. EPA agrees with the commenter's
point, but will substitute ``listing of'' for ``designation'' rather
than modify the text to discuss designation occurring through the
Executive Order, as the commenter suggests.
One commenter asked EPA to define consistency with the NCP as those
actions that are not prohibited by the NCP itself or by the express
instructions/directions of the federal OSC.
Consistency with the NCP is a phrase that is used in and key to
liability under section 107 of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), Pub. L. 96-510, 42
U.S.C. 9601 et seq. EPA is concerned that defining consistency in the
NCP itself could artificially and unnecessarily constrain Agency
response and enforcement actions. No definition could ever be
sufficiently precise to cover all situations; each response under the
NCP is unique in some way and every response scenario is unlikely to be
captured by a single definition. Therefore, the recommendation has not
been adopted.
Section 300.4--Abbreviations
In response to the addition of the U.S. Navy Supervisor of Salvage
(SUPSALV) elsewhere in today's final rule, ``SUPSALV'' is being added
to the list of abbreviations.
Section 300.5--Definitions
Many of the commenters raised definitional issues related to
concerns in other subparts of the proposed rule. These issues are
addressed in the context of those subparts. However, several commenters
raised concerns independent of other issues, including the following:
One commenter noted that the Federal Response Plan is
identified as being signed by 27 federal departments in the preamble,
and as having been signed by 25 departments in the definition of
Federal Response Plan. This discrepancy was due to the fact that the
Federal Response Plan was recently signed by two additional federal
departments. Thus, the correct number of signatories is 27 and
Sec. 300.5 has been modified accordingly.
Three commenters asked if each village/community
affiliated with an Indian or Eskimo tribe would qualify as an ``Indian
tribe,'' and therefore have Regional Response Team (RRT)
representation, although different villages may be of the same tribal
ancestry. ``Indian tribe,'' as defined by the OPA and the NCP, excludes
``any Alaska Native regional or village corporation.''
One commenter asked that the definition of ``Lead
administrative trustee'' be made consistent with the definition in the
National Oceanic and Atmospheric Administration (NOAA) damage
assessment regulation to clarify between two concepts that will be used
in related NOAA and USCG regulations--the lead administrative trustee
and a federal lead administrative trustee. EPA agrees with the
commenter; the NOAA damage assessment regulation definition for lead
administrative trustee will be used in the NCP.
One commenter recommended that the ``National response
system'' be defined as being composed of two distinct entities: a
planning body and a response body. Furthermore, the commenter suggested
that the incident command system be the basic response structure/
organization and members of the planning body would function as an
integral part of the incident command system as opposed to a separate
advisory group. EPA disagrees that the definition of the national
response system should be revised as recommended to reflect ``a
planning body and a response body.'' Some of the organizations referred
to by the commenter--such as the NRT and the RRTs--have
responsibilities related to both planning and response. The NRT, for
example, has responsibilities for planning and preparedness, but also
may be activated for response to oil discharges or hazardous substance
releases (see Sec. 300.110). EPA has, however, clarified Figure 1 by
dividing it into two figures (Figures 1a and 1b) to better illustrate
the response and planning processes. In addition, EPA would like to
clarify that, although the national response system meets the
requirements of 29 CFR 1910.120 concerning the use of an incident
command system, it is not the same as many of the typical incident
command systems used by states, industry, and local responders. EPA has
eliminated references to an incident command system in the definition
of national response system to avoid any confusion on this point. The
Agency also has eliminated an erroneous reference to ``IRPM'' resulting
from a typographical error.
One commenter noted that the definition of ``navigable
waters'' does not conform to the recently revised definition in 40 CFR
110.1. EPA agrees that the language should be revised to be consistent
with the current definition of the same term at 40 CFR 110.1.
Specifically, subparagraph (f) of the 40 CFR part 110 regulations
concerning wetlands provides that ``[n]avigable waters do not include
prior converted cropland'' (58 FR 45035, August 25, 1993). In this
final rule, EPA has added the appropriate language to Sec. 300.5.
One commenter outlined a decision-tree process (using a
series of yes/no questions) to clarify what is and is not ``oil.'' The
process was suggested to be used instead of the proposed NCP
definition. This decision-tree analysis would distinguish oil from
CERCLA hazardous substances and other man-made chemicals. EPA believes
that reliance on the OPA definition of oil provides the most reliable
determination of what is and is not oil. The commenter's approach,
therefore, has not been adopted.
Related to the definition of oil, one commenter asked EPA
to provide additional guidance regarding the classification of a spill
as ``oil'' or ``hazardous substances'' and the appropriate use of the
Oil Spill Liability Trust Fund (OSLTF) or CERCLA for response.
Specifically, the commenter suggested addressing two issues: (1)
appropriate response and funding for spills of statutorily defined
``oil'' which may exhibit, if tested, characteristics of a CERCLA
``hazardous substance'' in either its initial or weathered state; and
(2) response and funding where both ``oil'' and CERCLA ``hazardous
substances'' may be involved in a discharge or substantial threat of a
discharge. The commenter's concerns touch on interagency policy issues
that will be decided on a case-by-case basis between EPA and the USCG.
The Agency does not wish to limit its flexibility in such matters by
implementing the commenter's suggestions for revising the NCP.
Also related to the definition of oil, one commenter
argued that the treatment of animal fats and vegetable oils in the NCP
is inconsistent with established regulatory principles and with
available scientific data. The commenter stated that animal fats and
vegetable oils are substantially less harmful to the environment than
petroleum-based oils and suggested that the rulemaking be amended to
differentiate between types of oils and provide for a different
approach to response and removal methodologies for animal fats and
vegetable oils than that required for petroleum oil. EPA disagrees that
the treatment of animal fats and vegetable oils is inconsistent with
established regulatory principles. The Agency notes that the definition
of ``oil'' in the CWA includes oil of any kind, and that EPA uses this
broad definition in 40 CFR part 110, the Discharge of Oil rule. The
applicability of CWA section 311 regulations to non-petroleum oils,
including potentially harmful effects of animal and vegetable oil
spills, has already been discussed in the 1987 rulemaking to revise 40
CFR part 110. EPA considers certain harmful effects of non-petroleum
oil discharges to be similar to those of petroleum oils, including the
drowning of waterfowl, fishkills due to increased biological oxygen
demand, asphyxiation of benthic life, and adverse aesthetic effects (52
FR 10718).
Three commenters asked that the definition of ``On-Scene
Coordinator (OSC)'' be changed to ``Federal On-Scene Coordinator
(FOSC)'' to distinguish it from state and local OSCs. As defined, OSC
means a federal official; therefore, there is no need to modify the
terms as suggested or to refer to the OSC as the FOSC. Also, EPA has
revised the definition of OSC to delete the second mention of the term
``federal,'' for clarification. Finally, the word ``government'' has
been added to modify the phrase ``official designated by the lead
agency'' to clarify that the functions of the OSC cannot be delegated
to non-government personnel.
Two commenters stated that the definition of ``Removal
costs'' needs to be expanded to include cost recovery for hazardous
substance response incidents. The definition, taken from the statute,
clearly indicates that it is limited to ``removal costs'' as defined in
the OPA. Thus, it correctly relates only to oil spill response efforts.
Noting that the OPA imposes a number of requirements on
``Tank vessels'' and ``Facilities,'' one commenter asked that these
definitions be modified to exclude dedicated oil spill response vessels
and temporary storage tanks. The commenter also requested that the
definition of ``tank vessel'' not include temporary storage bladders
(TSBs), indicating that the Customs Service recently clarified that
TSBs used for oil cleanups are not ``vessels'' for purposes of the
``Jones Act.'' EPA does not believe there is a compelling reason to use
a definition of ``tank vessel'' or ``facility'' in the NCP that differs
from the definition in the statute. Furthermore, the Agency believes
the commenter is raising what are fundamentally vessel and facility
response plan issues more appropriately addressed in the various
response plan rules.
One commenter asked that the definition of the term
``Trustee'' be expanded to include not only foreign government
officials who may pursue claims for damages, but anyone who may have a
claim for damages. Section 1006 of the OPA designates trustees and
describes the functions to be carried out by these trustees. That
section does not envision ``anyone who may have a claim for damages''
within the range of individuals who would be designated as trustees for
purposes of pursuing claims for damages to natural resources. This does
not, however, preclude any individual from pursuing a claim for damages
other than natural resource damages.
One commenter recommended that EPA clarify the definition
of ``Worst case discharge'' to indicate more clearly that the terms and
requirements for worst case discharges apply only to discharges of oil
and not to releases of hazardous substances. The CWA definition of
worst case discharge (section 311(a)(24)) does not specify whether it
applies to only oil or to both oil and hazardous substances regulated
under the CWA. CWA section 311(d) requires the NCP to include
``procedures and standards for removing a worst case discharge of oil *
* *.'' CWA section 311(j)(5) requires tank vessel and facility response
plans addressing worst cases discharges ``of oil or a hazardous
substance.'' EPA does not want to further confuse matters by deviating
from the statutory definition. The Agency believes it is sufficiently
clear that NCP Sec. 300.324, ``Response to Worst Case Discharges,'' is
limited to oil as it is contained within subpart D, ``Operational
Response Phases for Oil Removal.''
One commenter argued that the definition of ``Worst case
discharge'' or ``largest foreseeable discharge'' should be based on
site-specific conditions or an optional default amount based on the
type of non-transportation-related facility. The commenter believes
that using options will encourage installation of additional
containment structures and ultimately reduce the frequency and size of
facility spills. EPA has chosen to rely on the definition from the OPA,
which is amenable to site-specific applications. Regarding the role of
an optional default amount, the Agency believes that this is more
appropriately addressed in vessel and facility response plan
regulations.
Subpart B--Responsibility and Organization for Response
Section 300.105--General Organization Concepts
One commenter recommended that a paragraph be added describing the
basic ``incident command system'' used by the federal government. The
commenter suggested that this would add credibility to the NCP, because
such a system has been implemented by ``the majority of progressive
states and responsible parties'' and ``the more advanced districts and
regions of the Coast Guard and EPA'' as the national standard for
organizing spill response. Another commenter agreed and stated that
this discussion should include a description of the five response
functions and the federal agencies that are likely to take the lead in
filling each function. Still another commenter stated that the
``unified command system'' structure: (1) Clarifies that one
individual, the OSC, retains ultimate decisionmaking authority; and (2)
reflects appropriate response roles for other participants such as
state OSCs, responsible parties, and private contractors.2
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\2\Several comments on sections of Subpart B other than
Sec. 300.105 also addressed the incident command system and the
unified command. Because the response presented here encompasses the
concerns raised by those comments, such comments are not presented
separately in the preamble. All individual comments and responses on
all sections of Subpart B, as well as other subparts, appear in
their entirety in the Response to Comments document.
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The commenters' recommendations emphasize the importance of
clarifying the basic framework for the response management structure in
the NCP. EPA agrees that the NCP should be revised to address this
topic more explicitly. New subparagraphs (d) and (c) have been added to
Secs. 300.105 and 300.305, respectively, and a new sentence has been
added to the end of subparagraph (d) of Sec. 300.135 describing the
response management structure as a system (e.g., a unified command
system) that brings together the functions of the federal government,
the state government, and the responsible party to achieve an effective
and efficient response, where the OSC maintains authority. (The state
government, at its discretion, may solicit local government involvement
in this structure.) EPA would like to restate that although the goal of
this structure is to reach consensus whenever possible, the OSC always
retains the authority to take all actions that he or she deems
appropriate. Area Committees will be responsible for developing
detailed response management structures for their areas based on the
broad guidelines provided in the NCP.
EPA would also like to clarify that although the national response
system meets the requirements of 29 CFR 1910.120 as an incident command
system, it is not one of the several systems currently in use by local
fire fighters around the country and separately referred to as ``the''
traditional incident command system. Most of these other response
management systems are patterned after systems developed by such
organizations as the National Fire Academy and the National Interagency
Fire Center. These systems were developed for operations where control
of resources and personnel is placed on a single incident commander.
The emphasis during oil spill response is on coordination and
cooperation, rather than on a more rigid system of command and control.
The OSC, the state/local government representatives, and the
responsible party all are involved with varying degrees of
responsibility, regardless of the size or severity of the incident. The
OSC in every case retains the authority to direct the spill response,
and must direct responses to spills that pose a substantial threat to
the public health or welfare of the United States. In many situations,
however, the OSC will choose to monitor the actions of the responsible
party and/or state/local governments and provide support and advice
where appropriate. The response management structure does not attempt
to prescribe a specific item-by-item functional description of where
particular organizations or individuals fit within a single response
structure for a given response. Developing, adopting, and implementing
a response management system, such as a unified command system, is the
responsibility of the OSC and the Area Committee, through the ACP.
The response organization in an ACP must be designed to recognize
two basic facts: (1) All key players in the response management
structure may have job responsibilities in addition to response and
preparedness, and (2) some of these responsibilities fall outside the
scope of the NCP and thus would not be subject to the response
structure described in the ACP.
Based on these facts, an area's response management system should
recognize that key players will maintain a separate internal response
management infrastructure during a response. The goal of the area's
response management system is to identify how those participating in
the response management structure can best communicate and coordinate
with each other for planning, logistics, finance, operations, and
communications to ensure effective response coordination. Because the
key players differ from area to area, Area Committees must have the
flexibility to tailor systems to their basic organization for the
specific area. It is beyond the scope of the NCP to prescribe or
endorse a particular version of incident command; to do so would be
counterproductive to the very purpose of Area Committees and ACPs.
Four commenters recommended various changes to Figure 1, ``National
Response System Concepts.'' Each of these commenters stated that the
responsible party should be included in Figure 1 because the
responsible party, along with the federal OSC and state OSC, will
operate in a triad structure in the unified command. One of the
commenters stated that Figure 1 should reflect the participation of
local governments and tribes on the RRT. This commenter stated that the
current Figure 1 ultimately will hamper the efficiency of incident
response, because it does not accurately reflect the roles of these
entities. Three commenters recommended that the unified command be
incorporated to more accurately illustrate the command structure. Two
commenters stated specifically that the figure should be revised to
show that state and local responders are accountable to the federal
OSC. One commenter suggested that two new figures be added, one showing
the organization for planning and preparedness, and the other showing
the organization for response. The same commenter also recommended
that, to minimize the complexity of the national response system,
separate figures should be created for hazardous substance (CERCLA) and
oil (CWA) responses. In addition, the commenter suggested consideration
of separate figures for EPA's inland zone and USCG's coastal zone.
In response to concerns raised by the commenters, EPA has clarified
Figure 1 depicting the national response system by dividing it into two
separate figures--one for response (Figure 1a) and the other for
planning (Figure 1b). These new figures illustrate a response
management system (e.g., a unified command system) that brings together
the functions of the Federal Government, the state government, and the
responsible party to achieve an effective and efficient response, where
the OSC maintains authority. EPA believes that Figure 1a illustrates
clearly that the OSC always retains the authority to take all actions
that he or she deems appropriate.
Footnote 2 to Figure 1b references coordination with other existing
response plans prepared under the OPA and other statutes. Information
from such industry plans should be considered by Area Committees in
developing and improving ACPs. This includes information that becomes
available from risk management plans prepared under section 112(r) of
the Clean Air Act, as well as from other federally mandated plans. EPA
believes that this information not only will be useful in developing
contingency plans, but that consideration of such information also will
help avoid unnecessary overlap and duplication of planning
requirements.
Local governments are not shown on the RRT in Figure 1b because
they participate only at the discretion of the state. Indian tribes are
not shown separately because they are included in the definition of the
term ``State'' as used in the NCP (Sec. 300.5).
With regard to the recommendations to develop separate figures for
hazardous substances and oil responses as well as for coastal zone and
inland zone responses, EPA believes that the new response and
preparedness figures present a useful summary of the national response
system that accurately reflects all of these categories of responses.
The four additional figures, therefore, are unnecessary and have not
been included.
One commenter suggested including a statement regarding the Federal
Government's oversight role in situations where the responsible party
is responding adequately. The commenter explained that the government's
response role includes oversight as well as cleanup, but that oversight
appears to have been overlooked throughout the preamble and proposed
rule.
Section 300.305(d) (formerly (c)) of the NCP provides that, except
in a case when the OSC is required to direct the response to a
discharge that may pose a substantial threat to the public health or
welfare of the United States, the OSC may allow the responsible party
to voluntarily and promptly perform removal actions, provided the OSC
determines such actions will ensure an effective and immediate removal
of the discharge or mitigation or prevention of a substantial threat of
a discharge. If the responsible party does conduct the removal, the OSC
shall ensure adequate surveillance over whatever actions are initiated.
The Agency believes that this provision provides adequate guidance
regarding the OSC's oversight role during responsible party removal
actions. Additional detail on this topic in the NCP would unnecessarily
limit the flexibility of the OSC in choosing and implementing
appropriate oversight activities.
Section 300.110--National Response Team
Seven commenters expressed concern regarding the membership and
responsibilities of the NRT. These commenters suggested that states,
responsible parties, and cleanup contractors either be represented on
the NRT or have input into response decisions.
One commenter reasoned that state representation on the NRT would
increase recognition of the state role in federal response action.
Other commenters noted that the decisions of the NRT affect the
planning, preparedness, and, ultimately, response actions of
responsible parties and that such parties have technical expertise that
could be valuable in NRT meetings. One commenter believed that the
proposed rule did not encourage the NRT to solicit input from
stakeholders. The commenter also suggested that all workgroup meetings
conducted in conjunction with NRT meetings be open to the public to
encourage improved communication on planning and response issues.
Another commenter recommended that cleanup contractors be included in
the decisionmaking committees and scientific support described in the
NCP. This commenter reasoned that federal and state government
personnel do not physically clean up spills; instead, it is the private
contractors who are hired by the responsible party or government agency
and who consequently have hands-on knowledge of and experience with
state-of-the-art cleanup techniques. Two commenters suggested that, in
contrast to the Area Committees, many of the RRT subcommittees are
completely closed to private parties.
EPA agrees that input from states and private parties helps the NRT
to function more effectively and that private party involvement with
the RRTs can have the same result. States and private parties are
encouraged to attend NRT meetings and in the case of private parties,
RRT meetings. Those who wish to attend should contact the NRT Secretary
or RRT co-chairs so that appropriate logistical arrangements can be
made. In some instances, however, attendance by states or private
parties may not be feasible or appropriate. For example, although the
meetings of the standing RRT are open, the meetings of the RRT in
executive session or as an incident-specific team are not open to
private parties because this would interfere with inherently
governmental functions. Specifically, attendance and participation by
private parties could slow certain time-critical decisions, such as
which particular federal, state or local government, or private party
resources the RRT should request to respond to a discharge or release.
Section 300.115--Regional Response Teams
Three commenters believed that local governments should not be
represented on the RRT because the RRT should not become overwhelmed by
local representatives if it is to be effective in addressing regional
issues during emergency responses. One of these commenters explained
that state representatives could coordinate with local governments and
communicate their issues to the RRT. Under Sec. 300.115, local
governments are represented directly on the RRT by the state, and local
input is coordinated through the state's representative. EPA believes
this is an efficient means of local government representation on the
RRT that does not impair the effectiveness of the RRT to address
regional issues.
Three commenters argued that RRTs should not duplicate the planning
role of the Area Committees because RRTs are not mentioned and have no
statutory basis in the OPA. One of these commenters recommended that
RRT members participate in Area Committees directly, rather than
through the RRT. One commenter suggested that the NCP ``find a real
place for the RRT within the [incident command system] structure or
consider eliminating this body.'' This commenter's major concern
appears to be that the RRT structure assumes one state agency can
represent all state and local entities, but the federal government must
be represented by 16 agencies. According to the commenter, this
seriously undermines RRT credibility at the state and local level.
EPA believes there are several significant distinctions between the
geographic responsibilities of RRTs and Area Committees that impart
unique and essential functions to the two entities. Regions are
envisioned to have multiple areas; in its planning and coordination
role, the RRT provides oversight and consistency review for areas
within a given region. This includes facilitating the process of
ensuring that Area Committees within a region are mutually supportive
and that links to extra-regional response concerns, considerations, and
capabilities are maintained. This regional/area approach allows local
area personnel to focus on specific issues such as risks, sensitive
area prioritization, and response strategies that need to be tailored
to a smaller, more manageable geographic scale.
With regard to state representation on the RRT, the purpose of
having a single representative is to make it possible for the state,
rather than the RRT itself, to resolve intra-state disagreements.
States may designate at least one alternate member to attend RRT
meetings as a way to better ensure intra-state coordination, for
example, between the state agency handling emergency response and the
environmental agency, health agency, and the State Emergency Response
Commission (SERC).
Two commenters stated that the role of the RRT during response
should be limited to providing support to the OSC, upon request, as
part of the unified command structure. The commenters argued that at no
time should a specific RRT be given an operational role in response
without placing that role in the unifying context of the incident
command system.
EPA believes that the commenters' recommendation for the RRT
members to provide response support to the OSC is already consistent
with the current national response system, when implemented during
spill cleanup operations. Although the RRT is a separate and distinct
entity with clearly defined roles, this does not bar individual RRT
members from being part of the OSC's support staff during a response.
In fact, the very structure of the RRT indicates that it may be
activated to supply individual members in support of response actions.
The two principal components of the RRT are a standing team and an
incident-specific team. The latter is formed from the standing team to
support the OSC/Remedial Project Manager (RPM) when the RRT is
activated for response to a specific discharge or release (see
Sec. 300.115(b)).
One commenter noted that Secs. 300.115(i)(6), 300.205(c)(3), and
300.210(c)(3)(iv) reference advance planning and expedited
decisionmaking for use of dispersants, surface washing agents, surface
collecting agents, burning agents, bioremediation agents, or other
chemical agents. The commenter suggested adding the following language,
consistent with Sec. 300.310(c): ``* * * and in accordance with any
applicable laws, regulations, or requirements * * *.'' The recommended
clarification has been made in Sec. 300.115(i)(6) of the final rule.
The language in Secs. 300.205(c)(3) and 300.210(c)(3)(iv) is taken
directly from the OPA and has, therefore, not been changed.
Section 300.120--On-Scene Coordinators and Remedial Project Managers:
General Responsibilities
Two commenters stated that the NCP should specify minimum
qualifications (education and experience) and training requirements for
Federal OSCs and other response personnel. The commenters reasoned that
the OSC has ultimate responsibility for the spill response effort and
therefore must have sufficient knowledge, training, and skill to
perform effectively and gain the confidence of the public and the
response community.
EPA agrees that appropriate training enables OSCs to effectively
carry out their responsibilities. In addition, the relevant Federal
agencies (EPA and USCG for oil discharges) are aware of their
responsibilities under the NCP and will put the best qualified OSC on
the job. EPA does not agree, however, that the NCP should require lead
agencies to identify minimum qualifications and training requirements
for OSCs and other response personnel. The lead agency instead should
have adequate flexibility to decide on appropriate operating procedures
that, for the particular agency, will best ensure adequately trained
OSCs and other response personnel.
One commenter recommended that Sec. 300.120(a) explicitly state
that the Federal OSC's authority is sufficient to override any
otherwise applicable Federal, State, and local requirements. The
commenter reasoned that compliance with all requirements may not be
practicable, particularly if the requirement was established without
considering the special circumstances of emergency response.
EPA does not believe that the provision suggested by the
commenter--essentially preempting all Federal and State law when the
OSC directs response to a discharge--is authorized by the OPA.
Furthermore, adding such a provision to the NCP appears to be
unnecessary. Section 311(c)(1) of the CWA, as amended by the OPA, gives
the OSC authority to ``direct or monitor all Federal, State, and
private actions to remove a discharge.'' The same provision also
authorizes the OSC to remove or arrange for the removal of a discharge
and to remove and, if necessary, destroy a vessel that is discharging.
In addition, if a discharge poses a substantial threat to the public
health or welfare of the United States, CWA section 311(c)(2), as
amended, requires the OSC to direct all Federal, State, and private
actions to remove the discharge and gives the OSC authority to carry
out the other actions mentioned in section 311(c)(1) ``without regard
to any other provision of law governing contracting procedures or
employment of personnel by the Federal Government.''
Congress explicitly provided for limited preemption only for
contracting and employment laws and this limited preemption applies
only when a discharge poses a substantial threat to the public health
or welfare of the United States. There is no express indication that
Congress intended to preempt all Federal and State requirements with
respect to other discharges.
Several commenters stated that although the Federal OSC may have
authority over the responsible party, the OSC does not have authority
to direct State or local agency actions. As mentioned above, CWA
section 311(c), as amended by the OPA, provides that the OSC ``may
direct or monitor all Federal, State, and private actions to remove a
discharge,'' and, in the case of a substantial threat to the public
health or welfare of the United States, must direct such actions. Thus,
it is clear that the OSC has the authority to direct State or private
actions.
With regard to local actions, the legislative history of the OPA
indicates that there was no intent to exclude these from the
President's authority to direct. The Conference Report states that
section 201(b) of the Senate bill amended CWA section 311(d) ``to
require the President to coordinate and direct all public and private
cleanup efforts whenever there is a substantial threat of a pollution
hazard to the public health or welfare * * *'' (emphasis added).
Section 4201 of the House bill amends CWA section 311(c)(1) to
authorize the President to ``direct the actions of all on-scene
personnel, and monitor all removal actions'' (emphasis added).
Furthermore, in discussing the new requirements to direct responses to
spills that pose a substantial threat to the public health or welfare
of the United States, the Conference Report states ``[t]his subsection
is designed to eliminate the confusion evident in recent spills where
the lack of clear delineation of command and management responsibility
impeded prompt and effective response.'' (H.R. Report No. 101-653,
101st Congress, 2d Sess., at pp. 144-46.) In light of these statements
from the Conference Report, Congress could not have intended that local
response actions be treated any differently from Federal, State, and
private response actions with regard to the President's authority to
direct.
One commenter stated that Sec. 300.120(e) should indicate that the
OSC coordinates, directs, and reviews the work of other agencies in
contingency planning and removal. The commenter asserted that proposed
Sec. 300.120 could be read to give the OSC broader responsibilities in
coordination, direction, and reviewing the work of other agencies. EPA
agrees that the OSC should not review the work of other agencies in
activities other than contingency planning and removal. Section
300.120(e) has been revised to clarify this point.
Section 300.135--Response Operations
One commenter recommended that the federal OSC's responsibilities
in a response coordinated by a state or local OSC be clarified. The
commenter stated that this should help ensure that spill response
actions are consistent with the NCP, regardless of whether there is a
federal, state, or local OSC. The commenter indicated that it has had
experience with several spills for which the federal OSC did not go on-
scene and did not access the OSLTF for removal actions. The commenter
suggested that this has interfered with removal activities that it
deemed necessary to ensure appropriate treatment of resources for which
it had trust responsibilities.
For any issues concerning a spill response, the OSC should be
contacted first, whether or not the OSC is on-scene. However, it is
important to note that the OSC is required to coordinate with the
natural resource trustees on any removal action to be taken. If
problems arise in the way these relationships are being implemented,
such problems should be resolved at the area level during the Area
Committee/area contingency planning process.
Another commenter objected to the requirement that the federal OSC
consult with the affected trustees on the appropriate removal action to
be taken if this could result in cleanup contractors missing the
``window of opportunity'' for using dispersants, burning, and
containment and removal techniques to effectively address a spill.
Section 1011 of the OPA states that ``The President shall consult
with the affected trustees designated under section 1006 on the
appropriate removal action to be taken in connection with any discharge
of oil.'' Although this responsibility has been delegated from the
President to the OSC, the language to which the commenter objects is
statutorily required by the OPA. In addition, the potential for delay
with which the commenter is concerned will be alleviated through the
preplanning that is required for the use of dispersants, burning
agents, surface washing agents, surface collecting agents,
bioremediation agents, and miscellaneous oil spill control agents (see
Sec. 300.910). Finally, it is important to note that consultation with
the trustees does not mean that the OSC must obtain the concurrence of
the trustees, although such concurrence is highly desirable. Ultimately
the OSC, consistent with Secs. 300.120 and 300.125, has the authority
to direct response efforts and coordinate all other efforts at the
scene of a discharge.
Section 300.145--Special Teams and Other Assistance Available to OSCs/
RPMs
One commenter recommended that the NOAA Scientific Support
Coordinator (SSC) be the primary technical advisor to the federal OSC
during a spill response and be the focal point for decisions regarding
``how clean is clean.'' The commenter explained that NOAA is the
federal agency with the greatest expertise on the fate, behavior, and
effects of oil and the effectiveness of countermeasures, including
ecological considerations. The commenter concluded that with so many
competing interests coming into play in a spill response, this type of
decision should be based on science, and NOAA is the appropriate player
to present recommendations to the federal OSC.
The NOAA SSCs and EPA's Environmental Response Team support the OSC
on technical/scientific matters, as described in Sec. 300.145. The OSC,
however, remains the ultimate decisionmaking authority for spill
response. While the SSCs have considerable scientific specialization
and, therefore, may be the appropriate resource to provide
recommendations to the OSC on issues regarding ``how clean is clean''
during a response action, the OSC must be the focal point for making
such decisions.
One commenter stated that proposed Secs. 300.5, 300.305, and
300.615, Appendix E Sections 1.5 and 5.5.2, and the preamble language
accompanying Sec. 300.145 convey the inaccurate impression that
trustees obtain funding to initiate a natural resource damage
assessment (NRDA) and reimbursement for injuries to natural resources
from the OSC. The commenter clarified that funding for initiation of
NRDAs may be obtained from the OPA Emergency Fund upon application by
the Federal lead administrative trustee directly to the National
Pollution Funds Center (NPFC) of the Coast Guard. The OSLTF may also be
used to pay for injury to natural resources. The commenter recommended
that the following language be added throughout the preamble, rule, and
Appendix E: ``The Federal lead administrative trustee facilitates
effective and efficient communication between the OSC and the other
Federal trustees during response operations and is responsible for
applying to the OSC for non-monetary Federal response resources on
behalf of all trustees. The Federal lead administrative trustee is also
responsible for applying to the NPFC for funding for initiation of
damage assessment and claims for injuries to natural resources.''
EPA agrees with the recommended revision, except for the phrase
``and claims,'' which is an inaccurate statement of lead administrative
trustee responsibilities. Thus, the requested revision, as modified,
has been incorporated into the preamble, Secs. 300.305 and 300.615 of
the final rule, and Section 5.5.2 of Appendix E. Language with the same
intent that varies slightly from this wording has been used in
Sec. 300.5 and Appendix E Section 1.5 so that the definition of lead
administrative trustee conforms to the proposed NOAA damage assessment
regulation (59 FR 1062, January 7, 1994) (see preamble discussion of
Sec. 300.5).
One commenter recommended that specific language describing SUPSALV
as a Special Team be added to Sec. 300.145. The language proposed by
the commenter to be added to Sec. 300.145 as new subparagraph (d)(1) is
already included in the description of the U.S. Navy in Sec. 300.175.
The remaining subparagraphs, however, provide a useful description of
SUPSALV as a Special Team and therefore have been added to
Sec. 300.145.
Section 300.150--Worker Health and Safety
One commenter recommended that the NCP clarify the applicable
Federal, State, and local roles in determining and enforcing worker
training and safety requirements, particularly in the maritime
environment where there is the greatest potential for overlapping
jurisdiction. The commenter asserted that two agencies, USCG and the
Occupational Safety and Health Administration (OSHA), potentially are
charged with enforcing worker safety requirements during spill
response. The commenter explained that it is essential that safety
training requirements be established and clearly understood so that
appropriate training can be conducted prior to an actual spill. The
commenter further stated that it is critical at the time of the spill
for one individual to assume responsibility for making decisions if
there is confusion or disagreement regarding worker safety, health, or
training.
The OSC already is the senior official in charge of worker safety,
health, and training requirements during a spill response under the
NCP. The OSC is encouraged to undertake early coordination on all
worker health and safety issues. Furthermore, the OSC in this capacity
is required to comply with all applicable OSHA regulations. The details
involved in implementing these requirements will be addressed during
the Area Committee/area contingency planning process. Thus, EPA does
not believe that the recommended additional language is necessary.
Section 300.155--Public Information and Community Relations
One commenter suggested that prompt, accurate information
dissemination to the public should be coordinated through a Joint
Information Center, an entity with functions similar to the current on-
scene news office authorized by Sec. 300.155(b). The commenter
explained that the current proposal addresses only federal government
public relations and should be expanded to include public relations
efforts of state, local, and private entities.
EPA has revised Sec. 300.155(a) to state that the OSC/RPM should
coordinate with available public affairs/community relations resources
to ensure that all appropriate interests are considered by
establishing, as appropriate, an on-scene Joint Information Center
bringing together resources from federal and state agencies and the
responsible party. Experience shows that there are some situations when
a Joint Information Center is essential to provide adequate
coordination of information to the public from federal and state
authorities during an event. In other response actions, a less formal
mechanism may be adequate. In the final analysis, it is within the
OSC's discretion to determine whether to establish a Joint Information
Center during an event. This issue should be addressed during the area
contingency planning process.
Section 300.165--OSC Reports
Two commenters questioned the appropriateness of eliminating the
requirement to prepare OSC reports. One of these commenters suggested
that if the requirement is eliminated, the pollution reports and log
books from a major spill must be transmitted to a central repository.
The commenter reasoned that records of how effectively mechanical
equipment and other spill mitigating measures performed during an
actual spill is precisely the type of information that should be
transmitted to RRTs and Area Committees for their consideration. The
other commenter stated that the final rule should clarify the purpose
of this change and how EPA intends to address after action reporting
and cost recovery.
The original purpose of the OSC report was to summarize activities
at the site and to communicate lessons learned, discuss any problems
encountered in the response, and recommend improvements that need to be
shared throughout the response community. Under the NCP, even without a
requirement to prepare an OSC report in every instance, the NRT or an
RRT can request that an OSC/RPM submit a complete report on the removal
actions taken, including the resources committed and the problems
encountered. EPA has reassessed the desirability of requiring an OSC
report for all responses to major discharges or releases and determined
that such a report will not be required automatically. The already
considerable time demands placed on the OSC have increased dramatically
with the enactment of the OPA. Preparing OSC reports is an additional
paperwork burden that is not statutorily mandated. Furthermore, most
important information contained in the OSC report--including lessons
learned in specific responses and documentation needed for after action
reporting and cost recovery--will be available from other materials
prepared by the OSC, including the pollution report and the OSC log
book. The pollution reports are kept in a central repository and are
available to the public. Additional incentive to make this information
available comes from the need to keep ACPs current and an increased
need to share lessons learned. For example, the National Preparedness
for Response Exercise Program (PREP) provides exercise guidelines
applicable to OSCs as well as industry. Many of these guidelines can be
met by aggressive evaluation of the response and lessons learned (the
essence of the OSC report). Also, PREP currently is developing a
proposal to establish a national data base for documenting lessons
learned. Both government and industry will have access to this data
base for entering data and the public will have access for retrieving
data.
Section 300.170--Federal Agency Participation
Three commenters asked that Sec. 300.170(d) be changed to require
federal agencies to report releases, rather than simply encouraging
them to do so. Section 300.170(c) states that all federal agencies are
responsible for reporting releases of hazardous substances from
facilities or vessels under their jurisdiction or control in accordance
with section 103 of CERCLA. Section 300.170(d) refers to pollutants or
contaminants; it is not a requirement of federal agencies or any other
organization or person to report releases of pollutants or contaminants
that are not defined by CERCLA as hazardous substances. EPA agrees,
however, that if a federal agency discharges oil in an amount above the
threshold quantity as defined by 40 CFR part 110, the agency is
required to report that discharge. Therefore, the language of
Sec. 300.170(d) has been revised in the final rule to indicate that
federal agencies must report discharges of oil, as required in 40 CFR
part 110.
Section 300.175--Federal Agencies: Additional Responsibilities and
Assistance
One commenter recommended that the NCP specify the oil discharge
contingency planning responsibilities of the Department of
Transportation's (DOT's) Office of Pipeline Safety, DOT's Research and
Special Programs Administration, and the DOI's Minerals Management
Service (MMS). The commenter explained that each of these entities has
issued proposed or final regulations on response planning requirements
for vessels, pipelines, and other means of transport. The commenter
further recommended that the NCP incorporate a provision that the
requirements of these federal agencies must be consistent.
The commenter's recommendations provide a more complete description
of the contingency planning responsibilities of federal agencies under
the OPA by specifying the responsibilities of DOT and MMS. Therefore,
EPA has revised Sec. 300.175, as appropriate. Regarding a ``consistency
requirement,'' CWA section 311(j), as amended, requires facility
response plans to be consistent with ACPs. EPA does not believe,
however, that this type of consistency requirement needs to be included
in the NCP, because the NCP is not the appropriate forum for
harmonizing the response planning requirements of various federal
agencies.
One commenter suggested that proposed Sec. 300.175(b)(11)(ii) could
result in resource problems, as well as potential legal and enforcement
difficulties, for OSHA. The commenter believed that the proposed
provision could be interpreted as requiring OSHA to develop and
maintain site safety plans. The commenter was especially concerned that
development and maintenance of these plans could be interpreted as
approval of the plans and that such an interpretation would make it
more difficult for OSHA to exercise its enforcement responsibilities.
EPA has revised Sec. 300.175(b)(11)(ii) to indicate that OSHA has
flexibility to provide advice and consultation on occupational safety
and health issues, as appropriate for a particular response. For
purposes of clarification, EPA would like to note that assistance
provided by OSHA may include, to the extent practicable, reviewing and
proposing improvements to site safety plans, exposure monitoring
protocols, work practices, and helping with other compliance questions.
These activities should be accomplished as a cooperative effort between
the OSC and the OSHA representative.
One commenter suggested that the description of the National
Response Center in Sec. 300.175(b)(16) be deleted because much of this
information is covered in Sec. 300.125. The commenter also noted that
the requirement in Sec. 300.175(b)(16) for notices of discharges to be
made telephonically should apply to discharges and releases. EPA agrees
and has deleted subparagraph (b)(16) of Sec. 300.175 and has revised
the relevant portion of Sec. 300.125 to read ``Notice of discharges and
releases must be made telephonically * * *.''
Several commenters recommended various editorial changes to the
responsibilities of federal agencies in Sec. 300.175. For example, one
commenter requested that the term ``Radiological Assistance
Coordinating Office'' be replaced with the term ``Radiological
Assistance Program Regional Office'' in Sec. 300.175(b)(5). Another
commenter recommended that Sec. 300.175(b)(9)(i) be revised to add the
phrase ``and other bureaus'' at the end of the description of the Fish
and Wildlife Service's responsibilities. The reason for this change is
that several bureaus of DOI have expertise in determining the effects
of oil and hazardous substances on natural resources. EPA has
incorporated these and several other editorial changes. In addition to
the changes recommended by the commenters, EPA has clarified the
description of its own scientific expertise by adding references to
human health and ecological risk assessment and by providing
information on how to access this expertise.
Section 300.180--State and Local Participation in Response
One commenter suggested that the response role of Indian tribes be
included in its own section. The commenter reasoned that although many
sections of the NCP treat Indian tribes as states, in reality, they are
trustees for natural resources belonging to or controlled by the
tribes.
Section 300.180(b) explains that Indian tribes have the opportunity
to participate as part of the response structure, as provided in the
ACP. State and Indian tribe representatives also may participate fully
in all activities of the appropriate RRT.
Furthermore, Sec. 300.305 specifically defines ``states'' to
include Indian tribes for purposes of the NCP, unless otherwise noted.
Thus, the provisions referred to by the commenter, by definition,
reflect the appropriate role of Indian tribes.
One commenter stated that the NCP should not alter the state's role
and/or title for federal or state-lead response operations. The
commenter recommended that Sec. 300.180(a) be revised to read: ``This
agency is responsible for designating the (State On-Scene Coordinator)
SOSC/RPM for federal and/or state-lead response actions, and
coordinating/communicating with any other state agencies, as
appropriate.'' The commenter reasoned that the NCP should provide more
flexibility to honor the many ACPs that are being developed and to
recognize the importance of the state in response to spills of oil or
hazardous materials.
EPA generally agrees with the sentiment expressed by the commenter.
The Agency has modified the language suggested by the commenter for
inclusion in Sec. 300.180 to read as follows: ``This agency is
responsible for designating the lead state response official for
federal and/or state-lead response actions * * *.'' The reason for
these modifications to the commenter's language is to provide the state
with maximum flexibility in establishing a title for its lead response
official, while still recognizing the important role states play in
incident response.
Another commenter recommended that the NCP encourage states to
enter into Memoranda of Understanding with the federal government to
coordinate response-related procedures and resources. Although EPA
recognizes that Memoranda of Understanding between states and the
federal government to coordinate response procedures and resources may
be beneficial, these arrangements can occur without being stipulated in
the NCP and therefore the recommended language is unnecessary.
Section 300.185--Nongovernmental Participation
One commenter stated that the NCP should require the appropriate
response role for volunteers to be mandated in ACPs. In particular, the
commenter suggested that ACPs mandate that volunteers, if used, be
directed by the federal OSC and that ACPs specify training requirements
for each response function that volunteers are permitted to perform
(e.g., clerical support, beach surveillance, logistical support,
wildlife treatment). The commenter also recommended language in the NCP
prohibiting the use of volunteers in circumstances that expose them to
contaminants above ``permissible exposure limits.''
EPA agrees with the sentiment expressed by the commenter, in
particular, the concept of using volunteers for clerical support.
However, these are implementation issues that are most appropriately
addressed at the area level, rather than in the NCP.
A different commenter requested that the NCP language place fewer
restrictions on the use of volunteers. The commenter explained that use
of volunteers should be determined by Federal and State OSCs and
responsible parties through the unified command.
EPA believes that the use of volunteers should be determined by the
OSC/RPM within the response management system that includes state
government, local government, and the responsible party. The relevant
language in Sec. 300.185 will be retained in the final rule because
this allows the OSC/RPM to consider potential legal and logistical
issues that may restrict the use of volunteers under certain
circumstances.
Two commenters objected to the statement in proposed
Sec. 300.185(a) that entities required to develop tank vessel and
facility response plans should commit sufficient resources to implement
the non-Worst Case Discharge aspects of those plans. One of the
commenters suggested that this statement be deleted and the other
commenter recommended that the term ``should'' be replaced with
``shall''.
OPA section 4202(a)(6) describes the requirement for owners and
operators of tank vessels and facilities to prepare response plans. The
OPA states that these response plans must be sufficient to respond to a
Worst Case Discharge, to the maximum extent practicable. However,
facility and vessel response plans are also required to contain certain
other provisions and information. For example, under the OPA, response
plans must: (1) be consistent with the NCP and ACPs; (2) identify a
qualified individual having full authority to implement removal
actions; and (3) describe the training, equipment testing, periodic
unannounced drills, and response actions on the vessel or at the
facility.
A regulation recently promulgated by EPA at 40 CFR part 112
implements the broad OPA requirements for onshore, non-transportation-
related facilities that, because of their location, ``could reasonably
be expected to cause substantial harm to the environment'' as a result
of discharges (59 FR 34070, July 1, 1994). Under that final rule,
owners and operators of ``substantial harm facilities'' must prepare
plans to respond to a Worst Case Discharge, and to small and medium
discharges, as appropriate. In the preamble to the facility response
plan final rule, EPA explained that the requirement to plan for several
different spill sizes (not just for Worst Case Discharges) is
consistent with the implementation of OPA response planning
requirements by other agencies, including the USCG (see 58 FR 2358,
February 5, 1993).
EPA believes that it adopted a reasonable approach in the proposed
NCP revisions by indicating that commitment of resources needed to
implement the non-worst case discharge provisions is discretionary,
rather than mandatory, because the facility response plan rulemaking
had not yet been finalized. EPA has revised the language in
Sec. 300.185 of the NCP in today's rule to reflect the fact that the
new requirements for facility response plans have now been finalized in
40 CFR part 112. The most significant change is that the term
``should'' has been changed to ``shall'', as recommended by one of the
commenters.
Subpart C--Planning and Preparedness--Overall Comments
Three commenters recommended taking greater measures to involve the
private sector, including industry, in the planning and preparedness
process and the national response system, especially in the development
of the Regional Contingency Plans (RCPs) and ACPs. One of these
commenters noted that existing law and regulations require facility and
tank vessel owners to carry out preparedness and response activities,
yet current proposed language discourages private sector input and
efforts into the national response system.
EPA believes the NCP recognizes the important contribution private
parties can and do make in the planning and response processes. For
example, with regard to planning, private parties play an essential
role in the development of local emergency response plans through their
participation on Local Emergency Planning Committees (LEPCs).
Nongovernmental participation in a response is encouraged in
Sec. 300.185 of the NCP. Furthermore, EPA encourages private entities
to participate throughout the planning process, wherever possible and
appropriate.
With regard to area contingency planning, the OPA specifies that
Area Committees are to be made up of personnel from federal, state, and
local agencies. However, EPA strongly encourages Area Committees to
solicit advice, guidance, and expertise from all appropriate sources,
including facility owners and operators, cleanup contractors, and other
qualified private entities. This position is consistent with the views
expressed in both the EPA and USCG Federal Register notices on area and
Area Committee designations.
Two commenters believed there are instances in the proposed rule
where implied responsibilities of Area Committees are not consistent
with those stated in Secs. 300.205 and 300.210. The commenters stated
that while Subpart C clearly establishes a planning role for Area
Committees, other parts of the proposal give them a more expansive
role, including training and evaluation of preparedness. The commenters
argued that these roles are outside the scope of the law and not
appropriate for Area Committees. EPA notes that response preparedness
is an ongoing process, which requires that existing systems be tested
and improved upon. The Agency, therefore, believes that the duties
granted to the Area Committees in the NCP, such as training and
evaluation of preparedness, are consistent with the OPA mandate
concerning the Area Committees' responsibilities for response planning
and preparedness.
In response to a number of comments that, in some way seek
clarification regarding the various plans described in this subpart and
their relationship to one another, EPA has prepared an additional
figure (Figure 4) for inclusion in this subpart of the NCP following
Sec. 300.205.
Section 300.200--General
One commenter suggested that an obvious omission from this section
is any reference to the tank vessel or facility plan preparer and
responsible party, and recommended that it be added to this section and
throughout the NCP. EPA agrees that discussion of these plans in
Subpart C would be helpful and has added new Secs. 300.205(f) and
300.211 in response to this comment.
Section 300.205--Planning and Coordination Structure
One commenter strongly urged the NCP to focus on the Area Committee
as the sole regional planning body because such organizations have been
functioning in an open and cooperative manner since the passage of the
OPA. The commenter also argued that planning at this level (as opposed
to the regional level) is much more efficient for very site-specific
activities, including the identification of environmentally sensitive
areas. In addition, the commenter stated, planning at this level would
make it easier for states to participate, since they would not have to
use limited travel funds to attend meetings at the regional level.
While the Agency agrees that area-level planning is critical to the
effectiveness of the national response system, EPA does not believe
that the area contingency planning structure precludes or supplants
regional planning activities. While some local issues, such as
development of certain portions of Fish and Wildlife and Sensitive
Environments Plan (FWSEP) Annexes, are best handled at the area level,
other planning issues, such as cross-area planning and preparedness
coordination, are more appropriate for the regional level. In addition,
RRTs have important response coordination responsibilities at the
regional level.
One commenter believed that state participation should be expressly
encouraged in the planning and coordination structure (i.e., Area
Committees) of the national response system and that states should be
described as full partners in the planning process. That commenter also
added that the federal government's ability to enter into Memoranda of
Understanding with states should be noted in the NCP. Memoranda of
Understanding are a useful mechanism for clarifying response resources
and minimizing potential misunderstandings or conflicts during an
incident.
EPA recognizes that states and local governments are integral parts
of the area-level planning process and are strongly encouraged to
participate in their respective Area Committees. The Agency believes
that this concept, grounded in the strong commitment to state and local
involvement found in the OPA, is clearly reflected in the NCP preamble
and rule language promulgated today. In addition, because the ACP is a
product of federal, state, and local response planning coordination,
the Agency believes that Memoranda of Understanding between the federal
government and states to accomplish this coordination are unnecessary.
One commenter asked for a better explanation for determining who is
qualified to sit on an Area Committee and the process for selecting
and, as necessary, funding the participation of committee members.
Several commenters believed that Area Committees should include the
private sector or seek input and advice from private sector entities
during the planning process. One commenter strongly recommended that
Regional Citizens' Advisory Councils (RCACs), as well as
representatives of municipal government, LEPCs, villages, and other
locally elected bodies should be specifically listed as participants on
Area Committees.
The OPA directs the President to appoint qualified personnel of
federal, state, and local agencies to the Area Committees. Thus, the
OPA does not permit private membership on Area Committees. This does
not mean, however, that EPA seeks to exclude others from participating
in the area contingency planning process. It is left to the discretion
of the Area Committees to decide how they will integrate into this
process response experts and other persons and groups with interest in
and/or responsibilities for the environmental integrity of the area.
Area Committees may establish subcommittees or workgroups as the forum
for obtaining advice and guidance from such parties.
The OPA does not specify the criteria for determining who is
``qualified'' to be on Area committees. This determination is,
therefore, left to the discretion of the Secretary of Transportation
and the EPA Administrator. Interested parties may contact the OSC for
their area, or refer to the April 24, 1992, EPA/USCG Federal Register
notice (57 FR 15198) for further information concerning Area Committees
and membership selection.
One commenter urged that the requirement for preauthorization
planning contained in Sec. 300.210(c)(4)(ii)(D) be added to the Area
Committees' responsibilities under Sec. 300.205(a)(3) and that the
requirements applicable to such plans should appear in the Area
Committee discussion. The commenter believed it is critical that the
Area Committees conduct preauthorization planning prior to an emergency
event to resolve issues of limited field data and inaccurate or
uninformed opinions by interested participants.
Another commenter stated that the proposed revisions (i.e.,
requiring both Area Committees and RRTs to approve dispersant use)
would likely discourage and impede decisions on the use of dispersants
and other spill mitigating chemical agents and devices. The commenter
recommended that the Area Committees take the lead on making the
decision, while the RRTs serve in an advisory role.
EPA proposed revisions to Secs. 300.910 and 300.210 to require that
Area Committees be actively involved in the preauthorization process
and that, as part of their planning activities, they develop
preauthorization plans that address the desirability of using
appropriate products on the Product Schedule. The Agency believes that
the language in Sec. 300.210(c)(4)(ii)(D) sufficiently addresses the
Area Committees' responsibilities to provide for preapproval plans as
part of the FWSEP Annex to the ACP. The commenter's suggested rule
language is, therefore, unnecessary.
With regard to the requirement that both the Area Committee and RRT
approve dispersant use, the Agency agrees that preauthorization of
dispersants and other spill mitigating chemical agents and devices is
critical to effective spill response planning. However, the OPA does
not grant the Area Committee the responsibility to approve a dispersant
use plan. Under the approval scheme presented in the NCP, the Area
Committee serves as an advocate for the dispersant use plan, while the
RRT decides if the plan is adequate and may address region-wide or
cross-regional issues, thereby providing a necessary forum for
dispersant use review. The Agency believes the two-step preapproval
plan process set forth in the NCP best ensures consistent dispersant
use planning while fulfilling the mandate of the OPA. It should also be
noted that, for spill situations that are not addressed by the
preauthorization plans, the OSC (with the concurrence of the EPA
representative to the RRT and, as appropriate, the concurrence of the
RRT representatives from the states with jurisdiction over the
navigable waters threatened by the release or discharge, and in
consultation with the DOC and DOI natural resource trustees, when
practicable) may authorize the use of dispersants, surface washing
agents, surface collecting agents, bioremediation agents, or
miscellaneous oil spill control agents on the oil discharge, provided
that the products are listed on the NCP Product Schedule.
New Sec. 300.205(f) relates to the addition of Sec. 300.211 and,
along with Sec. 300.211, is discussed in response to a comment on
Sec. 300.200.
New Sec. 300.205(g) was added to reference the new figure that is
discussed under the earlier section ``Subpart C Overall Comments.''
Section 300.210--Federal Contingency Plans
One commenter suggested that the NCP should recognize developments
that have occurred since the passage of the OPA and phase in or
eliminate new requirements at variance with those developments. For
example, the commenter stated, both format and substantive requirements
included in the proposed rule for ACPs may not be consistent with what
has been done to date, and compliance with these new requirements
cannot occur overnight.
Implementation of the OPA is an ongoing process involving multiple
regulations being prepared over an extended period of time. It is
virtually impossible to create a current and complete ``snapshot'' of
implementation efforts for these NCP revisions because implementation
efforts are a dynamic process. Generally, there will be a period of
time following publication in the Federal Register before new
requirements take effect. Such an approach gives the regulated
community time to come into compliance and should ameliorate much of
the commenter's concern.
Two commenters urged that the NCP require ACPs to follow the format
of the NCP and be coordinated with RCPs, indicating that close
coordination and consistency would lead to more effective emergency
response. While EPA agrees that cross-plan consistency is critical for
effective emergency response, the Agency has chosen not to discuss in
the NCP formatting issues that go beyond the substantive requirements
mandated by the OPA, in order to retain for the Area Committees the
maximum flexibility to tailor ACPs to reflect their priorities and
local conditions. It should be noted, however, that Sec. 300.210(c)(2)
of the NCP does refer to the importance of integrating plans, stating,
``[t]he ACP shall provide for a well coordinated response that is
integrated and compatible, to the greatest extent possible, with all
appropriate response plans of state, local, and non-federal entities,
and especially with Title III local emergency response plans.'' Plan
consistency is an implementation responsibility of the OSC for the
particular area. The RRT should be used as a vehicle to achieve
consistency in implementation, as provided in Sec. 300.115(a)(2).
EPA and the USCG have chosen to build upon different features of
the pre-OPA oil spill planning and response structure in preparing ACPs
for the inland and the coastal zone, respectively. EPA has generally
relied upon the RCPs to be used for response operations, while the USCG
has relied upon local contingency plans which had been prepared for
each Captain of the Port zone. Because the RCPs already include some
operational elements, the initial ACPs for the inland zone have relied
to some extent on augmentation of the RCP with OPA provisions, or on
adaptation of RCP language into a separate ACP document. Nevertheless,
some elements of the RCP, such as guidance for the development of
preauthorization plans, a description of RRT activation procedures, or
other regional/district-specific policies (including guidance for Area
Committees within their RRT zone), are better suited for inclusion in
the RCP. Other elements of the RCP, most notably, the response
operations portions, are better suited to be included in ACPs.
The relationship of the various plans prepared for emergency
response is illustrated in Figure 4, ``Relationship of Plans,''
following Sec. 300.205 of today's rule. In this figure, the operations
portions of the RCP are best represented by the ``Federal Agencies
Internal Plans'' box.
One commenter stated that ACPs should mirror the national standards
developed out of the USCG regulatory negotiation process (i.e., the
process whereby the federal government and the regulated community
formed a committee, discussed issues, and developed a report for use in
drafting a proposed rule), because the facility response plans and
vessel response plans, which are mandated under the OPA and must be
consistent with the ACPs, are already being developed under the
national standards. EPA notes that the national standards were
developed in coordination with the vessel and facility response plan
regulations and these standards are appropriate for the regulation of
vessels and facilities. However, it would be inappropriate to include
the national standards, which address the limited universe of regulated
vessels and facilities, in the NCP, which details the broader federal
response structure. The NCP must be flexible enough to encompass the
implementation approaches not only of USCG, but also of EPA, MMS, and
the Research and Special Programs Administration of the U.S. Department
of Transportation (DOT).
Two commenters strongly urged consistency across the ACPs, noting
that such consistency is particularly important for pipelines or
vessels that cross states and regions and thus are subject to the
requirements of numerous ACPs along the route. The commenters also
believed that the existing language merely restates the law and does
not provide enough information to assure such consistency, nor does the
language reflect efforts underway since the passage of the OPA. One of
the commenters provided three recommendations: (1) the NCP should
explicitly require uniformity and consistency and provide a mechanism
for resolving any inconsistencies; (2) the NRT should be responsible
for ensuring consistency among the regions; and (3) procedures should
be developed by which owners and operators of vessels and facilities
subject to a number of ACPs may petition for resolution of any
conflicts.
EPA believes that Sec. 300.115(a)(2), which gives the RRTs
responsibility for providing ``guidance to Area Committees, as
appropriate, to ensure interarea consistency and consistency of
individual ACPs with [the] Regional Contingency Plan and [the] NCP,''
is an adequate framework for providing coordination and consistency.
RRTs have been designated as the bodies responsible for interagency and
intergovernmental planning and coordination of preparedness and
response actions at the regional level. The RRTs should review ACPs in
carrying out this responsibility and, through their comments, encourage
consistency among individual plans. In addition, the NRT should
encourage consistency among regions through the issuance of guidance.
EPA disagrees that the NCP should require uniformity among ACPs.
Each ACP throughout the country will have key common elements, such as
the FWSEP Annexes, that will provide a consistent basis nationwide for
identifying resources needing to be protected during a response.
However, because the purpose of ACPs is to prepare for spill response
at the area level, Area Committees must retain maximum flexibility to
tailor ACPs to reflect their priorities and local conditions, concerns,
and capabilities.
EPA and USCG have promulgated facility and vessel response plan
rulemakings which detail the requirements placed on owners and
operators for preparing those plans. These plans are required to be
consistent with relevant ACPs. Finally, it should be noted that the
statutory requirement for plan integration is met when the Regional
Administrator (EPA) or District Commander (USCG) signs the ACP.
One commenter recommended that the USCG develop guidance to provide
better standardization of requirements for ACPs. Some specific areas
the commenter recommends as needing to be addressed in ACPs are
detailed training requirements to cover all facets of the response
(including training of volunteers) and a requirement to address the
issue of site visitors and passengers on vessels used in a response.
EPA believes that the commenter's concern is better addressed as an
implementation issue. OSHA already provides training requirements for
spill response. Area Committees can, if they choose, determine training
requirements associated with spill response activities and address any
such requirements in ACPs. The NCP is not an appropriate vehicle for
implementing these requirements.
To assure a timely decision on dispersant use, one commenter wanted
to require it ``as soon as practically possible, but in no case more
than 8 hours'' (Sec. 300.210(c)(3)(iv)). The Agency believes that
incorporating into the NCP the suggested 8-hour timeframe for decisions
on dispersant use may unnecessarily constrain flexibility for
dispersant use at the area level. EPA has instead chosen to meet the
OPA section 4202(a) requirement for the ACPs to ``describe the
procedures to be followed for obtaining an expedited decision regarding
the use of dispersants'' through preplanning. Individual Area
Committees may describe additional procedures for expedited dispersant
use. The commenter's concern, therefore, is best addressed at the area
level.
One commenter argued that response could be expedited if ACPs
expressly identified in advance those resources that will be needed in
responding to large-scale spills. Specifically, the commenter stated,
elements of the ``detailed description'' referenced in
Sec. 300.210(c)(3)(v) should be listed in the regulatory text and
include unified command requirements, health/safety/ training
requirements, forward command post sites, public information resources,
and interim and final waste disposal procedures.
Although EPA agrees that ACPs should provide for effective
emergency response structures, the Area Committees will determine the
specific details of that structure. The commenter's suggested changes
are too prescriptive and therefore have not been incorporated into the
final NCP. The Agency expects that all ACPs will be updated over time
to reflect changing emergency response structures. It should also be
noted that nothing in the NCP precludes the development of any response
management system, including a unified command structure, at the area
level.
One commenter argued that the NCP should, at a minimum, contain a
detailed description of the boundaries of the ACPs, as well as their
effective dates and procedures for obtaining a copy of each ACP. The
commenter suggested that ACPs be incorporated by reference in the NCP
and filed with the Federal Register.
Both area boundaries and ACPs are expected to change as the
national response system evolves over time. The April 24, 1992 Federal
Register notice that designates the initial areas does include area
boundaries and states that any changes to these boundaries will be
published in the Federal Register. ACPs are available for public
inspection through the EPA regions and USCG districts. These regions
and districts may be contacted by telephone for more information on
area boundaries and ACPs. Most ACPs are also available through the
National Technical Information Service (NTIS) for the cost of
reproduction. For further information, NTIS may be contacted at: 5285
Port Royal Road, Springfield, VA 22161 or by telephone at 703-487-4655.
Finally, in Sec. 300.210(c)(3), the word ``may'' has been added to
qualify the statement that equipment lists are included in ``other
relevant emergency plans.'' This change has been made to more
accurately reflect the content of those plans.
Fish and Wildlife and Sensitive Environments Plan (FWSEP) Comments
Two commenters recommended that NOAA develop a comprehensive set of
national standards for Area Committees to use in developing the FWSEP
Annexes. The Agency believes that national standards are inappropriate
for meeting the intent of the OPA. The OPA specifically requires
involvement of state and local officials in the development of area
plans, in part to incorporate local conditions, concerns, and
capabilities. National standards could restrain Area Committees from
tailoring the FWSEPs to reflect their priorities and local conditions.
As a consequence, general guidance, rather than standards, is more
appropriate and useful to the Area Committees in carrying out their
responsibilities.
One commenter was concerned about the potential for duplicative
monitoring activities carried out under multiple plans such as the NCP,
the NRDA plan, and the FWSEP, and wanted assurances that any monitoring
under the FWSEP is closely coordinated with the other plans. The
commenter also requested guidance covering the extent, frequency, and
duration of monitoring.
EPA notes that any response monitoring, including that detailed in
FWSEP Annexes to ACPs, will be developed as part of the ACP process
under the supervision of the OSC. NRDA activities are primarily focused
on data collection and injury assessment, not monitoring. However, any
monitoring conducted as part of the NRDA process should be coordinated
with the response activities to prevent duplication of effort and
effective use of resources, as stated more generally in Sec. 300.305(e)
(formerly (d)). It should also be noted that the NCP does not address
NRDA monitoring or assessment concerns. Further guidance is being
prepared by trustee agencies on an ongoing basis to assist the Area
Committees in identifying effective measures and procedures for
monitoring the efficacy of removal activities and related environmental
benefits. This guidance is focused on operational questions, not
research and NRDA requirements.
One commenter was concerned about data for the FWSEPs and suggested
that Area Committees should be required to analyze and review all
existing data and not be permitted to generate requests for duplicative
information and requirements for new fate and effects research. The
commenter also called for guidance on collecting, interpreting, and
applying data to ensure consistency in use of data and to avoid the
kind of problems that occur when data collected for one purpose may be
inappropriately used for other purposes.
The Agency expects that FWSEP development will initially consist of
collecting existing information about natural and human-use resources
in the area from local specialists. Based upon existing information,
FWSEP development would proceed from identifying to prioritizing
protection for sensitive environments, and then selecting appropriate
cleanup strategies. There is no expectation that any research
necessarily will be performed; this process is based upon analyzing
existing information.
One commenter was concerned that the proposed language could be
interpreted as allowing Area Committees to require companies to acquire
equipment for protection, rescue, and rehabilitation of fish, wildlife,
and habitat.
The intent of Sec. 300.210(c)(4)(ii)(F) is to ensure that the ACP
will identify what response capabilities will be needed to protect,
rescue, and rehabilitate fish and wildlife resources and habitat and
include a process for obtaining and using such resources in the event
of a spill. To clarify that this is a planning function, the term
``provide'' in this section has been changed to ``plan.'' Area
Committees do not have the authority to require private companies to
acquire specific response resources. The OSC, however, needs to know
what resources will be needed to protect, rescue, and rehabilitate fish
and wildlife resources and habitat in spill response and how such
resources are to be obtained and used. He or she may require use of
such resources by the responsible party during spill response. This may
include contracting with a federally permitted wildlife rescue and
rehabilitation organization, for example. Such ``additional resources''
are called for in 40 CFR part 112, Oil Pollution Prevention. In
Appendix F to part 112, for example, Section 1.7.1 requires non-
transportation-related facility response plans to address, as part of
the identification and description of response resources for small,
medium, and worst case spills, additional contracted help and access to
additional response equipment and experts.
Another commenter recommended that ACPs cover only discharges of
oil and not releases of hazardous substances and that existing language
should be revised to clarify this distinction. EPA does not, at this
time, require ACPs to address hazardous substance releases. Therefore,
the revisions recommended by the commenter are not necessary.
Nevertheless, planning for hazardous substance releases is already
addressed in the area contingency planning process, because individual
Area Committees will consider planning for such releases, as
appropriate. Additionally, EPA has provided for LEPCs and SERCs to have
input into the area contingency planning process.
The LEPC's primary responsibility is to develop an emergency
response plan for potential chemical accidents. This plan must
describe: (1) Emergency response procedures; (2) methods for
determining the occurrence of a release and the probable affected area
and population; and (3) community and industry emergency response
equipment and facilities. SERCs are responsible for supervising and
coordinating the activities of the LEPCs and for reviewing local
emergency response plans for chemical accidents. Thus, the LEPCs' and
SERCs' expertise in planning for response to chemical releases
(including releases of hazardous substances) allows the Area Committees
to effectively address hazardous substance planning issues, as
necessary.
One commenter expressed concern about the burden on federal agency
participants in developing ACPs, specifically the collection of fish
and wildlife and sensitive environments information. The commenter
requested clarification and specification of timeframes and expected
level of effort. EPA notes that Area Committees, not facility owners,
are responsible for identifying fish and wildlife resources and
sensitive environments for inclusion in the ACP. However, until the
geographic-specific annexes of the ACPs have been completed, the
facility owners and operators remain responsible for ensuring
protection of sensitive environments in their proximity for inclusion
in their facility response plans. The guidance for determining and
planning for these responsibilities on an interim basis is provided in
a Federal Register notice published on March 29, 1994 (59 FR 14713) by
the Department of Commerce (DOC)/NOAA. Ultimately, the Area Committee
deliberations and their ACPs will provide the specific information on
fish and wildlife and sensitive environments with which the facility
plans must be consistent. Because the planning process should be kept
as flexible as possible to allow for differences between areas, and
because the area contingency planning process is iterative, it would
not be appropriate for the NCP to dictate how the Area Committees
should identify fish and wildlife resources and sensitive environments.
There were a number of comments regarding sensitive areas or
environments. Two commenters suggested that such areas should be
determined on the basis of ecological risk, noting that some areas
identified as ``sensitive'' may not be ecologically sensitive, yet
other areas which do not have a ``sensitive'' designation may be at
risk ecologically. The commenters wanted Area Committees to consider
ecological value, sensitivity to oil impact, and risk of exposure when
designating sensitive areas.
The FWSEP section in the NCP was intended to provide broad, general
guidance on fish and wildlife and sensitive areas. Area Committees will
incorporate local conditions, concerns, and priorities into their
designation and prioritization of sensitive areas. Additional guidance
in the form of technical documents, such as NOAA's Shoreline
Countermeasures Manual for Temperate and Tropical Coastal Environments
and Guidelines for Developing Digital Environmental Sensitivity
Indexes, have been distributed to many Area Committees. Further
guidance is being prepared by trustee agencies on an ongoing basis.
Another commenter recommended including areas designated as
sensitive under the Coastal Zone Management Act (CZMA) or state coastal
management programs. EPA notes that CZMA-designated and/or state
coastal management program areas are expected to be identified by the
state representatives as part of development of the FWSEP Annex to the
ACP.
One commenter believed that the current definition of sensitive
areas was too vague and recommended that Area Committees be required to
identify and delineate these areas on a map. This commenter also called
for more specific guidance on defining ``sensitive areas,'' giving as
examples the need for a clear explanation of such terms as ``wetland,''
``various state lands,'' and ``biological resource area.''
The definition of sensitive areas, as described in the NCP and in
NOAA's Federal Register notice (59 FR 14713, March 29, 1994), are only
broad in the sense that they are not prohibitive. The documents that
are referenced for further information in that notice are cited only to
the extent that they are considered for identification of sensitive
areas and are not cited to limit response action selection, but rather
to focus the deliberations on sensitive areas. National guidance has
identified key components that should be considered when determining
environments sensitive to oil impacts which should facilitate
consistency in Area Committee approach.
However, it is important that the Area Committees determine what is
important for their area, incorporating local factors and priorities.
It is the Area Committees' responsibility to determine and rank
sensitive environments within their jurisdiction for the purposes of
protection priorities and cleanup measure selection as related to
spills. This may or may not include areas specifically identified by
other statutes as ``sensitive'' for other purposes. Although some Area
Committees are making use of maps to delineate fish and wildlife and
sensitive environments, it is not specified by statute. This
implementation issue is left up to the Area Committees.
Yet another commenter urged that determinations of sensitive areas
be extremely specific and have a clear scientific basis, and that each
Area Committee develop a single prioritization list. The Agency
restates that the guidance offered to the Area Committees is
intentionally broad to allow the committees to incorporate local values
and priorities (as per Sec. 300.210(c)(4) (ii)(A)). ``Wetlands'' are
referenced in the EPA final rule at 40 CFR part 112 as areas that may
be ``fish and wildlife and sensitive environments.'' Thus, Area
Committees may identify in the ACP particular wetlands in their area as
and wildlife and sensitive environments. Identification of sensitive
areas, however, is only the first step; ranking areas to be protected
is the second step, which will force discussion of those areas which
can be reasonably expected to be protected in comparison to other areas
of ``special economic or environmental importance that might be damaged
by a discharge.''
One commenter provided language and recommendations regarding
preapproval for specific countermeasures or removal actions as provided
in proposed Sec. 300.210(c)(4)(ii)(D), stating that plans should: (1)
require concurrence by EPA, state(s), and natural resource trustees;
(2) address specific contexts in which the countermeasures should and
should not be used; and (3) discuss certain factors such as potential
sources and types of oil, sensitive areas, available product and
storage locations, available equipment and trained operators, and means
for monitoring application and effectiveness. The commenter also
recommended expanding the characterization of ``sensitive areas'' to
include areas of special economic or environmental importance--not just
fish and wildlife resources or habitat.
The requirements for obtaining preapproval for use of specific
dispersants and other chemical countermeasures is covered in Subpart J
of the NCP. Repeating the state and EPA role in preapproval plans in
the FWSEP is unnecessary. Language regarding trustee concurrence in
preapproval plans for chemical countermeasures is included in
Sec. 300.210(c)(4)(ii)(D) to meet the intent of section 1011 of the
OPA, that there shall be consultation with ``the affected trustees * *
* on the appropriate removal action to be taken in connection with any
discharge of oil.'' Trustee concurrence is more appropriate than
consultation during the contingency planning phase, when there is
sufficient time to identify and resolve natural resource concerns. The
requirement for concurrence during the advance planning phase will
ensure trustee involvement in decisionmaking. This, in turn, should
ensure that operations during a removal action can be carried out
quickly and effectively because concerns that might otherwise slow the
action will have been addressed in advance. Conditioning the
consultation requirement by adding the term ``appropriate,'' as
requested by the commenter, would not meet this legal requirement.
Regarding the specific factors relating to the use of
countermeasures that the commenter requested be addressed in the FWSEP,
nearly all of the recommended language already appears in Subpart J,
Sec. 300.910(a); the rest is already in other parts of Subpart C and
agency guidance. Again, it is not the intent of the FWSEP to repeat
other sections of the NCP, in this case, Subpart J, although
Sec. 300.210(c)(4)(ii)(D) specifically references these Subpart J
requirements. The FWSEP is a tool to focus the Area Committee on
specific issues and offers flexible guidelines that will help protect
fish and wildlife, their habitat, and sensitive environments during
discharges and releases.
The clarification this commenter also requested regarding the
characterization of ``sensitive areas'' is not necessary because
Sec. 300.210(c)(3)(i) already states that the ACP shall include these
areas. Language in the preamble to the proposed rule offered several
examples of economic and environmental areas that might be included in
the annex to the ACP. The Area Committee has the information required
to evaluate properly any areas considered for designation in the ACP.
The NCP provides broad guidelines, so the Area Committee has the
flexibility to evaluate and identify these potential areas of
importance in the development of the ACP. This flexibility permits the
Area Committee to create an area-specific plan that provides for
``immediate and effective protection, rescue, and rehabilitation of,
and the minimization of risk of damage to, fish and wildlife resources
and their habitat,'' in addition to any other areas of special economic
or environmental importance which they have identified for inclusion in
the annex to the ACP.
Two other commenters argued that state trustees, not just federal
natural resource trustees, should be asked for concurrence on
countermeasure approval. EPA notes that the state representative to the
RRT, the body which has the responsibility for pre-approval for
specific countermeasures, represents all the interests of the state and
is the conduit for state concurrence.
One commenter suggested that proposed Sec. 300.210(c)(4)(ii)(G) be
amended to include the provision of ``other related fish and wildlife
permits or emergency permits to facilitate response related
activities'' as well as procedures regarding ``all response and
response training-related activities that could be construed to be a
taking, or involving'' the capture, transport, rehabilitation, or
release of wildlife.
EPA notes that, as written, the referenced section covers the fish
and wildlife permits necessary for response-related activities, as
identified by the agencies responsible for overseeing possession and
handling of fish and wildlife. This section calls for the ACP to
``provide guidance on the implementation of law enforcement
requirements included under current federal and state laws and
corresponding regulations.'' Permits other than those covered in
subparagraph (G) must be addressed on a case-by-case basis. Permits are
issued for the purpose of handling and rehabilitating wildlife
threatened or injured during a response, not to give preauthorization
for the potential ``taking'' of wildlife during response activities or
response-related training. Usually, natural resource law enforcement
agents are on-scene or readily accessible for requests for other
permits in the event of unusual response activities that might require
authorization.
Finally, in Sec. 300.210(c)(4)(ii)(F), EPA has indicated that
planning for protection, rescue, and rehabilitation of fish and
wildlife resources and habitat does not interfere with other OSC
removal operations. The reason for adding the word ``other'' is to
clarify that fish and wildlife planning activities are part of the
OSC's removal operations.
Section 300.211--OPA Facility and Vessel Response Plans
See discussion under Sec. 300.200.
Section 300.212--Area Response Drills
Seven commenters believed that the NCP should acknowledge and
reference the proposed ``National Preparedness for Response Exercise
Program (NPREP or PREP)'' and make sure that NCP language is consistent
with these proposed guidelines. Two commenters stated it was imperative
that the NCP not create any additional requirements with regard to
exercises beyond those contained in PREP.
The Agency notes that the development of the PREP proposal creates
a method for facility owners and operators and Area Committees to
satisfy all OPA drill/exercise requirements. At the same time, the
language in the NCP is merely attempting to reflect a new CWA
requirement for periodic area response drills. EPA recognizes that PREP
represents a comprehensive approach to response exercises and that
compliance with the PREP guidelines to conduct drills will be
considered adequate to meet the NCP requirements. However, although
PREP represents one method for meeting the drill/exercise requirements
in the OPA, it cannot replace the relevant NCP provisions because PREP
is voluntary rather than mandatory.
One commenter believed that the cost of area exercises should be
borne by the OSLTF. Currently, OSLTF funds are not available to pay for
area exercises. When Congress established the OPA, it authorized the
various agencies with responsibility for pollution preparedness and
response to spend funds to support participation in the national
response system. Congress did not, however, appropriate the funds to do
so. For the OSLTF to be used for exercises, Congress would have had to
appropriate money for this specific use. In the absence of this
appropriation, the various agencies are responsible for providing the
funds from within their organizations.
Section 300.215--Title III Local Emergency Response Plans
Two commenters believed that this section should require
consistency of Title III plans with the NCP, RCPs, ACPs, and state
plans, indicating that it is critical for functions to be consistent at
all levels of planning. EPA recognizes the importance of coordinating
local emergency response plans developed by LEPCs and other contingency
planning efforts. The current NCP requires that OSCs preparing plans
coordinate with LEPCs. In addition, RRTs are responsible for providing
regional consistency (Sec. 300.115(a)(2)).
OPA has added specified requirements for facilities to prepare
contingency plans as well as for Area Committees, under the direction
of an OSC, to prepare ACPs. The coordination requirements pursuant to
the Superfund Amendments and Reauthorization Act Title III and those
already in the NCP are now augmented by the need to include
coordination with the many new plans being developed under OPA. RRTs
are now responsible--through RCPs--to coordinate area planning (for
example, to ensure that pipelines crossing through several areas are
not subject to disparate requirements). Finally, the NRT--through the
NCP--coordinates the entire national response system.
ACPs should be coordinated with and, to the extent possible, be
consistent with LEPC plans and facility response plans under OPA. Of
course, LEPC plans and ACPs should recognize the role of the federal
government during emergency response, as described in the NCP.
Subpart D--Operational Response Phases for Oil Removal
Section 300.305--Phase II--Preliminary Assessment and Initiation of
Action
Several commenters sought clarification of the role/responsibility
of the responsible party to undertake a response action in the first
instance. Some commenters thought the language in Sec. 300.305(c) was
misleading when it says the OSC may allow the responsible party to
perform removal actions. Rather, these commenters suggest the
responsible party must be required/given the opportunity to immediately
undertake containment, control, and cleanup. One commenter noted that
most responsible parties already have contingency plans in place and
have the training and expertise necessary to respond immediately and
effectively. The commenter also suggested that the final rule should be
clear that if the OSC delegates to the responsible party the duty to
respond to the discharge in accordance with the NCP, then the
responsible party, as the agent of the OSC, should have the same
authority as the OSC to access the spill site to conduct the removal
without interference from other authorities.
As stated in the preamble to the proposed rule, the NCP had
provided that the OSC must make reasonable efforts to have the
responsible party take proper response actions. The proposed revision
retained as an option the possibility of allowing the responsible party
to take the lead where the OSC determines this approach will result in
immediate and effective response action. The reason for this change is
that under the amended CWA, it is clear that the OSC, rather than the
responsible party, determines the appropriate course of action for
response. Even with this change, however, the responsible party is not
absolved from responsibility for taking whatever actions are necessary
immediately upon discovery of a spill until such time as the OSC is
notified and able to determine the appropriate course of action.
As to the commenter's concerns regarding the scope of authority of
the responsible party when undertaking a response, the OSC does not
``delegate'' response authority to the responsible party. Rather, the
OSC determines whether the responsible party is capable of carrying out
fully effective response measures. If the OSC determines that such
capability exists, he or she can permit responsible party cleanup to
occur and simply provide surveillance over whatever actions are
initiated. The responsible party is not the ``agent'' of the OSC, and
EPA does not provide to the responsible party the authority granted to
the OSC to access the site for response purposes.
One commenter suggested that the NCP needs to recognize that
direction of responsible party contractors will occur through the
responsible party. The commenter stated that those contractors are at
financial risk if they take direction directly from the OSC, and filing
a claim against the OSLTF is not an adequate remedy because of delays
and uncertainty in recovering those costs.
EPA notes that OPA section 4201 clearly states that the President
(delegated to the OSC) is given the authority to ``direct or monitor
all Federal, State, and private action to remove a discharge.'' It is
the obligation of the responsible parties and their cleanup contractors
to establish a contractual relationship that provides for appropriate
rights and protection for both parties, including a cleanup scenario
where the OSC directs all private party action. Also, ACPs and facility
response plans may address aspects of this relationship and how it will
work when the OSC directs the response; the NCP is not the appropriate
place to address such relations.
Two commenters suggested that, contrary to proposed language in
Sec. 300.305(c), the OSC lacks authority to direct state and local
agency actions, but rather should/must coordinate with these parties
through the unified command system. However, the language to which the
commenters objected, that the OSC ``may direct or monitor all Federal,
State, and private actions to remove a discharge'' is taken directly
from CWA section 311(c), as amended by the OPA. Thus, EPA disagrees
that the OSC does not have the authority to direct state, local, or
private actions.
Two commenters stated that when there is an immediate threat to the
public health and safety, the local on-scene coordinator (fire chief,
emergency manager) should serve as the incident commander. This is
consistent with EPA's view of how the response management system should
work. As noted in the preamble to the proposed rule, ``the individual
in charge of an incident command system is the senior official
responding to the incident; for the national response system, this
individual is the OSC.'' At some incidents there may be a period of
time before which the OSC is in place to take charge of the response.
In such cases, it is appropriate for the senior individual who is on
site, such as the fire chief, to take charge (temporarily) as the
incident commander. Of course, the OSC always retains the authority to
choose to direct any portion of the spill response.
Another commenter suggested that inclusion of the unified command
concept would clarify that a state is not at liberty to impose more
stringent measures when a federal OSC is directing the response. EPA
disagrees with the commenter's view that a state could initiate more
stringent measures than the OSC when the latter is directing the
response. When directing a response, the OSC is more than managing the
response. He or she has specific legal authority to guide the
activities of all parties responding to a discharge, and all actions
would have to be authorized or approved by the OSC.
In addition, under OPA section 1011, in all cases it is the
President (delegated to the OSC) in consultation with governors of
affected states who determines when removal shall be considered
complete. At the same time, however, section 1011 states that a
determination that federal removal action is complete ``shall not
preclude additional removal actions under applicable State law.''
Numerous commenters thought the term ``direct'' needed greater
explanation or definition. It was suggested that doing so would clarify
the flexibility (range of authority) of the OSC in directing a response
and the differences between ``directing'' actions in the case of
substantial threats and other cleanup scenarios. One commenter
suggested that discussion of the OSC's choice to monitor a response
needed expansion, specifically to indicate that states or persons other
than the responsible party could be permitted to undertake a removal
action (provided it would be immediate and effective).
The emphasis during oil spill response is on coordination and
cooperation, rather than on a more rigid system of command and control.
The OSC, the state/local government representatives, and the
responsible party all are involved with varying degrees of
responsibility, regardless of the size or severity of the incident. The
OSC in every case retains the authority to direct the spill response,
and must direct responses to spills that pose a substantial threat to
the public health or welfare of the United States. In many situations,
however, the OSC will choose to monitor the actions of the responsible
party and/or state/local governments and provide support and advice
where appropriate. The response management structure does not and
cannot attempt to prescribe a specific item-by-item functional
description of where particular organizations or individuals fit within
a single response structure for a given response. Developing, adopting,
and implementing a response management system, such as a unified
command system, is the responsibility of the OSC and the Area
Committee, through the ACP.
One commenter suggested that the OSC should expeditiously declare
the government's elective decision to direct a response, not only
declare it in those cases where the OSC is required to direct (as
provided in proposed Sec. 300.305(c)(2)). The commenter argued that
participants in a response need to clearly understand the nature of the
federal role and that this change would help minimize confusion over
who is the ultimate decisionmaker, avoid ambiguity in planning and
implementation of response strategies, and foster consistency in
decisionmaking.
EPA does not agree with this commenter's proposal because it could
unnecessarily constrain the flexibility of the OSC. In those cases
where OSC direction is discretionary, there may be expectations that by
not declaring expeditiously that he or she will direct the response,
the OSC has foregone any opportunity to ever do so. EPA believes that
it would be counterproductive to put pressures on OSCs to make
decisions prematurely or to create expectations among other parties
that a situation is not subject to change, regardless of future events.
One commenter suggested that trustees and others are increasingly
involved in the response process, including decisionmaking, and
suggested that this involvement decreases the timeliness and
effectiveness of response efforts. Related to this, the commenter cites
legal concerns that often polarize government and responsible party
responders during major spills, and suggests that separating the damage
assessment phase in both time and agency would promote cooperation and
free exchange of information.
With regard to the commenter's concern over an increase in the
number of entities with actual or perceived roles in decisionmaking,
the Agency notes that section 1011 of the OPA requires consultation
with affected trustees on the appropriate removal action to be taken in
connection with any discharge of oil. EPA's intention is that this
consultation will take place in large part during the area contingency
planning process. In terms of information exchange among parties
involved in a response, EPA wholeheartedly supports the notion that
there should be nothing to impede cooperation and free exchange of
information to expedite the response activities. Information should, to
the maximum extent possible, flow freely between those agencies
involved in the response and those involved in the damage assessment.
In addition, it is important that the activities of the two groups be
closely coordinated, as intended by Secs. 300.305(e) (formerly (d)) and
300.615(c)(3)(ii). In today's final rule, language is added to these
two sections to reinforce the point that information collected for
damage assessment which is supportive of the response phase should be
made immediately available to the OSC to support his or her decisions.
This information flow will most likely occur through the SSC who serves
on the OSC's staff as the interface with the trustees.
Two commenters suggested that although proposed Sec. 300.305(d)
(now (e)) indicates the lead administrative trustee will act on behalf
of all trustees, this is not necessarily the case nor is it acceptable
to the states under all conditions. Related to this, one commenter
stated that the preamble language concerning the USCG's future
regulations that will detail the lead administrative trustee's
authority to access federal response resources on behalf of all
trustees is confusing. The commenter suggested that, as written, it is
unclear whether this statement refers to funding for initiation of
damage assessments or trustee access to OSC airplanes, vessels, etc.
The commenter believed the intent was to cover the former and
recommends that language be added to the NCP to that effect. EPA
believes the commenter is correct. The regulations in question will
address trustee access to the OSLTF. It should be noted, however, that
there may be situations where the OSC provides non-financial resources
to trustees to carry out their NRDA and related responsibilities. The
language of Sec. 300.305(e) (formerly (d)) is being revised to clarify
that the ``response resources'' referred to are non-monetary resources,
i.e. personnel and equipment. This is the only action taken by the lead
administrative trustee on behalf of all trustees that is called for in
this section of the rule. Providing a single point of contact between
the trustees involved in initiation and the OSC should facilitate
trustee access to response equipment and personnel by ensuring that all
trustee needs are communicated to the OSC in a coordinated manner.
One commenter stated that the proposed NCP is structured in a way
that does not ensure integration with facility response plans. EPA
believes that the commenter's concern about integrating facility
planning efforts are misdirected towards the NCP. It is the area
contingency planning process where preparedness planning on the part of
specific facilities within the area should be accounted for. The ACPs
can then be implemented in such a way as to take advantage of all
available resources.
Section 300.310--Phase III--Containment, Countermeasures, Cleanup, and
Disposal
One commenter urged that the NCP expressly recognize OSC authority
to permit the return of oil or oily water incidental to mechanical
recovery operations back into the response area. EPA believes this
practice is currently recognized as a routine and necessary part of
response operations under certain circumstances. The appropriate role
of such action should be addressed as part of the area contingency
planning process. It would be inappropriate for the NCP to address this
in any sort of across-the-board manner.
The same commenter believed that the NCP should clearly identify
the requirements that apply to waste management in an oil spill
response. EPA believes this issue should be left to RRT and ACP
guidelines and other statutes and regulations. These requirements may
change over time and are not appropriate for inclusion in the NCP.
Section 300.310(c) has been expanded from the 1990 NCP to provide
guidance on how RRT and ACP guidelines might address disposal plans for
oil spill response and certain rule language changes are being made in
today's final rule to clarify some of the specific issues RRTs and Area
Committees may wish to address.
Section 300.317--National Response Priorities
Two commenters strongly supported the adoption of the following as
national response priorities: (1) protect human life and safety; (2)
minimize environmental impacts; and (3) minimize social and economic
impacts. Three advantages are cited for these proposed priorities:
first, area planners would necessarily consider the ecological, social,
and economic consequences of their recommendations in their plans;
second, these priorities would provide a framework for the OSC to
prioritize limited resources during an emergency; and finally, spill
response decisionmaking would be streamlined because many decisions
could be made during the contingency planning process. These commenters
argued that existing priorities do not give involved parties adequate
guidance regarding the protection of environmental resources. The
commenters did not find fault with the first two priorities proposed in
the NCP, but argued that the third one (coordinated use of containment
and removal efforts) does not help responders allocate resources when
there are conflicts between aesthetic and ecological goals. They
emphasized that setting priorities that put ecologically sensitive and
important areas first is essential. One commenter suggested
supplementing the priorities proposed in the NCP with those normally
followed by response contractors: (1) provide for health and safety of
your workers and the public; (2) stay in compliance with state and
federal regulations, including minimizing exposure to liability; and
(3) protect the environment and clean up or remediate spills and
releases.
As noted in Sec. 300.317(e), ``[t]he priorities set forth in this
section are broad in nature, and should not be interpreted to preclude
the consideration of other priorities that may arise on a site-specific
basis.'' The preamble to the proposed revisions notes that the response
priorities ``are not intended to restrict the discretion of the OSC in
directing or monitoring responses to oil discharges.'' The response
priorities noted by the first two commenters reflect important concerns
that should be considered under the appropriate circumstances. EPA
believes it is in the area contingency planning process that additional
priorities should be established for subsequent application on a site-
specific basis. Also, EPA believes the specific priorities cited by the
last commenter are actually more appropriate for facility and vessel
response plans than for the NCP or even ACPs.
Two commenters argued for inclusion in the NCP of language
comparable to language in the International Convention for the
Prevention of Pollution from Ships (MARPOL) and USCG MARPOL
regulations. Specifically, the suggested language indicates that
jettisoning oil or hazardous substances is a viable option for ship
masters and salvagers, if doing so may decrease the risk of loss of
life or serious injuries, prevent the discharge of greater amounts of
oil or hazardous substances, or prevent more serious environmental
consequences than the jettison itself. Related to this, one commenter
suggested that the NCP needs to be clarified to indicate that salvagers
are ``persons'' under the CWA and not liable for removal costs or
damages that result from certain actions taken.
EPA does not believe there is any reason that the term ``person''
would be interpreted to exclude salvagers. It would be superfluous to
include such language and would encourage requests from others engaged
in spill response that the regulation afford them protection as well.
The OSC currently has authority to permit jettisoning to save the
vessel or its crew or to prevent more serious environmental damage.
Moreover, the discharge of oil or oily mixture into the navigable
waters for purposes of securing the safety of a ship or saving life at
sea is already authorized under Regulation 11 of the MARPOL protocol,
current U.S. law, and USCG regulations (33 CFR part 151).
Section 300.320--General Pattern of Response
One commenter suggested that Sec. 300.320(a)(2)(i) appears to
require notification of trustees only in the event of an actual or
potential major discharge, which is contrary to the requirements of
Sec. 300.305(d). EPA notes that, although Sec. 300.320(a)(2)(i) does
not say that the OSC needs to notify the trustees only of major
discharges, the language may be misleading. It has been revised to
reflect the commenter's concern.
Several commenters expressed concern with Sec. 300.320(a)(3)(i),
which provides the standard that the OSC will use to determine whether
the responsible party is conducting removal actions ``properly.''
First, they argue that it describes a standard that is unrealistic and
overly broad; responsible parties should only be responsible for
applying available resources in a manner designed to effectively and
immediately remove or mitigate the spill to the maximum extent
practicable. Second, the commenters believe that a decision to use
Federal resources should not cause a responsible party's efforts to be
necessarily deemed ``improper.'' They argue that the OPA intended
private and government resources to work together and the government
may have some resources simply not available to private parties. The
commenters therefore concluded that the provision in question creates a
disincentive to the use of these (government) resources.
Section 311(c)(1) of the revised CWA requires the President to
``ensure effective and immediate removal of a discharge'' in accordance
with the NCP. This authority has since been delegated to the OSC.
Because the OSC is required to ensure effective and immediate removal
of a discharge, he or she must use this test as the standard for
determining whether the responsible party removal action is being done
properly.
In addition, the authority given by the OPA to the OSC for setting
the course of response action has repercussions for the determination
of whether a private party spill response is ``proper.'' Under
Sec. 300.320(a)(3)(i) of the 1990 NCP, private party removal efforts
were deemed improper ``to the extent that Federal efforts were
necessary to minimize further or mitigate threats to public health and
welfare and the environment.'' However, the Agency understands that
this section of the NCP may unnecessarily restrict the OSC's ability to
determine whether a private party response is ``proper,'' given the
more flexible response approach detailed in the OPA. In certain
instances, the Federal Government may have response resources that are
not available or promptly available from other sources--the USCG's
special equipment for removal and salvage operations, for example--that
could aid in spill response. The Agency agrees that the use of these
resources should not necessarily determine that a responsible party
response is ``improper.'' EPA has therefore modified the language of
Sec. 300.320(a)(3)(i). Section 300.320(a)(3)(ii) also has been modified
to indicate that, if the OSC supplements responsible party resources
with government or other private resources, the responsible party
response will not be deemed improper unless specifically declared so by
the OSC. The OSC may declare that a private party response is
``improper'' if he or she determines that the cleanup is not fully
sufficient to effectively and immediately remove threats to the public
health and welfare and the environment.
One commenter suggested that the NCP (in conjunction with other
regulations, see, for example, 58 FR 7425, 33 CFR 155.1020 that
discusses worst case, maximum most probable, and average most probable
discharges) contains a multitude of discharge classifications with
attendant consequences for each category that is overly complex,
confusing, and unnecessary. With regard to the NCP, the commenter cites
discharges classified by size (major, medium, and minor), by category
(worst case discharge and spills of national significance (SONS)), and
by nature of the threat (those discharges posing a ``substantial''
threat). The commenter goes on to suggest that it is more important at
the time of a spill to characterize the spill by the level of desired
response rather than the actual amount of oil that is in the water, and
that rapidly determining the amount of oil spilled may not be possible
in many cases. The commenter recommends deletion of most discharge
classifications that do not have a statutory basis. In particular, the
commenter suggests that the major-medium-minor distinction for
classifying spills has outlived its usefulness, and that operational
demands of the response should dictate what level of coordination
occurs and what resources are requested by the OSC.
The Agency notes that the proposed revisions to the NCP built upon
the spill classification system in place prior to passage of the OPA.
New statutory requirements, as well as SONS were added. EPA believes
each of the different elements of this revised system are important to
different parties and for different purposes. Taken as a whole, the
revised system provides a combination of approaches to developing the
appropriate spill response. It retains approaches that are known and
understood in the response community, permits existing tracking and
recordkeeping mechanisms to remain in effect, and effectively
implements new OPA mandates. In large part, this system supports
planning and other non-response activities. The classification system
itself does not pre-determine the full range of actions that could be
taken in response to a spill. No further revisions are being made at
this time.
One commenter stated that the OSC should be required to designate
the response area as soon as possible after an oil spill event to
clearly define the limits of the response area because the vessel
response plan requirements state that the OSC will designate as the
response area that area in which spill response activities are
occurring. EPA believes that implementation of this commenter's
recommendation would unnecessarily constrain decisionmaking by the OSC
during the full course of an incident. As conditions change, the
response area may change. In addition, the commenter's concerns
presumably revolve around implementation of vessel and facility
response plans and carrying out activities in ``the response area''
versus outside the area. This issue should be discussed with the OSC on
a case-by-case basis and is not appropriate for inclusion in the NCP.
One commenter stated that Sec. 300.320, which suggests that
notification of states is a function of the size of a spill, is
inconsistent with Sec. 300.300(d) which requires that the OSC ensure
that the appropriate agency of a state affected by a spill be notified.
EPA has revised this section to make it clearly consistent with
Sec. 300.300(d).
Section 300.322--Response to Substantial Threats to Public Health or
Welfare of the United States
In order to clarify the latitude given to OSCs to determine which
spills pose ``substantial threats,'' several commenters recommended
that the sentence found in the preamble, ``most discharges are not
expected to be identified by the OSCs as substantial threats to public
health or welfare of the United States,'' be added to the rule language
of this section. EPA believes that the language provided on substantial
threat discharges in the preamble to the proposed rule represents
adequate guidance concerning the likely frequency of such discharges.
The Agency does not believe that it would be appropriate to limit,
through a change in the rule language, the discretionary authority of
the OSC to determine whether a discharge would result in a substantial
threat to the public health or welfare of the United States.
Section 300.323--Spills of National Significance
One commenter suggested that the intent of the preamble (that SONS
will be extremely infrequent), should be added to the rule language.
EPA believes that the language provided on SONS in the preamble to the
proposed rule represents adequate guidance concerning the frequency of
such spills. The Agency does not believe that it would be appropriate
to limit, through a change in the rule language, the discretionary
authority of the Administrator of EPA and the Commandant of the USCG to
determine whether a discharge would result in a SONS.
One commenter stated that the SONS classification is not needed at
all, arguing that a properly implemented incident command system is
able to provide response to any size spill. The commenter was concerned
that the designation of spills as SONS may be influenced by the media
or politics.
EPA believes that, during certain response situations involving
spills of extreme severity or size that have the potential to greatly
affect the public health or welfare of the United States, extraordinary
coordination of federal, state, local, and responsible party resources
may be required for containment and cleanup. In situations such as
these, coordinating resources at the national level and managing
relations among various government officials and the public requires
significant time and effort. This may divert attention away from the
actions necessary to respond to the spill itself, which, in the case of
a SONS, would likely be complicated. Furthermore, while OSCs are
thoroughly familiar with their regions or districts, they may be less
knowledgeable about areas outside their regions or districts. The OSC
in charge of responding to a spill that affects several regions,
districts, or countries may benefit from communication assistance to
identify and coordinate resources, evaluate site-specific conditions,
and assess threats to the environment.
For these reasons, EPA developed a ``strategic management''
framework designed to assist the OSC in dealing with resource
administration, government coordination, public relations, and
communication for SONS, codified in Sec. 300.323. As an important part
of the national response system, the SONS response strategies ensure
that the government will be able to respond to spills of any size or
severity. The designation of a SONS will, therefore, depend on the
presence of exigent circumstances.
With regard to Sec. 300.323(b), two commenters requested
clarification to indicate that the person named to assist the OSC is
not limited to the few roles specified and that this individual's
duties will be directed by (and not supersede the authority of) the
OSC. One commenter also suggested that the coordination at the national
level discussed in this section would best be accomplished through the
incident command system, which will serve to maintain the integrity of
the local command structure as the incident escalates.
EPA reiterates that the ``assistance'' provided by a designated
senior EPA official in support of the OSC within the SONS response
framework is intended to relieve the OSC of certain communication and
coordination burdens associated with directing response efforts. If a
spill is designated as a SONS, issues of communication and coordination
quickly take on importance at the national level. However, this
designated senior agency official is not subordinate to the OSC. This
official will simply fill the role of the OSC for specific, limited
activities related to communications and coordination, as detailed in
Sec. 300.323(b). EPA believes this approach reflects historical
practices.
Section 300.324--Response to Worst Case Discharges
Several commenters strongly suggested that this section needs to
recognize there can be many ``worst case'' discharges from small
facilities or vessels where implementation of the requirements of this
provision would not be justified or otherwise appropriate. Two
commenters suggested that paragraph (a) also include a requirement that
the discharge pose a substantial threat to public health or welfare of
the United States before the measures for responding to a worst case
discharge would be triggered. They believe this would provide the OSC
with additional latitude to activate only those measures most
appropriate to the circumstances. Alternatively, one commenter
suggested that full implementation of the ACP worst case provisions
would not be necessary for all worst case spills; another suggest
deleting the requirement to notify and use the NSFCC.
EPA notes that CWA section 311(d), as amended by the OPA, requires
the NCP to include ``procedures and standards for removing a worst case
discharge of oil and for mitigating or preventing a substantial threat
of such a discharge.'' CWA section 311(j), as amended by the OPA,
requires Area Committees to prepare an ACP for their area that, when
implemented in conjunction with the NCP, will be adequate to remove a
worst case discharge and to mitigate or prevent a substantial threat of
such a discharge. CWA section 311(j) also requires that the National
Response Unit (i.e., the NSFCC) shall coordinate use of private and
public personnel and equipment to remove a worst case discharge, and to
mitigate or prevent a substantial threat of such a discharge. Once the
OSC has determined that an oil spill is a ``worst case discharge'' the
OPA mandate concerning such discharges must be followed. Because
Secs. 300.324(a)(1) and (3) and 300.324(b) reflect the requirement of
the OPA worst case discharge-related provisions, they must be included
in the NCP.
However, EPA recognizes that proposed Sec. 300.324 has created some
confusion regarding the implementation of the worst case discharge
provisions of the ACP. These provisions are activated only when the OSC
has determined that a discharge is a worst case discharge, as specified
in the ACP. Oil spills that meet the definition of worst case discharge
specified in vessel and facility response plans, but not the ACP, would
not require activation of the worst case discharge provisions of the
ACP. In addition, the OSC is required to notify the NSFCC only of ACP-
defined worst case discharges. The rule language in Sec. 300.324 of the
NCP has been revised to reflect these clarifications.
Two commenters suggested deletion of paragraph (a)(2); they
asserted that the OSC should not have to require the responsible party
to implement their response plan, because it would be automatically
initiated by the responsible party without direction from the OSC. EPA
agrees that the responsible party is required to automatically initiate
its response plan without direction from the OSC. However, EPA is
restating this requirement in Sec. 300.324(a)(2) for clarification
purposes.
Section 300.335--Funding
One commenter noted that the preamble to the proposed rule states
that the provisions of Sec. 300.320(b)(3)(iii) are addressed in
Sec. 300.335. However, the commenter noted that former
Sec. 300.320(b)(3)(iii) addresses the actions an OSC is to take if
there is a minor discharge and that provision is not addressed in the
proposed Sec. 300.335, which deals with OSLTF funding. The Agency
recognizes that the commenter is correct; the reference to Sec. 300.335
in the preamble to the proposed rule was erroneous. The correct
reference is Sec. 300.305.
One commenter noted that section 1004 of the OPA provides
limitations to liability for discharges of oil and stated that although
Sec. 300.335 of the proposed NCP addresses funding of removal actions,
it does not reference the liability limitations described in the OPA.
The commenter recommended that a reference to these liability
limitations be included in the revised NCP. EPA does not consider the
details of OPA liability limitations to be relevant to the funding
discussion in Sec. 300.335. The purpose of Sec. 300.335 is to discuss
various scenarios for federal funding of oil spill response activities.
Therefore, the recommended change is inappropriate.
One commenter stated that the preamble notes that the NCP provides
that ``funding of a response to a discharge from a federally owned,
operated, or supervised vessel is the responsibility of the owning,
operating, or supervising agency.'' The commenter believed it would be
helpful to define or explain ``supervised,'' or add a reference to
where such explanation may be found. The commenter also noted that the
NCP incorporates the OPA definition of ``responsible party,'' which
excludes federal agencies, states, municipalities, commissions, or
political subdivisions of a state ``that as the owner transfers
possession and right to use the property to another person by lease,
assignment, or permit.'' The commenter suggested that if ``supervised''
refers to facilities excluded in the OPA definition, it should be
deleted from the NCP.
The commenter points out an apparent contradiction between
Secs. 300.5 and 300.335(e), wherein an owner appears to be liable for
funding, but may not be a ``responsible party'' under some
circumstances. To harmonize these two provisions, EPA is revising
Sec. 300.335(e) by adding to the end thereof ``if it is a responsible
party.'' Thus, an owner will be liable if that owner also falls within
the definition of ``responsible party.'' This revision clarifies that
if a vessel or facility is ``supervised'' by an agency that is excluded
from the definition of responsible party, the vessel or facility would
not be liable for funding.
In addition, EPA has deleted subparagraph (f)(1) which contained an
inaccurate statement that EPA may provide funds to begin timely
discharge removal actions. In fact, EPA has no funding to initiate oil
removal.
Subpart E--Hazardous Substance Response
Section 300.410--Removal Site Evaluation
One commenter noted that proposed Sec. 300.410(e)(1) states that
``as part of the evaluation under this section, the OSC shall determine
whether a release governed by CWA section 311(c)(2) has occurred.'' The
commenter suggested that this provision be revised to read ``CWA
section 311(c)(1), as amended by OPA section 4201(a).'' EPA agrees and
has made this change in the final rule.
Section 300.415--Removal Action
One commenter stated that the citation to CWA section 311(c)(1)(A)
in Sec. 300.415(c)(1) is incorrect and should be changed to CWA section
311(c)(1), as amended by OPA section 4201(a). EPA agrees and has made
this change in the final rule.
Subpart G--Trustees for Natural Resources
Section 300.600--Designation of Federal Trustees
Two commenters asked that the reference in the proposed rule
preamble to the trustees' responsibilities for ``mitigation and
assessment of damage'' be changed to read ``mitigation of injuries and
assessment of damage.'' One of these commenters argued that the
suggested text would be more accurate because ``damages'' is a term of
art that refers to the monetary value of injury or lost use. Two
commenters also argued that the word ``preplanning'' should be removed
from that same discussion that reads ``preplanning and coordination for
both response and damage assessment activities are specifically
required * * *'' because there is no statutory requirement for
preplanning for damage assessment activities.
EPA agrees that the cited language is not completely accurate and
suggests the following as a better statement of trustee
responsibilities: Each trustee has responsibilities for protection of
resources; assessment of damage; and restoration, rehabilitation,
replacement, or acquisition of resources equivalent to those affected.
In these roles, trustees provide advice to the OSC on environmental
issues, including appropriate removal countermeasures, that should be
considered in the ACP; provide timely recommendations to the OSC during
an incident for the application of various removal countermeasures; may
initiate a preliminary survey of the area affected by a discharge to
determine if trust resources are, or potentially may be, affected; and
carry out a damage assessment of the area in order to recover monies to
restore, rehabilitate, replace, or acquire equivalent natural
resources. Preplanning and coordination for damage assessment
activities are strongly encouraged at the regional and area levels,
both during the area and regional plan preparation and during specific
incidents when coordination must be with the predesignated OSC.
One commenter, noting the phrase ``managed or controlled'' in
Sec. 300.600(a), suggested that the word ``protection'' in the second
sentence of Sec. 300.600(b)(1) should be changed to ``control.'' EPA
agrees and has made the change in today's final rule.
The same commenter claimed the use of ``most'' to modify
``anadromous fish'' in Sec. 300.600(b)(1) is misleading and inaccurate.
EPA agrees and has made this change as well as a conforming change in
Sec. 300.600(b)(2) to delete ``certain'' before ``anadromous fish'' in
the second sentence to more accurately reflect the trusteeship of
anadromous fish.
In addition to these changes made in response to public comments,
Sec. 300.600 has been further revised to clarify that trusteeship
extends to the ecosystems supporting specific natural resources, and
that habitat is included as part of the ecosystem. This was recognized
to a degree by the current language of Sec. 300.600(b)(1), referring to
particular ``examples'' of ecosystems and habitats. The revised
language clarifies that the supporting ecosystem concept applies
generally, and was not intended to refer solely to the specific example
of marine fishery resources. In addition, the revised language reflects
that trusteeship over natural resources also extends over migratory
species and their supporting ecosystems throughout their range within
the sovereign jurisdiction of the United States, states, or tribes.
Section 300.605--State Trustees
One commenter requested that the word ``may'' in the provision
reading ``The EPA Administrator or USCG Commandant or their designee
may appoint the state lead trustee as a member of the Area Committee,''
be replaced by the word ``shall.'' The commenter stated that this
change would clarify that the lead trustee designated by the governors
shall automatically be appointed to the Area Committee.
Membership on the Area Committee is an issue within the discretion
of EPA and the USCG. EPA and USCG wish to retain this discretion and
not commit to a membership decision, in advance, in all cases. The
Agency expects, however, that the decision regarding membership of the
state lead trustee will be made by EPA or the USCG in consultation with
state representatives on the Area Committee.
For consistency with revised Sec. 300.600, the phrase ``including
their supporting ecosystems'' has been added to modify the term
``natural resources.''
Section 300.610--Indian Tribes
One commenter asked for an explanation of the conditional language
regarding ``trust restrictions on alienation'' of natural resources.
The commenter also asked EPA to clarify whether Indian tribes are
voting members of the RRT. In addition, the commenter asked whether
Indian tribes are considered ``participating agencies'' under
Sec. 300.155 to determine if Indian tribes must clear their public
statements through the federal OSC's news office.
With regard to the language regarding ``trust restrictions,'' this
term refers to land owned by an individual Indian, which has a
restricted title. That is, the land cannot be sold without the
permission of the government, generally the DOI.
Regarding the commenter's other questions about Indian tribes,
Sec. 300.305 specifically defines ``states'' to include Indian tribes
for purposes of the NCP, unless otherwise noted. Section 300.180(b)
explains that Indian tribes have the opportunity to participate as part
of the response structure, as provided in the ACP. Indian tribe
representatives also may participate fully in all activities of the
appropriate RRT.
For consistency with revised Sec. 300.600, the phrase ``including
their supporting ecosystems'' has been added to modify the term
``natural resources.''
Section 300.615--Responsibilities of Trustees
Several comments concerned the procedures governing NRDAs. One
commenter argued that response management/direction and damage
assessment should be considered separate functions, performed by
separate agencies, because of potential conflicts of interest within
agencies and among individuals in those agencies. The commenter
suggested reinforcing this division by separating, in time, spill
response from NRDA activities, just as remediation and restoration
activities are separated from removal action under CERCLA. The
commenter also stated that agencies or individuals responsible for
damage assessments should not be able to benefit from damage awards,
either through a monetary or job security incentive. The commenter
argued that such benefits were incurred by certain agencies during the
Exxon Valdez spill. The commenter suggested that the incentive for such
benefits should be removed by clearly defining the mission of
government agencies responding to spills (i.e., to minimize the
ecological impact of the spill) and by ensuring that agencies with
responsibilities for spill response share information and cooperate
fully with all parties responding to a spill. Finally, the commenter
argued that monies designated for implementing the restoration plan
should not be used for purposes unrelated to restoration, such as
funding a research institute or purchasing land.
Spill response and damage assessments are separate functions,
performed by separate agencies. At the federal level, only the USCG and
EPA are tasked with response management and direction, while only the
natural resource agencies (DOI, DOC/NOAA, U.S. Department of
Agriculture, Department of Energy, and Department of Defense) are
responsible for NRDAs. Natural resource trustees also assist the OSC in
determining response priorities and strategies. This role was
reinforced in OPA section 1011, which requires the President to consult
with the trustees on removal actions. The trustees advise the OSC, who
retains final decisionmaking authority on response actions. Both the
trustees and the OSC agencies have the same basic mission--protection
of the environment. By advising the OSC on response, trustees may be
able to avoid or reduce the level of injury to natural resources from a
spill.
Entirely separating these activities in time is not possible. The
preamble to the DOC proposed rule on NRDAs (59 FR 1062, January 7,
1994) explains that the first phase of NRDA activities, called
preassessment activities, is likely to be conducted simultaneously with
the OSC-coordinated response activities. Some information needed for
NRDA is ephemeral and/or perishable and must be gathered quickly,
before it disappears. Also, conducting these activities simultaneously
is generally more cost-effective than conducting them separately. Both
activities may involve gathering the same or similar information. If,
for example, an OSC or responsible party is collecting samples, those
samples may be shared with the trustee(s), if all parties agree.
Trustees may need to collect some data themselves to accomplish their
NRDA responsibilities.
Information should, to the maximum extent possible, flow freely
between those agencies involved in the response and those involved in
the damage assessment. In addition, it is important that the activities
of the two groups be closely coordinated, as is the intent of
Sec. 300.615(c)(3)(ii). However, EPA has added language to this section
to reinforce that information supportive of the response phase,
although collected for damage assessment, should be made available
immediately to the OSC to support his or her decisions. This
information flow will most likely be through the SSC who, as part of
the OSC's staff, serves as the interface with the lead administrative
trustee for the OSC.
With regard to the use of damage awards, for spills occurring after
August 1990, the use of sums recovered as a result of a damage
assessment conducted under the NOAA NRDA rule is governed by section
1006(f) of OPA and includes NRDA and development and implementation of
a restoration plan. Such monies cannot be used for ongoing funding of
base program costs or for activities other than assessment and ``the
restoration, rehabilitation, replacement, or acquisition of the
equivalent, of natural resources.'' The budgets of natural resource
trustee agencies do not include funding from natural resource damage
settlements or awards as part of their program operations.
The same commenter said that trustee agencies should define their
NRDA data needs in advance of a spill so that data required by the
trustees could be collected during the spill response without directly
involving the trustees. The commenter also argued that information
gathered about a spill should be shared among the government agencies,
responsible party, and contractors, so that response efforts may be
launched, coordinated, and made more effective based on that
information.
This point is addressed in the proposed NRDA rule (59 FR 1062,
January 7, 1994). The NCP is not the appropriate rule to address this
issue. The proposed NRDA rule strongly encourages federal, state,
tribal, and foreign trustees to develop prespill plans at the local
area or regional level. Suggested prespill activities include
identifying sources of information for background data, designing a
general approach and protocols for data collection and analysis, and
establishing a centralized data management system for NRDA data. The
proposed rule also encourages information gathering in the most
effective and efficient way possible. General information needs can be
worked out in advance, but each spill is different and thus has
specific information needs.
Another commenter noted that the proposed NCP does not make clear
the role of the responsible party in assessing natural resource damages
and does not describe the duties of the trustees with respect to the
responsible party. The commenter suggested that the final rule
explicitly authorize trustees, under certain circumstances, to delegate
the authority to conduct the NRDA to the responsible party. Under such
circumstances the natural resource trustee would retain final
decisionmaking and approval authority. The commenter noted that while
the proposed revisions to the NCP provide that natural resource
trustees may follow the procedures outlined in the DOI regulations
governing NRDAs, which support this approach, the NCP should explicitly
authorize the trustees to delegate the authority to carry out the
assessment to the responsible party.
The role of the responsible party in NRDA for oil spills is
addressed in the proposed NRDA rule. The NCP covers spill preparedness
and response, not damage assessment and these comments are, therefore,
beyond the scope of this rulemaking. However, it should be noted that
the NCP does not impose any of its own restrictions on the relationship
between the trustees and the responsible parties.
One commenter stated that the NCP does not include requirements
concerning the coordination of damage assessment or restoration
activities, presentation of claims, or settlement negotiations between
the state representative and the OSC or RRT. The commenter argued that
the lack of such requirements does not support the OPA section 1006
provision which states that liability for natural resource damages
``shall be (1) to the United States Government * * * (2) to any State *
* *.'' The commenter further argued that without a single lead trustee
for the state to prepare and pursue its natural resource damage claim,
settlement negotiations would be cumbersome and several agencies within
the state may duplicate the damage assessment process. To avoid these
difficulties, the commenter suggested that Sec. 300.615 be amended by
adding a new subparagraph (c)(iv) which would read, ``Liability for
natural resource damage shall be to the United States government, any
State, any Indian tribe, and to the government of a foreign country and
claims asserting such liability shall be presented and filed by the
United States government, any State, and Indian tribe, or the
government of a foreign country.''
The commenter has primarily raised NRDA issues, which are being
addressed by the proposed NRDA rule. The NCP covers spill preparedness
and response, not damage assessment, and these issues are, therefore,
beyond the scope of this rulemaking.
However, EPA would like to clarify the roles of the state during
the response phase. The state may serve in three roles: (1) as a
natural resource trustee performing damage assessment during response
operations; (2) as a natural resource manager for spill response
activities (such as wildlife rehabilitation) undertaken under the OSC's
response structure; and (3) as a responder as part of the response
management structure. The designation of a single lead state trustee
for damage assessment is outside the scope of these NCP revisions since
this rule does not address NRDA issues. A lead administrative trustee
is designated on an incident-by-incident basis to serve as the
interface with the OSC on damage assessment activities and to
coordinate natural resource trustee activities, state, federal, and
tribal. This may be a state trustee. For spill response, the state
participates as part of the response management structure, along with a
representative of the responsible party and the OSC.
Concerns expressed by the commenter regarding the potential for
multiple entities within a state asserting control over the same
resources, double recovery, and other potential conflicts within the
state in implementing its damage assessment responsibilities are most
appropriately addressed in the ongoing NRDA rulemaking.
One commenter suggested the reference to the OPA in
Sec. 300.615(c)(2)(i) should be to section 1006(c) rather than 1006(e).
EPA agrees and has made this change.
Finally, one commenter suggested corrections in the language to
Sec. 300.615(c)(3)(i) and (iii) to eliminate the reference to a lead
administrative trustee role in the former and to conform to a USCG
proposed rule relating to access to the OSLTF in the latter. EPA agrees
and has made these changes.
Subpart H--Participation by Other Persons
Section 300.700--Activities by Other Persons
Two comments were received on this subpart. One commenter suggested
the NCP should address procedures for response resources to switch from
private to government funding, and how government funding may
supplement private resources.
Federal procurement laws address the requirements for contracting
for goods and services, even under the conditions described by the
commenter. The OSC has contracting services available as part of the
federal response organization and no further discussion of this issue
is necessary in the NCP. The OSC has full access to funding to
supplement private response resources, however, the federal procurement
laws must still be followed if federal funding is to be used. These
requirements are adequately addressed in the federal procurement
regulations and directives and no further discussion of funding details
in the NCP is considered necessary.
The other commenter recommended that any contractor responding to a
spill at the request of an OSC be guaranteed payment out of the OSLTF,
and further, if a spiller defaults on payment to a cleanup contractor
it hired, the contractor should be guaranteed payment out of the OSLTF.
Contractors responding to a spill at the request of the OSC do so
under the provisions of federal laws that address the procurement of
goods and services. Anyone can submit a claim for uncompensated removal
costs; however, no one can guarantee full payment from the OSLTF. While
a contractor could expect reasonable reimbursement for uncompensated
costs, no assurances can be provided that the full benefits of a
contract negotiated between two private entities would be fully
reimbursable. No change to the NCP is necessary or appropriate.
Subpart J--Use of Dispersants and Other Chemicals
Section 300.900--General
One commenter recommended that EPA defer promulgating revisions to
Subpart J until the results of a number of studies that are being
conducted on alternative response techniques to mechanical recovery,
including dispersants and in-situ burning, can be evaluated.
In enacting the OPA, Congress required the President (delegated to
EPA) to revise the NCP to reflect the new provisions and authorities of
the statute. In promulgating the proposed and final revisions to
Subpart J of the NCP, EPA has attempted to take into account all
readily available information and studies concerning oil spill response
measures, including alternative response measures. EPA believes that it
must promulgate the final NCP at this time in order to avoid any
further delays in codifying the provisions and authorities established
by the OPA. If new information or studies become available that impact
the Agency's regulation of oil spill response measures under Subpart J,
EPA will review this information and make regulatory changes if and as
appropriate.
Three commenters stated that proposed Subpart J fails to present a
balanced approach to oil spill response techniques, placing an undue
emphasis on chemical countermeasures and failing to adequately address
mechanical recovery strategies. One commenter noted that Subpart J's
emphasis on chemical countermeasures is inconsistent with the OPA and
contrary to current USCG regulations, which provide that mechanical
containment and recovery is the response of first choice.
EPA does not agree with the commenters that Subpart J fails to
present a balanced approach to oil spill response techniques. Subpart J
does not state or imply that chemical countermeasures are preferred
over mechanical recovery devices. EPA believes that the circumstances
surrounding oil spills and the factors influencing the choice of a
response method or methods are many, and the NCP does not and should
not indicate a preference for one response method over another. OSCs,
RRTs, and Area Committees must be afforded flexibility in authorizing
or preauthorizing the use of a specific response method to protect the
public health and welfare and the environment.
EPA does recognize, however, that Subpart J focuses on the
regulation of chemical and bioremediation spill mitigating devices and
substances. As stated in the preamble to the proposed NCP, EPA believes
that Congress' primary intent in regulating products under the NCP
Product Schedule is to protect the environment from possible
deleterious effects caused by the application or use of these products.
In looking at the long- and short-term effects on the environment of
all spill mitigating devices and substances, EPA has concluded that
chemical and bioremediation countermeasures pose the greatest threat
for causing deleterious effects on the environment. As a result, the
Agency is focusing its regulatory efforts on these substances and is
listing them on the Product Schedule, and is not listing mechanical
recovery devices.
EPA is also not regulating the use of mechanical recovery devices
under Subpart J because USCG has traditionally overseen the regulation
of these devices. USCG and the American Society for Testing and
Materials (ASTM) are currently working together to develop equipment
standards for mechanical recovery devices. The MMS also has been
attempting to develop equipment standards and facilitate research and
development on mechanical devices. EPA believes it would be
unnecessarily duplicative for it to focus its efforts in these areas at
the same time other federal agencies are addressing these issues.
EPA would like to emphasize that it is not discouraging the use of
mechanical recovery devices to respond to oil spills by not regulating
these devices under Subpart J or listing them on the Product Schedule.
The listing of a product on the Product Schedule does not mean that EPA
approves, authorizes, or encourages the use of that product on an oil
spill; rather, the listing of a product means only that data have been
submitted to EPA as required by Subpart J of the NCP. The fact that
mechanical devices will not be listed on the Product Schedule does not
mean that these devices cannot be used by OSCs in response to
discharges of oil or included in preauthorization plans by Area
Committees and RRTs. On the contrary, the fact that these devices are
not listed on the Product Schedule means that OSCs can use mechanical
recovery devices without being subject to the provisions in
Sec. 300.910 governing the authorization of use of products listed on
the Product Schedule.
Three commenters disagreed with EPA's interpretation of the phrase
``other spill mitigating devices and substances,'' stating that this
phrase should be interpreted to include mechanical recovery devices
such as pumps, booms, or skimmers. One commenter stated that the
legislative history of the OPA, as detailed in the Conference Report
for the OPA, demonstrates that Congress intended this phrase to be
interpreted broadly and to include mechanical, surveillance, and
chemical and biological response techniques.
As discussed above and in the preamble to the proposed NCP, EPA
believes that Congress' primary intent in regulating products under the
Product Schedule is to protect the environment from possible
deleterious effects caused by the application or use of these products.
EPA is not interpreting the phrase ``other spill mitigating devices and
substances'' to include mechanical recovery devices, and is not
regulating these devices under Subpart J, because the Agency does not
believe that the use of these devices to respond to oil spills presents
a significant environmental danger. EPA has reviewed the Conference
Report for the OPA [Conf. Rep. 101-653, 101st Cong. 2nd Sess. (1990)]
and believes that it does not clearly indicate whether the term ``other
spill mitigating devices and substances'' was intended to include
mechanical recovery devices for the purposes of the NCP Product
Schedule. There is certainly no indication in the Conference Report
that the inclusion of mechanical recovery devices on the Product
Schedule be mandatory. EPA believes that its interpretation is
reasonable.
Section 300.910--Authorization of Use
One commenter expressed opposition to the mandatory requirement in
new Sec. 300.910(a) that RRTs and Area Committees address the
preauthorization of chemical and bioremediation product use. The
commenter argued that EPA has not demonstrated that the current system
is ineffective or untimely and that this mandatory requirement will
take time away from the evaluation of mechanical and other response
techniques.
As discussed in the preamble to the proposed NCP, the
preauthorization option under existing Sec. 300.910(e) has been used
infrequently in the past. Although some RRTs have developed
preauthorization plans for the use of products in response to oil
spills, the overall election to make use of this option has been less
comprehensive than EPA envisioned when the provision was developed.
Consequently, EPA proposed to make, and is today making, the existing
preauthorization option mandatory. EPA believes that a more
comprehensive use of preauthorization by the RRTs and Area Committees
will create a more effective and timely oil spill response system
because many decisions on product use will be made prior to the
occurrence of oil spills. The Agency does not agree with the commenter
that the mandatory preauthorization provision will de-emphasize or take
time away from the consideration of the use of mechanical and other
response techniques. RRTs and Area Committees should address the use of
mechanical and other response techniques, as well as spill mitigating
devices and substances regulated under Subpart J, in their
preauthorization plans. Also, EPA would like to stress that
preauthorization decisions may result in not preauthorizing the use of
a specific chemical countermeasure; for example, areas may be
designated in which the use of certain dispersants or other spill
mitigating devices and substances is prohibited.
Another commenter suggested that preauthorization plans be required
to address the use of sorbents. The commenter argued that such planning
would promote the use of the most effective and appropriate sorbent for
any given spill. The commenter also noted that the misuse of a sorbent
product or the use of the wrong sorbent product can result in a totally
ineffectual cleanup, increased and unnecessary environmental damages
from oil pollution, and additional cleanup expenses.
As discussed in the preamble to the proposed NCP, EPA does not
interpret the phrase ``other spill mitigating devices and substances''
to include sorbents and does not regulate sorbents under Subpart J or
list them on the Product Schedule. EPA believes that the use of
sorbents, by themselves, will not create deleterious effects on the
environment because sorbent materials are essentially inert and
insoluble in water and because the basic components of sorbents are
non-toxic. Consequently, RRTs and Area Committees are not being
required to address the use of sorbents as part of their planning
activities or when they are developing preauthorization plans under
Subpart J. This does not mean, however, that RRTs and Area Committees
cannot or should not address the use of sorbents in their
preauthorization plans. EPA encourages RRTs and Area Committees to
address the use of all types of spill mitigating devices and
substances, including those not listed on the Product Schedule, when
developing preauthorization plans. Also, as suggested by the commenter,
the Agency encourages RRTs and Area Committees to consult the USCG
comprehensive sorbent data base and the research being conducted by
Environment Canada and ASTM when making preauthorization decisions on
the use of sorbents.
Two commenters expressed concern that, although new Sec. 300.910(a)
encourages preauthorization, it allows the RRTs and Area Committees too
much latitude for the disapproval of products without adequately
defining the conditions under which such disapprovals would be
appropriate. These commenters recommended that the NCP should clearly
specify, as guidance for the RRTs and Area Committees, the conditions
under which the use of a product is appropriate and require pre-spill
approval for those conditions. The commenters suggested that new
Sec. 300.910(a) establish a preauthorization process that requires the
approval of products, except in those limited circumstances where there
are adequate scientific data clearly indicating that such use would be
harmful. An additional commenter recommended that guidance be provided
to the RRTs and Area Committees on the applicability of data from the
required effectiveness and toxicity tests.
EPA believes that the RRTs and Area Committees must be afforded
flexibility in considering relevant factors for making preauthorization
decisions and developing preauthorization plans. EPA does not believe
that it is appropriate or feasible to include all of the information
necessary to provide adequate guidance for the RRTs and Area Committees
on the appropriateness of preauthorization approvals or disapprovals or
the applicability of test data in the NCP. This information should be
provided through separately developed guidance materials.
Four commenters stated that the RRTs do not have the legal
authority to approve or disapprove of preauthorization plans developed
by Area Committees. These commenters argued that the approval process
proposed in new Sec. 300.910(a) is inconsistent with the OPA, which
provides that Area Committees alone are responsible for expediting
authorization of the use of dispersants and other spill mitigating
substances. These commenters also argued that the RRT review and
approval authority is counterproductive and will result in unnecessary
delays. One commenter suggested that this section should provide
procedures for the coordination of Area Committee activities and that
the RRTs should assist the Area Committees in this regard.
The OPA amends section 311(j) of the CWA to require Area Committees
to ``work with state and local officials to expedite decisions for the
use of dispersants and other mitigating substances and devices'' and to
``describe the procedures to be followed for obtaining an expedited
decision regarding the use of dispersants.'' To meet these
requirements, EPA proposed to revise new Sec. 300.910(a) (in addition
to changes to Subpart C) to require that Area Committees be actively
involved in the preauthorization process and that, as part of their
planning activities, they develop preauthorization plans that address
the desirability of using appropriate products on the Product Schedule.
EPA does not agree with the commenters that requiring RRT review
and approval of preauthorization plans developed by Area Committees is
inconsistent with the OPA. The OPA does not stipulate that Area
Committees alone have responsibility for oil spill contingency
planning. The standing RRTs also have responsibilities for oil spill
contingency planning, specifically on a regional basis. In order to
create the best possible response system, it is important that the
regional-level and area-level contingency planning efforts of the RRTs
and Area Committees, respectively, are closely coordinated with each
other and are consistent. EPA believes that the RRTs should serve in an
advisory and approval role regarding preauthorization plans developed
by Area Committees to ensure this consistency and because the RRTs'
expertise in oil spill response will be a valuable asset in the
development of these preauthorization plans. RRTs and Area Committees
should work together to develop mutually-acceptable preauthorization
decisions and plans. The Agency would like to clarify that the RRT
review and approval authority applies only to preauthorization
decisions or plans, and not to the entire content of ACPs. Also, the
EPA Administrator and the Commandant of the USCG possess the ultimate
authority for approving or disapproving an entire ACP, including the
preauthorization plan. This authority is not delegated in any way to
the RRTs.
EPA does not believe that the RRT review and approval authority is
counterproductive or will result in significant delays to the
preauthorization process. As discussed in the preamble to the proposed
NCP, in a number of instances (e.g., in the inland waters) RRTs may
fulfill the role of the Area Committees. In these instances,
coordination between the two separate entities will be facilitated to
the extent the RRT addresses both regional- and area-level contingency
planning. In instances where the RRT and Area Committees may exist as
separate entities, a number of RRT representatives will most likely
also serve on the Area Committees for that region. This should
facilitate the coordination between these two bodies and expedite the
review and approval of preauthorization plans by the RRT.
EPA would like to clarify the RRT review and approval authority.
All members of the RRT will be afforded an opportunity to review and
provide input to the Area Committee on a draft preauthorization plan.
However, only the RRT representatives from EPA and the state(s) with
jurisdiction over the waters of the area to which the plan applies and
the DOC and DOI natural resource trustees will have the authority to
approve, disapprove, or approve with modification the draft
preauthorization plan. This approval process is consistent with the
authorization procedures contained in existing Sec. 300.910 and should
minimize the time necessary for RRT approval of preauthorization plans
developed by the Area Committees. New Sec. 300.910(a) is being revised
to state that ``The RRT representatives from EPA and the states with
jurisdiction over the waters of the area to which a preauthorization
plan applies and the DOC and DOI natural resource trustees shall review
and either approve, disapprove, or approve with modification the
preauthorization plans developed by Area Committees, as appropriate.''
One commenter suggested that the NCP establish time limits for the
review and approval of preauthorization applications. Specifically, the
commenter recommended that EPA establish a 60-day review period during
which Area Committees must determine whether a preauthorization
application is complete and approve or deny the application. The
commenter also suggested that if an Area Committee fails to act within
the specified period of time, the application should be considered
approved.
EPA does not believe that it is appropriate for the NCP to
establish specific deadlines for the review and approval of
preauthorization applications at this time because both the Area
Committee and the preauthorization process are still in the initial
stages of implementation. Area Committees should develop
preauthorization plans and review applications as expeditiously as
possible, but they also must be afforded flexibility in accomplishing
this.
One commenter recommended that new Sec. 300.910(a) and Section
4.3(a) of Appendix E mention the need for preauthorization plans to
cover compliance with section 7 of the Endangered Species Act. This
commenter also recommended that, under new Secs. 300.910 (b) and (c),
consultation with the DOI and DOC natural resource trustees should be
required for obtaining product approvals in all cases, not just ``when
practicable.'' The commenter noted that the natural resource trustees
have a strong interest, in all instances, in ensuring that trust
resources are not inadvertently damaged by the application of chemical
countermeasures.
EPA agrees that the RRTs and Area Committees should be aware of the
need for preauthorization plans to comply with the Endangered Species
Act. Development of these plans must include compliance with section 7
of the Endangered Species Act. The Agency believes that the natural
resource trustee representatives to both the RRTs and Area Committees
can assist in this matter by facilitating consultation to ensure this
compliance during the planning process. Also, EPA and the USCG plan to
work with the Fish and Wildlife Service and NOAA to develop guidance on
this issue. EPA believes that these steps will be more effective in
addressing this issue than adding new language to this section of the
NCP.
EPA does not agree with the commenter that, under new Secs. 300.910
(b) and (c), consultation with the DOC and DOI RRT representatives
should be mandatory in all instances. EPA believes that the case-by-
case decisionmaking process for OSCs must be flexible and must allow
them to minimize the burden of any consultations due to the time-
critical nature of this process. In most instances, OSCs will consult
with the DOC and DOI representatives, but there may be instances where
this consultation would create critical delays in the decisionmaking
process.
Another commenter stated that new Sec. 300.910(f) should be revised
to compel the RRTs to require the performance of supplementary toxicity
and effectiveness testing when developing preauthorization plans. This
commenter argued that in order for an RRT to do a responsible job of
preauthorizing the use of a product for a specific region, it must
posses regionally specific effectiveness and toxicity testing data.
EPA does not agree with the change suggested by this commenter. EPA
believes that the RRTs should have the authority to require additional
testing if they decide it is necessary, but should not be compelled to
require this additional testing in all instances. Situations may exist
where requiring this additional testing would place an unnecessary
regulatory burden on both the RRTs and the product manufacturers/
vendors.
Two commenters stated that the RRT supplementary testing authority
contained in new Sec. 300.910(f) should be deleted from the final rule.
These commenters expressed opposition to this authority because, in the
commenter's view, it is intended to make the preauthorization of
dispersants and other chemicals more difficult, erodes the statutory
authority of the Area Committees, and could add significant delays to
the preauthorization process. One of these commenters also argued that
if EPA anticipates using tests other than those specified in Appendix C
for this supplementary testing, these tests should be included in the
NCP and be subject to review as part of the rulemaking process.
EPA would like to clarify the provisions of the supplementary
testing authority contained in new Sec. 300.910(f). Under this
authority, RRTs are authorized to require product manufacturers to
conduct supplementary effectiveness or toxicity testing due to site- or
area-specific concerns when developing preauthorization plans. Any
supplementary testing that may be conducted will follow the
effectiveness and toxicity testing protocols specified in Appendix C of
the NCP. The RRTs are authorized to require these tests to be
conducted, due to site- or area-specific concerns, using parameters
other than those specified in Appendix C. For example, an RRT might
require the performance of the dispersant effectiveness test (the
Swirling Flask Dispersant Effectiveness Test) using a type of oil other
than that specified in Appendix C; or an RRT might require the
performance of the dispersant toxicity test using an invertebrate
species other than that specified in Appendix C.
EPA's purpose in adding new Sec. 300.910(f) is to clarify the
authority of the RRTs concerning product testing requirements and to
provide more relevant information to the RRTs and Area Committees for
their contingency planning efforts. This authority is not intended to
make the preauthorization of certain products more difficult and does
not authorize the RRTs to establish more stringent effectiveness and
toxicity criteria. EPA does not believe that the addition of this new
paragraph in any way erodes the authority of the Area Committees, but
will enable them to make more informed preauthorization decisions by
providing them with additional site- or area-specific data, if
appropriate. In addition, EPA believes that the authority contained in
this new paragraph will not create substantial delays in the
preauthorization process, and that any minor delays that may occur are
necessary to provide the RRTs and Area Committees the information they
need to make informed preauthorization decisions.
Section 300.915--Data Requirements
Dispersant Effectiveness Testing Protocol
Four commenters expressed opposition to EPA's adoption of the
Swirling Flask Dispersant Effectiveness Test as the standard test for
measuring dispersant effectiveness. These commenters stated that this
change was based on a limited study and that there are more appropriate
dispersant effectiveness tests available internationally. One commenter
suggested that EPA should have considered the Warren Springs Laboratory
(WSL) Test, which has been in use in the United Kingdom for several
years, and the Exxon Dispersant Effectiveness Test (EXDET). Another
commenter recommended that EPA defer implementing the Swirling Flask
test until an international intercalibration work group that is
conducting research on dispersant effectiveness testing can complete
its work and make recommendations.
EPA believes that sufficient testing was performed to qualify the
Swirling Flask test as an appropriate replacement for the Revised
Standard Dispersant Effectiveness Test (RSDET). In April 1991, EPA
convened a conference of world experts to advise it on the state-of-
the-art methods available for dispersant effectiveness testing. As a
result of that meeting, EPA decided to pursue the three laboratory
effectiveness tests it studied: RSDET, Swirling Flask test, and IFP
Test. The determination was made at that time that these three tests
offer the best combination of features for study and, although each may
have some drawbacks, that they were the best three of the nearly 25
tests then available. No new information has been discovered during the
last three years to modify the initial decision to select these three
tests for further study.
In its laboratory study,\3\ EPA examined six different oils and
three separate dispersants; ran over 150 screening tests to determine
the best combinations of oil and dispersant; and evaluated those
combinations using the three test methods selected by the panel of
experts. EPA believes that this provides a sufficient collection of
data upon which to base the change to the Swirling Flask test.
---------------------------------------------------------------------------
\3\See: Clayton, John R. Jr., Siu-Fai Tsang, Victoria Frank,
Paul Marsden, and John Harrington, Chemical Oil Spill Dispersants:
Evaluation of Three Laboratory Procedures for Estimating
Performance, Final Report prepared by Science Applications
International Corporation for U.S. Environmental Protection Agency,
1992; available in the Docket for this rulemaking.
---------------------------------------------------------------------------
The change to the Swirling Flask test is based primarily on the
fact that this test is easier to perform, is less expensive, and
requires less laboratory skill, and not on the basis of improved
precision of the test itself. The statistical review of the data shows
that both the Swirling Flask test and the RSDET have essentially the
same precision. EPA believes that of the six or seven tests used
throughout the world today, there is no test available that has greater
precision than the Swirling Flask test.
The WSL Test is certainly one of the prominent laboratory
dispersant effectiveness tests used in the world today. The decision
not to evaluate this test in the EPA study should not be viewed as a
criticism of this procedure. EPA considered this test, but the Swirling
Flask test was judged to avoid some of the problems associated with the
WSL Test.
The EXDET was not available for evaluation until EPA had already
completed its evaluation, and has only recently (March 1993) been
published in the literature. There are certainly no historical data
associated with this test, in contrast to the Swirling Flask test.
Further, in a brief internal review, EPA determined that the EXDET
procedure offers no significant advantages over the Swirling Flask
test.
The international intercalibration work group, of which EPA is a
member, has reviewed the four or five laboratory effectiveness tests
currently in use throughout the world today with an eye towards
determining if the results of one test can be correlated to the results
of another. That initial review resulted in the conclusion that there
was no good way for the test results to be compared. EPA does not
expect that this work group will develop a new test in the near future
that will offer significant advantages over the Swirling Flask test. If
such a test is developed in the future, EPA would be willing to review
the method as a possible replacement for the Swirling Flask test.
Three commenters stated that the Swirling Flask test method
described in Appendix C does not simulate real world conditions. Two of
these commenters expressed concern that this may give some agencies and
public interest groups the unrealistic expectation that dispersants may
be as effective in field applications as they are in the laboratory
tests. These commenters suggested that EPA explicitly state that
dispersant effectiveness tests are designed and conducted only to
screen products, and that the test results should be used only for that
purpose.
As stated in the preamble to the proposed NCP, the test methods
described in Appendix C are intended to provide a basic set of test
procedures that will provide baseline data for comparison of products
on a national basis. The testing protocols were not developed with the
intent of replicating possible real-world situations. In using the data
currently available on the Product Schedule, OSCs and RRTs are well
aware that these data are intended for use for relative comparisons and
rankings of products. Future EPA guidance on the development of
preauthorization plans and decisions will also address this issue.
One commenter objected to the dispersant-to-oil treat ratio (DOR)
used in the Swirling Flask test method, arguing that a 1:10 ratio is at
least twice as high as would normally be used in actual spill
situations. The commenter noted that DORs of 1:20 or 1:25 are typical,
and that the higher dispersant treat rate used in this test method
would allow weaker dispersants to perform better than would be expected
relative to other dispersants. This same commenter stated that the
Swirling Flask test was inconsistent with the RSDET, historical
standards, and currently accepted standards because the Swirling Flask
test did not produce results ranking dispersants in the same order as
the RSDET or other field-corroborated laboratory tests. The commenter
also noted that no other government in the world--including Canada--has
officially accepted the Swirling Flask test.
Under ideal conditions, a laboratory test would be representative
of real-world conditions. However, thus far this is not achievable, and
EPA believes it is misleading to represent laboratory data as such. The
use of any test to measure a product will only give a relative ranking
of that product against other products tested with the same procedure.
There is no attempt on the part of EPA to represent the laboratory
effectiveness test results as levels that can be achieved in the field.
In fact, field performance will most likely be less effective than that
achieved under ideal laboratory conditions.
The DOR of 1:10 is specified for the Swirling Flask test method and
was used in the EPA study to ensure that sufficient dispersant was
available for complete dispersion of the test oil and because this is a
practical estimate of the maximum level DOR that would be expected in
the field in a real situation. This would favor better performance of
the product than a lesser DOR. Furthermore, the 1:10 ratio was used in
the RSDET procedure as well as the IFP method; the same ratio was
needed for all three tests to allow for proper comparison.
EPA does not believe that there should be concern about the fact
that different laboratory tests will rank dispersant products
differently, nor with the supposition that the Swirling Flask test
ranks products differently than the existing RSDET. There has never
been a strong correlation in ranking order from test to test; i.e., 10
dispersant products will be ranked differently when tested by the
various laboratory effectiveness tests available. EPA has never claimed
that the detailed ranking order produced by the RSDET is meaningful or
necessarily proper. As noted in the proposed NCP, the existing RSDET
has problems associated with it (e.g., complex and expensive to
perform, results in a large volume of wastewater) that will be resolved
by changing to the Swirling Flask test.
EPA knows of no laboratory effectiveness test that correlates well
with field experience. There are numerous factors that come into play
and strongly affect whether a dispersant works well under field
conditions. One of the most critical factors affecting field
effectiveness is probably whether the dispersant is properly applied.
It is correct that the Swirling Flask test has not been adopted by
any other government, including Canada. However, it was developed and
is used extensively by Environment Canada and adoption by the Canadian
government is expected. The decision to adopt the test in the United
States, however, is based on the method's attributes and not on whether
it has been officially adopted by any other government.
One commenter stated that calculating the percent effectiveness
value for a dispersant by averaging the percent effectiveness values
for Prudhoe Bay crude and South Louisiana crude oils may not be very
useful to OSCs in making decisions about the effectiveness of a
particular dispersant on a single type of oil. The commenter suggested
that if EPA maintains this averaging in the final rule, the Agency
should at least identify the dispersant effectiveness values for each
type of test oil separately on the Product Schedule, in addition to the
average percent effectiveness value. The commenter also suggested that
the Product Schedule include the results of spills-of-opportunity
testing.
EPA believes that calculating the percent effectiveness value for a
dispersant by averaging the values for these two test oils is the best
approach because this allows the effectiveness data to reflect two
types of oil that will most likely be encountered in real-world spill
situations in U.S. coastal waters, yet maintains the simplicity of the
testing method. The Agency also selected this approach because it
allows a dispersant to meet the 50 percent effectiveness acceptability
criterion and be listed on the Product Schedule, despite poor
performance of the dispersant on one of the two test oils. EPA does
agree, however, that presenting the dispersant effectiveness data
separately for each type of oil, as well as for the final effectiveness
value (average of the two), will enable OSCs to make a more informed
evaluation of the effectiveness of specific dispersants. Consequently,
EPA will provide dispersant effectiveness values for Prudhoe Bay crude,
South Louisiana crude, and an average of the two for each dispersant
listed on the Product Schedule. EPA notes that the dispersant
effectiveness acceptability criterion will still be based upon the
average percent effectiveness value of these two types of oil. Also,
EPA does not believe it is appropriate to include spills-of-opportunity
data on the Product Schedule because the Schedule is intended to
provide baseline data for comparison of products on a national basis.
Both USCG and NOAA maintain data bases that contain information on
chemical countermeasures used on some significant U.S. and
international oil spills.
Dispersant Toxicity Testing Protocol
One commenter objected to the proposal of the Revised Standard
Dispersant Toxicity Test (RSDTT) protocol because a toxicity threshold
or acceptability criterion is not established. The commenter expressed
concern that the establishment of an effectiveness threshold without
the establishment of a toxicity threshold encourages the use of the
most effective dispersants, rather than the use of the least harmful
(i.e., least toxic) dispersants, which is inconsistent with the intent
of the OPA.
EPA does not agree that the approach established in the NCP does
not encourage the use of the least harmful dispersants. EPA believes
that the best approach to regulating dispersants is to not set a
threshold or acceptability criterion for toxicity, but to provide OSCs,
RRTs, and Area Committees the toxicity data and allow them to make
decisions on dispersant use by weighing the toxicity data against other
variables and the effectiveness data for those dispersants that meet or
exceed the effectiveness threshold. In its experience in oil spill
response and contingency planning, the Agency has found that the
factors impacting dispersant use decisions based on toxicity are more
variable than those for effectiveness (e.g., what are the toxicological
effects of the dispersant on the wide variety of species indigenous to
the area?). The toxicity of any substance is relative to the test
agent, target organisms, and the environment in which the exposure
occurs. EPA believes that OSCs, RRTs, and Area Committees must be
afforded a greater degree of flexibility when making dispersant use
decisions based on these toxicity factors. Consequently, EPA is not
establishing a toxicity threshold for dispersants. EPA does agree,
however, that when making decisions on the use of dispersants, OSCs,
RRTs, and Area Committees should use the least harmful dispersants that
have been proven to be effective under the standardized laboratory
conditions. When making these decisions, OSCs, RRTs, and Area
Committees will possess toxicity data that will allow them to rank the
various dispersants available based on acute toxicity.
One commenter stated that the test species specified in the
dispersant toxicity testing protocol are not suitable for determining
freshwater toxicity. The commenter suggested that additional or
alternate toxicity tests be performed on all products intended for
freshwater use.
EPA agrees with the commenter that the development and use of an
alternate dispersant toxicity test for freshwater environments is a
valid consideration. However, most RRTs in concert with state
regulatory agencies have put in place procedures and/or guidance that
restrict the use of dispersants in freshwater ecosystems due to the
potential impact of the dispersants on potable water. Consequently, EPA
has placed a higher priority on the development of dispersant
effectiveness and toxicity testing protocols for marine environments.
The Agency is currently considering the development of a complementary
dispersant toxicity test for freshwater environments.
Another commenter objected to the use of only an acute toxicity
testing protocol. This commenter argued that acute toxicity tests
provide little insight into the effects of lower concentrations of
pollutants and do not contribute to the understanding of the
accumulative impacts of pollutants over long periods of time. The
commenter suggested that there should be testing for chronic or
sublethal concentrations as well as an evaluation of the effects of
products on the reproduction, larval development, and growth and
maturation of juvenile organisms.
EPA believes that providing the acute toxicity data specified by
Appendix C to OSCs, RRTs, and Area Committees is sufficient to allow
for environmentally protective authorization and preauthorization
decisions on product use. The Agency has conducted toxicity tests of a
longer duration (i.e., 7-day chronic estimator tests) that provide
additional information on sublethal effects on survival, growth, and
fecundity. These data,4 presented at the annual meeting of the
Society of Environmental Toxicology and Chemistry (October 1992),
demonstrated agreement (generally within one order of magnitude)
between LC50s derived from the 7-day test and the acute (48- to
96-hour) test. In cases where growth and reproductive effects were
noted, contaminant levels tended to fall just below the concentration
range at which survival was affected. Also, EPA believes that the acute
toxicity data will be useful to OSCs, RRTs, and Area Committees with
respect to risk estimation. A recently developed model5 allows for
the risk estimation of chronic effects from acute toxicity data and
allows for the integration of application data into the framework for
risk estimation. In addition, OSCs, RRTs, and Area Committees are not
precluded from considering any available chronic toxicity data when
making authorization or preauthorization decisions on product use.
---------------------------------------------------------------------------
\4\See: Whiting, D., J. Clark, J. Briceno, and C. Daniels, A
Comparison of Seven-Day Chronic Toxicity Test Endpoints Using Mysids
(Mysidopsis bahia), Silversides (Menidia beryllina), No. 2 Fuel Oil,
and Oil Dispersant Products; available for inspection in the public
docket for this rulemaking.
\5\See: Mayer, Foster, G. Krause, D. Buckler, M. Ellersieck, and
G. Lee, Predicting Chronic Lethality of Chemicals to Fishes from
Acute Toxicity Test Data: Concepts and Linear Regression Analysis,
February 1993; available for inspection in the public docket for
this rulemaking.
---------------------------------------------------------------------------
One commenter recommended that when conducting the RSDTT, EPA
should test dispersants only, rather than testing dispersants and
dispersed oil. The commenter argued that testing dispersed oil not only
assesses the effects of the chemical uptake of the dispersant by the
organisms, but also physical effects due to contact with dispersed oil
droplets.
EPA does not agree with the recommendation suggested by the
commenter. Chemical dispersants are intended to increase the rate at
which an oil slick is dispersed into the water column. This dispersed
oil is, by definition, a mixture of the dispersant and the spilled oil.
As a result of this dispersion of oil, the possibility exists for
organisms dwelling in the water column to come in physical contact with
the dispersed oil. The Agency believes that it should not make any
difference whether an organism is killed by the effects of a chemical
dispersant in the water or due to physical contact with the dispersed
oil (e.g., dispersed oil covering the gills of a fish, thereby
inhibiting respiration). EPA believes that the fact that dispersants
cause oil to enter the water column is sufficient reason to test for
the toxicological effects of dispersed oil.
The Agency also believes that testing the oil alone, as well as the
oil and dispersant mixture, will provide useful data on the relative
toxicity of the oil and the potential hazards associated with
dispersant use (i.e., data derived from the oil and dispersant mixture
test) relative to the hazards associated with non-treatment of the oil
(i.e., data derived from the oil only test). EPA believes that the
comparative nature of the data will benefit the OSCs, RRTs, and Area
Committees in their decisionmaking and planning activities.
The same commenter expressed concern that the dispersant toxicity
testing protocol uses a series of test concentrations and durations
that are significantly greater than what a marine organism would be
exposed to in the real world. The commenter stated that this would
result in test data that show dispersants and other products to be much
more toxic than what would be expected in the field. The commenter
argued that these biased data may create a negative impression among
regulators, leading to decisions to prohibit the use of a product that
actually could be used safely.
As discussed above, the test methods described in Appendix C are
intended to provide a basic set of test procedures that will provide
baseline data for comparison of products on a national basis. The
testing protocols were not developed with the intent of replicating
possible real-world situations. The dispersant toxicity testing
protocol was developed using conservative estimates. In using the data
currently available on the Product Schedule, OSCs and RRTs are well
aware that these data are intended for use for relative comparisons and
rankings of products.
Three commenters questioned the use of No. 2 fuel oil by the RSDTT
when the dispersant effectiveness testing protocol specifies the use of
Prudhoe Bay and South Louisiana crude oils. These commenters suggested
that the RSDTT be revised to use the same oils as used by the Swirling
Flask test protocol. One commenter noted that the proceedings of the
workshop upon which the RSDTT is partially based recommend the use of
both crude oils over No. 2 fuel oil.
EPA believes that No. 2 fuel oil is the most appropriate type of
oil for use in the RSDTT. The proceedings of the workshop6
referred to by the commenter based its test oil recommendations on the
potential use of dispersants in the Gulf of Mexico. In developing the
RSDTT, the Agency had to consider the evaluation of dispersant toxicity
on a national basis. Also, one of the objectives of this workshop was
to identify data needs. South Louisiana and Prudhoe Bay crude oils were
ranked as the first two preferences in the workshop proceedings because
there is relatively little toxicity data for these oils as compared to
No. 2 fuel oil.
---------------------------------------------------------------------------
\6\See: Duke, Thomas and Gary Petrazzolo, eds., Oil and
Dispersant Toxicity Testing, Proceedings of a Workshop on Technical
Specifications, U.S. Department of the Interior, New Orleans,
January 1989; available for inspection in the public docket for this
rulemaking.
---------------------------------------------------------------------------
EPA selected No. 2 fuel oil as the dispersant toxicity test oil for
several reasons. The workshop recommended the use of a test oil that is
available in large quantities and is well characterized in the
scientific literature; No. 2 fuel oil satisfies both of these
recommendations. There is also a larger historical record of toxicity
data on marine organisms for No. 2 fuel oil than for other types of
oils, including South Louisiana and Prudhoe Bay crudes.
EPA agrees with the commenters, however, that eventually the
effectiveness and toxicity tests for dispersants should specify the
same test oils. As a result, EPA will conduct research and collect data
on the RSDTT using Prudhoe Bay and South Louisiana crudes; these data
will be made available to the public. If this research indicates that
regulatory revisions are appropriate, the Agency will make these
changes to the RSDTT. In addition, new Sec. 300.910(f) provides that
RRTs may require supplementary toxicity testing to obtain data that
will be more specific and relevant due to area- and site-specific
concerns. For example, the RRT responsible for Hawaii might require
toxicity testing for specific dispersants using a crude oil in addition
to No. 2 fuel oil.
One commenter objected to EPA conducting the effectiveness and
toxicity testing required for dispersants under Subpart J. The
commenter stated that not accepting industry-generated data implies
that industry is not a credible source of information. The commenter
also stated that industry will be concerned that a government
laboratory would interpret toxicity data too conservatively. Another
commenter recommended that both EPA and commercial laboratories should
be allowed to conduct dispersant toxicity testing.
EPA wishes to emphasize that it believes industry is a trustworthy
source of testing data. As discussed in the preamble to the proposed
NCP, EPA believes that, given the establishment of an effectiveness
acceptability criterion for dispersants, it is necessary to maintain as
much consistency and reproducibility in the dispersant effectiveness
testing results as possible. Upon further review of this issue, EPA
believes that the necessary consistency and reproducibility in
effectiveness testing results will be maintained if dispersant
manufacturers are responsible for conducting the required dispersant
effectiveness test and submitting the data to EPA. The Agency also
believes that requiring dispersant manufacturers to conduct the
specified effectiveness and toxicity tests is the most efficient way to
ensure that OSCs, RRTs, and Area Committees have the information
necessary to make informed decisions on dispersant use.
As a result, EPA is revising Subpart J and Appendix C to the NCP to
require that dispersant manufacturers (or the commercial laboratories
they select) conduct the effectiveness and toxicity tests specified for
dispersants. Also, to guarantee Agency control over the consistency and
reproducibility in effectiveness test results, EPA explicitly reserves
in the rule the right to request additional documentation regarding
both tests and conduct verification testing of the dispersant
effectiveness test results submitted by manufacturers.
Although the Agency has decided not to finalize the proposed
requirement that only EPA conduct the dispersant tests, this aspect of
the final rule is consistent with the system that has been used by the
regulated community to this point. Prior versions of the NCP required
dispersant manufacturers to conduct the specified effectiveness and
toxicity tests and submit the test results to EPA. However, dispersant
manufacturers will now be responsible for conducting the new Swirling
Flask Dispersant Effectiveness Test specified in Appendix C.
Only those dispersants that meet or exceed the dispersant
effectiveness acceptability criterion of 45 percent must be tested for
toxicity, using the RSDTT included in Appendix C. Because of this, and
because the new effectiveness test is simpler, easily replicable, and
less expensive than the previous test, the new requirements for
dispersant testing will offer significant cost savings to those wishing
to list new products on the Schedule.
EPA is revising paragraphs (7) and (8) of Sec. 300.915(a) and
Section 1.1 of Appendix C to state that dispersant manufacturers are
responsible for conducting the specified dispersant effectiveness and
toxicity tests. Manufacturers must submit test results and supporting
data, along with a certification signed by responsible corporate
officials of the manufacturer and laboratory stating that (1) the test
was conducted on a representative product sample, (2) the testing was
conducted using generally accepted laboratory practices, and (3) they
believe the results to be accurate. EPA is also revising paragraph (12)
of Sec. 300.915(a) to add that laboratories performing toxicity tests
for dispersants must demonstrate previous toxicity test experience in
order for their test results to be accepted. Section 2.3.2 of Appendix
C is being revised to state that the standard test oils for the
Swirling Flask test can be obtained from the Resource Technology
Corporation (2931 Soldier Springs Rd., P.O. Box 1346, Laramie, WY,
82070, (307) 742-5452).
Section 300.920(a) is also being revised to reflect that dispersant
manufacturers are responsible for conducting the required effectiveness
and toxicity tests. Paragraph (2) of this section explains that EPA
reserves the right to request further documentation of the test results
submitted by dispersant manufacturers. This paragraph also states that
EPA reserves the right to verify test results and consider the results
of its verification testing in determining whether a dispersant meets
the listing criteria. Within 60 days of receiving a complete
application for listing a dispersant on the Product Schedule, EPA will
notify the manufacturer of its decision to list the product on the
Schedule or request additional information and/or a sample of the
product. Within 60 days of receiving the additional product data and/or
sample, EPA will notify the manufacturer in writing of its decision to
list or not list the product. As was specified in the proposed NCP, a
dispersant manufacturer whose product was determined not to be eligible
for listing on the Product Schedule may request the EPA Administrator
to review the determination.
Surface Washing Agents
Two commenters stated that EPA's intended methodology for
determining the effectiveness of surface washing agents was unclear in
the proposed NCP.
EPA would like to clarify that it is not specifying an
effectiveness testing protocol for surface washing agents at this time.
EPA is currently conducting research on developing a test method and
may specify a protocol at a later date. The Agency is creating a
separate category for surface washing agents on the Product Schedule
because a number of products currently listed under the ``dispersant''
category on the Schedule are actually surface washing agents.
Separating these very different kinds of products will provide a more
accurate and comprehensive list of products available to OSCs, RRTs,
and Area Committees during a spill and for preauthorization.
Bioremediation Agent Testing Protocols
Two commenters stated that the Bioremediation Agent Effectiveness
Test proposed by EPA in Appendix C may be appropriate as a research
protocol, but it is too complex and expensive for use as a standard
product screening test. These commenters recommended that EPA develop a
reliable, more routine, and less expensive test method for quantifying
hydrocarbon degradation.
EPA agrees that the establishment of a less expensive, less
complex, and better analytical procedure to determine bioremediation
agent effectiveness is desirable. However, due to the complexity of
crude oil and the general lack of understanding of how bioremediation
agents perform, no such analytical procedure exists at this time. In
developing the effectiveness testing procedure specified in Appendix C,
EPA and the National Environmental Technology Applications Center
(NETAC) did consider cost and complexity. (NETAC is a non-profit
corporation created in 1988 under a cooperative agreement between EPA's
Office of Research and Development and the University of Pittsburgh
Trust to assist in the commercialization of innovative environmental
technologies.) The resulting procedure is the least expensive and least
complex, but still reliable, procedure that could be developed at this
time. If a less expensive and/or less complex test is developed in the
future, EPA would be willing to review the method as a possible
replacement for the Bioremediation Agent Effectiveness Test contained
in Appendix C.
One commenter suggested that EPA eliminate the use of a standard
test oil (i.e., Alaska North Slope (ANS) 521) in the bioremediation
agent effectiveness testing protocol because the use of internal
markers in this test makes the use of a standard oil unnecessary. This
commenter also inquired about the availability of the specified test
oil.
EPA does not agree that the requirement for the use of a standard
oil should be eliminated. EPA believes that because microorganisms
respond differently to different types of oil, the use of a standard
oil is necessary until a data base has been developed that can
demonstrate that any type of oil will be adequate for testing purposes.
For example, the light-end oils can have a potential adverse effect on
the microorganisms tested and, consequently, should not be used for
this test. The standard test oil can be obtained from NETAC's
Bioremediation Products Evaluation Center (BPEC) (telephone number and
address provided in Section 4.3 of Appendix C).
The same commenter stated that hopane may not be the best internal
marker and suggested that EPA revise the Bioremediation Agent
Effectiveness Test to allow for the use of different markers.
EPA agrees with the commenter that allowing for the use of more
than one internal marker in the test procedure would be helpful. As a
result, EPA is revising the bioremediation agent effectiveness testing
protocol contained in Section 4.0 of Appendix C to allow for the use of
C2- or C3-phenanthrene or C2-chrysene, as well as
hopane, as the internal marker. EPA recommends, however, that hopane be
used because the test method was developed using this marker.
Three commenters objected to the required use of unfiltered Gulf
Breeze coast seawater in the proposed bioremediation agent
effectiveness testing protocol. These commenters argued that the
required use of this seawater is too restrictive for a test meant to
provide data on a national basis. Two of these commenters suggested
that EPA develop bioremediation effectiveness test methods for
freshwater applications.
EPA agrees that requiring the use of unfiltered Gulf Breeze coast
seawater in a test that is meant to be used on a national basis may be
inappropriate. As a result, EPA is revising Section 4.3 of Appendix C
to specify the use of ``clean natural seawater'' in the Bioremediation
Agent Effectiveness Test. ``Clean natural seawater'' means that the
source of this seawater must not be heavily contaminated with
industrial or other types of effluent. For example, seawater should not
be obtained from a source near shipping channels or discharges of
industrial or municipal wastewater, or with high turbidity. EPA is
currently conducting research on the issue of a bioremediation agent
effectiveness testing protocol for freshwater applications and may
propose such a protocol at a later date.
EPA is also making several other revisions to the bioremediation
agent effectiveness testing protocol contained in Section 4.0 and the
summary technical product test data format contained in Section 6.0 of
Appendix C. Since the development of the proposed NCP, NETAC has
finalized and published7 its laboratory-scale testing protocol for
bioremediation agent effectiveness. EPA is making these revisions to
Sections 4.0 and 6.0 of Appendix C so that the Bioremediation Agent
Effectiveness Test is consistent with the final protocol published by
NETAC. Revisions include the addition of a section on statistical
analysis, the addition of an alternative gas chromatograph/mass
spectrometer (GC/MS) sample cleanup procedure, and a reduction in the
number of sampling events to save costs in conducting the test. These
revisions will make the performance of the test more straightforward
and do not affect the basic procedures for conducting this test.
---------------------------------------------------------------------------
\7\ See: Evaluation Methods Manual: Oil Spill Response
Bioremediation Agents, National Environmental Technology
Applications Center, Pittsburgh, PA, July 1993; available for
inspection in the public docket for this rulemaking.
---------------------------------------------------------------------------
EPA received several comments objecting to specific provisions of
the Bioremediation Agent Toxicity Test that was proposed in Appendix C.
EPA acknowledges that there are a number of technical problems with
this testing protocol. Due to these problems and the short period of
time available to address them, EPA is not including the Bioremediation
Agent Toxicity Test in the final NCP in this rulemaking. Section
300.915(d)(8) and Appendix C are being revised to reflect this change.
The Agency will continue its research in this area and may propose a
revised bioremediation agent toxicity testing protocol at a later date.
Section 300.920--Addition of Products to Schedule
Several commenters expressed support for the establishment of the
effectiveness acceptability criterion or threshold (50 percent, plus or
minus 5 percent) for listing dispersants on the Product Schedule. A
different commenter objected to this threshold, suggesting that EPA
adopt a threshold of 55 percent plus or minus 5 percent, which would be
more in agreement with the Canadian standard. Three other commenters
stated that the 50 percent threshold is too high, which could exclude
some potentially useful dispersants. One of these commenters argued
that the 50 percent criterion is unrealistically high for the low
energy, long settling time (10 minutes) Swirling Flask test protocol,
noting that the 50 to 60 percent criteria used by other countries are
based on more energetic testing conditions. This commenter suggested
that EPA adopt a 20 percent dispersant effectiveness threshold given
its use of the Swirling Flask test.
EPA believes that establishing the 50 percent (plus or minus 5
percent) effectiveness acceptability criterion is the best approach for
listing dispersants on the Product Schedule. EPA examined a number of
issues when developing this criterion for dispersants. The 1988 U.S.-
Canada Free Trade Agreement supports EPA in adopting a dispersant
effectiveness standard that is similar to the Canadian standard (50
percent). The Agency believes that the 50 percent threshold strikes an
effective balance between restrictiveness and leniency in listing
dispersants on the Product Schedule, is generally consistent with the
effectiveness thresholds established by other countries, and allows for
the use of a broad range of dispersants at various levels of technical
development.
The 50 percent criterion was selected by EPA as a median level with
the expectation that it would eliminate from the Product Schedule those
dispersant products that perform poorly. On the current Product
Schedule, more than half of the dispersants do not even attain a 10
percent effectiveness level. EPA believes that part of the reluctance
of OSCs to use dispersants is their major concern that these chemical
agents will not work, even if properly applied. EPA believes that to
select an effectiveness criterion below 50 percent, even with the low
energy regime associated with the Swirling Flask test, would undermine
the intent to eliminate those products that cannot be expected to
perform in the sea.
Two commenters asked whether products currently listed on the
Product Schedule would be required to be retested given the revisions
to Subpart J and, if so, when these tests would be conducted and a new
Product Schedule published.
EPA would like to clarify that products currently listed on the
Product Schedule will be required to be retested according to the new
testing protocols specified in Appendix C. These products will be
retested as expeditiously as possible, but EPA has not yet established
a schedule for this retesting.
Appendix E to Part 300--Oil Spill Response
Four commenters expressed concern regarding the effectiveness of
Appendix E, as proposed, to separate oil spill response requirements of
the NCP from hazardous substance release requirements.
One of these commenters stated that Appendix E, although well
written and helpful, is a guidance document that should not be
converted into a regulation by this rulemaking. The commenter suggested
that if the NCP were better organized, a separate appendix would be
unnecessary. EPA disagrees that the information contained in Appendix E
should be issued as guidance rather than promulgated as a regulation.
As stated in the introduction to Appendix E, the purpose of creating a
separate oil spill response appendix was to compile general oil
discharge response requirements into one document to aid participants
and responders under the national response system. In EPA's view, this
goal would not be achieved if the oil discharge response requirements
were available only in a guidance document format.
Three commenters believed that there are inconsistencies between
the provisions in Appendix E and those in the body of the NCP. One of
these commenters stated that the proposed approach for separating
CERCLA and oil response-related requirements merely exacerbates the
confusion created by the format of the existing NCP. The commenter
explained that EPA's proposal effectively makes responses to oil
discharges subject to two sets of potentially conflicting requirements.
All three commenters recommended that EPA carefully review all relevant
sections of the NCP and Appendix E to ensure absolute consistency in
policy, instructions, guidance, and requirements between these two
parts of the final rule.
As noted in the introduction to Appendix E in the proposed rule,
the oil spill response appendix was created to compile general oil
discharge response requirements into a single document to aid
participants and responders under the national response system. As a
result, the appendix does not alter in any way the meaning or policy
stated in other sections or subparts of the NCP. As noted in the
preamble to the proposed rule, some minor variations between Appendix E
provisions and analogous provisions of the NCP rule language were
necessary to ensure that the appendix address oil discharges only (and
not hazardous substance releases as well, which continue to be
addressed in the NCP rule). As suggested by the commenters, EPA has
conducted a careful review of Appendix E and the relevant sections of
the NCP to ensure consistency in policy, instructions, guidance, and
requirements between the two documents, allowing, of course, for the
intentional minor variations mentioned above. As part of this review,
the Agency has revised Appendix E, where appropriate, to be consistent
with the changes made in various subparts of the NCP in response to
public comments. These NCP changes are identified elsewhere in this
preamble and are discussed in greater detail in the Response to
Comments document. EPA has not enumerated the corresponding revisions
to Appendix E here because this would be redundant. In light of the
substantive consistency between Appendix E provisions and those
provisions of the NCP that relate to oil discharges, EPA believes that
the comment that the proposal effectively made oil spill response
subject to two sets of potentially conflicting requirements has been
addressed adequately in today's final rulemaking.
In addition to the revisions required by comments on other subparts
of the NCP, several commenters recommended editorial changes to various
sections of Appendix E. EPA has incorporated these changes, as
appropriate.
III. Summary of Supporting Analyses
A. Executive Order 12866
Under E.O. 12866 (58 FR 51735, October 4, 1993), the Agency must
determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the E.O. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866.
Pursuant to the terms of E.O. 12866, OMB has notified EPA that it
considers this rule a ``significant regulatory action'' within the
meaning of the Executive Order. EPA has submitted this action to OMB
for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
An economic analysis performed by the Agency, available for
inspection in Room M2427 at the U.S. Environmental Protection Agency,
401 M Street, SW., Washington, DC 20460, shows that this rule would
result in estimated costs to affected facilities of $33 million during
the first year that the rule is in effect and approximately $11.3
million in each subsequent year. At a 7 percent interest rate over 10
years, the annualized costs are approximately $14.1 million. Virtually
all costs are incurred by the federal government and, in particular, by
the USCG and EPA.
The economic analysis prepared in support of this final rule also
includes a qualitative assessment of the environmental benefits
associated with the revisions. The NCP revisions are expected to lead
to quicker, more efficient, and more appropriate responses to
discharges of oil and releases of hazardous substances. The benefits
that would result from such improvements (i.e., preventing oil spills
from occurring or mitigating the severity of the spills that do occur)
are assumed to be substantial. Benefits include avoided clean-up costs
and natural resource damages as well as reductions in other damages
caused by oil spills, such as damage to private property, lost profit
by business, public health risks, and foregone existence/option values.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires that a Regulatory
Flexibility Analysis be performed for all rules that are likely to have
a ``significant impact on a substantial number of small entities.'' To
determine whether a Regulatory Flexibility Analysis was necessary for
this rule, a preliminary analysis was conducted (see the ``Economic
Impact Analysis of the Revisions to the National Oil and Hazardous
Substances Pollution Contingency Plan,'' Chapter 5, available for
inspection in Room M2615 at the U.S. Environmental Protection Agency,
401 M Street, SW., Washington, DC 20460). The results of the
preliminary analysis indicate that this rule will not have significant
adverse impacts on small businesses because such entities are unlikely
to be affected by revisions to the federal planning and response
mechanism for pollution incidents. Revisions to Subpart J would impose
certain additional requirements on small manufacturers of dispersants
and bioremediation agents seeking to list products on the NCP Product
Schedule. However, the analysis revealed that the revisions would not
significantly impact the economic viability of such concerns as the
market is currently structured. Under the final rule, certain local
government agencies (e.g., LEPCs) would be required to play a
supporting role in developing ACPs. The analysis revealed that
fulfilling this role would not place a significant burden on a
substantial number of such entities. Therefore, EPA certifies that this
rule is not expected to have a significant impact on small entities,
and therefore no Regulatory Flexibility Analysis is necessary.
C. Paperwork Reduction Act
The information collection requirements in this rule have been
approved by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and have been assigned control number 2050-0141.
The collection of information required to prepare and submit
materials for listing a product on the NCP Product Schedule is
estimated to have a public reporting burden varying from 14 to 40 hours
per response in the first year and subsequent years, with an average of
26 hours per response. This includes time to review instructions and
guidance, search existing data sources, gather and maintain the data
needed, and complete and review the collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch; EPA; 401 M Street, SW.
(Mail Code 2136); Washington, DC 20460; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
D. Display of OMB Control Numbers
EPA is also amending the table of currently approved information
collection request (ICR) control numbers issued by OMB for various
regulations. This amendment updates the table to accurately display
those information requirements contained in this final rule. This
display of the OMB control number and its subsequent codification in
the Code of Federal Regulations satisfies the requirements of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's implementing
regulations at 5 CFR part 1320.
The ICR was previously subject to public notice and comment prior
to OMB approval. As a result, EPA finds that there is ``good cause''
under section 553(b)(3)(B) of the Administrative Procedure Act (5
U.S.C. 553(b)(3)(B)) to amend this table without prior notice and
comment. Due to the technical nature of the table, further notice and
comment would be unnecessary.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 300
Air pollution control, Chemicals, Hazardous materials, Hazardous
substances, Incorporation by reference, Intergovernmental relations,
Natural resources, Occupational safety and health, Oil pollution,
Reporting and recordkeeping requirements, Superfund, Waste treatment
and disposal, Water pollution control, Water supply.
Dated: August 15, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR parts 9 and 300 are
amended as follows:
PART 9--OMB APPROVAL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 1345
(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp.
p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2,
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4,
300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.
2. Section 9.1 is amended by adding a new entry to the table in
numerical order to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
* * * *
National Oil and Hazardous Substances Pollution Contingency Plan
* * * *
300.920.................................................... 2050-0141
* * * *
------------------------------------------------------------------------
PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN
3. The authority citation for part 300 is revised to read as
follows:
Authority: 42 U.S.C. 9601-9657; 33 U.S.C. 1321(d); E.O. 11735,
38 FR 21243; E.O. 12580, 52 FR 2923; E.O. 12777, 56 FR 54757.
4. Subparts A, B, C, and D are revised to read as follows:
PART 300--[AMENDED]
Subpart A--Introduction
Sec.
300.1 Purpose and objectives.
300.2 Authority and applicability.
300.3 Scope.
300.4 Abbreviations.
300.5 Definitions.
300.6 Use of number and gender.
300.7 Computation of time.
Subpart B--Responsibility and Organization for Response
300.100 Duties of President delegated to federal agencies.
300.105 General organization concepts.
300.110 National Response Team.
300.115 Regional Response Teams.
300.120 On-scene coordinators and remedial project managers:
general responsibilities.
300.125 Notification and communications.
300.130 Determinations to initiate response and special conditions.
300.135 Response operations.
300.140 Multi-regional responses.
300.145 Special teams and other assistance available to OSCs/RPMs.
300.150 Worker health and safety.
300.155 Public information and community relations.
300.160 Documentation and cost recovery.
300.165 OSC reports.
300.170 Federal agency participation.
300.175 Federal agencies: additional responsibilities and
assistance.
300.180 State and local participation in response.
300.185 Nongovernmental participation.
Subpart C--Planning and Preparedness
300.200 General.
300.205 Planning and coordination structure.
300.210 Federal contingency plans.
300.211 OPA facility and vessel response plans.
300.212 Area response drills.
300.215 Title III local emergency response plans.
300.220 Related Title III issues.
Subpart D--Operational Response Phases for Oil Removal
300.300 Phase I--Discovery or notification.
300.305 Phase II--Preliminary assessment and initiation of action.
300.310 Phase III--Containment, countermeasures, cleanup, and
disposal.
300.315 Phase IV--Documentation and cost recovery.
300.317 National response priorities.
300.320 General pattern of response.
300.322 Response to substantial threats to public health or welfare
of the United States.
300.323 Spills of national significance.
300.324 Response to worst case discharges.
300.335 Funding.
Subpart A--Introduction
Sec. 300.1 Purpose and objectives.
The purpose of the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) is to provide the organizational structure and
procedures for preparing for and responding to discharges of oil and
releases of hazardous substances, pollutants, and contaminants.
Sec. 300.2 Authority and applicability.
The NCP is required by section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42
U.S.C. 9605, as amended by the Superfund Amendments and Reauthorization
Act of 1986 (SARA), Pub. L. 99-499, (hereinafter CERCLA), and by
section 311(d) of the Clean Water Act (CWA), 33 U.S.C. 1321(d), as
amended by the Oil Pollution Act of 1990 (OPA), Pub. L. 101-380. In
Executive Order (E.O.) 12777 (56 FR 54757, October 22, 1991), the
President delegated to the Environmental Protection Agency (EPA) the
responsibility for the amendment of the NCP. Amendments to the NCP are
coordinated with members of the National Response Team (NRT) prior to
publication for notice and comment. This includes coordination with the
Federal Emergency Management Agency (FEMA) and the Nuclear Regulatory
Commission in order to avoid inconsistent or duplicative requirements
in the emergency planning responsibilities of those agencies. The NCP
is applicable to response actions taken pursuant to the authorities
under CERCLA and section 311 of the CWA, as amended.
Sec. 300.3 Scope.
(a) The NCP applies to and is in effect for:
(1) Discharges of oil into or on the navigable waters of the United
States, on the adjoining shorelines, the waters of the contiguous zone,
into waters of the exclusive economic zone, or that may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (See sections 311(c)(1) and
502(7) of the CWA).
(2) Releases into the environment of hazardous substances, and
pollutants or contaminants which may present an imminent and
substantial danger to public health or welfare of the United States.
(b) The NCP provides for efficient, coordinated, and effective
response to discharges of oil and releases of hazardous substances,
pollutants, and contaminants in accordance with the authorities of
CERCLA and the CWA. It provides for:
(1) The national response organization that may be activated in
response actions. It specifies responsibilities among the federal,
state, and local governments and describes resources that are available
for response.
(2) The establishment of requirements for federal, regional, and
area contingency plans. It also summarizes state and local emergency
planning requirements under SARA Title III.
(3) Procedures for undertaking removal actions pursuant to section
311 of the CWA.
(4) Procedures for undertaking response actions pursuant to CERCLA.
(5) Procedures for involving state governments in the initiation,
development, selection, and implementation of response actions,
pursuant to CERCLA.
(6) Listing of federal trustees for natural resources for purposes
of CERCLA and the CWA.
(7) Procedures for the participation of other persons in response
actions.
(8) Procedures for compiling and making available an administrative
record for response actions.
(9) National procedures for the use of dispersants and other
chemicals in removals under the CWA and response actions under CERCLA.
(c) In implementing the NCP, consideration shall be given to
international assistance plans and agreements, security regulations and
responsibilities based on international agreements, federal statutes,
and executive orders. Actions taken pursuant to the provisions of any
applicable international joint contingency plans shall be consistent
with the NCP, to the greatest extent possible. The Department of State
shall be consulted, as appropriate, prior to taking any action which
may affect its activities.
(d) Additionally, the NCP applies to and is in effect when the
Federal Response Plan and some or all its Emergency Support Functions
(ESFs) are activated.
Sec. 300.4 Abbreviations.
(a) Department and Agency Title Abbreviations:
ATSDR--Agency for Toxic Substances and Disease Registry
CDC--Centers for Disease Control
DOC--Department of Commerce
DOD--Department of Defense
DOE--Department of Energy
DOI--Department of the Interior
DOJ--Department of Justice
DOL--Department of Labor
DOS--Department of State
DOT--Department of Transportation
EPA--Environmental Protection Agency
FEMA--Federal Emergency Management Agency
GSA--General Services Administration
HHS--Department of Health and Human Services
NIOSH--National Institute for Occupational Safety and Health
NOAA--National Oceanic and Atmospheric Administration
OSHA--Occupational Health and Safety Administration
RSPA--Research and Special Programs Administration
USCG--United States Coast Guard
USDA--United States Department of Agriculture
Note: Reference is made in the NCP to both the Nuclear
Regulatory Commission and the National Response Center. In order to
avoid confusion, the NCP will spell out Nuclear Regulatory
Commission and use the abbreviation ``NRC'' only with respect to the
National Response Center.
(b) Operational Abbreviations:
ACP--Area Contingency Plan
ARARs--Applicable or Relevant and Appropriate Requirements
CERCLIS--CERCLA Information System
CRC--Community Relations Coordinator
CRP--Community Relations Plan
DRAT--District Response Advisory Team
DRG--District Response Group
ERT--Environmental Response Team
ESF--Emergency Support Function
FCO--Federal Coordinating Officer
FRERP--Federal Radiological Emergency Response Plan
FRP--Federal Response Plan
FS--Feasibility Study
HRS--Hazard Ranking System
LEPC--Local Emergency Planning Committee
NCP--National Contingency Plan
NPFC--National Pollution Funds Center
NPL--National Priorities List
NRC--National Response Center
NRS--National Response System
NRT--National Response Team
NSF--National Strike Force
NSFCC--National Strike Force Coordination Center
O&M--Operation and Maintenance
OSC--On-Scene Coordinator
OSLTF--Oil Spill Liability Trust Fund
PA--Preliminary Assessment
PIAT--Public Information Assist Team
RA--Remedial Action
RCP--Regional Contingency Plan
RD--Remedial Design
RERT--Radiological Emergency Response Team
RI--Remedial Investigation
ROD--Record of Decision
RPM--Remedial Project Manager
RRC--Regional Response Center
RRT--Regional Response Team
SAC--Support Agency Coordinator
SERC--State Emergency Response Commission
SI--Site Inspection
SMOA--Superfund Memorandum of Agreement
SONS--Spill of National Significance
SSC--Scientific Support Coordinator
SUPSALV--United States Navy Supervisor of Salvage
USFWS--United States Fish and Wildlife Service
Sec. 300.5 Definitions.
Terms not defined in this section have the meaning given by CERCLA,
the OPA, or the CWA.
Activation means notification by telephone or other expeditious
manner or, when required, the assembly of some or all appropriate
members of the RRT or NRT.
Alternative water supplies as defined by section 101(34) of CERCLA,
includes, but is not limited to, drinking water and household water
supplies.
Applicable requirements means those cleanup standards, standards of
control, and other substantive requirements, criteria, or limitations
promulgated under federal environmental or state environmental or
facility siting laws that specifically address a hazardous substance,
pollutant, contaminant, remedial action, location, or other
circumstance found at a CERCLA site. Only those state standards that
are identified by a state in a timely manner and that are more
stringent than federal requirements may be applicable.
Area Committee (AC) as provided for by CWA sections 311(a)(18) and
(j)(4), means the entity appointed by the President consisting of
members from qualified personnel of federal, state, and local agencies
with responsibilities that include preparing an area contingency plan
for an area designated by the President.
Area contingency plan (ACP) as provided for by CWA sections
311(a)(19) and (j)(4), means the plan prepared by an Area Committee
that is developed to be implemented in conjunction with the NCP and
RCP, in part to address removal of a worst case discharge and to
mitigate or prevent a substantial threat of such a discharge from a
vessel, offshore facility, or onshore facility operating in or near an
area designated by the President.
Bioremediation agents means microbiological cultures, enzyme
additives, or nutrient additives that are deliberately introduced into
an oil discharge and that will significantly increase the rate of
biodegradation to mitigate the effects of the discharge.
Burning agents means those additives that, through physical or
chemical means, improve the combustibility of the materials to which
they are applied.
CERCLA is the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986.
CERCLIS is the abbreviation of the CERCLA Information System, EPA's
comprehensive data base and management system that inventories and
tracks releases addressed or needing to be addressed by the Superfund
program. CERCLIS contains the official inventory of CERCLA sites and
supports EPA's site planning and tracking functions. Sites that EPA
decides do not warrant moving further in the site evaluation process
are given a ``No Further Response Action Planned'' (NFRAP) designation
in CERCLIS. This means that no additional federal steps under CERCLA
will be taken at the site unless future information so warrants. Sites
are not removed from the data base after completion of evaluations in
order to document that these evaluations took place and to preclude the
possibility that they be needlessly repeated. Inclusion of a specific
site or area in the CERCLIS data base does not represent a
determination of any party's liability, nor does it represent a finding
that any response action is necessary. Sites that are deleted from the
NPL are not designated NFRAP sites. Deleted sites are listed in a
separate category in the CERCLIS data base.
Chemical agents means those elements, compounds, or mixtures that
coagulate, disperse, dissolve, emulsify, foam, neutralize, precipitate,
reduce, solubilize, oxidize, concentrate, congeal, entrap, fix, make
the pollutant mass more rigid or viscous, or otherwise facilitate the
mitigation of deleterious effects or the removal of the pollutant from
the water. Chemical agents include biological additives, dispersants,
sinking agents, miscellaneous oil spill control agents, and burning
agents, but do not include sorbents.
Claim for purposes of a release under CERCLA, means a demand in
writing for a sum certain; for purposes of a discharge under CWA, it
means a request, made in writing for a sum certain, for compensation
for damages or removal costs resulting from an incident.
Claimant as defined by section 1001 of the OPA means any person or
government who presents a claim for compensation under Title I of the
OPA.
Coastal waters for the purposes of classifying the size of
discharges, means the waters of the coastal zone except for the Great
Lakes and specified ports and harbors on inland rivers.
Coastal zone as defined for the purpose of the NCP, means all
United States waters subject to the tide, United States waters of the
Great Lakes, specified ports and harbors on inland rivers, waters of
the contiguous zone, other waters of the high seas subject to the NCP,
and the land surface or land substrata, ground waters, and ambient air
proximal to those waters. The term coastal zone delineates an area of
federal responsibility for response action. Precise boundaries are
determined by EPA/USCG agreements and identified in federal regional
contingency plans.
Coast Guard District Response Group (DRG) as provided for by CWA
sections 311(a)(20) and (j)(3), means the entity established by the
Secretary of the department in which the USCG is operating, within each
USCG district, and shall consist of: the combined USCG personnel and
equipment, including marine firefighting equipment, of each port in the
district; additional prepositioned response equipment; and a district
response advisory team.
Community relations means EPA's program to inform and encourage
public participation in the Superfund process and to respond to
community concerns. The term ``public'' includes citizens directly
affected by the site, other interested citizens or parties, organized
groups, elected officials, and potentially responsible parties (PRPs).
Community relations coordinator means lead agency staff who work
with the OSC/RPM to involve and inform the public about the Superfund
process and response actions in accordance with the interactive
community relations requirements set forth in the NCP.
Contiguous zone means the zone of the high seas, established by the
United States under Article 24 of the Convention on the Territorial Sea
and Contiguous Zone, which is contiguous to the territorial sea and
which extends nine miles seaward from the outer limit of the
territorial sea.
Cooperative agreement is a legal instrument EPA uses to transfer
money, property, services, or anything of value to a recipient to
accomplish a public purpose in which substantial EPA involvement is
anticipated during the performance of the project.
Damages as defined by section 1001 of the OPA means damages
specified in section 1002(b) of the Act, and includes the cost of
assessing these damages.
Discharge as defined by section 311(a)(2) of the CWA, includes, but
is not limited to, any spilling, leaking, pumping, pouring, emitting,
emptying, or dumping of oil, but excludes discharges in compliance with
a permit under section 402 of the CWA, discharges resulting from
circumstances identified and reviewed and made a part of the public
record with respect to a permit issued or modified under section 402 of
the CWA, and subject to a condition in such permit, or continuous or
anticipated intermittent discharges from a point source, identified in
a permit or permit application under section 402 of the CWA, that are
caused by events occurring within the scope of relevant operating or
treatment systems. For purposes of the NCP, discharge also means
substantial threat of discharge.
Dispersants means those chemical agents that emulsify, disperse, or
solubilize oil into the water column or promote the surface spreading
of oil slicks to facilitate dispersal of the oil into the water column.
Drinking water supply as defined by section 101(7) of CERCLA, means
any raw or finished water source that is or may be used by a public
water system (as defined in the Safe Drinking Water Act (42 U.S.C. 300
et seq.) or as drinking water by one or more individuals.
Environment as defined by section 101(8) of CERCLA, means the
navigable waters, the waters of the contiguous zone, and the ocean
waters of which the natural resources are under the exclusive
management authority of the United States under the Magnuson Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.); and any other
surface water, ground water, drinking water supply, land surface or
subsurface strata, or ambient air within the United States or under the
jurisdiction of the United States.
Exclusive economic zone, as defined by OPA section 1001, means the
zone established by Presidential Proclamation Numbered 5030, dated
March 10, 1983, including the ocean waters of the areas referred to as
``eastern special areas'' in Article 3(1) of the Agreement between the
United States of America and the Union of Soviet Socialist Republics on
the Maritime Boundary, signed June 1, 1990.
Facility as defined by section 101(9) of CERCLA, means any
building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned treatment works),
well, pit, pond, lagoon, impoundment, ditch, landfill, storage
container, motor vehicle, rolling stock, or aircraft, or any site or
area, where a hazardous substance has been deposited, stored, disposed
of, or placed, or otherwise come to be located; but does not include
any consumer product in consumer use or any vessel. As defined by
section 1001 of the OPA, it means any structure, group of structures,
equipment, or device (other than a vessel) which is used for one or
more of the following purposes: Exploring for, drilling for, producing,
storing, handling, transferring, processing, or transporting oil. This
term includes any motor vehicle, rolling stock, or pipeline used for
one or more of these purposes.
Feasibility study (FS) means a study undertaken by the lead agency
to develop and evaluate options for remedial action. The FS emphasizes
data analysis and is generally performed concurrently and in an
interactive fashion with the remedial investigation (RI), using data
gathered during the RI. The RI data are used to define the objectives
of the response action, to develop remedial action alternatives, and to
undertake an initial screening and detailed analysis of the
alternatives. The term also refers to a report that describes the
results of the study.
Federal Radiological Emergency Response Plan (FRERP) means the
inter-agency agreement for coordinating the response of various
agencies, under a variety of statutes, to a large radiological
accident. The Lead Federal Agency (LFA), defined by the FRERP,
activates the FRERP for any peacetime radiological emergency which,
based upon its professional judgment, is expected to have a significant
radiological effect within the United States, its territories,
possessions, or territorial waters and that could require a response by
several federal agencies.
Federal Response Plan (FRP) means the agreement signed by 27
federal departments and agencies in April 1987 and developed under the
authorities of the Earthquake Hazards Reduction Act of 1977 (42 U.S.C.
7701 et seq.) and the Disaster Relief Act of 1974 (42 U.S.C. 3231 et
seq.), as amended by the Stafford Disaster Relief Act of 1988.
First federal official means the first federal representative of a
participating agency of the National Response Team to arrive at the
scene of a discharge or a release. This official coordinates activities
under the NCP and may initiate, in consultation with the OSC, any
necessary actions until the arrival of the predesignated OSC. A state
with primary jurisdiction over a site covered by a cooperative
agreement will act in the stead of the first federal official for any
incident at the site.
Fund or Trust Fund means the Hazardous Substance Superfund
established by section 9507 of the Internal Revenue Code of 1986.
Ground water as defined by section 101(12) of CERCLA, means water
in a saturated zone or stratum beneath the surface of land or water.
Hazard Ranking System (HRS) means the method used by EPA to
evaluate the relative potential of hazardous substance releases to
cause health or safety problems, or ecological or environmental damage.
Hazardous substance as defined by section 101(14) of CERCLA, means:
Any substance designated pursuant to section 311(b)(2)(A) of the CWA;
any element, compound, mixture, solution, or substance designated
pursuant to section 102 of CERCLA; any hazardous waste having the
characteristics identified under or listed pursuant to section 3001 of
the Solid Waste Disposal Act (but not including any waste the
regulation of which under the Solid Waste Disposal Act (42 U.S.C. 6901
et seq.) has been suspended by Act of Congress); any toxic pollutant
listed under section 307(a) of the CWA; any hazardous air pollutant
listed under section 112 of the Clean Air Act (42 U.S.C. 7521 et seq.);
and any imminently hazardous chemical substance or mixture with respect
to which the EPA Administrator has taken action pursuant to section 7
of the Toxic Substances Control Act (15 U.S.C. 2601 et seq.). The term
does not include petroleum, including crude oil or any fraction thereof
which is not otherwise specifically listed or designated as a hazardous
substance in the first sentence of this paragraph, and the term does
not include natural gas, natural gas liquids, liquified natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas).
Indian tribe as defined by section 101(36) of CERCLA, means any
Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village but not including any Alaska Native
regional or village corporation, which is recognized as eligible for
the special programs and services provided by the United States to
Indians because of their status as Indians. ``Indian tribe,'' as
defined by OPA section 1001, means any Indian tribe, band, nation, or
other organized group or community, but not including any Alaska Native
regional or village corporation, which is recognized as eligible for
the special programs and services provided by the United States to
Indians because of their status as Indians and has governmental
authority over lands belonging to or controlled by the tribe.
Inland waters, for the purposes of classifying the size of
discharges, means those waters of the United States in the inland zone,
waters of the Great Lakes, and specified ports and harbors on inland
rivers.
Inland zone means the environment inland of the coastal zone
excluding the Great Lakes and specified ports and harbors on inland
rivers. The term inland zone delineates an area of federal
responsibility for response action. Precise boundaries are determined
by EPA/USCG agreements and identified in federal regional contingency
plans.
Lead administrative trustee means a natural resource trustee who is
designated on an incident-by-incident basis for the purpose of
preassessment and damage assessment and chosen by the other trustees
whose natural resources are affected by the incident. The lead
administrative trustee facilitates effective and efficient
communication during response operations between the OSC and the other
natural resource trustees conducting activities associated with damage
assessment, and is responsible for applying to the OSC for access to
response operations resources on behalf of all trustees for initiation
of a damage assessment.
Lead agency means the agency that provides the OSC/RPM to plan and
implement response actions under the NCP. EPA, the USCG, another
federal agency, or a state (or political subdivision of a state)
operating pursuant to a contract or cooperative agreement executed
pursuant to section 104(d)(1) of CERCLA, or designated pursuant to a
Superfund Memorandum of Agreement (SMOA) entered into pursuant to
subpart F of the NCP or other agreements may be the lead agency for a
response action. In the case of a release of a hazardous substance,
pollutant, or contaminant, where the release is on, or the sole source
of the release is from, any facility or vessel under the jurisdiction,
custody, or control of Department of Defense (DOD) or Department of
Energy (DOE), then DOD or DOE will be the lead agency. Where the
release is on, or the sole source of the release is from, any facility
or vessel under the jurisdiction, custody, or control of a federal
agency other than EPA, the USCG, DOD, or DOE, then that agency will be
the lead agency for remedial actions and removal actions other than
emergencies. The federal agency maintains its lead agency
responsibilities whether the remedy is selected by the federal agency
for non-NPL sites or by EPA and the federal agency or by EPA alone
under CERCLA section 120. The lead agency will consult with the support
agency, if one exists, throughout the response process.
Management of migration means actions that are taken to minimize
and mitigate the migration of hazardous substances or pollutants or
contaminants and the effects of such migration. Measures may include,
but are not limited to, management of a plume of contamination,
restoration of a drinking water aquifer, or surface water restoration.
Miscellaneous oil spill control agent is any product, other than a
dispersant, sinking agent, surface washing agent, surface collecting
agent, bioremediation agent, burning agent, or sorbent that can be used
to enhance oil spill cleanup, removal, treatment, or mitigation.
National Pollution Funds Center (NPFC) means the entity established
by the Secretary of Transportation whose function is the administration
of the Oil Spill Liability Trust Fund (OSLTF). Among the NPFC's duties
are: providing appropriate access to the OSLTF for federal agencies and
states for removal actions and for federal trustees to initiate the
assessment of natural resource damages; providing appropriate access to
the OSLTF for claims; and coordinating cost recovery efforts.
National Priorities List (NPL) means the list, compiled by EPA
pursuant to CERCLA section 105, of uncontrolled hazardous substance
releases in the United States that are priorities for long-term
remedial evaluation and response.
National response system (NRS) is the mechanism for coordinating
response actions by all levels of government in support of the OSC/RPM.
The NRS is composed of the NRT, RRTs, OSC/RPM, Area Committees, and
Special Teams and related support entities. The NRS is capable of
expanding or contracting to accommodate the response effort required by
the size or complexity of the discharge or release.
National Strike Force (NSF) is a special team established by the
USCG, including the three USCG Strike Teams, the Public Information
Assist Team (PIAT), and the National Strike Force Coordination Center.
The NSF is available to assist OSCs/RPMs in their preparedness and
response duties.
National Strike Force Coordination Center (NSFCC), authorized as
the National Response Unit by CWA sections 311(a)(23) and (j)(2), means
the entity established by the Secretary of the department in which the
USCG is operating at Elizabeth City, North Carolina with
responsibilities that include administration of the USCG Strike Teams,
maintenance of response equipment inventories and logistic networks,
and conducting a national exercise program.
Natural resources means land, fish, wildlife, biota, air, water,
ground water, drinking water supplies, and other such resources
belonging to, managed by, held in trust by, appertaining to, or
otherwise controlled by the United States (including the resources of
the exclusive economic zone defined by the Magnuson Fishery
Conservation and Management Act of 1976), any state or local
government, any foreign government, any Indian tribe, or, if such
resources are subject to a trust restriction on alienation, any member
of an Indian tribe.
Navigable waters as defined by 40 CFR 110.1, means the waters of
the United States, including the territorial seas. The term includes:
(1) All waters that are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters that are subject to the ebb and flow of the tide;
(2) Interstate waters, including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters;
(i) That are or could be used by interstate or foreign travelers
for recreational or other purposes;
(ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;
(iii) That are used or could be used for industrial purposes by
industries in interstate commerce;
(4) All impoundments of waters otherwise defined as navigable
waters under this section;
(5) Tributaries of waters identified in paragraphs (a) through (d)
of this definition, including adjacent wetlands; and
(6) Wetlands adjacent to waters identified in paragraphs (a)
through (e) of this definition: Provided, that waste treatment systems
(other than cooling ponds meeting the criteria of this paragraph) are
not waters of the United States.
(7) Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
Offshore facility as defined by section 101(17) of CERCLA and
section 311(a)(11) of the CWA, means any facility of any kind located
in, on, or under any of the navigable waters of the United States, and
any facility of any kind which is subject to the jurisdiction of the
United States and is located in, on, or under any other waters, other
than a vessel or a public vessel.
Oil as defined by section 311(a)(1) of the CWA, means oil of any
kind or in any form, including, but not limited to, petroleum, fuel
oil, sludge, oil refuse, and oil mixed with wastes other than dredged
spoil. Oil, as defined by section 1001 of the OPA means oil of any kind
or in any form, including, but not limited to, petroleum, fuel oil,
sludge, oil refuse, and oil mixed with wastes other than dredged spoil,
but does not include petroleum, including crude oil or any fraction
thereof, which is specifically listed or designated as a hazardous
substance under subparagraphs (A) through (F) of section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. 9601) and which is subject to the provisions of that Act.
Oil Spill Liability Trust Fund (OSLTF) means the fund established
under section 9509 of the Internal Revenue Code of 1986 (26 U.S.C.
9509).
On-scene coordinator (OSC) means the federal official predesignated
by EPA or the USCG to coordinate and direct responses under subpart D,
or the government official designated by the lead agency to coordinate
and direct removal actions under subpart E of the NCP.
Onshore facility as defined by section 101(18) of CERCLA, means any
facility (including, but not limited to, motor vehicles and rolling
stock) of any kind located in, on, or under any land or non-navigable
waters within the United States; and, as defined by section 311(a)(10)
of the CWA, means any facility (including, but not limited to, motor
vehicles and rolling stock) of any kind located in, on, or under any
land within the United States other than submerged land.
On-site means the areal extent of contamination and all suitable
areas in very close proximity to the contamination necessary for
implementation of the response action.
Operable unit means a discrete action that comprises an incremental
step toward comprehensively addressing site problems. This discrete
portion of a remedial response manages migration, or eliminates or
mitigates a release, threat of a release, or pathway of exposure. The
cleanup of a site can be divided into a number of operable units,
depending on the complexity of the problems associated with the site.
Operable units may address geographical portions of a site, specific
site problems, or initial phases of an action, or may consist of any
set of actions performed over time or any actions that are concurrent
but located in different parts of a site.
Operation and maintenance (O&M) means measures required to maintain
the effectiveness of response actions.
Person as defined by section 101(21) of CERCLA, means an
individual, firm, corporation, association, partnership, consortium,
joint venture, commercial entity, United States government, state,
municipality, commission, political subdivision of a state, or any
interstate body. As defined by section 1001 of the OPA, ``person''
means an individual, corporation, partnership, association, state,
municipality, commission, or political subdivision of a state, or any
interstate body.
Pollutant or contaminant as defined by section 101(33) of CERCLA,
shall include, but not be limited to, any element, substance, compound,
or mixture, including disease-causing agents, which after release into
the environment and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from the environment or
indirectly by ingestion through food chains, will or may reasonably be
anticipated to cause death, disease, behavioral abnormalities, cancer,
genetic mutation, physiological malfunctions (including malfunctions in
reproduction) or physical deformations, in such organisms or their
offspring. The term does not include petroleum, including crude oil or
any fraction thereof which is not otherwise specifically listed or
designated as a hazardous substance under section 101(14) (A) through
(F) of CERCLA, nor does it include natural gas, liquified natural gas,
or synthetic gas of pipeline quality (or mixtures of natural gas and
such synthetic gas). For purposes of the NCP, the term pollutant or
contaminant means any pollutant or contaminant that may present an
imminent and substantial danger to public health or welfare of the
United States.
Post-removal site control means those activities that are necessary
to sustain the integrity of a Fund-financed removal action following
its conclusion. Post-removal site control may be a removal or remedial
action under CERCLA. The term includes, without being limited to,
activities such as relighting gas flares, replacing filters, and
collecting leachate.
Preliminary assessment (PA) under CERCLA means review of existing
information and an off-site reconnaissance, if appropriate, to
determine if a release may require additional investigation or action.
A PA may include an on-site reconnaissance, if appropriate.
Public participation, see the definition for community relations.
Public vessel as defined by section 311(a)(4) of the CWA, means a
vessel owned or bareboat-chartered and operated by the United States,
or by a state or political subdivision thereof, or by a foreign nation,
except when such vessel is engaged in commerce.
Quality assurance project plan (QAPP) is a written document,
associated with all remedial site sampling activities, which presents
in specific terms the organization (where applicable), objectives,
functional activities, and specific quality assurance (QA) and quality
control (QC) activities designed to achieve the data quality objectives
of a specific project(s) or continuing operation(s). The QAPP is
prepared for each specific project or continuing operation (or group of
similar projects or continuing operations). The QAPP will be prepared
by the responsible program office, regional office, laboratory,
contractor, recipient of an assistance agreement, or other
organization. For an enforcement action, potentially responsible
parties may prepare a QAPP subject to lead agency approval.
Release as defined by section 101(22) of CERCLA, means any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the
environment (including the abandonment or discarding of barrels,
containers, and other closed receptacles containing any hazardous
substance or pollutant or contaminant), but excludes: Any release which
results in exposure to persons solely within a workplace, with respect
to a claim which such persons may assert against the employer of such
persons; emissions from the engine exhaust of a motor vehicle, rolling
stock, aircraft, vessel, or pipeline pumping station engine; release of
source, byproduct, or special nuclear material from a nuclear incident,
as those terms are defined in the Atomic Energy Act of 1954, if such
release is subject to requirements with respect to financial protection
established by the Nuclear Regulatory Commission under section 170 of
such Act, or, for the purposes of section 104 of CERCLA or any other
response action, any release of source, byproduct, or special nuclear
material from any processing site designated under section 102(a)(1) or
302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 (42
U.S.C. 7901 et seq.); and the normal application of fertilizer. For
purposes of the NCP, release also means threat of release.
Relevant and appropriate requirements means those cleanup
standards, standards of control, and other substantive requirements,
criteria, or limitations promulgated under federal environmental or
state environmental or facility siting laws that, while not
``applicable'' to a hazardous substance, pollutant, contaminant,
remedial action, location, or other circumstance at a CERCLA site,
address problems or situations sufficiently similar to those
encountered at the CERCLA site that their use is well suited to the
particular site. Only those state standards that are identified in a
timely manner and are more stringent than federal requirements may be
relevant and appropriate.
Remedial design (RD) means the technical analysis and procedures
which follow the selection of remedy for a site and result in a
detailed set of plans and specifications for implementation of the
remedial action.
Remedial investigation (RI) is a process undertaken by the lead
agency to determine the nature and extent of the problem presented by
the release. The RI emphasizes data collection and site
characterization, and is generally performed concurrently and in an
interactive fashion with the feasibility study. The RI includes
sampling and monitoring, as necessary, and includes the gathering of
sufficient information to determine the necessity for remedial action
and to support the evaluation of remedial alternatives.
Remedial project manager (RPM) means the official designated by the
lead agency to coordinate, monitor, or direct remedial or other
response actions under subpart E of the NCP.
Remedy or remedial action (RA) means those actions consistent with
permanent remedy taken instead of, or in addition to, removal action in
the event of a release or threatened release of a hazardous substance
into the environment, to prevent or minimize the release of hazardous
substances so that they do not migrate to cause substantial danger to
present or future public health or welfare or the environment. The term
includes, but is not limited to, such actions at the location of the
release as storage, confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization, cleanup of released
hazardous substances and associated contaminated materials, recycling
or reuse, diversion, destruction, segregation of reactive wastes,
dredging or excavations, repair or replacement of leaking containers,
collection of leachate and runoff, on-site treatment or incineration,
provision of alternative water supplies, any monitoring reasonably
required to assure that such actions protect the public health and
welfare and the environment and, where appropriate, post-removal site
control activities. The term includes the costs of permanent relocation
of residents and businesses and community facilities (including the
cost of providing ``alternative land of equivalent value'' to an Indian
tribe pursuant to CERCLA section 126(b)) where EPA determines that,
alone or in combination with other measures, such relocation is more
cost-effective than, and environmentally preferable to, the
transportation, storage, treatment, destruction, or secure disposition
off-site of such hazardous substances, or may otherwise be necessary to
protect the public health or welfare; the term includes off-site
transport and off-site storage, treatment, destruction, or secure
disposition of hazardous substances and associated contaminated
materials. For the purpose of the NCP, the term also includes
enforcement activities related thereto.
Remove or removal as defined by section 311(a)(8) of the CWA,
refers to containment and removal of oil or hazardous substances from
the water and shorelines or the taking of such other actions as may be
necessary to minimize or mitigate damage to the public health or
welfare of the United States (including, but not limited to, fish,
shellfish, wildlife, public and private property, and shorelines and
beaches) or to the environment. For the purpose of the NCP, the term
also includes monitoring of action to remove a discharge. As defined by
section 101(23) of CERCLA, remove or removal means the cleanup or
removal of released hazardous substances from the environment; such
actions as may be necessary taken in the event of the threat of release
of hazardous substances into the environment; such actions as may be
necessary to monitor, assess, and evaluate the release or threat of
release of hazardous substances; the disposal of removed material; or
the taking of such other actions as may be necessary to prevent,
minimize, or mitigate damage to the public health or welfare of the
United States or to the environment, which may otherwise result from a
release or threat of release. The term includes, in addition, without
being limited to, security fencing or other measures to limit access,
provision of alternative water supplies, temporary evacuation and
housing of threatened individuals not otherwise provided for, action
taken under section 104(b) of CERCLA, post-removal site control, where
appropriate, and any emergency assistance which may be provided under
the Disaster Relief Act of 1974. For the purpose of the NCP, the term
also includes enforcement activities related thereto.
Removal costs as defined by section 1001 of the OPA means the costs
of removal that are incurred after a discharge of oil has occurred, or
in any case in which there is a substantial threat of a discharge of
oil, the costs to prevent, minimize, or mitigate oil pollution from
such an incident.
Respond or response as defined by section 101(25) of CERCLA, means
remove, removal, remedy, or remedial action, including enforcement
activities related thereto.
Responsible party as defined by section 1001 of the OPA, means the
following:
(1) Vessels--In the case of a vessel, any person owning, operating,
or demise chartering the vessel.
(2) Onshore Facilities--In the case of an onshore facility (other
than a pipeline), any person owning or operating the facility, except a
federal agency, state, municipality, commission, or political
subdivision of a state, or any interstate body, that as the owner
transfers possession and right to use the property to another person by
lease, assignment, or permit.
(3) Offshore Facilities--In the case of an offshore facility (other
than a pipeline or a deepwater port licensed under the Deepwater Port
Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the
area in which the facility is located or the holder of a right of use
and easement granted under applicable state law or the Outer
Continental Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which
the facility is located (if the holder is a different person than the
lessee or permittee), except a federal agency, state, municipality,
commission, or political subdivision of a state, or any interstate
body, that as owner transfers possession and right to use the property
to another person by lease, assignment, or permit.
(4) Deepwater Ports--In the case of a deepwater port licensed under
the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
(5) Pipelines--In the case of a pipeline, any person owning or
operating the pipeline.
(6) Abandonment--In the case of an abandoned vessel, onshore
facility, deepwater port, pipeline, or offshore facility, the person
who would have been responsible parties immediately prior to the
abandonment of the vessel or facility.
SARA is the Superfund Amendments and Reauthorization Act of 1986.
In addition to certain free-standing provisions of law, it includes
amendments to CERCLA, the Solid Waste Disposal Act, and the Internal
Revenue Code. Among the free-standing provisions of law is Title III of
SARA, also known as the ``Emergency Planning and Community Right-to-
Know Act of 1986'' and Title IV of SARA, also known as the ``Radon Gas
and Indoor Air Quality Research Act of 1986.'' Title V of SARA amending
the Internal Revenue Code is also known as the ``Superfund Revenue Act
of 1986.''
Sinking agents means those additives applied to oil discharges to
sink floating pollutants below the water surface.
Site inspection (SI) means an on-site investigation to determine
whether there is a release or potential release and the nature of the
associated threats. The purpose is to augment the data collected in the
preliminary assessment and to generate, if necessary, sampling and
other field data to determine if further action or investigation is
appropriate.
Size classes of discharges refers to the following size classes of
oil discharges which are provided as guidance to the OSC and serve as
the criteria for the actions delineated in subpart D. They are not
meant to imply associated degrees of hazard to public health or welfare
of the United States, nor are they a measure of environmental injury.
Any oil discharge that poses a substantial threat to public health or
welfare of the United States or the environment or results in
significant public concern shall be classified as a major discharge
regardless of the following quantitative measures:
(1) Minor discharge means a discharge to the inland waters of less
than 1,000 gallons of oil or a discharge to the coastal waters of less
than 10,000 gallons of oil.
(2) Medium discharge means a discharge of 1,000 to 10,000 gallons
of oil to the inland waters or a discharge of 10,000 to 100,000 gallons
of oil to the coastal waters.
(3) Major discharge means a discharge of more than 10,000 gallons
of oil to the inland waters or more than 100,000 gallons of oil to the
coastal waters.
Size classes of releases refers to the following size
classifications which are provided as guidance to the OSC for meeting
pollution reporting requirements in subpart B. The final determination
of the appropriate classification of a release will be made by the OSC
based on consideration of the particular release (e.g., size, location,
impact, etc.):
(1) Minor release means a release of a quantity of hazardous
substance(s), pollutant(s), or contaminant(s) that poses minimal threat
to public health or welfare of the United States or the environment.
(2) Medium release means a release not meeting the criteria for
classification as a minor or major release.
(3) Major release means a release of any quantity of hazardous
substance(s), pollutant(s), or contaminant(s) that poses a substantial
threat to public health or welfare of the United States or the
environment or results in significant public concern.
Sorbents means essentially inert and insoluble materials that are
used to remove oil and hazardous substances from water through
adsorption, in which the oil or hazardous substance is attracted to the
sorbent surface and then adheres to it; absorption, in which the oil or
hazardous substance penetrates the pores of the sorbent material; or a
combination of the two. Sorbents are generally manufactured in
particulate form for spreading over an oil slick or as sheets, rolls,
pillows, or booms. The sorbent material may consist of, but is not
limited to, the following materials:
(1) Organic products--
(i) Peat moss or straw;
(ii) Cellulose fibers or cork;
(iii) Corn cobs;
(iv) Chicken, duck, or other bird feathers.
(2) Mineral compounds--
(i) Volcanic ash or perlite;
(ii) Vermiculite or zeolite.
(3) Synthetic products--
(i) Polypropylene;
(ii) Polyethylene;
(iii) Polyurethane;
(iv) Polyester.
Source control action is the construction or installation and
start-up of those actions necessary to prevent the continued release of
hazardous substances or pollutants or contaminants (primarily from a
source on top of or within the ground, or in buildings or other
structures) into the environment.
Source control maintenance measures are those measures intended to
maintain the effectiveness of source control actions once such actions
are operating and functioning properly, such as the maintenance of
landfill caps and leachate collection systems.
Specified ports and harbors means those ports and harbor areas on
inland rivers, and land areas immediately adjacent to those waters,
where the USCG acts as predesignated on-scene coordinator. Precise
locations are determined by EPA/USCG regional agreements and identified
in federal Regional Contingency Plans and Area Contingency Plans.
Spill of national significance (SONS) means a spill that due to its
severity, size, location, actual or potential impact on the public
health and welfare or the environment, or the necessary response
effort, is so complex that it requires extraordinary coordination of
federal, state, local, and responsible party resources to contain and
clean up the discharge.
State means the several states of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
U.S. Virgin Islands, the Commonwealth of the Northern Marianas, and any
other territory or possession over which the United States has
jurisdiction. For purposes of the NCP, the term includes Indian tribes
as defined in the NCP except where specifically noted. Section 126 of
CERCLA provides that the governing body of an Indian tribe shall be
afforded substantially the same treatment as a state with respect to
certain provisions of CERCLA. Section 300.515(b) of the NCP describes
the requirements pertaining to Indian tribes that wish to be treated as
states under CERCLA.
Superfund Memorandum of Agreement (SMOA) means a nonbinding,
written document executed by an EPA Regional Administrator and the head
of a state agency that may establish the nature and extent of EPA and
state interaction during the removal, pre-remedial, remedial, and/or
enforcement response process. The SMOA is not a site-specific document
although attachments may address specific sites. The SMOA generally
defines the role and responsibilities of both the lead and the support
agencies.
Superfund state contract is a joint, legally binding agreement
between EPA and a state to obtain the necessary assurances before a
federal-lead remedial action can begin at a site. In the case of a
political subdivision-lead remedial response, a three-party Superfund
state contract among EPA, the state, and political subdivision thereof,
is required before a political subdivision takes the lead for any phase
of remedial response to ensure state involvement pursuant to section
121(f)(1) of CERCLA. The Superfund state contract may be amended to
provide the state's CERCLA section 104 assurances before a political
subdivision can take the lead for remedial action.
Support agency means the agency or agencies that provide the
support agency coordinator to furnish necessary data to the lead
agency, review response data and documents, and provide other
assistance as requested by the OSC or RPM. EPA, the USCG, another
federal agency, or a state may be support agencies for a response
action if operating pursuant to a contract executed under section
104(d)(1) of CERCLA or designated pursuant to a Superfund Memorandum of
Agreement entered into pursuant to subpart F of the NCP or other
agreement. The support agency may also concur on decision documents.
Support agency coordinator (SAC) means the official designated by
the support agency, as appropriate, to interact and coordinate with the
lead agency in response actions under subpart E of this part.
Surface collecting agents means those chemical agents that form a
surface film to control the layer thickness of oil.
Surface washing agent is any product that removes oil from solid
surfaces, such as beaches and rocks, through a detergency mechanism and
does not involve dispersing or solubilizing the oil into the water
column.
Tank vessel as defined by section 1001 of the OPA means a vessel
that is constructed or adapted to carry, or that carries oil or
hazardous material in bulk as cargo or cargo residue, and that:
(1) is a vessel of the United States;
(2) operates on the navigable waters; or
(3) transfers oil or hazardous material in a place subject to the
jurisdiction of the United States.
Threat of discharge or release, see definitions for discharge and
release.
Threat of release, see definition for release.
Treatment technology means any unit operation or series of unit
operations that alters the composition of a hazardous substance or
pollutant or contaminant through chemical, biological, or physical
means so as to reduce toxicity, mobility, or volume of the contaminated
materials being treated. Treatment technologies are an alternative to
land disposal of hazardous wastes without treatment.
Trustee means an official of a federal natural resources management
agency designated in subpart G of the NCP or a designated state
official or Indian tribe or, in the case of discharges covered by the
OPA, a foreign government official, who may pursue claims for damages
under section 107(f) of CERCLA or section 1006 of the OPA.
United States when used in relation to section 311(a)(5) of the
CWA, means the states, the District of Columbia, the Commonwealth of
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, the
United States Virgin Islands, and the Pacific Island Governments.
United States, when used in relation to section 101(27) of CERCLA and
section 1001(36) of the OPA, includes the several states of the United
States, the District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Marianas, and any other territory or
possession over which the United States has jurisdiction.
Vessel as defined by section 101(28) of CERCLA, means every
description of watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on water; and, as
defined by section 311(a)(3) of the CWA, means every description of
watercraft or other artificial contrivance used, or capable of being
used, as a means of transportation on water other than a public vessel.
Volunteer means any individual accepted to perform services by the
lead agency which has authority to accept volunteer services (examples:
See 16 U.S.C. 742f(c)). A volunteer is subject to the provisions of the
authorizing statute and the NCP.
Worst case discharge as defined by section 311(a)(24) of the CWA,
means, in the case of a vessel, a discharge in adverse weather
conditions of its entire cargo, and, in the case of an offshore
facility or onshore facility, the largest foreseeable discharge in
adverse weather conditions.
Sec. 300.6 Use of number and gender.
As used in this regulation, words in the singular also include the
plural and words in the masculine gender also include the feminine and
vice versa, as the case may require.
Sec. 300.7 Computation of time.
In computing any period of time prescribed or allowed in these
rules of practice, except as otherwise provided, the day of the event
from which the designated period begins to run shall not be included.
Saturdays, Sundays, and federal legal holidays shall be included. When
a stated time expires on a Saturday, Sunday, or legal holiday, the
stated time period shall be extended to include the next business day.
Subpart B--Responsibility and Organization for Response
Sec. 300.100 Duties of President delegated to federal agencies.
In Executive Orders 12580 and 12777, the President delegated
certain functions and responsibilities vested in him by the CWA,
CERCLA, and the OPA.
Sec. 300.105 General organization concepts.
(a) Federal agencies should:
(1) Plan for emergencies and develop procedures for addressing oil
discharges and releases of hazardous substances, pollutants, or
contaminants;
(2) Coordinate their planning, preparedness, and response
activities with one another;
(3) Coordinate their planning, preparedness, and response
activities with affected states, local governments, and private
entities; and
(4) Make available those facilities or resources that may be useful
in a response situation, consistent with agency authorities and
capabilities.
(b) Three fundamental kinds of activities are performed pursuant to
the NCP:
(1) Preparedness planning and coordination for response to a
discharge of oil or release of a hazardous substance, pollutant, or
contaminant;
(2) Notification and communications; and
(3) Response operations at the scene of a discharge or release.
(c) The organizational elements created to perform these
activities are:
(1) The NRT, responsible for national response and preparedness
planning, for coordinating regional planning, and for providing policy
guidance and support to the Regional Response Teams (RRTs). NRT
membership consists of representatives from the agencies specified in
Sec. 300.175(b).
(2) RRTs, responsible for regional planning and preparedness
activities before response actions, and for providing advice and
support to the OSC or RPM when activated during a response. RRT
membership consists of designated representatives from each federal
agency participating in the NRT together with state and (as agreed upon
by the states) local government representatives.
(3) The OSC and the RPM, primarily responsible for directing
response efforts and coordinating all other efforts at the scene of a
discharge or release. The other responsibilities of OSCs and RPMs are
described in Sec. 300.135.
(4) Area Committees, responsible for developing, under direction of
the OSC, ACPs for each area designated by the President.
Responsibilities of Area Committees are described in Sec. 300.205(c).
(d) The basic framework for the response management structure is a
system (e.g., a unified command system) that brings together the
functions of the Federal Government, the state government, and the
responsible party to achieve an effective and efficient response, where
the OSC maintains authority.
(e)(1) The organizational concepts of the national response system
are depicted in the following Figures 1a and 1b:
BILLING CODE 6560-50-P
TR15SE94.000
TR15SE94.001
BILLING CODE 6560-50-C
(2) The standard federal regional boundaries (which are also the
geographic areas of responsibility for the RRTs) are shown in the
following Figure 2:
BILLING CODE 6560-50-P
TR15SE94.002
BILLING CODE 6560-50-C
(3) The USCG District boundaries are shown in the following Figure
3:
BILLING CODE 6560-50-P
TR15SE94.003
BILLING CODE 6560-50-C
Sec. 300.110 National Response Team.
National planning and coordination is accomplished through the NRT.
(a) The NRT consists of representatives from the agencies named in
Sec. 300.175(b). Each agency shall designate a member to the team and
sufficient alternates to ensure representation, as agency resources
permit. The NRT will consider requests for membership on the NRT from
other agencies. Other agencies may request membership by forwarding
such requests to the chair of the NRT.
(b) The chair of the NRT shall be the representative of EPA and the
vice chair shall be the representative of the USCG, with the exception
of periods of activation because of response action. During activation,
the chair shall be the member agency providing the OSC/RPM. The vice
chair shall maintain records of NRT activities along with national,
regional, and area plans for response actions.
(c) While the NRT desires to achieve a consensus on all matters
brought before it, certain matters may prove unresolvable by this
means. In such cases, each agency serving as a participating agency on
the NRT may be accorded one vote in NRT proceedings.
(d) The NRT may establish such bylaws and committees as it deems
appropriate to further the purposes for which it is established.
(e) The NRT shall evaluate methods of responding to discharges or
releases; shall recommend any changes needed in the response
organization; and shall recommend to the Administrator of EPA changes
to the NCP designed to improve the effectiveness of the national
response system, including drafting of regulatory language.
(f) The NRT shall provide policy and program direction to the RRTs.
(g) The NRT may consider and make recommendations to appropriate
agencies on the training, equipping, and protection of response teams
and necessary research, development, demonstration, and evaluation to
improve response capabilities.
(h) Direct planning and preparedness responsibilities of the NRT
include:
(1) Maintaining national preparedness to respond to a major
discharge of oil or release of a hazardous substance, pollutant, or
contaminant that is beyond regional capabilities;
(2) Publishing guidance documents for preparation and
implementation of SARA Title III local emergency response plans;
(3) Monitoring incoming reports from all RRTs and activating for a
response action, when necessary;
(4) Coordinating a national program to assist member agencies in
preparedness planning and response, and enhancing coordination of
member agency preparedness programs;
(5) Developing procedures, in coordination with the NSFCC, as
appropriate, to ensure the coordination of federal, state, and local
governments, and private response to oil discharges and releases of
hazardous substances, pollutants, or contaminants;
(6) Monitoring response-related research and development, testing,
and evaluation activities of NRT agencies to enhance coordination,
avoid duplication of effort, and facilitate research in support of
response activities;
(7) Developing recommendations for response training and for
enhancing the coordination of available resources among agencies with
training responsibilities under the NCP;
(8) Reviewing regional responses to oil discharges and hazardous
substance, pollutant, or contaminant releases, including an evaluation
of equipment readiness and coordination among responsible public
agencies and private organizations; and
(9) Assisting in developing a national exercise program, in
coordination with the NSFCC, to ensure preparedness and coordination
nationwide.
(i) The NRT will consider matters referred to it for advice or
resolution by an RRT.
(j) The NRT should be activated as an emergency response team:
(1) When an oil discharge or hazardous substance release:
(i) Exceeds the response capability of the region in which it
occurs;
(ii) Transects regional boundaries; or
(iii) Involves a substantial threat to the public health or welfare
of the United States or the environment, substantial amounts of
property, or substantial threats to natural resources;
(2) If requested by any NRT member.
(k) When activated for a response action, the NRT shall meet at the
call of the chair and may:
(1) Monitor and evaluate reports from the OSC/RPM and recommend to
the OSC/RPM, through the RRT, actions to combat the discharge or
release;
(2) Request other federal, state, and local governments, or private
agencies, to provide resources under their existing authorities to
combat a discharge or release, or to monitor response operations; and
(3) Coordinate the supply of equipment, personnel, or technical
advice to the affected region from other regions or districts.
Sec. 300.115 Regional Response Teams.
(a) Regional planning and coordination of preparedness and response
actions is accomplished through the RRT. In the case of a discharge of
oil, preparedness activities will be carried out in conjunction with
Area Committees, as appropriate. The RRT agency membership parallels
that of the NRT, as described in Sec. 300.110, but also includes state
and local representation. The RRT provides:
(1) The appropriate regional mechanism for development and
coordination of preparedness activities before a response action is
taken and for coordination of assistance and advice to the OSC/RPM
during such response actions; and
(2) Guidance to Area Committees, as appropriate, to ensure inter-
area consistency and consistency of individual ACPs with the RCP and
NCP.
(b) The two principal components of the RRT mechanism are a
standing team, which consists of designated representatives from each
participating federal agency, state governments, and local governments
(as agreed upon by the states); and incident-specific teams formed from
the standing team when the RRT is activated for a response. On
incident-specific teams, participation by the RRT member agencies will
relate to the technical nature of the incident and its geographic
location.
(1) The standing team's jurisdiction corresponds to the standard
federal regions, except for Alaska, Oceania in the Pacific, and the
Caribbean area, each of which has a separate standing RRT. The role of
the standing RRT includes communications systems and procedures,
planning, coordination, training, evaluation, preparedness, and related
matters on a regionwide basis. It also includes coordination of Area
Committees for these functions in areas within their respective
regions, as appropriate.
(2) The role of the incident-specific team is determined by the
operational requirements of the response to a specific discharge or
release. Appropriate levels of activation and/or notification of the
incident-specific RRT, including participation by state and local
governments, shall be determined by the designated RRT chair for the
incident, based on the RCP. The incident-specific RRT supports the
designated OSC/RPM. The designated OSC/RPM directs response efforts and
coordinates all other efforts at the scene of a discharge or release.
(c) The representatives of EPA and the USCG shall act as co-chairs
of RRTs except when the RRT is activated. When the RRT is activated for
response actions, the chair shall be the member agency providing the
OSC/RPM.
(d) Each participating agency should designate one member and at
least one alternate member to the RRT. Agencies whose regional
subdivisions do not correspond to the standard federal regions may
designate additional representatives to the standing RRT to ensure
appropriate coverage of the standard federal region. Participating
states may also designate one member and at least one alternate member
to the RRT. Indian tribal governments may arrange for representation
with the RRT appropriate to their geographical location. All agencies
and states may also provide additional representatives as observers to
meetings of the RRT.
(e) RRT members should designate representatives and alternates
from their agencies as resource personnel for RRT activities, including
RRT work planning, and membership on incident-specific teams in support
of the OSCs/RPMs.
(f) Federal RRT members or their representatives should provide
OSCs/RPMs with assistance from their respective federal agencies
commensurate with agency responsibilities, resources, and capabilities
within the region. During a response action, the members of the RRT
should seek to make available the resources of their agencies to the
OSC/RPM as specified in the RCP and ACP.
(g) RRT members should nominate appropriately qualified
representatives from their agencies to work with OSCs in developing and
maintaining ACPs.
(h) Affected states are encouraged to participate actively in all
RRT activities. Each state governor is requested to assign an office or
agency to represent the state on the appropriate RRT; to designate
representatives to work with the RRT in developing RCPs; to plan for,
make available, and coordinate state resources; and to serve as the
contact point for coordination of response with local government
agencies, whether or not represented on the RRT. The state's RRT
representative should keep the State Emergency Response Commission
(SERC), described in Sec. 300.205(d), apprised of RRT activities and
coordinate RRT activities with the SERC. Local governments are invited
to participate in activities on the appropriate RRT as provided by
state law or as arranged by the state's representative. Indian tribes
are also invited to participate in such activities.
(i) The standing RRT shall recommend changes in the regional
response organization as needed, revise the RCP as needed, evaluate the
preparedness of the participating agencies and the effectiveness of
ACPs for the federal response to discharges and releases, and provide
technical assistance for preparedness to the response community. The
RRT should:
(1) Review and comment, to the extent practicable, on local
emergency response plans or other issues related to the preparation,
implementation, or exercise of such plans upon request of a local
emergency planning committee;
(2) Evaluate regional and local responses to discharges or releases
on a continuing basis, considering available legal remedies, equipment
readiness, and coordination among responsible public agencies and
private organizations, and recommend improvements;
(3) Recommend revisions of the NCP to the NRT, based on
observations of response operations;
(4) Review OSC actions to ensure that RCPs and ACPs are effective;
(5) Encourage the state and local response community to improve its
preparedness for response;
(6) In coordination with Area Committees and in accordance with any
applicable laws, regulations, or requirements, conduct advance planning
for use of dispersants, surface washing agents, surface collecting
agents, burning agents, bioremediation agents, or other chemical agents
in accordance with subpart J of this part;
(7) Be prepared to provide response resources to major discharges
or releases outside the region;
(8) Conduct or participate in training and exercises as necessary
to encourage preparedness activities of the response community within
the region;
(9) Meet at least semiannually to review response actions carried
out during the preceding period, consider changes in RCPs, and
recommend changes in ACPs;
(10) Provide letter reports on RRT activities to the NRT twice a
year, no later than January 31 and July 31. At a minimum, reports
should summarize recent activities, organizational changes, operational
concerns, and efforts to improve state and local coordination; and
(11) Ensure maximum participation in the national exercise program
for announced and unannounced exercises.
(j)(1) The RRT may be activated by the chair as an incident-
specific response team when a discharge or release:
(i) Exceeds the response capability available to the OSC/RPM in the
place where it occurs;
(ii) Transects state boundaries;
(iii) May pose a substantial threat to the public health or welfare
of the United States or the environment, or to regionally significant
amounts of property; or
(iv) Is a worst case discharge, as described in Sec. 300.324. RCPs
shall specify detailed criteria for activation of RRTs.
(2) The RRT will be activated during any discharge or release upon
a request from the OSC/RPM, or from any RRT representative, to the
chair of the RRT. Requests for RRT activation shall later be confirmed
in writing. Each representative, or an appropriate alternate, should be
notified immediately when the RRT is activated.
(3) During prolonged removal or remedial action, the RRT may not
need to be activated or may need to be activated only in a limited
sense, or may need to have available only those member agencies of the
RRT who are directly affected or who can provide direct response
assistance.
(4) When the RRT is activated for a discharge or release, agency
representatives shall meet at the call of the chair and may:
(i) Monitor and evaluate reports from the OSC/RPM, advise the OSC/
RPM on the duration and extent of response, and recommend to the OSC/
RPM specific actions to respond to the discharge or release;
(ii) Request other federal, state, or local governments, or private
agencies, to provide resources under their existing authorities to
respond to a discharge or release or to monitor response operations;
(iii) Help the OSC/RPM prepare information releases for the public
and for communication with the NRT;
(iv) If the circumstances warrant, make recommendations to the
regional or district head of the agency providing the OSC/RPM that a
different OSC/RPM should be designated; and
(v) Submit pollution reports to the NRC as significant developments
occur.
(5) At the regional level, a Regional Response Center (RRC) may
provide facilities and personnel for communications, information
storage, and other requirements for coordinating response. The location
of each RRC should be provided in the RCP.
(6) When the RRT is activated, affected states may participate in
all RRT deliberations. State government representatives participating
in the RRT have the same status as any federal member of the RRT.
(7) The RRT can be deactivated when the incident-specific RRT chair
determines that the OSC/RPM no longer requires RRT assistance.
(8) Notification of the RRT may be appropriate when full activation
is not necessary, with systematic communication of pollution reports or
other means to keep RRT members informed as to actions of potential
concern to a particular agency, or to assist in later RRT evaluation of
regionwide response effectiveness.
(k) Whenever there is insufficient national policy guidance on a
matter before the RRT, a technical matter requiring solution, a
question concerning interpretation of the NCP, or a disagreement on
discretionary actions among RRT members that cannot be resolved at the
regional level, it may be referred to the NRT, described in
Sec. 300.110, for advice.
Sec. 300.120 On-scene coordinators and remedial project managers:
general responsibilities.
(a) The OSC/RPM directs response efforts and coordinates all other
efforts at the scene of a discharge or release. As part of the planning
and preparedness for response, OSCs shall be predesignated by the
regional or district head of the lead agency. EPA and the USCG shall
predesignate OSCs for all areas in each region, except as provided in
paragraphs (c) and (d) of this section. RPMs shall be assigned by the
lead agency to manage remedial or other response actions at NPL sites,
except as provided in paragraphs (c) and (d) of this section.
(1) The USCG shall provide OSCs for oil discharges, including
discharges from facilities and vessels under the jurisdiction of
another federal agency, within or threatening the coastal zone. The
USCG shall also provide OSCs for the removal of releases of hazardous
substances, pollutants, or contaminants into or threatening the coastal
zone, except as provided in paragraph (b) of this section. The USCG
shall not provide predesignated OSCs for discharges or releases from
hazardous waste management facilities or in similarly chronic
incidents. The USCG shall provide an initial response to discharges or
releases from hazardous waste management facilities within the coastal
zone in accordance with Department of Transportation (DOT)/EPA
Instrument of Redelegation (May 27, 1988) except as provided by
paragraph (b) of this section. The USCG OSC shall contact the cognizant
RPM as soon as it is evident that a removal may require a follow-up
remedial action, to ensure that the required planning can be initiated
and an orderly transition to an EPA or state lead can occur.
(2) EPA shall provide OSCs for discharges or releases into or
threatening the inland zone and shall provide RPMs for federally funded
remedial actions, except in the case of state-lead federally funded
response and as provided in paragraph (b) of this section. EPA will
also assume all remedial actions at NPL sites in the coastal zone, even
where removals are initiated by the USCG, except as provided in
paragraph (b) of this section.
(b) In general, USCG Captains of the Port (COTP) shall serve as the
designated OSCs for areas in the coastal zone for which an ACP is
required under CWA section 311(j) and EPA Regional Administrators shall
designate OSCs for areas in the inland zone for which an ACP is
required under CWA section 311(j).
(c) For releases of hazardous substances, pollutants, or
contaminants, when the release is on, or the sole source of the release
is from, any facility or vessel, including vessels bareboat-chartered
and operated, under the jurisdiction, custody, or control of DOD, DOE,
or other federal agency:
(1) In the case of DOD or DOE, DOD or DOE shall provide OSCs/RPMs
responsible for taking all response actions; and
(2) In the case of a federal agency other than EPA, DOD, or DOE,
such agency shall provide OSCs for all removal actions that are not
emergencies and shall provide RPMs for all remedial actions.
(d) DOD will be the removal response authority with respect to
incidents involving DOD military weapons and munitions or weapons and
munitions under the jurisdiction, custody, or control of DOD.
(e) The OSC is responsible for overseeing development of the ACP in
the area of the OSC's responsibility. ACPs shall, as appropriate, be
accomplished in cooperation with the RRT, and designated state and
local representatives. In contingency planning and removal, the OSC
coordinates, directs, and reviews the work of other agencies, Area
Committees, responsible parties, and contractors to assure compliance
with the NCP, decision document, consent decree, administrative order,
and lead agency-approved plans applicable to the response.
(f) The RPM is the prime contact for remedial or other response
actions being taken (or needed) at sites on the proposed or promulgated
NPL, and for sites not on the NPL but under the jurisdiction, custody,
or control of a federal agency. The RPM's responsibilities include:
(1) Fund-financed response: The RPM coordinates, directs, and
reviews the work of EPA, states and local governments, the U.S. Army
Corps of Engineers, and all other agencies and contractors to assure
compliance with the NCP. Based upon the reports of these parties, the
RPM recommends action for decisions by lead agency officials. The RPM's
period of responsibility begins prior to initiation of the remedial
investigation/feasibility study (RI/FS), described in Sec. 300.430, and
continues through design, remedial action, deletion of the site from
the NPL, and the CERCLA cost recovery activity. When a removal and
remedial action occur at the same site, the OSC and RPM should
coordinate to ensure an orderly transition of responsibility.
(2) Federal-lead non-Fund-financed response: The RPM coordinates,
directs, and reviews the work of other agencies, responsible parties,
and contractors to assure compliance with the NCP, Record of Decision
(ROD), consent decree, administrative order, and lead agency-approved
plans applicable to the response. Based upon the reports of these
parties, the RPM shall recommend action for decisions by lead agency
officials. The RPM's period of responsibility begins prior to
initiation of the RI/FS, described in Sec. 300.430, and continues
through design and remedial action and the CERCLA cost recovery
activity. The OSC and RPM shall ensure orderly transition of
responsibilities from one to the other.
(3) The RPM shall participate in all decision-making processes
necessary to ensure compliance with the NCP, including, as appropriate,
agreements between EPA or other federal agencies and the state. The RPM
may also review responses where EPA has preauthorized a person to file
a claim for reimbursement to determine that the response was consistent
with the terms of such preauthorization in cases where claims are filed
for reimbursement.
(g)(1) Where a support agency has been identified through a
cooperative agreement, Superfund Memorandum of Agreement (SMOA), or
other agreement, that agency may designate a support agency coordinator
(SAC) to provide assistance, as requested, by the OSC/RPM. The SAC is
the prime representative of the support agency for response actions.
(2) The SAC's responsibilities may include:
(i) Providing and reviewing data and documents as requested by the
OSC/RPM during the planning, design, and cleanup activities of the
response action; and
(ii) Providing other assistance as requested.
(h)(1) The lead agency should provide appropriate training for its
OSCs, RPMs, and other response personnel to carry out their
responsibilities under the NCP.
(2) OSCs/RPMs should ensure that persons designated to act as their
on-scene representatives are adequately trained and prepared to carry
out actions under the NCP, to the extent practicable.
Sec. 300.125 Notification and communications.
(a) The National Response Center (NRC), located at USCG
Headquarters, is the national communications center, continuously
manned for handling activities related to response actions. The NRC
acts as the single point of contact for all pollution incident
reporting, and as the NRT communications center. Notice of discharges
and releases must be made telephonically through a toll free number or
a special local number (Telecommunication Device for the Deaf (TDD) and
collect calls accepted). (Notification details appear in Secs. 300.300
and 300.405.) The NRC receives and immediately relays telephone notices
of discharges or releases to the appropriate predesignated federal OSC.
The telephone report is distributed to any interested NRT member agency
or federal entity that has established a written agreement or
understanding with the NRC. The NRC evaluates incoming information and
immediately advises FEMA of a potential major disaster situation.
(b) The Commandant, USCG, in conjunction with other NRT agencies,
shall provide the necessary personnel, communications, plotting
facilities, and equipment for the NRC.
(c) Notice of an oil discharge or release of a hazardous substance
in an amount equal to or greater than the reportable quantity must be
made immediately in accordance with 33 CFR part 153, subpart B, and 40
CFR part 302, respectively. Notification shall be made to the NRC Duty
Officer, HQ USCG, Washington, DC, telephone (800) 424-8802 or (202)
267-2675. All notices of discharges or releases received at the NRC
will be relayed immediately by telephone to the OSC.
Sec. 300.130 Determinations to initiate response and special
conditions.
(a) In accordance with CWA and CERCLA, the Administrator of EPA or
the Secretary of the department in which the USCG is operating, as
appropriate, is authorized to act for the United States to take
response measures deemed necessary to protect the public health or
welfare or environment from discharges of oil or releases of hazardous
substances, pollutants, or contaminants except with respect to such
releases on or from vessels or facilities under the jurisdiction,
custody, or control of other federal agencies.
(b) The Administrator of EPA or the Secretary of the department in
which the USCG is operating, as appropriate, is authorized to initiate
and, in the case of a discharge posing a substantial threat to public
health or welfare of the United States is required to initiate and
direct, appropriate response activities when the Administrator or
Secretary determines that any oil or CWA hazardous substance is
discharged or there is a substantial threat of such discharge from any
vessel or offshore or onshore facility into or on the navigable waters
of the United States, on the adjoining shorelines to the navigable
waters, into or on the waters of the exclusive economic zone, or that
may affect natural resources belonging to, appertaining to, or under
exclusive management authority of the United States; or
(c) The Administrator of EPA or the Secretary of the department in
which the USCG is operating, as appropriate, is authorized to initiate
appropriate response activities when the Administrator or Secretary
determines that any hazardous substance is released or there is a
threat of such a release into the environment, or there is a release or
threat of release into the environment of any pollutant or contaminant
which may present an imminent and substantial danger to the public
health or welfare of the United States.
(d) In addition to any actions taken by a state or local
government, the Administrator of EPA or the Secretary of the department
in which the USCG is operating may request the U.S. Attorney General to
secure the relief from any person, including the owner or operator of
the vessel or facility necessary to abate a threat or, after notice to
the affected state, take any other action authorized by section 311 of
the CWA or section 106 of CERCLA as appropriate, including issuing
administrative orders, that may be necessary to protect the public
health or welfare, if the Administrator or Secretary determines:
(1) That there may be an imminent and substantial threat to the
public health or welfare of the United States or the environment of the
United States, including fish, shellfish, and wildlife, public and
private property, shorelines, beaches, habitats, and other living and
nonliving natural resources under the jurisdiction or control of the
United States, because of an actual or threatened discharge of oil or a
CWA hazardous substance from any vessel or offshore or onshore facility
into or upon the navigable waters of the United States; or
(2) That there may be an imminent and substantial endangerment to
the public health or welfare of the United States or the environment
because of a release of a CERCLA hazardous substance from a facility.
(e) Response actions to remove discharges originating from
operations conducted subject to the Outer Continental Shelf Lands Act
shall be in accordance with the NCP.
(f) Where appropriate, when a discharge or release involves
radioactive materials, the lead or support federal agency shall act
consistent with the notification and assistance procedures described in
the appropriate Federal Radiological Plan. For the purpose of the NCP,
the FRERP (24 CFR part 2401) is the appropriate plan. Most radiological
discharges and releases do not result in FRERP activation and should be
handled in accordance with the NCP. However, releases from nuclear
incidents subject to requirements for financial protection established
by the Nuclear Regulatory Commission under the Price-Anderson
amendments (section 170) of the Atomic Energy Act are specifically
excluded from CERCLA and NCP requirements.
(g) Removal actions involving nuclear weapons should be conducted
in accordance with the joint Department of Defense, Department of
Energy, and FEMA Agreement for Response to Nuclear Incidents and
Nuclear Weapons Significant Incidents (January 8, 1981).
(h) If the situation is beyond the capability of state and local
governments and the statutory authority of federal agencies, the
President may, under the Disaster Relief Act of 1974, act upon a
request by the governor and declare a major disaster or emergency and
appoint a Federal Coordinating Officer (FCO) to coordinate all federal
disaster assistance activities. In such cases, the OSC/RPM would
continue to carry out OSC/RPM responsibilities under the NCP, but would
coordinate those activities with the FCO to ensure consistency with
other federal disaster assistance activities.
(i) In the event of a declaration of a major disaster by the
President, the FEMA may activate the Federal Response Plan (FRP). A
FCO, designated by the President, may implement the FRP and coordinate
and direct emergency assistance and disaster relief of impacted
individuals, business, and public services under the Robert T. Stafford
Disaster Relief Act. Delivery of federal assistance is facilitated
through twelve functional annexes to the FRP known as Emergency Support
Functions (ESFs). EPA coordinates activities under ESF #10--Hazardous
Materials, which addresses preparedness and response to hazardous
materials and oil incidents caused by a natural disaster or other
catastrophic event. In such cases, the OSC/RPM should coordinate
response activities with the FCO, through the incident-specific ESF #10
Chair, to ensure consistency with federal disaster assistance
activities.
Sec. 300.135 Response operations.
(a) The OSC/RPM, consistent with Secs. 300.120 and 300.125, shall
direct response efforts and coordinate all other efforts at the scene
of a discharge or release. As part of the planning and preparation for
response, the OSCs/RPMs shall be predesignated by the regional or
district head of the lead agency.
(b) The first federal official affiliated with an NRT member agency
to arrive at the scene of a discharge or release should coordinate
activities under the NCP and is authorized to initiate, in consultation
with the OSC, any necessary actions normally carried out by the OSC
until the arrival of the predesignated OSC. This official may initiate
federal fund-financed actions only as authorized by the OSC or, if the
OSC is unavailable, the authorized representative of the lead agency.
(c) The OSC/RPM shall, to the extent practicable, collect pertinent
facts about the discharge or release, such as its source and cause; the
identification of potentially responsible parties; the nature, amount,
and location of discharged or released materials; the probable
direction and time of travel of discharged or released materials;
whether the discharge is a worst case discharge as discussed in
Sec. 300.324; the pathways to human and environmental exposure; the
potential impact on human health, welfare, and safety and the
environment; whether the discharge or release poses a substantial
threat to the public health or welfare of the United States as
discussed in Sec. 300.322; the potential impact on natural resources
and property which may be affected; priorities for protecting human
health and welfare and the environment; and appropriate cost
documentation.
(d) The OSC's/RPM's efforts shall be coordinated with other
appropriate federal, state, local, and private response agencies. OSCs/
RPMs may designate capable persons from federal, state, or local
agencies to act as their on-scene representatives. State and local
governments, however, are not authorized to take actions under subparts
D and E of the NCP that involve expenditures of the Oil Spill Liability
Trust Fund or CERCLA funds unless an appropriate contract or
cooperative agreement has been established. The basic framework for the
response management structure is a system (e.g., a unified command
system), that brings together the functions of the federal government,
the state government, and the responsible party to achieve an effective
and efficient response, where the OSC maintains authority.
(e) The OSC/RPM should consult regularly with the RRT and NSFCC, as
appropriate, in carrying out the NCP and keep the RRT and NSFCC, as
appropriate, informed of activities under the NCP.
(f) The OSC/RPM shall advise the support agency as promptly as
possible of reported releases.
(g) The OSC/RPM should evaluate incoming information and
immediately advise FEMA of potential major disaster situations.
(h) In those instances where a possible public health emergency
exists, the OSC/RPM should notify the Department of Health and Human
Services (HHS) representative to the RRT. Throughout response actions,
the OSC/RPM may call upon the HHS representative for assistance in
determining public health threats and call upon the Occupational Safety
and Health Administration (OSHA) and HHS for assistance on worker
health and safety issues.
(i) All federal agencies should plan for emergencies and develop
procedures for dealing with oil discharges and releases of hazardous
substances, pollutants, or contaminants from vessels and facilities
under their jurisdiction. All federal agencies, therefore, are
responsible for designating the office that coordinates response to
such incidents in accordance with the NCP and applicable federal
regulations and guidelines.
(j)(1) The OSC/RPM shall ensure that the trustees for natural
resources are promptly notified of discharges or releases.
(2) The OSC or RPM shall coordinate all response activities with
the affected natural resource trustees and, for discharges of oil, the
OSC shall consult with the affected trustees on the appropriate removal
action to be taken.
(k) Where the OSC/RPM becomes aware that a discharge or release may
affect any endangered or threatened species or their habitat, the OSC/
RPM shall consult with the Department of Interior (DOI), or the
Department of Commerce (DOC) (NOAA) and, if appropriate, the cognizant
federal land managing agency.
(l) The OSC/RPM is responsible for addressing worker health and
safety concerns at a response scene, in accordance with Sec. 300.150.
(m) The OSC shall submit pollution reports to the RRT and other
appropriate agencies as significant developments occur during response
actions, through communications networks or procedures agreed to by the
RRT and covered in the RCP.
(n) OSCs/RPMs should ensure that all appropriate public and private
interests are kept informed and that their concerns are considered
throughout a response, to the extent practicable, consistent with the
requirements of Sec. 300.155 of this part.
Sec. 300.140 Multi-regional responses.
(a) If a discharge or release moves from the area covered by one
ACP or RCP into another area, the authority for response actions should
likewise shift. If a discharge or release affects areas covered by two
or more ACPs or RCPs, the response mechanisms of each applicable plan
may be activated. In this case, response actions of all regions
concerned shall be fully coordinated as detailed in the RCPs and ACPs.
(b) There shall be only one OSC and/or RPM at any time during the
course of a response operation. Should a discharge or release affect
two or more areas, EPA, the USCG, DOD, DOE, or other lead agency, as
appropriate, shall give prime consideration to the area vulnerable to
the greatest threat, in determining which agency should provide the OSC
and/or RPM. The RRT shall designate the OSC and/or RPM if the RRT
member agencies who have response authority within the affected areas
are unable to agree on the designation. The NRT shall designate the OSC
and/or RPM if members of one RRT or two adjacent RRTs are unable to
agree on the designation.
(c) Where the USCG has initially provided the OSC for response to a
release from hazardous waste management facilities located in the
coastal zone, responsibility for response action shall shift to EPA or
another federal agency, as appropriate.
Sec. 300.145 Special teams and other assistance available to OSCs/
RPMs.
(a) The NSF is a special team established by the USCG, including
the three USCG Strike Teams, the Public Information Assist Team (PIAT),
and the NSFCC. The NSF is available to assist OSCs/RPMs in their
preparedness and response duties.
(1) The three Strike Teams (Atlantic, Gulf, and Pacific) provide
trained personnel and specialized equipment to assist the OSC in
training for spill response, stabilizing and containing the spill, and
in monitoring or directing the response actions of the responsible
parties and/or contractors. The OSC has a specific team designated for
initial contact and may contact that team directly for any assistance.
(2) The NSFCC can provide the following support to the OSC:
(i) Technical assistance, equipment and other resources to augment
the OSC staff during spill response.
(ii) Assistance in coordinating the use of private and public
resources in support of the OSC during a response to or a threat of a
worst case discharge of oil.
(iii) Review of the area contingency plan, including an evaluation
of equipment readiness and coordination among responsible public
agencies and private organizations.
(iv) Assistance in locating spill response resources for both
response and planning, using the NSFCC's national and international
computerized inventory of spill response resources.
(v) Coordination and evaluation of pollution response exercises.
(vi) Inspection of district prepositioned pollution response
equipment.
(3) PIAT is an element of the NSFCC staff which is available to
assist OSCs to meet the demands for public information during a
response or exercise. Its use is encouraged any time the OSC requires
outside public affairs support. Requests for PIAT assistance may be
made through the NSFCC or NRC.
(b)(1) The Environmental Response Team (ERT) is established by EPA
in accordance with its disaster and emergency responsibilities. The ERT
has expertise in treatment technology, biology, chemistry, hydrology,
geology, and engineering.
(2) The ERT can provide access to special decontamination equipment
for chemical releases and advice to the OSC/RPM in hazard evaluation;
risk assessment; multimedia sampling and analysis program; on-site
safety, including development and implementation plans; cleanup
techniques and priorities; water supply decontamination and protection;
application of dispersants; environmental assessment; degree of cleanup
required; and disposal of contaminated material.
(3) The ERT also provides both introductory and intermediate level
training courses to prepare response personnel.
(4) OSC/RPM or RRT requests for ERT support should be made to the
EPA representative on the RRT; EPA Headquarters, Director, Emergency
Response Division; or the appropriate EPA regional emergency
coordinator.
(c) Scientific Support Coordinators (SSCs) may be designated by the
OSC (and RPM in the case of EPA SSCs) as the principal advisors for
scientific issues, communication with the scientific community, and
coordination of requests for assistance from state and federal agencies
regarding scientific studies. The SSC strives for a consensus on
scientific issues affecting the response, but ensures that differing
opinions within the community are communicated to the OSC/RPM.
(1) Generally, SSCs are provided by NOAA in the coastal zones, and
by EPA in the inland zone. OSC/RPM requests for SSC support can be made
directly to the SSC assigned to the area or to the agency member of the
RRT. NOAA SSCs can also be requested through NOAA's SSC program office
in Seattle, WA. NOAA SSCs are assigned to USCG Districts and are
supported by a scientific support team that includes expertise in
environmental chemistry, oil slick tracking, pollutant transport
modeling, natural resources at risk, environmental tradeoffs of
countermeasures and cleanup, and information management.
(2) During a response, the SSC serves on the federal OSC's/RPM's
staff and may, at the request of the OSC/RPM, lead the scientific team
and be responsible for providing scientific support for operational
decisions and for coordinating on-scene scientific activity. Depending
on the nature and location of the incident, the SSC integrates
expertise from governmental agencies, universities, community
representatives, and industry to assist the OSC/RPM in evaluating the
hazards and potential effects of releases and in developing response
strategies.
(3) At the request of the OSC, the SSC may facilitate the OSC's
work with the lead administrative trustee for natural resources to
ensure coordination between damage assessment data collection efforts
and data collected in support of response operations.
(4) SSCs support the Regional Response Teams and the Area
Committees in preparing regional and area contingency plans and in
conducting spill training and exercises. For area plans, the SSC
provides leadership for the synthesis and integration of environmental
information required for spill response decisions in support of the
OSC.
(d)(1) SUPSALV has an extensive salvage/search and recovery
equipment inventory with the requisite knowledge and expertise to
support these operations, including specialized salvage, firefighting,
and petroleum, oil and lubricants offloading capability.
(2) When possible, SUPSALV will provide equipment for training
exercises in support of national and regional contingency planning
objectives.
(3) The OSC/RPM may request assistance directly from SUPSALV.
Formal requests are routed through the Chief of Naval Operations
(N312).
(e) For marine salvage operations, OSCs/RPMs with responsibility
for monitoring, evaluating, or supervising these activities should
request technical assistance from DOD, the Strike Teams, or commercial
salvors as necessary to ensure that proper actions are taken. Marine
salvage operations generally fall into five categories: afloat salvage;
offshore salvage; river and harbor clearance; cargo salvage; and rescue
towing. Each category requires different knowledge and specialized
types of equipment. The complexity of such operations may be further
compounded by local environmental and geographic conditions. The nature
of marine salvage and the conditions under which it occurs combine to
make such operations imprecise, difficult, hazardous, and expensive.
Thus, responsible parties or other persons attempting to perform such
operations without adequate knowledge, equipment, and experience could
aggravate, rather than relieve, the situation.
(f) Radiological Emergency Response Teams (RERTs) have been
established by EPA's Office of Radiation Programs (ORP) to provide
response and support for incidents or sites containing radiological
hazards. Expertise is available in radiation monitoring, radionuclide
analysis, radiation health physics, and risk assessment. RERTs can
provide on-site support including mobile monitoring laboratories for
field analyses of samples and fixed laboratories for radiochemical
sampling and analyses. Requests for support may be made 24 hours a day
via the NRC or directly to the EPA Radiological Response Coordinator in
the Office of Radiation Programs. Assistance is also available from DOE
and other federal agencies.
(g)(1) DRGs assist the OSC by providing technical assistance,
personnel, and equipment, including pre-positioned equipment. Each DRG
consists of all Coast Guard personnel and equipment, including marine
firefighting equipment, in its district, additional pre-positioned
equipment, and a District Response Advisory Team (DRAT) that is
available to provide support to the OSC in the event that a spill
exceeds local response capabilities. Each DRG:
(i) Shall provide technical assistance, equipment, and other
resources, as available, when requested by an OSC through the USCG
representative to the RRT;
(ii) Shall ensure maintenance of all USCG response equipment within
its district;
(iii) May provide technical assistance in the preparation of the
ACP; and
(iv) Shall review each of those plans that affect its area of
geographic responsibility.
(2) In deciding where to locate personnel and pre-positioned
equipment, the USCG shall give priority emphasis to:
(i) The availability of facilities for loading and unloading heavy
or bulky equipment by barge;
(ii) The proximity to an airport capable of supporting large
military transport aircraft;
(iii) The flight time to provide response to oil spills in all
areas of the Coast Guard district with the potential for marine
casualties;
(iv) The availability of trained local personnel capable of
responding in an oil spill emergency; and
(v) Areas where large quantities of petroleum products are
transported.
(h) The NPFC is responsible for implementing those portions of
Title I of the OPA that have been delegated to the Secretary of the
department in which the Coast Guard is operating. The NPFC is
responsible for addressing funding issues arising from discharges and
threats of discharges of oil. The NPFC:
(1) Issues Certificates of Financial Responsibility to owners and
operators of vessels to pay for costs and damages that are incurred by
their vessels as a result of oil discharges;
(2) Provides funding for various response organizations for timely
abatement and removal actions related to oil discharges;
(3) Provides equitable compensation to claimants who sustain costs
and damages from oil discharges when the responsible party fails to do
so;
(4) Recovers monies from persons liable for costs and damages
resulting from oil discharges to the full extent of liability under the
law; and
(5) Provides funds to initiate natural resource damage assessments.
Sec. 300.150 Worker health and safety.
(a) Response actions under the NCP will comply with the provisions
for response action worker safety and health in 29 CFR 1910.120. The
NRS meets the requirements of 29 CFR 1910.120 concerning use of an
incident command system.
(b) In a response action taken by a responsible party, the
responsible party must assure that an occupational safety and health
program consistent with 29 CFR 1910.120 is made available for the
protection of workers at the response site.
(c) In a response taken under the NCP by a lead agency, an
occupational safety and health program should be made available for the
protection of workers at the response site, consistent with, and to the
extent required by, 29 CFR 1910.120. Contracts relating to a response
action under the NCP should contain assurances that the contractor at
the response site will comply with this program and with any applicable
provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C.
651 et seq.) (OSH Act) and state laws with plans approved under section
18 of the OSH Act.
(d) When a state, or political subdivision of a state, without an
OSHA-approved state plan is the lead agency for response, the state or
political subdivision must comply with standards in 40 CFR part 311,
promulgated by EPA pursuant to section 126(f) of SARA.
(e) Requirements, standards, and regulations of the OSH Act and of
state OSH laws not directly referenced in paragraphs (a) through (d) of
this section, must be complied with where applicable. Federal OSH Act
requirements include, among other things, Construction Standards (29
CFR part 1926), General Industry Standards (29 CFR part 1910), and the
general duty requirement of section 5(a)(1) of the OSH Act (29 U.S.C.
654(a)(1)). No action by the lead agency with respect to response
activities under the NCP constitutes an exercise of statutory authority
within the meaning of section 4(b)(1) of the OSH Act. All governmental
agencies and private employers are directly responsible for the health
and safety of their own employees.
Sec. 300.155 Public information and community relations.
(a) When an incident occurs, it is imperative to give the public
prompt, accurate information on the nature of the incident and the
actions underway to mitigate the damage. OSCs/RPMs and community
relations personnel should ensure that all appropriate public and
private interests are kept informed and that their concerns are
considered throughout a response. They should coordinate with available
public affairs/community relations resources to carry out this
responsibility by establishing, as appropriate, a Joint Information
Center bringing together resources from federal and state agencies and
the responsible party.
(b) An on-scene news office may be established to coordinate media
relations and to issue official federal information on an incident.
Whenever possible, it will be headed by a representative of the lead
agency. The OSC/RPM determines the location of the on-scene news
office, but every effort should be made to locate it near the scene of
the incident. If a participating agency believes public interest
warrants the issuance of statements and an on-scene news office has not
been established, the affected agency should recommend its
establishment. All federal news releases or statements by participating
agencies should be cleared through the OSC/RPM. Information
dissemination relating to natural resource damage assessment activities
shall be coordinated through the lead administrative trustee. The
designated lead administrative trustee may assist the OSC/RPM by
disseminating information on issues relating to damage assessment
activities. Following termination of removal activity, information
dissemination on damage assessment activities shall be through the lead
administrative trustee.
(c) The community relations requirements specified in
Secs. 300.415, 300.430, and 300.435 apply to removal, remedial, and
enforcement actions and are intended to promote active communication
between communities affected by discharges or releases and the lead
agency responsible for response actions. Community Relations Plans
(CRPs) are required by EPA for certain response actions. The OSC/RPM
should ensure coordination with such plans which may be in effect at
the scene of a discharge or release or which may need to be developed
during follow-up activities.
Sec. 300.160 Documentation and cost recovery.
(a) For releases of a hazardous substance, pollutant, or
contaminant, the following provisions apply:
(1) During all phases of response, the lead agency shall complete
and maintain documentation to support all actions taken under the NCP
and to form the basis for cost recovery. In general, documentation
shall be sufficient to provide the source and circumstances of the
release, the identity of responsible parties, the response action
taken, accurate accounting of federal, state, or private party costs
incurred for response actions, and impacts and potential impacts to the
public health and welfare and the environment. Where applicable,
documentation shall state when the NRC received notification of a
release of a reportable quantity.
(2) The information and reports obtained by the lead agency for
Fund-financed response actions shall, as appropriate, be transmitted to
the chair of the RRT. Copies can then be forwarded to the NRT, members
of the RRT, and others as appropriate.
(3) The lead agency shall make available to the trustees of
affected natural resources information and documentation that can
assist the trustees in the determination of actual or potential natural
resource injuries.
(b) For discharges of oil, documentation and cost recovery
provisions are described in Sec. 300.315.
(c) Response actions undertaken by the participating agencies shall
be carried out under existing programs and authorities when available.
Federal agencies are to make resources available, expend funds, or
participate in response to discharges and releases under their existing
authority. Interagency agreements may be signed when necessary to
ensure that the federal resources will be available for a timely
response to a discharge or release. The ultimate decision as to the
appropriateness of expending funds rests with the agency that is held
accountable for such expenditures. Further funding provisions for
discharges of oil are described in Sec. 300.335.
(d) The Administrator of EPA and the Administrator of the Agency
for Toxic Substances and Disease Registry (ATSDR) shall assure that the
costs of health assessment or health effect studies conducted under the
authority of CERCLA section 104(i) are documented in accordance with
standard EPA procedures for cost recovery. Documentation shall include
information on the nature of the hazardous substances addressed by the
research, information concerning the locations where these substances
have been found, and any available information on response actions
taken concerning these substances at the location.
Sec. 300.165 OSC reports.
(a) As requested by the NRT or RRT, the OSC/RPM shall submit to the
NRT or RRT a complete report on the removal operation and the actions
taken. The RRT shall review the OSC report and send to the NRT a copy
of the OSC report with its comments or recommendations within 30 days
after the RRT has received the OSC report.
(b) The OSC report shall record the situation as it developed, the
actions taken, the resources committed, and the problems encountered.
Sec. 300.170 Federal agency participation.
Federal agencies listed in Sec. 300.175 have duties established by
statute, executive order, or Presidential directive which may apply to
federal response actions following, or in prevention of, the discharge
of oil or release of a hazardous substance, pollutant, or contaminant.
Some of these agencies also have duties relating to the restoration,
rehabilitation, replacement, or acquisition of equivalent natural
resources injured or lost as a result of such discharge or release as
described in subpart G of this part. The NRT, RRT, and Area Committee
organizational structure, and the NCP, RCPs and ACPs, described in
Sec. 300.210, provide for agencies to coordinate with each other in
carrying out these duties.
(a) Federal agencies may be called upon by an OSC/RPM during
response planning and implementation to provide assistance in their
respective areas of expertise, as described in Sec. 300.175, consistent
with the agencies' capabilities and authorities.
(b) In addition to their general responsibilities, federal agencies
should:
(1) Make necessary information available to the Secretary of the
NRT, RRTs, Area Committees, and OSCs/RPMs.
(2) Provide representatives to the NRT and RRTs and otherwise
assist RRTs and OSCs, as necessary, in formulating RCPs and ACPs.
(3) Inform the NRT, RRTs, and Area Committees, consistent with
national security considerations, of changes in the availability of
resources that would affect the operations implemented under the NCP.
(c) All federal agencies are responsible for reporting releases of
hazardous substances from facilities or vessels under their
jurisdiction or control in accordance with section 103 of CERCLA.
(d) All federal agencies are encouraged to report releases of
pollutants or contaminants and must report discharges of oil, as
required in 40 CFR part 110, from facilities or vessels under their
jurisdiction or control to the NRC.
Sec. 300.175 Federal agencies: additional responsibilities and
assistance.
(a) During preparedness planning or in an actual response, various
federal agencies may be called upon to provide assistance in their
respective areas of expertise, as indicated in paragraph (b) of this
section, consistent with agency legal authorities and capabilities.
(b) The federal agencies include:
(1) USCG, as provided in 14 U.S.C. 1-3, is an agency in DOT, except
when operating as an agency in the United States Navy (USN) in time of
war. The USCG provides the NRT vice chair, co-chairs for the standing
RRTs, and predesignated OSCs for the coastal zone, as described in
Sec. 300.120(a)(1). The USCG maintains continuously manned facilities
which can be used for command, control, and surveillance of oil
discharges and hazardous substance releases occurring in the coastal
zone. The USCG also offers expertise in domestic and international
fields of port safety and security, maritime law enforcement, ship
navigation and construction, and the manning, operation, and safety of
vessels and marine facilities. The USCG may enter into a contract or
cooperative agreement with the appropriate state in order to implement
a response action.
(2) EPA chairs the NRT and co-chairs, with the USCG, the standing
RRTs; provides predesignated OSCs for all inland areas for which an ACP
is required under CWA section 311(j) and for discharges and releases
occurring in the inland zone and RPMs for remedial actions except as
otherwise provided; and generally provides the SSC for responses in the
inland zone. EPA provides expertise on human health and ecological
effects of oil discharges or releases of hazardous substances,
pollutants, or contaminants; ecological and human health risk
assessment methods; and environmental pollution control techniques.
Access to EPA's scientific expertise can be facilitated through the EPA
representative to the Research and Development Committee of the
National Response Team; the EPA Office of Research and Development's
Superfund Technical Liaisons or Regional Scientists located in EPA
Regional offices; or through EPA's Office of Science Planning and
Regulatory Evaluation. EPA also provides legal expertise on the
interpretation of CERCLA and other environmental statutes. EPA may
enter into a contract or cooperative agreement with the appropriate
state in order to implement a response action.
(3) FEMA provides guidance, policy and program advice, and
technical assistance in hazardous materials, chemical, and radiological
emergency preparedness activities (including planning, training, and
exercising). FEMA's primary point of contact for administering
financial and technical assistance to state and local governments to
support their efforts to develop and maintain an effective emergency
management and response capability is the Preparedness, Training, and
Exercises Directorate.
(4) DOD has responsibility to take all action necessary with
respect to releases where either the release is on, or the sole source
of the release is from, any facility or vessel under the jurisdiction,
custody, or control of DOD. In addition to those capabilities provided
by SUPSALV, DOD may also, consistent with its operational requirements
and upon request of the OSC, provide locally deployed USN oil spill
equipment and provide assistance to other federal agencies on request.
The following two branches of DOD have particularly relevant expertise:
(i) The United States Army Corps of Engineers has specialized
equipment and personnel for maintaining navigation channels, for
removing navigation obstructions, for accomplishing structural repairs,
and for performing maintenance to hydropower electric generating
equipment. The Corps can also provide design services, perform
construction, and provide contract writing and contract administrative
services for other federal agencies.
(ii) The U.S. Navy Supervisor of Salvage (SUPSALV) is the branch of
service within DOD most knowledgeable and experienced in ship salvage,
shipboard damage control, and diving. The USN has an extensive array of
specialized equipment and personnel available for use in these areas as
well as specialized containment, collection, and removal equipment
specifically designed for salvage-related and open-sea pollution
incidents.
(5) DOE generally provides designated OSCs/RPMs that are
responsible for taking all response actions with respect to releases
where either the release is on, or the sole source of the release is
from, any facility or vessel under its jurisdiction, custody, or
control, including vessels bareboat-chartered and operated. In
addition, under the FRERP, DOE provides advice and assistance to other
OSCs/RPMs for emergency actions essential for the control of immediate
radiological hazards. Incidents that qualify for DOE radiological
advice and assistance are those believed to involve source, by-product,
or special nuclear material or other ionizing radiation sources,
including radium, and other naturally occurring radionuclides, as well
as particle accelerators. Assistance is available through direct
contact with the appropriate DOE Radiological Assistance Program
Regional Office.
(6) The Department of Agriculture (USDA) has scientific and
technical capability to measure, evaluate, and monitor, either on the
ground or by use of aircraft, situations where natural resources
including soil, water, wildlife, and vegetation have been impacted by
fire, insects and diseases, floods, hazardous substances, and other
natural or man-caused emergencies. The USDA may be contacted through
Forest Service emergency staff officers who are the designated members
of the RRT. Agencies within USDA have relevant capabilities and
expertise as follows:
(i) The Forest Service has responsibility for protection and
management of national forests and national grasslands. The Forest
Service has personnel, laboratory, and field capability to measure,
evaluate, monitor, and control as needed, releases of pesticides and
other hazardous substances on lands under its jurisdiction.
(ii) The Agriculture Research Service (ARS) administers an applied
and developmental research program in animal and plant protection and
production; the use and improvement of soil, water, and air; the
processing, storage, and distribution of farm products; and human
nutrition. The ARS has the capabilities to provide regulation of, and
evaluation and training for, employees exposed to biological, chemical,
radiological, and industrial hazards. In emergency situations, the ARS
can identify, control, and abate pollution in the areas of air, soil,
wastes, pesticides, radiation, and toxic substances for ARS facilities.
(iii) The Soil Conservation Service (SCS) has personnel in nearly
every county in the nation who are knowledgeable in soil, agronomy,
engineering, and biology. These personnel can help to predict the
effects of pollutants on soil and their movements over and through
soils. Technical specialists can assist in identifying potential
hazardous waste sites and provide review and advice on plans for
remedial measures.
(iv) The Animal and Plant Health Inspection Service (APHIS) can
respond in an emergency to regulate movement of diseased or infected
organisms to prevent the spread and contamination of nonaffected areas.
(v) The Food Safety and Inspection Service (FSIS) has
responsibility to prevent meat and poultry products contaminated with
harmful substances from entering human food channels. In emergencies,
the FSIS works with other federal and state agencies to establish
acceptability for slaughter of exposed or potentially exposed animals
and their products. In addition they are charged with managing the
Federal Radiological Emergency Response Program for the USDA.
(7) DOC, through NOAA, provides scientific support for response and
contingency planning in coastal and marine areas, including assessments
of the hazards that may be involved, predictions of movement and
dispersion of oil and hazardous substances through trajectory modeling,
and information on the sensitivity of coastal environments to oil and
hazardous substances and associated clean-up and mitigation methods;
provides expertise on living marine resources and their habitats,
including endangered species, marine mammals and National Marine
Sanctuary ecosystems; provides information on actual and predicted
meteorological, hydrological, ice, and oceanographic conditions for
marine, coastal, and inland waters, and tide and circulation data for
coastal and territorial waters and for the Great Lakes.
(8) HHS assists with the assessment, preservation, and protection
of human health and helps ensure the availability of essential human
services. HHS provides technical and nontechnical assistance in the
form of advice, guidance, and resources to other federal agencies as
well as state and local governments.
(i) The principal HHS response comes from the U.S. Public Health
Service and is coordinated from the Office of the Assistant Secretary
for Health, and various Public Health Service regional offices. Within
the Public Health Service, the primary response to a hazardous
materials emergency comes from Agency for Toxic Substances and Disease
Registry (ATSDR) and the Centers for Disease Control (CDC). Both ATSDR
and CDC have a 24-hour emergency response capability wherein scientific
and technical personnel are available to provide technical assistance
to the lead federal agency and state and local response agencies on
human health threat assessment and analysis, and exposure prevention
and mitigation. Such assistance is used for situations requiring
evacuation of affected areas, human exposure to hazardous materials,
and technical advice on mitigation and prevention. CDC takes the lead
during petroleum releases regulated under the CWA and OPA while ATSDR
takes the lead during chemical releases under CERCLA. Both agencies are
mutually supportive.
(ii) Other Public Health Service agencies involved in support
during hazardous materials incidents either directly or through ATSDR/
CDC include the Food and Drug Administration, the Health Resources and
Services Administration, the Indian Health Service, and the National
Institutes of Health.
(iii) Statutory authority for HHS/National Institutes for
Environmental Health Sciences (NIEHS) involvement in hazardous
materials accident prevention is non-regulatory in nature and focused
on two primary areas for preventing community and worker exposure to
hazardous materials releases: Worker safety training and basic research
activities. Under section 126 of SARA, NIEHS is given statutory
authority for supporting development of curricula and model training
programs for waste workers and chemical emergency responders.
Under section 118(b) of the Hazardous Materials Transportation and
Uniform Safety Act (HMTUSA) (49 U.S.C. 1802 et seq.), NIEHS also
administers the Hazmat Employee Training Program to prepare curricula
and training for hazardous materials transportation workers. In the
basic research arena, NIEHS is authorized under section 311 of SARA to
conduct a hazardous substance basic research and training program to
evaluate toxic effects and assess human health risks from accidental
releases of hazardous materials. Under Title IX, section 901(h) of the
Clean Air Act Amendments, NIEHS also is authorized to conduct basic
research on air pollutants, as well as train physicians in
environmental health. Federal research and training in hazardous
materials release prevention represents an important non-regulatory
activity and supplements ongoing private sector programs.
(9) DOI may be contacted through Regional Environmental Officers
(REOs), who are the designated members of RRTs. Department land
managers have jurisdiction over the national park system, national
wildlife refuges and fish hatcheries, the public lands, and certain
water projects in western states. In addition, bureaus and offices have
relevant expertise as follows:
(i) United States Fish and Wildlife Service (USFWS) and other
Bureaus: Anadromous and certain other fishes and wildlife, including
endangered and threatened species, migratory birds, and certain marine
mammals; waters and wetlands; and effects on natural resources.
(ii) The National Biological Survey performs research in support of
biological resource management; inventories, monitors, and reports on
the status and trends in the Nation's biotic resources; and transfers
the information gained in research and monitoring to resource managers
and others concerned with the care, use, and conservation of the
Nation's natural resources. The National Biological Survey has
laboratory/research facilities.
(iii) Geological Survey: Geology, hydrology (ground water and
surface water), and natural hazards.
(iv) Bureau of Land Management: Minerals, soils, vegetation,
wildlife, habitat, archaeology, and wilderness; and hazardous
materials.
(v) Minerals Management Service: Oversight of offshore oil and gas
exploration and production facilities and associated pipelines and
pipeline facilities under the Outer Continental Shelf Lands Act and the
CWA; oil spill response technology research; and establishing oil
discharge contingency planning requirements for offshore facilities.
(vi) Bureau of Mines: Analysis and identification of inorganic
hazardous substances and technical expertise in metals and metallurgy
relevant to site cleanup.
(vii) Office of Surface Mining: Coal mine wastes and land
reclamation.
(viii) National Park Service: General biological, natural, and
cultural resource managers to evaluate, measure, monitor, and contain
threats to park system lands and resources; archaeological and
historical expertise in protection, preservation, evaluation, impact
mitigation, and restoration of cultural resources; emergency personnel.
(ix) Bureau of Reclamation: Operation and maintenance of water
projects in the West; engineering and hydrology; and reservoirs.
(x) Bureau of Indian Affairs: Coordination of activities affecting
Indian lands; assistance in identifying Indian tribal government
officials.
(xi) Office of Territorial Affairs: Assistance in implementing the
NCP in American Samoa, Guam, the Pacific Island Governments, the
Northern Mariana Islands, and the Virgin Islands.
(10) The Department of Justice (DOJ) can provide expert advice on
complicated legal questions arising from discharges or releases, and
federal agency responses. In addition, the DOJ represents the federal
government, including its agencies, in litigation relating to such
discharges or releases. Other legal issues or questions shall be
directed to the federal agency counsel for the agency providing the
OSC/RPM for the response.
(11) The Department of Labor (DOL), through OSHA and the states
operating plans approved under section 18 of the OSH Act, has authority
to conduct safety and health inspections of hazardous waste sites to
assure that employees are being protected and to determine if the site
is in compliance with:
(i) Safety and health standards and regulations promulgated by OSHA
(or the states) in accordance with section 126 of SARA and all other
applicable standards; and
(ii) Regulations promulgated under the OSH Act and its general duty
clause. OSHA inspections may be self-generated, consistent with its
program operations and objectives, or may be conducted in response to
requests from EPA or another lead agency, or in response to accidents
or employee complaints. OSHA may also conduct inspections at hazardous
waste sites in those states with approved plans that choose not to
exercise their jurisdiction to inspect such sites. On request, OSHA
will provide advice and consultation to EPA and other NRT/RRT agencies
as well as to the OSC/RPM regarding hazards to persons engaged in
response activities. OSHA may also take any other action necessary to
assure that employees are properly protected at such response
activities. Any questions about occupational safety and health at these
sites may be referred to the OSHA Regional Office.
(12) DOT provides response expertise pertaining to transportation
of oil or hazardous substances by all modes of transportation. Through
the Research and Special Programs Administration (RSPA), DOT offers
expertise in the requirements for packaging, handling, and transporting
regulated hazardous materials. DOT, through RSPA, establishes oil
discharge contingency planning requirements for pipelines, transport by
rail and containers or bulk transport of oil.
(13) The Department of State (DOS) will lead in the development of
international joint contingency plans. It will also help to coordinate
an international response when discharges or releases cross
international boundaries or involve foreign flag vessels. Additionally,
DOS will coordinate requests for assistance from foreign governments
and U.S. proposals for conducting research at incidents that occur in
waters of other countries.
(14) The Nuclear Regulatory Commission will respond, as
appropriate, to releases of radioactive materials by its licensees, in
accordance with the NRC Incident Response Plan (NUREG-0728) to monitor
the actions of those licensees and assure that the public health and
environment are protected and adequate recovery operations are
instituted. The Nuclear Regulatory Commission will keep EPA informed of
any significant actual or potential releases in accordance with
procedural agreements. In addition, the Nuclear Regulatory Commission
will provide advice to the OSC/RPM when assistance is required in
identifying the source and character of other hazardous substance
releases where the Nuclear Regulatory Commission has licensing
authority for activities utilizing radioactive materials.
(15) The General Services Administration (GSA) provides logistic
and telecommunications support to federal agencies. During an emergency
situation, GSA quickly responds to aid state and local governments as
directed by other federal agencies. The type of support provided might
include leasing and furnishing office space, setting up
telecommunications and transportation services, and advisory
assistance.
Sec. 300.180 State and local participation in response.
(a) Each state governor is requested to designate one state office/
representative to represent the state on the appropriate RRT. The
state's office/representative may participate fully in all activities
of the appropriate RRT. Each state governor is also requested to
designate a lead state agency that will direct state-lead response
operations. This agency is responsible for designating the lead state
response official for federal and/or state-lead response actions, and
coordinating/communicating with any other state agencies, as
appropriate. Local governments are invited to participate in activities
on the appropriate RRT as may be provided by state law or arranged by
the state's representative. Indian tribes wishing to participate should
assign one person or office to represent the tribal government on the
appropriate RRT.
(b) Appropriate local and state officials (including Indian tribes)
will participate as part of the response structure as provided in the
ACP.
(c) In addition to meeting the requirements for local emergency
plans under SARA section 303, state and local government agencies are
encouraged to include contingency planning for responses, consistent
with the NCP, RCP, and ACP in all emergency and disaster planning.
(d) For facilities not addressed under CERCLA or the CWA, states
are encouraged to undertake response actions themselves or to use their
authorities to compel potentially responsible parties to undertake
response actions.
(e) States are encouraged to enter into cooperative agreements
pursuant to sections 104 (c)(3) and (d) of CERCLA to enable them to
undertake actions authorized under subpart E of the NCP. Requirements
for entering into these agreements are included in subpart F of the
NCP. A state agency that acts pursuant to such agreements is referred
to as the lead agency. In the event there is no cooperative agreement,
the lead agency can be designated in a SMOA or other agreement.
(f) Because state and local public safety organizations would
normally be the first government representatives at the scene of a
discharge or release, they are expected to initiate public safety
measures that are necessary to protect public health and welfare and
that are consistent with containment and cleanup requirements in the
NCP, and are responsible for directing evacuations pursuant to existing
state or local procedures.
Sec. 300.185 Nongovernmental participation.
(a) Industry groups, academic organizations, and others are
encouraged to commit resources for response operations. Specific
commitments should be listed in the RCP and ACP. Those entities
required to develop tank vessel and facility response plans under CWA
section 311(j) must be able to respond to a worst case discharge to the
maximum extent practicable, and shall commit sufficient resources to
implement other aspects of those plans in accordance with the
requirements of 30 CFR part 254, 33 CFR parts 150, 154, and 155; 40 CFR
part 112; and 49 CFR parts 171 and 194.
(b) The technical and scientific information generated by the local
community, along with information from federal, state, and local
governments, should be used to assist the OSC/RPM in devising response
strategies where effective standard techniques are unavailable. Such
information and strategies will be incorporated into the ACP, as
appropriate. The SSC may act as liaison between the OSC/RPM and such
interested organizations.
(c) ACPs shall establish procedures to allow for well organized,
worthwhile, and safe use of volunteers, including compliance with
Sec. 300.150 regarding worker health and safety. ACPs should provide
for the direction of volunteers by the OSC/RPM or by other federal,
state, or local officials knowledgeable in contingency operations and
capable of providing leadership. ACPs also should identify specific
areas in which volunteers can be used, such as beach surveillance,
logistical support, and bird and wildlife treatment. Unless
specifically requested by the OSC/RPM, volunteers generally should not
be used for physical removal or remedial activities. If, in the
judgment of the OSC/RPM, dangerous conditions exist, volunteers shall
be restricted from on-scene operations.
(d) Nongovernmental participation must be in compliance with the
requirements of subpart H of this part if any recovery of costs will be
sought.
Subpart C--Planning and Preparedness
Sec. 300.200 General.
This subpart summarizes emergency preparedness activities relating
to discharges of oil and releases of hazardous substances, pollutants,
or contaminants; describes the three levels of contingency planning
under the national response system; and cross-references state and
local emergency preparedness activities under SARA Title III, also
known as the ``Emergency Planning and Community Right-to-Know Act of
1986'' but referred to herein as ``Title III.'' Regulations
implementing Title III are codified at 40 CFR Subchapter J.
Sec. 300.205 Planning and coordination structure.
(a) National. As described in Sec. 300.110, the NRT is responsible
for national planning and coordination.
(b) Regional. As described in Sec. 300.115, the RRTs are
responsible for regional planning and coordination.
(c) Area. As required by section 311(j) of the CWA, under the
direction of the federal OSC for its area, Area Committees comprising
qualified personnel of federal, state, and local agencies shall be
responsible for:
(1) Preparing an ACP for their areas (as described in
Sec. 300.210(c));
(2) Working with appropriate federal, state, and local officials to
enhance the contingency planning of those officials and to assure pre-
planning of joint response efforts, including appropriate procedures
for mechanical recovery, dispersal, shoreline cleanup, protection of
sensitive environmental areas, and protection, rescue, and
rehabilitation of fisheries and wildlife; and
(3) Working with appropriate federal, state, and local officials to
expedite decisions for the use of dispersants and other mitigating
substances and devices.
(d) State. As provided by sections 301 and 303 of Title III, the
SERC of each state, appointed by the Governor, is to designate
emergency planning districts, appoint Local Emergency Planning
Committees (LEPCs), supervise and coordinate their activities, and
review local emergency response plans, which are described in
Sec. 300.215. The SERC also is to establish procedures for receiving
and processing requests from the public for information generated by
Title III reporting requirements and to designate an official to serve
as coordinator for information.
(e) Local. As provided by sections 301 and 303 of Title III,
emergency planning districts are designated by the SERC in order to
facilitate the preparation and implementation of emergency plans. Each
LEPC is to prepare a local emergency response plan for the emergency
planning district and establish procedures for receiving and processing
requests from the public for information generated by Title III
reporting requirements. The LEPC is to appoint a chair and establish
rules for the LEPC. The LEPC is to designate an official to serve as
coordinator for information and designate in its plan a community
emergency coordinator.
(f) As required by section 311(j)(5) of the CWA, a tank vessel, as
defined under section 2101 of title 46, U.S. Code, an offshore
facility, and an onshore facility that, because of its location, could
reasonably be expected to cause substantial harm to the environment by
discharging into or on the navigable waters, adjoining shorelines, or
exclusive economic zone must prepare and submit a plan for responding,
to the maximum extent practicable, to a worst case discharge, and to a
substantial threat of such a discharge, of oil or a hazardous
substance.
(g) The relationship of these plans is described in Figure 4.
BILLING CODE 6560-50-P
TR15SE94.004
BILLING CODE 6560-50-C
Sec. 300.210 Federal contingency plans.
There are three levels of contingency plans under the national
response system: The National Contingency Plan, RCPs, and ACPs. These
plans are available for inspection at EPA regional offices or USCG
district offices. Addresses and telephone numbers for these offices may
be found in the United States Government Manual, issued annually, or in
local telephone directories.
(a) The National Contingency Plan. The purpose and objectives,
authority, and scope of the NCP are described in Secs. 300.1 through
300.3.
(b) Regional Contingency Plans. The RRTs, working with the states,
shall develop federal RCPs for each standard federal region, Alaska,
Oceania in the Pacific, and the Caribbean to coordinate timely,
effective response by various federal agencies and other organizations
to discharges of oil or releases of hazardous substances, pollutants,
or contaminants. RCPs shall, as appropriate, include information on all
useful facilities and resources in the region, from government,
commercial, academic, and other sources. To the greatest extent
possible, RCPs shall follow the format of the NCP and be coordinated
with state emergency response plans, ACPs, which are described in
Sec. 300.210(c), and Title III local emergency response plans, which
are described in Sec. 300.215. Such coordination should be accomplished
by working with the SERCs in the region covered by the RCP. RCPs shall
contain lines of demarcation between the inland and coastal zones, as
mutually agreed upon by USCG and EPA.
(c) Area Contingency Plans. (1) Under the direction of an OSC and
subject to approval by the lead agency, each Area Committee, in
consultation with the appropriate RRTs, Coast Guard DRGs, the NSFCC,
SSCs, LEPCs, and SERCs, shall develop an ACP for its designated area.
This plan, when implemented in conjunction with other provisions of the
NCP, shall be adequate to remove a worst case discharge under
Sec. 300.324, and to mitigate or prevent a substantial threat of such a
discharge, from a vessel, offshore facility, or onshore facility
operating in or near the area.
(2) The areas of responsibility may include several Title III local
planning districts, or parts of such districts. In developing the ACP,
the OSC shall coordinate with affected SERCs and LEPCs. The ACP shall
provide for a well coordinated response that is integrated and
compatible, to the greatest extent possible, with all appropriate
response plans of state, local, and non-federal entities, and
especially with Title III local emergency response plans.
(3) The ACP shall include the following:
(i) A description of the area covered by the plan, including the
areas of special economic or environmental importance that might be
damaged by a discharge;
(ii) A description in detail of the responsibilities of an owner or
operator and of federal, state, and local agencies in removing a
discharge, and in mitigating or preventing a substantial threat of a
discharge;
(iii) A list of equipment (including firefighting equipment),
dispersants, or other mitigating substances and devices, and personnel
available to an owner or operator and federal, state, and local
agencies, to ensure an effective and immediate removal of a discharge,
and to ensure mitigation or prevention of a substantial threat of a
discharge (this may be provided in an appendix or by reference to other
relevant emergency plans (e.g., state or LEPC plans), which may include
such equipment lists);
(iv) A description of procedures to be followed for obtaining an
expedited decision regarding the use of dispersants; and
(v) A detailed description of how the plan is integrated into other
ACPs and tank vessel, offshore facility, and onshore facility response
plans approved by the President, and into operating procedures of the
NSFCC.
(4)(i) In order to provide for coordinated, immediate and effective
protection, rescue, and rehabilitation of, and minimization of risk of
injury to, fish and wildlife resources and habitat, Area Committees
shall incorporate into each ACP a detailed annex containing a Fish and
Wildlife and Sensitive Environments Plan that is consistent with the
RCP and NCP. The annex shall be prepared in consultation with the USFWS
and NOAA and other interested natural resource management agencies and
parties. It shall address fish and wildlife resources and their
habitat, and shall include other areas considered sensitive
environments in a separate section of the annex, based upon Area
Committee recommendations. The annex will provide the necessary
information and procedures to immediately and effectively respond to
discharges that may adversely affect fish and wildlife and their
habitat and sensitive environments, including provisions for a response
to a worst case discharge. Such information shall include the
identification of appropriate agencies and their responsibilities,
procedures to notify these agencies following a discharge or threat of
a discharge, protocols for obtaining required fish and wildlife permits
and other necessary permits, and provisions to ensure compatibility of
annex-related activities with removal operations.
(ii) The annex shall:
(A) Identify and establish priorities for fish and wildlife
resources and their habitats and other important sensitive areas
requiring protection from any direct or indirect effects from
discharges that may occur. These effects include, but are not limited
to, any seasonal or historical use, as well as all critical, special,
significant, or otherwise designated protected areas.
(B) Provide a mechanism to be used during a spill response for
timely identification of protection priorities of those fish and
wildlife resources and habitats and sensitive environmental areas that
may be threatened or injured by a discharge. These include as
appropriate, not only marine and freshwater species, habitats, and
their food sources, but also terrestrial wildlife and their habitats
that may be affected directly by onshore oil or indirectly by oil-
related factors, such as loss or contamination of forage. The mechanism
shall also provide for expeditious evaluation and appropriate
consultations on the effects to fish and wildlife, their habitat, and
other sensitive environments from the application of chemical
countermeasures or other countermeasures not addressed under paragraph
(e)(4)(iii).
(C) Identify potential environmental effects on fish and wildlife,
their habitat, and other sensitive environments resulting from removal
actions or countermeasures, including the option of no removal. Based
on this evaluation of potential environmental effects, the annex should
establish priorities for application of countermeasure and removal
actions to habitats within the geographic region of the ACP. The annex
should establish methods to minimize the identified effects on fish and
wildlife because of response activities, including, but not limited to:
Disturbance of sensitive areas and habitats; illegal or inadvertent
taking or disturbance of fish and wildlife or specimens by response
personnel; and fish and wildlife, their habitat, and environmentally
sensitive areas coming in contact with various cleaning or
bioremediation agents. Furthermore, the annex should identify the areas
where the movement of oiled debris may pose a risk to resident,
transient, or migratory fish and wildlife, and other sensitive
environments and should discuss measures to be considered for removing
such oiled debris in a timely fashion to reduce such risk.
(D) Provide for pre-approval of application of specific
countermeasures or removal actions that, if expeditiously applied, will
minimize adverse spill-induced impacts to fish and wildlife resources,
their habitat, and other sensitive environments. Such pre-approval
plans must be consistent with paragraphs (c)(4)(ii) (B) and (C) of this
section and subpart J requirements, and must have the concurrence of
the natural resource trustees.
(E) Provide monitoring plan(s) to evaluate the effectiveness of
different countermeasures or removal actions in protecting the
environment. Monitoring should include ``set-aside'' or ``control''
areas, where no mitigative actions are taken.
(F) Identify and plan for the acquisition and utilization of
necessary response capabilities for protection, rescue, and
rehabilitation of fish and wildlife resources and habitat. This may
include appropriately permitted private organizations and individuals
with appropriate expertise and experience. The suitable organizations
should be identified in cooperation with natural resource law
enforcement agencies. Such capabilities shall include, but not be
limited to, identification of facilities and equipment necessary for
deterring sensitive fish and wildlife from entering oiled areas, and
for capturing, holding, cleaning, and releasing injured wildlife. Plans
for the provision of such capabilities shall ensure that there is no
interference with other OSC removal operations.
(G) Identify appropriate federal and state agency contacts and
alternates responsible for coordination of fish and wildlife rescue and
rehabilitation and protection of sensitive environments; identify and
provide for required fish and wildlife handling and rehabilitation
permits necessary under federal and state laws; and provide guidance on
the implementation of law enforcement requirements included under
current federal and state laws and corresponding regulations.
Requirements include, but are not limited to procedures regarding the
capture, transport, rehabilitation, and release of wildlife exposed to
or threatened by oil, and disposal of contaminated carcasses of
wildlife.
(H) Identify and secure the means for providing, if needed, the
minimum required OSHA and EPA training for volunteers, including those
who assist with injured wildlife.
(I) Define the requirements for evaluating the compatibility
between this annex and non-federal response plans (including those of
vessels, facilities, and pipelines) on issues affecting fish and
wildlife, their habitat, and sensitive environments.
Sec. 300.211 OPA facility and vessel response plans.
This section describes and cross-references the regulations that
implement section 311(j)(5) of the CWA. A tank vessel, as defined under
section 2101 of title 46, U.S. Code, an offshore facility, and an
onshore facility that, because of its location, could reasonably expect
to cause substantial harm to the environment by discharging into or on
the navigable waters, adjoining shorelines, or exclusive economic zone
must prepare and submit a plan for responding, to the maximum extent
practicable, to a worst case discharge, and to a substantial threat of
such a discharge, of oil or a hazardous substance. These response plans
are required to be consistent with applicable Area Contingency Plans.
These regulations are codified as follows:
(a) For tank vessels, these regulations are codified in 33 CFR part
155;
(b) For offshore facilities, these regulations are codified in 30
CFR part 254;
(c) For non-transportation related onshore facilities, these
regulations are codified in 40 CFR 112.20;
(d) For transportation-related onshore facilities, these
regulations are codified in 33 CFR part 154;
(e) For pipeline facilities, these regulations are codified in 49
CFR part 194; and
(f) For rolling stock, these regulations are codified in 49 CFR
part 106 et al.
Sec. 300.212 Area response drills.
The OSC periodically shall conduct drills of removal capability
(including fish and wildlife response capability), without prior
notice, in areas for which ACPs are required by Sec. 300.210(c) and
under relevant tank vessel and facility response plans.
Sec. 300.215 Title III local emergency response plans.
This section describes and cross-references the regulations that
implement Title III. These regulations are codified at 40 CFR part 355.
(a) Each LEPC is to prepare an emergency response plan in
accordance with section 303 of Title III and review the plan once a
year, or more frequently as changed circumstances in the community or
at any facility may require. Such Title III local emergency response
plans should be closely coordinated with applicable federal ACPs and
state emergency response plans.
(b) [Reserved]
Sec. 300.220 Related Title III issues.
Other related Title III requirements are found in 40 CFR part 355.
Subpart D--Operational Response Phases for Oil Removal
Sec. 300.300 Phase I--Discovery or notification.
(a) A discharge of oil may be discovered through:
(1) A report submitted by the person in charge of a vessel or
facility, in accordance with statutory requirements;
(2) Deliberate search by patrols;
(3) Random or incidental observation by government agencies or the
public; or
(4) Other sources.
(b) Any person in charge of a vessel or a facility shall, as soon
as he or she has knowledge of any discharge from such vessel or
facility in violation of section 311(b)(3) of the CWA, immediately
notify the NRC. If direct reporting to the NRC is not practicable,
reports may be made to the USCG or EPA predesignated OSC for the
geographic area where the discharge occurs. The EPA predesignated OSC
may also be contacted through the regional 24-hour emergency response
telephone number. All such reports shall be promptly relayed to the
NRC. If it is not possible to notify the NRC or predesignated OSC
immediately, reports may be made immediately to the nearest Coast Guard
unit. In any event such person in charge of the vessel or facility
shall notify the NRC as soon as possible.
(c) Any other person shall, as appropriate, notify the NRC of a
discharge of oil.
(d) Upon receipt of a notification of discharge, the NRC shall
promptly notify the OSC. The OSC shall ensure notification of the
appropriate state agency of any state which is, or may reasonably be
expected to be, affected by the discharge. The OSC shall then proceed
with the following phases as outlined in the RCP and ACP.
Sec. 300.305 Phase II--Preliminary assessment and initiation of
action.
(a) The OSC is responsible for promptly initiating a preliminary
assessment.
(b) The preliminary assessment shall be conducted using available
information, supplemented where necessary and possible by an on-scene
inspection. The OSC shall undertake actions to:
(1) Evaluate the magnitude and severity of the discharge or threat
to public health or welfare of the United States or the environment;
(2) Assess the feasibility of removal; and
(3) To the extent practicable, identify potentially responsible
parties.
(c) Where practicable, the framework for the response management
structure is a system (e.g., a unified command system), that brings
together the functions of the federal government, the state government,
and the responsible party to achieve an effective and efficient
response, where the OSC maintains authority.
(d) Except in a case when the OSC is required to direct the
response to a discharge that may pose a substantial threat to the
public health or welfare of the United States (including but not
limited to fish, shellfish, wildlife, other natural resources, and the
public and private beaches and shorelines of the United States), the
OSC may allow the responsible party to voluntarily and promptly perform
removal actions, provided the OSC determines such actions will ensure
an effective and immediate removal of the discharge or mitigation or
prevention of a substantial threat of a discharge. If the responsible
party does conduct the removal, the OSC shall ensure adequate
surveillance over whatever actions are initiated. If effective actions
are not being taken to eliminate the threat, or if removal is not being
properly done, the OSC should, to the extent practicable under the
circumstances, so advise the responsible party. If the responsible
party does not respond properly the OSC shall take appropriate response
actions and should notify the responsible party of the potential
liability for federal response costs incurred by the OSC pursuant to
the OPA and CWA. Where practicable, continuing efforts should be made
to encourage response by responsible parties.
(1) In carrying out a response under this section, the OSC may:
(i) Remove or arrange for the removal of a discharge, and mitigate
or prevent a substantial threat of a discharge, at any time;
(ii) Direct or monitor all federal, state, and private actions to
remove a discharge; and
(iii) Remove and, if necessary, destroy a vessel discharging, or
threatening to discharge, by whatever means are available.
(2) If the discharge results in a substantial threat to the public
health or welfare of the United States (including, but not limited to
fish, shellfish, wildlife, other natural resources, and the public and
private beaches and shorelines of the United States), the OSC must
direct all response efforts, as provided in Sec. 300.322(b) of this
part. The OSC should declare as expeditiously as practicable to spill
response participants that the federal government will direct the
response. The OSC may act without regard to any other provision of the
law governing contracting procedures or employment of personnel by the
federal government in removing or arranging for the removal of such a
discharge.
(e) The OSC shall ensure that the natural resource trustees are
promptly notified in the event of any discharge of oil, to the maximum
extent practicable as provided in the Fish and Wildlife and Sensitive
Environments Plan annex to the ACP for the area in which the discharge
occurs. The OSC and the trustees shall coordinate assessments,
evaluations, investigations, and planning with respect to appropriate
removal actions. The OSC shall consult with the affected trustees on
the appropriate removal action to be taken. The trustees will provide
timely advice concerning recommended actions with regard to trustee
resources potentially affected. The trustees also will assure that the
OSC is informed of their activities in natural resource damage
assessment that may affect response operations. The trustees shall
assure, through the lead administrative trustee, that all data from the
natural resource damage assessment activities that may support more
effective operational decisions are provided in a timely manner to the
OSC. When circumstances permit, the OSC shall share the use of non-
monetary response resources (i.e., personnel and equipment) with the
trustees, provided trustee activities do not interfere with response
actions. The lead administrative trustee facilitates effective and
efficient communication between the OSC and the other trustees during
response operations and is responsible for applying to the OSC for non-
monetary federal response resources on behalf of all trustees. The lead
administrative trustee is also responsible for applying to the NPFC for
funding for initiation of damage assessment for injuries to natural
resources.
Sec. 300.310 Phase III--Containment, countermeasures, cleanup, and
disposal.
(a) Defensive actions shall begin as soon as possible to prevent,
minimize, or mitigate threat(s) to the public health or welfare of the
United States or the environment. Actions may include but are not
limited to: Analyzing water samples to determine the source and spread
of the oil; controlling the source of discharge; measuring and
sampling; source and spread control or salvage operations; placement of
physical barriers to deter the spread of the oil and to protect natural
resources and sensitive ecosystems; control of the water discharged
from upstream impoundment; and the use of chemicals and other materials
in accordance with subpart J of this part to restrain the spread of the
oil and mitigate its effects. The ACP prepared under Sec. 300.210(c)
should be consulted for procedures to be followed for obtaining an
expedited decision regarding the use of dispersants and other products
listed on the NCP Product Schedule.
(b) As appropriate, actions shall be taken to recover the oil or
mitigate its effects. Of the numerous chemical or physical methods that
may be used, the chosen methods shall be the most consistent with
protecting public health and welfare and the environment. Sinking
agents shall not be used.
(c) Oil and contaminated materials recovered in cleanup operations
shall be disposed of in accordance with the RCP, ACP, and any
applicable laws, regulations, or requirements. RRT and Area Committee
guidelines may identify the disposal options available during an oil
spill response and may describe what disposal requirements are
mandatory or may not be waived by the OSC. ACP guidelines should
address: the sampling, testing, and classifying of recovered oil and
oiled debris; the segregation, temporary storage, and stockpiling of
recovered oil and oiled debris; prior state disposal approvals and
permits; and the routes; methods (e.g. recycle/reuse, on-site burning,
incineration, landfilling, etc.); and sites for the disposal of
collected oil, oiled debris, and animal carcasses; and procedures for
obtaining waivers, exemptions, or authorizations associated with
handling or transporting waste materials. The ACPs may identify a
hierarchy of preferences for disposal alternatives, with recycling
(reprocessing) being the most preferred, and other alternatives
preferred based on priorities for health or the environment.
Sec. 300.315 Phase IV--Documentation and cost recovery.
(a) All OSLTF users need to collect and maintain documentation to
support all actions taken under the CWA. In general, documentation
shall be sufficient to support full cost recovery for resources
utilized and shall identify the source and circumstances of the
incident, the responsible party or parties, and impacts and potential
impacts to public health and welfare and the environment. Documentation
procedures are contained in 33 CFR part 136.
(b) When appropriate, documentation shall also be collected for
scientific understanding of the environment and for research and
development of improved response methods and technology. Funding for
these actions is restricted by section 6002 of the OPA.
(c) OSCs shall submit OSC reports to the NRT or RRT, only if
requested, as provided by Sec. 300.165.
(d) OSCs shall ensure the necessary collection and safeguarding of
information, samples, and reports. Samples and information shall be
gathered expeditiously during the response to ensure an accurate record
of the impacts incurred. Documentation materials shall be made
available to the trustees of affected natural resources. The OSC shall
make available to trustees of the affected natural resources
information and documentation in the OSC's possession that can assist
the trustees in the determination of actual or potential natural
resource injuries.
(e) Information and reports obtained by the EPA or USCG OSC shall
be transmitted to the appropriate offices responsible for follow-up
actions.
Sec. 300.317 National response priorities.
(a) Safety of human life must be given the top priority during
every response action. This includes any search and rescue efforts in
the general proximity of the discharge and the insurance of safety of
response personnel.
(b) Stabilizing the situation to preclude the event from worsening
is the next priority. All efforts must be focused on saving a vessel
that has been involved in a grounding, collision, fire, or explosion,
so that it does not compound the problem. Comparable measures should be
taken to stabilize a situation involving a facility, pipeline, or other
source of pollution. Stabilizing the situation includes securing the
source of the spill and/or removing the remaining oil from the
container (vessel, tank, or pipeline) to prevent additional oil
spillage, to reduce the need for follow-up response action, and to
minimize adverse impact to the environment.
(c) The response must use all necessary containment and removal
tactics in a coordinated manner to ensure a timely, effective response
that minimizes adverse impact to the environment.
(d) All parts of this national response strategy should be
addressed concurrently, but safety and stabilization are the highest
priorities. The OSC should not delay containment and removal decisions
unnecessarily and should take actions to minimize adverse impact to the
environment that begins as soon as a discharge occurs, as well as
actions to minimize further adverse environmental impact from
additional discharges.
(e) The priorities set forth in this section are broad in nature,
and should not be interpreted to preclude the consideration of other
priorities that may arise on a site-specific basis.
Sec. 300.320 General pattern of response.
(a) When the OSC receives a report of a discharge, actions normally
should be taken in the following sequence:
(1) Investigate the report to determine pertinent information such
as the threat posed to public health or welfare of the United States or
the environment, the type and quantity of polluting material, and the
source of the discharge.
(2) Officially classify the size (i.e., minor, medium, major) and
type (i.e., substantial threat to the public health or welfare of the
United States, worst case discharge) of the discharge and determine the
course of action to be followed to ensure effective and immediate
removal, mitigation, or prevention of the discharge. Some discharges
that are classified as a substantial threat to the public health or
welfare of the United States may be further classified as a spill of
national significance by the Administrator of EPA or the Commandant of
the USCG. The appropriate course of action may be prescribed in
Secs. 300.322, 300.323, and 300.324.
(i) When the reported discharge is an actual or potential major
discharge, the OSC shall immediately notify the RRT and the NRC.
(ii) When the investigation shows that an actual or potential
medium discharge exists, the OSC shall recommend activation of the RRT,
if appropriate.
(iii) When the investigation shows that an actual or potential
minor discharge exists, the OSC shall monitor the situation to ensure
that proper removal action is being taken.
(3) If the OSC determines that effective and immediate removal,
mitigation, or prevention of a discharge can be achieved by private
party efforts, and where the discharge does not pose a substantial
threat to the public health or welfare of the United States, determine
whether the responsible party or other person is properly carrying out
removal. Removal is being done properly when:
(i) The responsible party is applying the resources called for in
its response plan to effectively and immediately remove, minimize, or
mitigate threat(s) to public health and welfare and the environment;
and
(ii) The removal efforts are in accordance with applicable
regulations, including the NCP. Even if the OSC supplements responsible
party resources with government resources, the spill response will not
be considered improper, unless specifically determined by the OSC.
(4) Where appropriate, determine whether a state or political
subdivision thereof has the capability to carry out any or all removal
actions. If so, the OSC may arrange funding to support these actions.
(5) Ensure prompt notification of the trustees of affected natural
resources in accordance with the applicable RCP and ACP.
(b) Removal shall be considered complete when so determined by the
OSC in consultation with the Governor or Governors of the affected
states. When the OSC considers removal complete, OSLTF removal funding
shall end. This determination shall not preclude additional removal
actions under applicable state law.
Sec. 300.322 Response to substantial threats to public health or
welfare of the United States.
(a) As part of the investigation described in Sec. 300.320, the OSC
shall determine whether a discharge results in a substantial threat to
public health or welfare of the United States (including, but not
limited to, fish, shellfish, wildlife, other natural resources, and the
public and private beaches and shorelines of the United States).
Factors to be considered by the OSC in making this determination
include, but are not limited to, the size of the discharge, the
character of the discharge, and the nature of the threat to public
health or welfare of the United States. Upon obtaining such
information, the OSC shall conduct an evaluation of the threat posed,
based on the OSC's experience in assessing other discharges, and
consultation with senior lead agency officials and readily available
authorities on issues outside the OSC's technical expertise.
(b) If the investigation by the OSC shows that the discharge poses
or may present a substantial threat to public health or welfare of the
United States, the OSC shall direct all federal, state, or private
actions to remove the discharge or to mitigate or prevent the threat of
such a discharge, as appropriate. In directing the response in such
cases, the OSC may act without regard to any other provision of law
governing contracting procedures or employment of personnel by the
federal government to:
(1) Remove or arrange for the removal of the discharge;
(2) Mitigate or prevent the substantial threat of the discharge;
and
(3) Remove and, if necessary, destroy a vessel discharging, or
threatening to discharge, by whatever means are available.
(c) In the case of a substantial threat to public health or welfare
of the United States, the OSC shall:
(1) Assess opportunities for the use of various special teams and
other assistance described in Sec. 300.145, including the use of the
services of the NSFCC, as appropriate;
(2) Request immediate activation of the RRT; and
(3) Take whatever additional response actions are deemed
appropriate, including, but not limited to, implementation of the ACP
as required by section 311(j)(4) of the CWA or relevant tank vessel or
facility response plan required by section 311(j)(5) of the CWA. When
requested by the OSC, the lead agency or RRT shall dispatch appropriate
personnel to the scene of the discharge to assist the OSC. This
assistance may include technical support in the agency's areas of
expertise and disseminating information to the public. The lead agency
shall ensure that a contracting officer is available on scene, at the
request of the OSC.
Sec. 300.323 Spills of national significance
(a) A discharge may be classified as a spill of national
significance (SONS) by the Administrator of EPA for discharges
occurring in the inland zone and the Commandant of the USCG for
discharges occurring in the coastal zone.
(b) For a SONS in the inland zone, the EPA Administrator may name a
senior Agency official to assist the OSC in communicating with affected
parties and the public and coordinating federal, state, local, and
international resources at the national level. This strategic
coordination will involve, as appropriate, the NRT, RRT(s), the
Governor(s) of affected state(s), and the mayor(s) or other chief
executive(s) of local government(s).
(c) For a SONS in the coastal zone, the USCG Commandant may name a
National Incident Commander (NIC) who will assume the role of the OSC
in communicating with affected parties and the public, and coordinating
federal, state, local, and international resources at the national
level. This strategic coordination will involve, as appropriate, the
NRT, RRT(s), the Governor(s) of affected state(s), and the mayor(s) or
other chief executive(s) of local government(s).
Sec. 300.324 Response to worst case discharges.
(a) If the investigation by the OSC shows that a discharge is a
worst case discharge as defined in the ACP, or there is a substantial
threat of such a discharge, the OSC shall:
(1) Notify the NSFCC;
(2) Require, where applicable, implementation of the worst case
portion of an approved tank vessel or facility response plan required
by section 311(j)(5) of the CWA;
(3) Implement the worst case portion of the ACP required by section
311(j)(4) of the CWA; and
(4) Take whatever additional response actions are deemed
appropriate.
(b) Under the direction of the OSC, the NSFCC shall coordinate use
of private and public personnel and equipment, including strike teams,
to remove a worst case discharge and mitigate or prevent a substantial
threat of such a discharge.
Sec. 300.335 Funding.
(a) The OSLTF is available under certain circumstances to fund
removal of oil performed under section 311 of the CWA. Those
circumstances and the procedures for accessing the OSLTF are described
in 33 CFR part 136. The responsible party is liable for costs of
federal removal and damages in accordance with section 311(f) of the
CWA, section 1002 of the OPA, and other federal laws.
(b) Where the OSC requests assistance from a federal agency, that
agency may be reimbursed in accordance with the provisions of 33 CFR
part 136. Specific interagency reimbursement agreements may be used
when necessary to ensure that the federal resources will be available
for a timely response to a discharge of oil.
(c) Procedures for funding the initiation of natural resource
damage assessment are covered in 33 CFR part 136.
(d) Response actions other than removal, such as scientific
investigations not in support of removal actions or law enforcement,
shall be provided by the agency with legal responsibility for those
specific actions.
(e) The funding of a response to a discharge from a federally
owned, operated, or supervised facility or vessel is the responsibility
of the owning, operating, or supervising agency if it is a responsible
party.
(f) The following agencies have funds available for certain
discharge removal actions:
(1) DOD has two specific sources of funds that may be applicable to
an oil discharge under appropriate circumstances. This does not
consider military resources that might be made available under specific
conditions.
(i) Funds required for removal of a sunken vessel or similar
obstruction of navigation are available to the Corps of Engineers
through Civil Works Appropriations, Operations and Maintenance,
General.
(ii) USN may conduct salvage operations contingent on defense
operational commitments, when funded by the requesting agency. Such
funding may be requested on a direct cite basis.
(2) Pursuant to Title I of the OPA, the state or states affected by
a discharge of oil may act where necessary to remove such discharge.
Pursuant to 33 CFR part 136 states may be reimbursed from the OSLTF for
the reasonable costs incurred in such a removal.
Subpart E--Hazardous Substance Response
5. Section 300.400 is amended by revising paragraph (a) to read as
follows:
Sec. 300.400 General.
(a) This subpart establishes methods and criteria for determining
the appropriate extent of response authorized by CERCLA and CWA section
311(c):
(1) When there is a release of a hazardous substance into the
environment; or
(2) When there is a release into the environment of any pollutant
or contaminant that may present an imminent and substantial danger to
the public health or welfare of the United States.
* * * * *
6. Section 300.405 is amended by revising paragraphs (a) and (f)(3)
to read as follows:
Sec. 300.405 Discovery or notification.
(a) A release may be discovered through:
(1) A report submitted in accordance with section 103(a) of CERCLA,
i.e., reportable quantities codified at 40 CFR part 302;
(2) A report submitted to EPA in accordance with section 103(c) of
CERCLA;
(3) Investigation by government authorities conducted in accordance
with section 104(e) of CERCLA or other statutory authority;
(4) Notification of a release by a federal or state permit holder
when required by its permit;
(5) Inventory or survey efforts or random or incidental observation
reported by government agencies or the public;
(6) Submission of a citizen petition to EPA or the appropriate
federal facility requesting a preliminary assessment, in accordance
with section 105(d) of CERCLA;
(7) A report submitted in accordance with section 311(b)(5) of the
CWA; and
(8) Other sources.
* * * * *
(f) * * *
(3) If radioactive substances are present in a release, the EPA
Radiological Response Coordinator should be notified for evaluation and
assistance either directly or via the NRC, consistent with
Secs. 300.130(e) and 300.145(f).
* * * * *
7. Section 300.410 is revised to read as follows:
Sec. 300.410 Removal site evaluation.
(a) A removal site evaluation includes a removal preliminary
assessment and, if warranted, a removal site inspection.
(b) A removal site evaluation of a release identified for possible
CERCLA response pursuant to Sec. 300.415 shall, as appropriate, be
undertaken by the lead agency as promptly as possible. The lead agency
may perform a removal preliminary assessment in response to petitions
submitted by a person who is, or may be, affected by a release of a
hazardous substance, pollutant, or contaminant pursuant to
Sec. 300.420(b)(5).
(c)(1) The lead agency shall, as appropriate, base the removal
preliminary assessment on readily available information. A removal
preliminary assessment may include, but is not limited to:
(i) Identification of the source and nature of the release or
threat of release;
(ii) Evaluation by ATSDR or by other sources, for example, state
public health agencies, of the threat to public health;
(iii) Evaluation of the magnitude of the threat;
(iv) Evaluation of factors necessary to make the determination of
whether a removal is necessary; and
(v) Determination of whether a nonfederal party is undertaking
proper response.
(2) A removal preliminary assessment of releases from hazardous
waste management facilities may include collection or review of data
such as site management practices, information from generators,
photographs, analysis of historical photographs, literature searches,
and personal interviews conducted, as appropriate.
(d) A removal site inspection may be performed if more information
is needed. Such inspection may include a perimeter (i.e., off-site) or
on-site inspection, taking into consideration whether such inspection
can be performed safely.
(e)(1) As part of the evaluation under this section, the OSC shall
determine whether a release governed by CWA section 311(c)(1), as
amended by OPA section 4201(a), has occurred.
(2) If such a release of a CWA hazardous substance has occurred,
the OSC shall determine whether the release results in a substantial
threat to the public health or welfare of the United States. Factors to
be considered by the OSC in making this determination include, but are
not limited to, the size of the release, the character of the release,
and the nature of the threat to public health or welfare of the United
States. Upon obtaining relevant elements of such information, the OSC
shall conduct an evaluation of the threat posed, based on the OSC's
experience in assessing other releases, and consultation with senior
lead agency officials and readily available authorities on issues
outside the OSC's technical expertise.
(f) A removal site evaluation shall be terminated when the OSC or
lead agency determines:
(1) There is no release;
(2) The source is neither a vessel nor a facility as defined in
Sec. 300.5 of the NCP;
(3) The release involves neither a hazardous substance, nor a
pollutant or contaminant that may present an imminent and substantial
danger to public health or welfare of the United States;
(4) The release consists of a situation specified in
Sec. 300.400(b) (1) through (3) subject to limitations on response;
(5) The amount, quantity, or concentration released does not
warrant federal response;
(6) A party responsible for the release, or any other person, is
providing appropriate response, and on-scene monitoring by the
government is not required; or
(7) The removal site evaluation is completed.
(g) The results of the removal site evaluation shall be documented.
(h) The OSC or lead agency shall ensure that natural resource
trustees are promptly notified in order that they may initiate
appropriate actions, including those identified in Subpart G of this
part. The OSC or lead agency shall coordinate all response activities
with such affected trustees.
(i) If the removal site evaluation indicates that removal action
under Sec. 300.415 is not required, but that remedial action under
Sec. 300.430 may be necessary, the lead agency shall, as appropriate,
initiate a remedial site evaluation pursuant to Sec. 300.420.
8. Section 300.415 is revised to read as follows:
Sec. 300.415 Removal action.
(a)(1) In determining the appropriate extent of action to be taken
in response to a given release, the lead agency shall first review the
removal site evaluation, any information produced through a remedial
site evaluation, if any has been done previously, and the current site
conditions, to determine if removal action is appropriate.
(2) Where the responsible parties are known, an effort initially
shall be made, to the extent practicable, to determine whether they can
and will perform the necessary removal action promptly and properly.
(3) This section does not apply to removal actions taken pursuant
to section 104(b) of CERCLA. The criteria for such actions are set
forth in section 104(b) of CERCLA.
(b)(1) At any release, regardless of whether the site is included
on the National Priorities List (NPL), where the lead agency makes the
determination, based on the factors in paragraph (b)(2) of this
section, that there is a threat to public health or welfare of the
United States or the environment, the lead agency may take any
appropriate removal action to abate, prevent, minimize, stabilize,
mitigate, or eliminate the release or the threat of release.
(2) The following factors shall be considered in determining the
appropriateness of a removal action pursuant to this section:
(i) Actual or potential exposure to nearby human populations,
animals, or the food chain from hazardous substances or pollutants or
contaminants;
(ii) Actual or potential contamination of drinking water supplies
or sensitive ecosystems;
(iii) Hazardous substances or pollutants or contaminants in drums,
barrels, tanks, or other bulk storage containers, that may pose a
threat of release;
(iv) High levels of hazardous substances or pollutants or
contaminants in soils largely at or near the surface, that may migrate;
(v) Weather conditions that may cause hazardous substances or
pollutants or contaminants to migrate or be released;
(vi) Threat of fire or explosion;
(vii) The availability of other appropriate federal or state
response mechanisms to respond to the release; and
(viii) Other situations or factors that may pose threats to public
health or welfare of the United States or the environment.
(3) If the lead agency determines that a removal action is
appropriate, actions shall, as appropriate, begin as soon as possible
to abate, prevent, minimize, stabilize, mitigate, or eliminate the
threat to public health or welfare of the United States or the
environment. The lead agency shall, at the earliest possible time, also
make any necessary determinations pursuant to paragraph (b)(4) of this
section.
(4) Whenever a planning period of at least six months exists before
on-site activities must be initiated, and the lead agency determines,
based on a site evaluation, that a removal action is appropriate:
(i) The lead agency shall conduct an engineering evaluation/cost
analysis (EE/CA) or its equivalent. The EE/CA is an analysis of removal
alternatives for a site.
(ii) If environmental samples are to be collected, the lead agency
shall develop sampling and analysis plans that shall provide a process
for obtaining data of sufficient quality and quantity to satisfy data
needs. Sampling and analysis plans shall be reviewed and approved by
EPA. The sampling and analysis plans shall consist of two parts:
(A) The field sampling plan, which describes the number, type, and
location of samples and the type of analyses; and
(B) The quality assurance project plan, which describes policy,
organization, and functional activities and the data quality objectives
and measures necessary to achieve adequate data for use in planning and
documenting the removal action.
(5) CERCLA fund-financed removal actions, other than those
authorized under section 104(b) of CERCLA, shall be terminated after $2
million has been obligated for the action or 12 months have elapsed
from the date that removal activities begin on-site, unless the lead
agency determines that:
(i) There is an immediate risk to public health or welfare of the
United States or the environment; continued response actions are
immediately required to prevent, limit, or mitigate an emergency; and
such assistance will not otherwise be provided on a timely basis; or
(ii) Continued response action is otherwise appropriate and
consistent with the remedial action to be taken.
(c)(1) In carrying out a response to a release of a CWA hazardous
substance, as described in CWA section 311(c)(1), as amended by OPA
section 4201(a), the OSC may:
(i) Remove or arrange for the removal of a release, and mitigate or
prevent a substantial threat of a release, at any time;
(ii) Direct or monitor all federal, state, and private actions to
remove a release; and
(iii) Remove and, if necessary, destroy a vessel releasing or
threatening to release CWA hazardous substances, by whatever means are
available.
(2) If the investigation by the OSC under Sec. 300.410 shows that
the release of a CWA hazardous substance results in a substantial
threat to public health or welfare of the United States, the OSC shall
direct all federal, state, or private actions to remove the release or
to mitigate or prevent the threat of such a release, as appropriate. In
directing the response, the OSC may act without regard to any other
provision of law governing contracting procedures or employment of
personnel by the federal government to:
(i) Remove or arrange for the removal of the release;
(ii) Mitigate or prevent the substantial threat of the release; and
(iii) Remove and, if necessary, destroy a vessel releasing, or
threatening to release, by whatever means are available.
(3) In the case of a release of a CWA hazardous substance posing a
substantial threat to public health or welfare of the United States,
the OSC shall:
(i) Assess opportunities for the use of various special teams and
other assistance described in Sec. 300.145, as appropriate;
(ii) Request immediate activation of the RRT; and
(iii) Take whatever additional response actions are deemed
appropriate. When requested by the OSC, the lead agency or RRT shall
dispatch appropriate personnel to the scene of the release to assist
the OSC. This assistance may include technical support in the agency's
areas of expertise and disseminating information to the public in
accordance with Sec. 300.155. The lead agency shall ensure that a
contracting officer is available on-scene, at the request of the OSC.
(d) Removal actions shall, to the extent practicable, contribute to
the efficient performance of any anticipated long-term remedial action
with respect to the release concerned.
(e) The following removal actions are, as a general rule,
appropriate in the types of situations shown; however, this list is not
exhaustive and is not intended to prevent the lead agency from taking
any other actions deemed necessary under CERCLA, CWA section 311, or
other appropriate federal or state enforcement or response authorities,
and the list does not create a duty on the lead agency to take action
at any particular time:
(1) Fences, warning signs, or other security or site control
precautions--where humans or animals have access to the release;
(2) Drainage controls, for example, run-off or run-on diversion--
where needed to reduce migration of hazardous substances or pollutants
or contaminants off-site or to prevent precipitation or run-off from
other sources, for example, flooding, from entering the release area
from other areas;
(3) Stabilization of berms, dikes, or impoundments or drainage or
closing of lagoons--where needed to maintain the integrity of the
structures;
(4) Capping of contaminated soils or sludges--where needed to
reduce migration of hazardous substances or pollutants or contaminants
into soil, ground or surface water, or air;
(5) Using chemicals and other materials to retard the spread of the
release or to mitigate its effects--where the use of such chemicals
will reduce the spread of the release;
(6) Excavation, consolidation, or removal of highly contaminated
soils from drainage or other areas--where such actions will reduce the
spread of, or direct contact with, the contamination;
(7) Removal of drums, barrels, tanks, or other bulk containers that
contain or may contain hazardous substances or pollutants or
contaminants--where it will reduce the likelihood of spillage; leakage;
exposure to humans, animals, or food chain; or fire or explosion;
(8) Containment, treatment, disposal, or incineration of hazardous
materials--where needed to reduce the likelihood of human, animal, or
food chain exposure; or
(9) Provision of alternative water supply--where necessary
immediately to reduce exposure to contaminated household water and
continuing until such time as local authorities can satisfy the need
for a permanent remedy.
(f) Where necessary to protect public health or welfare, the lead
agency shall request that FEMA conduct a temporary relocation or that
state/local officials conduct an evacuation.
(g) If the lead agency determines that the removal action will not
fully address the threat posed by the release and the release may
require remedial action, the lead agency shall ensure an orderly
transition from removal to remedial response activities.
(h) CERCLA removal actions conducted by states under cooperative
agreements, described in subpart F of this part, shall comply with all
requirements of this section.
(i) Facilities operated by a state or political subdivision at the
time of disposal require a state cost share of at least 50 percent of
Fund-financed response costs if a Fund-financed remedial action is
conducted.
(j) Fund-financed removal actions under CERCLA section 104 and
removal actions pursuant to CERCLA section 106 shall, to the extent
practicable considering the exigencies of the situation, attain
applicable or relevant and appropriate requirements (ARARs) under
federal environmental or state environmental or facility siting laws.
Waivers described in Sec. 300.430(f)(1)(ii)(C) may be used for removal
actions. Other federal and state advisories, criteria, or guidance may,
as appropriate, be considered in formulating the removal action (see
Sec. 300.400(g)(3)). In determining whether compliance with ARARs is
practicable, the lead agency may consider appropriate factors,
including:
(1) The urgency of the situation; and
(2) The scope of the removal action to be conducted.
(k) Removal actions pursuant to section 106 or 122 of CERCLA are
not subject to the following requirements of this section:
(1) Section 300.415(a)(2) requirement to locate responsible parties
and have them undertake the response;
(2) Section 300.415(b)(2)(vii) requirement to consider the
availability of other appropriate federal or state response and
enforcement mechanisms to respond to the release;
(3) Section 300.415(b)(5) requirement to terminate response after
$2 million has been obligated or 12 months have elapsed from the date
of the initial response; and
(4) Section 300.415(g) requirement to assure an orderly transition
from removal to remedial action.
(l) To the extent practicable, provision for post-removal site
control following a CERCLA Fund-financed removal action at both NPL and
non-NPL sites is encouraged to be made prior to the initiation of the
removal action. Such post-removal site control includes actions
necessary to ensure the effectiveness and integrity of the removal
action after the completion of the on-site removal action or after the
$2 million or 12-month statutory limits are reached for sites that do
not meet the exemption criteria in paragraph (b)(5) of this section.
Post-removal site control may be conducted by:
(1) The affected state or political subdivision thereof or local
units of government for any removal;
(2) Potentially responsible parties; or
(3) EPA's remedial program for some federal-lead Fund-financed
responses at NPL sites.
(m) OSCs/RPMs conducting removal actions shall submit OSC reports
to the RRT as required by Sec. 300.165.
(n) Community relations in removal actions. (1) In the case of all
CERCLA removal actions taken pursuant to Sec. 300.415 or CERCLA
enforcement actions to compel removal response, a spokesperson shall be
designated by the lead agency. The spokesperson shall inform the
community of actions taken, respond to inquiries, and provide
information concerning the release. All news releases or statements
made by participating agencies shall be coordinated with the OSC/RPM.
The spokesperson shall notify, at a minimum, immediately affected
citizens, state and local officials, and, when appropriate, civil
defense or emergency management agencies.
(2) For CERCLA actions where, based on the site evaluation, the
lead agency determines that a removal is appropriate, and that less
than six months exists before on-site removal activity must begin, the
lead agency shall:
(i) Publish a notice of availability of the administrative record
file established pursuant to Sec. 300.820 in a major local newspaper of
general circulation within 60 days of initiation of on-site removal
activity;
(ii) Provide a public comment period, as appropriate, of not less
than 30 days from the time the administrative record file is made
available for public inspection, pursuant to Sec. 300.820(b)(2); and
(iii) Prepare a written response to significant comments pursuant
to Sec. 300.820(b)(3).
(3) For CERCLA removal actions where on-site action is expected to
extend beyond 120 days from the initiation of on-site removal
activities, the lead agency shall by the end of the 120-day period:
(i) Conduct interviews with local officials, community residents,
public interest groups, or other interested or affected parties, as
appropriate, to solicit their concerns, information needs, and how or
when citizens would like to be involved in the Superfund process;
(ii) Prepare a formal community relations plan (CRP) based on the
community interviews and other relevant information, specifying the
community relations activities that the lead agency expects to
undertake during the response; and
(iii) Establish at least one local information repository at or
near the location of the response action. The information repository
should contain items made available for public information. Further, an
administrative record file established pursuant to subpart I for all
removal actions shall be available for public inspection in at least
one of the repositories. The lead agency shall inform the public of the
establishment of the information repository and provide notice of
availability of the administrative record file for public review. All
items in the repository shall be available for public inspection and
copying.
(4) Where, based on the site evaluation, the lead agency determines
that a CERCLA removal action is appropriate and that a planning period
of at least six months exists prior to initiation of the on-site
removal activities, the lead agency shall at a minimum:
(i) Comply with the requirements set forth in paragraphs (n)(3)
(i), (ii), and (iii) of this section, prior to the completion of the
EE/CA, or its equivalent, except that the information repository and
the administrative record file will be established no later than when
the EE/CA approval memorandum is signed;
(ii) Publish a notice of availability and brief description of the
EE/CA in a major local newspaper of general circulation pursuant to
Sec. 300.820;
(iii) Provide a reasonable opportunity, not less than 30 calendar
days, for submission of written and oral comments after completion of
the EE/CA pursuant to Sec. 300.820(a). Upon timely request, the lead
agency will extend the public comment period by a minimum of 15 days;
and
(iv) Prepare a written response to significant comments pursuant to
Sec. 300.820(a).
9. Subpart G is revised to read as follows:
Subpart G--Trustees for Natural Resources
300.600 Designation of federal trustees.
300.605 State trustees.
300.610 Indian tribes.
300.612 Foreign trustees.
300.615 Responsibilities of trustees.
Subpart G--Trustees for Natural Resources
Sec. 300.600 Designation of federal trustees.
(a) The President is required to designate in the NCP those federal
officials who are to act on behalf of the public as trustees for
natural resources. Federal officials so designated will act pursuant to
section 107(f) of CERCLA, section 311(f)(5) of the CWA, and section
1006 of the OPA. Natural resources means land, fish, wildlife, biota,
air, water, ground water, drinking water supplies, and other such
resources belonging to, managed by, held in trust by, appertaining to,
or otherwise controlled (hereinafter referred to as ``managed or
controlled'') by the United States (including the resources of the
exclusive economic zone).
(b) The following individuals shall be the designated trustee(s)
for general categories of natural resources, including their supporting
ecosystems. They are authorized to act pursuant to section 107(f) of
CERCLA, section 311(f)(5) of the CWA, or section 1006 of the OPA when
there is injury to, destruction of, loss of, or threat to natural
resources, including their supporting ecosystems, as a result of a
release of a hazardous substance or a discharge of oil. Notwithstanding
the other designations in this section, the Secretaries of Commerce and
the Interior shall act as trustees of those resources subject to their
respective management or control.
(1) Secretary of Commerce. The Secretary of Commerce shall act as
trustee for natural resources managed or controlled by DOC and for
natural resources managed or controlled by other federal agencies and
that are found in, under, or using waters navigable by deep draft
vessels, tidally influenced waters, or waters of the contiguous zone,
the exclusive economic zone, and the outer continental shelf. However,
before the Secretary takes an action with respect to an affected
resource under the management or control of another federal agency, he
shall, whenever practicable, seek to obtain the concurrence of that
other federal agency. Examples of the Secretary's trusteeship include
the following natural resources and their supporting ecosystems: marine
fishery resources; anadromous fish; endangered species and marine
mammals; and the resources of National Marine Sanctuaries and National
Estuarine Research Reserves.
(2) Secretary of the Interior. The Secretary of the Interior shall
act as trustee for natural resources managed or controlled by the DOI.
Examples of the Secretary's trusteeship include the following natural
resources and their supporting ecosystems: migratory birds; anadromous
fish; endangered species and marine mammals; federally owned minerals;
and certain federally managed water resources. The Secretary of the
Interior shall also be trustee for those natural resources for which an
Indian tribe would otherwise act as trustee in those cases where the
United States acts on behalf of the Indian tribe.
(3) Secretary for the land managing agency. For natural resources
located on, over, or under land administered by the United States, the
trustee shall be the head of the department in which the land managing
agency is found. The trustees for the principal federal land managing
agencies are the Secretaries of DOI, USDA, DOD, and DOE.
(4) Head of authorized agencies. For natural resources located in
the United States but not otherwise described in this section, the
trustee shall be the head of the federal agency or agencies authorized
to manage or control those resources.
Sec. 300.605 State trustees.
State trustees shall act on behalf of the public as trustees for
natural resources, including their supporting ecosystems, within the
boundary of a state or belonging to, managed by, controlled by, or
appertaining to such state. For the purposes of subpart G of this part,
the definition of the term ``state'' does not include Indian tribes.
The governor of a state is encouraged to designate a state lead trustee
to coordinate all state trustee responsibilities with other trustee
agencies and with response activities of the RRT and OSC. The state's
lead trustee would designate a representative to serve as contact with
the OSC. This individual should have ready access to appropriate state
officials with environmental protection, emergency response, and
natural resource responsibilities. The EPA Administrator or USCG
Commandant or their designees may appoint the state lead trustee as a
member of the Area Committee. Response strategies should be coordinated
between the state and other trustees and the OSC for specific natural
resource locations in an inland or coastal zone and should be included
in the Fish and Wildlife and Sensitive Environments Plan annex of the
ACP.
Sec. 300.610 Indian tribes.
The tribal chairmen (or heads of the governing bodies) of Indian
tribes, as defined in Sec. 300.5, or a person designated by the tribal
officials, shall act on behalf of the Indian tribes as trustees for the
natural resources, including their supporting ecosystems, belonging to,
managed by, controlled by, or appertaining to such Indian tribe, or
held in trust for the benefit of such Indian tribe, or belonging to a
member of such Indian tribe, if such resources are subject to a trust
restriction on alienation. When the tribal chairman or head of the
tribal governing body designates another person as trustee, the tribal
chairman or head of the tribal governing body shall notify the
President of such designation. Such officials are authorized to act
when there is injury to, destruction of, loss of, or threat to natural
resources, including their supporting ecosystems as a result of a
release of a hazardous substance.
Sec. 300.612 Foreign trustees.
Pursuant to section 1006 of the OPA, foreign trustees shall act on
behalf of the head of a foreign government as trustees for natural
resources belonging to, managed by, controlled by, or appertaining to
such foreign government.
Sec. 300.615 Responsibilities of trustees.
(a) Where there are multiple trustees, because of coexisting or
contiguous natural resources or concurrent jurisdictions, they should
coordinate and cooperate in carrying out these responsibilities.
(b) Trustees are responsible for designating to the RRTs and the
Area Committees, for inclusion in the RCP and the ACP, appropriate
contacts to receive notifications from the OSCs/RPMs of discharges or
releases.
(c)(1) Upon notification or discovery of injury to, destruction of,
loss of, or threat to natural resources, trustees may, pursuant to
section 107(f) of CERCLA, or section 311(f)(5) of the CWA, take the
following or other actions as appropriate:
(i) Conduct a preliminary survey of the area affected by the
discharge or release to determine if trust resources under their
jurisdiction are, or potentially may be, affected;
(ii) Cooperate with the OSC/RPM in coordinating assessments,
investigations, and planning;
(iii) Carry out damage assessments; or
(iv) Devise and carry out a plan for restoration, rehabilitation,
replacement, or acquisition of equivalent natural resources. In
assessing damages to natural resources, the federal, state, and Indian
tribe trustees have the option of following the procedures for natural
resource damage assessments located at 43 CFR part 11.
(2) Upon notification or discovery of injury to, destruction of,
loss of, or loss of use of, natural resources, or the potential for
such, resulting from a discharge of oil occurring after August 18,
1990, the trustees, pursuant to section 1006 of the OPA, are to take
the following actions:
(i) In accordance with OPA section 1006(c), determine the need for
assessment of natural resource damages, collect data necessary for a
potential damage assessment, and, where appropriate, assess damages to
natural resources under their trusteeship; and
(ii) As appropriate, and subject to the public participation
requirements of OPA section 1006(c), develop and implement a plan for
the restoration, rehabilitation, replacement, or acquisition of the
equivalent, of the natural resources under their trusteeship;
(3)(i) The trustees, consistent with procedures specified in the
Fish and Wildlife and Sensitive Environments Plan Annex to the Area
Contingency Plan, shall provide timely advice on recommended actions
concerning trustee resources that are potentially affected by a
discharge of oil. This may include providing assistance to the OSC in
identifying/recommending pre-approved response techniques and in
predesignating shoreline types and areas in ACPs.
(ii) The trustees shall assure, through the lead administrative
trustee, that the OSC is informed of their activities regarding natural
resource damage assessment that may affect response operations in order
to assure coordination and minimize any interference with such
operations. The trustees shall assure, through the lead administrative
trustee, that all data from the natural resource damage assessment
activities that may support more effective operational decisions are
provided in a timely manner to the OSC.
(iii) When circumstances permit, the OSC shall share the use of
federal response resources (including but not limited to aircraft,
vessels, and booms to contain and remove discharged oil) with the
trustees, providing trustee activities do not interfere with response
actions. The lead administrative trustee facilitates effective and
efficient communication between the OSC and the other trustees during
response operations and is responsible for applying to the OSC for non-
monetary federal response resources on behalf of all trustees. The lead
administrative trustee is also responsible for applying to the NPFC for
funding for initiation of damage assessment for injuries to natural
resources.
(d) The authority of federal trustees includes, but is not limited
to the following actions:
(1) Requesting that the Attorney General seek compensation from the
responsible parties for the damages assessed and for the costs of an
assessment and of restoration planning; and
(2) Participating in negotiations between the United States and
potentially responsible parties to obtain PRP-financed or PRP-conducted
assessments and restorations for injured resources or protection for
threatened resources and to agree to covenants not to sue, where
appropriate.
(3) Requiring, in consultation with the lead agency, any person to
comply with the requirements of CERCLA section 104(e) regarding
information gathering and access.
(4) Initiating damage assessments, as provided in OPA section 6002.
(e) Actions which may be taken by any trustee pursuant to section
107(f) of CERCLA, section 311(f)(5) of the CWA, or section 1006 of the
OPA include, but are not limited to, any of the following:
(1) Requesting that an authorized agency issue an administrative
order or pursue injunctive relief against the parties responsible for
the discharge or release; or
(2) Requesting that the lead agency remove, or arrange for the
removal of, or provide for remedial action with respect to, any oil or
hazardous substances from a contaminated medium pursuant to section 104
of CERCLA or section 311 of CWA.
10. Subpart H is revised to read as follows:
Subpart H--Participation by Other Persons
300.700 Activities by other persons.
Subpart H--Participation by Other Persons
Sec. 300.700 Activities by other persons.
(a) General. Except as provided (e.g., in CWA section 311(c)), any
person may undertake a response action to reduce or eliminate a release
of a hazardous substance, pollutant, or contaminant.
(b) Summary of CERCLA authorities. The mechanisms available to
recover the costs of response actions under CERCLA are, in summary:
(1) Section 107(a), wherein any person may receive a court award of
his or her response costs, plus interest, from the party or parties
found to be liable;
(2) Section 111(a)(2), wherein a private party, a PRP pursuant to a
settlement agreement, or certain foreign entities may file a claim
against the Fund for reimbursement of response costs;
(3) Section 106(b), wherein any person who has complied with a
section 106(a) order may petition the Fund for reimbursement of
reasonable costs, plus interest; and
(4) Section 123, wherein a general purpose unit of local government
may apply to the Fund under 40 CFR part 310 for reimbursement of the
costs of temporary emergency measures that are necessary to prevent or
mitigate injury to human health or the environment associated with a
release.
(c) Section 107(a) cost recovery actions. (1) Responsible parties
shall be liable for all response costs incurred by the United States
government or a state or an Indian tribe not inconsistent with the NCP.
(2) Responsible parties shall be liable for necessary costs of
response actions to releases of hazardous substances incurred by any
other person consistent with the NCP.
(3) For the purpose of cost recovery under section 107(a)(4)(B) of
CERCLA:
(i) A private party response action will be considered ``consistent
with the NCP'' if the action, when evaluated as a whole, is in
substantial compliance with the applicable requirements in paragraphs
(5) and (6) of this section, and results in a CERCLA-quality cleanup;
and
(ii) Any response action carried out in compliance with the terms
of an order issued by EPA pursuant to section 106 of CERCLA, or a
consent decree entered into pursuant to section 122 of CERCLA, will be
considered ``consistent with the NCP.''
(4) Actions under Sec. 300.700(c)(1) will not be considered
``inconsistent with the NCP,'' and actions under Sec. 300.700(c)(2)
will not be considered not ``consistent with the NCP,'' based on
immaterial or insubstantial deviations from the provisions of 40 CFR
part 300.
(5) The following provisions of this Part are potentially
applicable to private party response actions:
(i) Section 300.150 (on worker health and safety);
(ii) Section 300.160 (on documentation and cost recovery);
(iii) Section 300.400(c)(1), (4), (5), and (7) (on determining the
need for a Fund-financed action); (e) (on permit requirements) except
that the permit waiver does not apply to private party response
actions; and (g) (on identification of ARARs) except that applicable
requirements of federal or state law may not be waived by a private
party;
(iv) Section 300.405(b), (c), and (d) (on reports of releases to
the NRC);
(v) Section 300.410 (on removal site evaluation) except paragraphs
(f)(5) and (6);
(vi) Section 300.415 (on removal actions) except paragraphs (a)(2),
(b)(2)(vii), (b)(5), and (g); and including Sec. 300.415(j) with regard
to meeting ARARs where practicable except that private party removal
actions must always comply with the requirements of applicable law;
(vii) Section 300.420 (on remedial site evaluation);
(viii) Section 300.430 (on RI/FS and selection of remedy) except
paragraph (f)(1)(ii)(C)(6) and that applicable requirements of federal
or state law may not be waived by a private party; and
(ix) Section 300.435 (on RD/RA and operation and maintenance).
(6) Private parties undertaking response actions should provide an
opportunity for public comment concerning the selection of the response
action based on the provisions set out below, or based on substantially
equivalent state and local requirements. The following provisions of
this part regarding public participation are potentially applicable to
private party response actions, with the exception of administrative
record and information repository requirements stated therein:
(i) Section 300.155 (on public information and community
relations);
(ii) Section 300.415(n) (on community relations during removal
actions);
(iii) Section 300.430(c) (on community relations during RI/FS)
except paragraph (c)(5);
(iv) Section 300.430(f)(2), (3), and (6) (on community relations
during selection of remedy); and
(v) Section 300.435(c) (on community relations during RD/RA and
operation and maintenance).
(7) When selecting the appropriate remedial action, the methods of
remedying releases listed in Appendix D of this part may also be
appropriate to a private party response action.
(8) Except for actions taken pursuant to CERCLA sections 104 or 106
or response actions for which reimbursement from the Fund will be
sought, any action to be taken by the lead agency listed in paragraphs
(c)(5) through (c)(7) may be taken by the person carrying out the
response action.
(d) Section 111(a)(2) claims. (1) Persons, other than those listed
in paragraphs (d)(1) (i) through (iii) of this section, may be able to
receive reimbursement of response costs by means of a claim against the
Fund. The categories of persons excluded from pursuing this claims
authority are:
(i) Federal government;
(ii) State governments, and their political subdivisions, unless
they are potentially responsible parties covered by an order or consent
decree pursuant to section 122 of CERCLA; and
(iii) Persons operating under a procurement contract or an
assistance agreement with the United States with respect to matters
covered by that contract or assistance agreement, unless specifically
provided therein.
(2) In order to be reimbursed by the Fund, an eligible person must
notify the Administrator of EPA or designee prior to taking a response
action and receive prior approval, i.e., ``preauthorization,'' for such
action.
(3) Preauthorization is EPA's prior approval to submit a claim
against the Fund for necessary response costs incurred as a result of
carrying out the NCP. All applications for preauthorization will be
reviewed to determine whether the request should receive priority for
funding. EPA, in its discretion, may grant preauthorization of a claim.
Preauthorization will be considered only for:
(i) Removal actions pursuant to Sec. 300.415;
(ii) CERCLA section 104(b) activities; and
(iii) Remedial actions at National Priorities List sites pursuant
to Sec. 300.435.
(4) To receive EPA's prior approval, the eligible person must:
(i) Demonstrate technical and other capabilities to respond safely
and effectively to releases of hazardous substances, pollutants, or
contaminants; and
(ii) Establish that the action will be consistent with the NCP in
accordance with the elements set forth in paragraphs (c) (5) through
(8) of this section.
(5) EPA will grant preauthorization to a claim by a party it
determines to be potentially liable under section 107 of CERCLA only in
accordance with an order issued pursuant to section 106 of CERCLA, or a
settlement with the federal government in accordance with section 122
of CERCLA.
(6) Preauthorization does not establish an enforceable contractual
relationship between EPA and the claimant.
(7) Preauthorization represents EPA's commitment that if funds are
appropriated for response actions, the response action is conducted in
accordance with the preauthorization decision document, and costs are
reasonable and necessary, reimbursement will be made from the
Superfund, up to the maximum amount provided in the preauthorization
decision document.
(8) For a claim to be awarded under section 111 of CERCLA, EPA must
certify that the costs were necessary and consistent with the
preauthorization decision document.
(e) Section 106(b) petition. Subject to conditions specified in
CERCLA section 106(b), any person who has complied with an order issued
after October 16, 1986 pursuant to section 106(a) of CERCLA, may seek
reimbursement for response costs incurred in complying with that order
unless the person has waived that right.
(f) Section 123 reimbursement to local governments. Any general
purpose unit of local government for a political subdivision that is
affected by a release may receive reimbursement for the costs of
temporary emergency measures necessary to prevent or mitigate injury to
human health or the environment subject to the conditions set forth in
40 CFR part 310. Such reimbursement may not exceed $25,000 for a single
response.
(g) Release From Liability. Implementation of response measures by
potentially responsible parties or by any other person does not release
those parties from liability under section 107(a) of CERCLA, except as
provided in a settlement under section 122 of CERCLA or a federal court
judgment.
(h) Oil Pollution Act Claims. Claims are authorized to be presented
to the OSLTF under section 1013 of the OPA, for certain uncompensated
removal costs or uncompensated damages resulting from the discharge, or
substantial threat of discharge, of oil from a vessel or facility into
or upon the navigable waters, adjoining shorelines, or exclusive
economic zone of the United States. Anyone desiring to file a claim
against the OSLTF may obtain general information on the procedure for
filing a claim from the Director, National Pollution Funds Center,
Suite 1000, 4200 Wilson Boulevard, Arlington, Virginia 22203-1804,
(703) 235-4756.
11. Subpart J is revised to read as follows:
Subpart J--Use of Dispersants and Other Chemicals
300.900 General.
300.905 NCP Product Schedule.
300.910 Authorization of use.
300.915 Data requirements.
300.920 Addition of products to schedule.
Subpart J--Use of Dispersants and Other Chemicals
Sec. 300.900 General.
(a) Section 311(d)(2)(G) of the CWA requires that EPA prepare a
schedule of dispersants, other chemicals, and other spill mitigating
devices and substances, if any, that may be used in carrying out the
NCP. This subpart makes provisions for such a schedule.
(b) This subpart applies to the navigable waters of the United
States and adjoining shorelines, the waters of the contiguous zone, and
the high seas beyond the contiguous zone in connection with activities
under the Outer Continental Shelf Lands Act, activities under the
Deepwater Port Act of 1974, or activities that may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States, including resources under
the Magnuson Fishery Conservation and Management Act of 1976.
(c) This subpart applies to the use of any chemical agents or other
additives as defined in subpart A of this part that may be used to
remove or control oil discharges.
Sec. 300.905 NCP Product Schedule.
(a) Oil Discharges. (1) EPA shall maintain a schedule of
dispersants and other chemical or bioremediation products that may be
authorized for use on oil discharges in accordance with the procedures
set forth in Sec. 300.910. This schedule, called the NCP Product
Schedule, may be obtained from the Emergency Response Division (5202-
G), U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460. The telephone number is 1-202-260-2342.
(2) Products may be added to the NCP Product Schedule by the
process specified in Sec. 300.920.
(b) Hazardous Substance Releases. [Reserved]
Sec. 300.910 Authorization of use.
(a) RRTs and Area Committees shall address, as part of their
planning activities, the desirability of using appropriate dispersants,
surface washing agents, surface collecting agents, bioremediation
agents, or miscellaneous oil spill control agents listed on the NCP
Product Schedule, and the desirability of using appropriate burning
agents. RCPs and ACPs shall, as appropriate, include applicable
preauthorization plans and address the specific contexts in which such
products should and should not be used. In meeting the provisions of
this paragraph, preauthorization plans may address factors such as the
potential sources and types of oil that might be spilled, the existence
and location of environmentally sensitive resources that might be
impacted by spilled oil, available product and storage locations,
available equipment and adequately trained operators, and the available
means to monitor product application and effectiveness. The RRT
representatives from EPA and the states with jurisdiction over the
waters of the area to which a preauthorization plan applies and the DOC
and DOI natural resource trustees shall review and either approve,
disapprove, or approve with modification the preauthorization plans
developed by Area Committees, as appropriate. Approved preauthorization
plans shall be included in the appropriate RCPs and ACPs. If the RRT
representatives from EPA and the states with jurisdiction over the
waters of the area to which a preauthorization plan applies and the DOC
and DOI natural resource trustees approve in advance the use of certain
products under specified circumstances as described in the
preauthorization plan, the OSC may authorize the use of the products
without obtaining the specific concurrences described in paragraphs (b)
and (c) of this section.
(b) For spill situations that are not addressed by the
preauthorization plans developed pursuant to paragraph (a) of this
section, the OSC, with the concurrence of the EPA representative to the
RRT and, as appropriate, the concurrence of the RRT representatives
from the states with jurisdiction over the navigable waters threatened
by the release or discharge, and in consultation with the DOC and DOI
natural resource trustees, when practicable, may authorize the use of
dispersants, surface washing agents, surface collecting agents,
bioremediation agents, or miscellaneous oil spill control agents on the
oil discharge, provided that the products are listed on the NCP Product
Schedule.
(c) The OSC, with the concurrence of the EPA representative to the
RRT and, as appropriate, the concurrence of the RRT representatives
from the states with jurisdiction over the navigable waters threatened
by the release or discharge, and in consultation with the DOC and DOI
natural resource trustees, when practicable, may authorize the use of
burning agents on a case-by-case basis.
(d) The OSC may authorize the use of any dispersant, surface
washing agent, surface collecting agent, other chemical agent, burning
agent, bioremediation agent, or miscellaneous oil spill control agent,
including products not listed on the NCP Product Schedule, without
obtaining the concurrence of the EPA representative to the RRT and, as
appropriate, the RRT representatives from the states with jurisdiction
over the navigable waters threatened by the release or discharge, when,
in the judgment of the OSC, the use of the product is necessary to
prevent or substantially reduce a hazard to human life. Whenever the
OSC authorizes the use of a product pursuant to this paragraph, the OSC
is to inform the EPA RRT representative and, as appropriate, the RRT
representatives from the affected states and, when practicable, the
DOC/DOI natural resources trustees of the use of a product, including
products not on the Schedule, as soon as possible. Once the threat to
human life has subsided, the continued use of a product shall be in
accordance with paragraphs (a), (b), and (c) of this section.
(e) Sinking agents shall not be authorized for application to oil
discharges.
(f) When developing preauthorization plans, RRTs may require the
performance of supplementary toxicity and effectiveness testing of
products, in addition to the test methods specified in Sec. 300.915 and
described in Appendix C to part 300, due to existing site-specific or
area-specific concerns.
Sec. 300.915 Data requirements.
(a) Dispersants. (1) Name, brand, or trademark, if any, under which
the dispersant is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical changes, or other alterations to the
effectiveness of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Effectiveness. Use the Swirling Flask effectiveness test
methods described in Appendix C to part 300. Manufacturers shall submit
test results and supporting data, along with a certification signed by
responsible corporate officials of the manufacturer and laboratory
stating that the test was conducted on a representative product sample,
the testing was conducted using generally accepted laboratory
practices, and they believe the results to be accurate. A dispersant
must attain an effectiveness value of 45 percent or greater to be added
to the NCP Product Schedule. Manufacturers are encouraged to provide
data on product performance under conditions other than those captured
by these tests.
(8) Dispersant Toxicity. For those dispersants that meet the
effectiveness threshold described in paragraph (a)(7) above, use the
standard toxicity test methods described in Appendix C to part 300.
Manufacturers shall submit test results and supporting data, along with
a certification signed by responsible corporate officials of the
manufacturer and laboratory stating that the test was conducted on a
representative product sample, the testing was conducted using
generally accepted laboratory practices, and they believe the results
to be accurate.
(9) The following data requirements incorporate by reference
standards from the 1991 or 1992 Annual Books of ASTM Standards.
American Society for Testing and Materials, 1916 Race Street,
Philadelphia, Pennsylvania 19103. This incorporation by reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51.\1\
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\1\Copies of these standards may be obtained from the publisher.
Copies may be inspected at the U.S. Environmental Protection Agency,
401 M St., SW., Room LG, Washington, DC, or at the Office of the
Federal Register, 1100 L Street, NW., Room 8401, Washington, DC
20408.
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(i) Flash Point--Select appropriate method from the following:
(A) ASTM--D 56-87, ``Standard Test Method for Flash Point by Tag
Closed Tester;''
(B) ASTM--D 92-90, ``Standard Test Method for Flash and Fire Points
by Cleveland Open Cup;''
(C) ASTM--D 93-90, ``Standard Test Methods for Flash Point by
Pensky-Martens Closed Tester;''
(D) ASTM--D 1310-86, ``Standard Test Method for Flash Point and
Fire Point of Liquids by Tag Open-Cup Apparatus;'' or
(E) ASTM--D 3278-89, ``Standard Test Methods for Flash Point of
Liquids by Setaflash Closed-Cup Apparatus.''
(ii) Pour Point--Use ASTM--D 97-87, ``Standard Test Method for Pour
Point of Petroleum Oils.''
(iii) Viscosity--Use ASTM--D 445-88, ``Standard Test Method for
Kinematic Viscosity of Transparent and Opaque Liquids (and the
Calculation of Dynamic Viscosity).''
(iv) Specific Gravity--Use ASTM--D 1298-85(90), ``Standard Test
Method for Density, Relative Density (Specific Gravity), or API Gravity
of Crude Petroleum and Liquid Petroleum Products by Hydrometer
Method.''
(v) pH--Use ASTM--D 1293-84(90), ``Standard Test Methods for pH of
Water.''
(10) Dispersing Agent Components. Itemize by chemical name and
percentage by weight each component of the total formulation. The
percentages will include maximum, minimum, and average weights in order
to reflect quality control variations in manufacture or formulation. In
addition to the chemical information provided in response to the first
two sentences, identify the major components in at least the following
categories: surface active agents, solvents, and additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Using
standard test procedures, state the concentrations or upper limits of
the following materials:
(i) Arsenic, cadmium, chromium, copper, lead, mercury, nickel,
zinc, plus any other metals that may be reasonably expected to be in
the sample. Atomic absorption methods should be used and the detailed
analytical methods and sample preparation shall be fully described.
(ii) Cyanide. Standard calorimetric procedures should be used.
(iii) Chlorinated hydrocarbons. Gas chromatography should be used
and the detailed analytical methods and sample preparation shall be
fully described. At a minimum, the following test methods shall be used
for chlorinated hydrocarbon analyses: EPA Method 601--Purgeable
halocarbons (Standard Method 6230 B) and EPA Method 608--Organochlorine
pesticides and PCBs (Standard Method 6630 C).\2\
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\2\These test methods may be obtained from: Standard Methods for
the Examination of Water and Wastewater, 17th Edition, American
Public Health Association, 1989; or Method 601--Purgeable
halocarbons, 40 CFR part 136 and Method 608--Organochlorine
pesticide and PCBs, 40 CFR part 136. Copies may be inspected at the
U.S. Environmental Protection Agency, 401 M St., SW., Room LG,
Washington, DC, or at the Office of the Federal Register, 1100 L
Street, NW., Room 8401, Washington, DC 20408.
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(12) The technical product data submission shall include the
identity of the laboratory that performed the required tests, the
qualifications of the laboratory staff, including professional
biographical information for individuals responsible for any tests, and
laboratory experience with similar tests. Laboratories performing
toxicity tests for dispersant toxicity must demonstrate previous
toxicity test experience in order for their results to be accepted. It
is the responsibility of the submitter to select competent analytical
laboratories based on the guidelines contained herein. EPA reserves the
right to refuse to accept a submission of technical product data
because of lack of qualification of the analytical laboratory,
significant variance between submitted data and any laboratory
confirmation performed by EPA, or other circumstances that would result
in inadequate or inaccurate information on the dispersing agent.
(b) Surface washing agents. (1) Name, brand, or trademark, if any,
under which the surface washing agent is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical changes, or other alterations to the
effectiveness of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Toxicity. Use standard toxicity test methods described in
Appendix C to part 300.
(8) Follow the data requirement specifications in paragraph (a)(9)
of this section.
(9) Surface Washing Agent Components. Itemize by chemical name and
percentage by weight each component of the total formulation. The
percentages will include maximum, minimum, and average weights in order
to reflect quality control variations in manufacture or formulation. In
addition to the chemical information provided in response to the first
two sentences, identify the major components in at least the following
categories: surface active agents, solvents, and additives.
(10) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(11) of this section.
(11) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(c) Surface collecting agents. (1) Name, brand, or trademark, if
any, under which the product is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical changes, or other alterations to the
effectiveness of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Toxicity. Use standard toxicity test methods described in
Appendix C to part 300.
(8) Follow the data requirement specifications in paragraph (a)(9)
of this section.
(9) Test to Distinguish Between Surface Collecting Agents and Other
Chemical Agents.
(i) Method Summary--Five milliliters of the chemical under test are
mixed with 95 milliliters of distilled water and allowed to stand
undisturbed for one hour. Then the volume of the upper phase is
determined to the nearest one milliliter.
(ii) Apparatus.
(A) Mixing Cylinder: 100 milliliter subdivisions and fitted with a
glass stopper.
(B) Pipettes: Volumetric pipette, 5.0 milliliter.
(C) Timers.
(iii) Procedure--Add 95 milliliters of distilled water at 22 deg.
C, plus or minus 3 deg. C, to a 100 milliliter mixing cylinder. To the
surface of the water in the mixing cylinder, add 5.0 milliliters of the
chemical under test. Insert the stopper and invert the cylinder five
times in ten seconds. Set upright for one hour at 22 deg. C, plus or
minus 3 deg. C, and then measure the chemical layer at the surface of
the water. If the major portion of the chemical added (75 percent) is
at the water surface as a separate and easily distinguished layer, the
product is a surface collecting agent.
(10) Surface Collecting Agent Components. Itemize by chemical name
and percentage by weight each component of the total formulation. The
percentages should include maximum, minimum, and average weights in
order to reflect quality control variations in manufacture or
formulation. In addition to the chemical information provided in
response to the first two sentences, identify the major components in
at least the following categories: surface action agents, solvents, and
additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(11) of this section.
(12) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(d) Bioremediation Agents. (1) Name, brand, or trademark, if any,
under which the agent is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Bioremediation Agent Effectiveness. Use bioremediation agent
effectiveness test methods described in Appendix C to part 300.
(8) Bioremediation Agent Toxicity [Reserved].
(9) Biological additives.
(i) For microbiological cultures, furnish the following
information:
(A) Listing of each component of the total formulation, other than
microorganisms, by chemical name and percentage by weight.
(B) Listing of all microorganisms by species.
(C) Percentage of each species in the composition of the additive.
(D) Optimum pH, temperature, and salinity ranges for use of the
additive, and maximum and minimum pH, temperature, and salinity levels
above or below which the effectiveness of the additive is reduced to
half its optimum capacity.
(E) Special nutrient requirements, if any.
(F) Separate listing of the following, and test methods for such
determinations: Salmonella, fecal coliform, Shigella, Staphylococcus
Coagulase positive, and Beta Hemolytic Streptococci.
(ii) For enzyme additives, furnish the following information:
(A) Listing of each component of the total formulation, other than
enzymes, by chemical name and percentage by weight.
(B) Enzyme name(s).
(C) International Union of Biochemistry (I.U.B.) number(s).
(D) Source of the enzyme.
(E) Units.
(F) Specific Activity.
(G) Optimum pH, temperature, and salinity ranges for use of the
additive, and maximum and minimum pH, temperature, and salinity levels
above or below which the effectiveness of the additive is reduced to
half its optimum capacity.
(H) Enzyme shelf life.
(I) Enzyme optimum storage conditions.
(10) For nutrient additives, furnish the following information:
(i) Listing of each component of the total formulation by chemical
name and percentage by weight.
(ii) Nutrient additive optimum storage conditions.
(11) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(e) Burning Agents. EPA does not require technical product data
submissions for burning agents and does not include burning agents on
the NCP Product Schedule.
(f) Miscellaneous Oil Spill Control Agents. (1) Name, brand, or
trademark, if any, under which the miscellaneous oil spill control
agent is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Brief description of recommended uses of the product and how
the product works.
(5) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical changes, or other alternatives to the
effectiveness of the product.
(6) Shelf life.
(7) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(8) Toxicity. Use standard toxicity test methods described in
Appendix C to part 300.
(9) Follow the data requirement specifications in paragraph (a)(9)
of this section.
(10) Miscellaneous Oil Spill Control Agent Components. Itemize by
chemical name and percentage by weight each component of the total
formulation. The percentages should include maximum, minimum, and
average weights in order to reflect quality control variations in
manufacture or formulation. In addition to the chemical information
provided in response to the first two sentences, identify the major
components in at least the following categories: surface active agents,
solvents, and additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(11) of this section.
(12) For any miscellaneous oil spill control agent that contains
microbiological cultures, enzyme additives, or nutrient additives,
furnish the information specified in paragraphs (d)(9) and (d)(10) of
this section, as appropriate.
(13) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(g) Sorbents. (1) Sorbent material may consist of, but is not
limited to, the following materials:
(i) Organic products--
(A) Peat moss or straw;
(B) Cellulose fibers or cork;
(C) Corn cobs;
(D) Chicken, duck, or other bird feathers.
(ii) Mineral compounds--
(A) Volcanic ash or perlite;
(B) Vermiculite or zeolite.
(iii) Synthetic products--
(A) Polypropylene;
(B) Polyethylene;
(C) Polyurethane;
(D) Polyester.
(2) EPA does not require technical product data submissions for
sorbents and does not include sorbents on the NCP Product Schedule.
(3) Manufacturers that produce sorbent materials that consist of
materials other than those listed in paragraph (g)(1) of this section
shall submit to EPA the technical product data specified for
miscellaneous oil spill control agents in paragraph (f) of this section
and EPA will consider listing those products on the NCP Product
Schedule under the miscellaneous oil spill control agent category. EPA
will inform the submitter in writing, within 60 days of the receipt of
technical product data, of its decision on adding the product to the
Schedule.
(4) Certification. OSCs may request a written certification from
manufacturers that produce sorbent materials that consist solely of the
materials listed in paragraph (g)(1) of this section prior to making a
decision on the use of a particular sorbent material. The certification
at a minimum shall state that the sorbent consists solely of the
materials listed in Sec. 300.915(g)(1) of the NCP. The following
statement, when completed, dated, and signed by a sorbent manufacturer,
is sufficient to meet the written certification requirement:
[SORBENT NAME] is a sorbent material and consists solely of the
materials listed in Sec. 300.915(g)(1) of the NCP.
(h) Mixed products. Manufacturers of products that consist of
materials that meet the definitions of two or more of the product
categories contained on the NCP Product Schedule shall submit to EPA
the technical product data specified in this section for each of those
product categories. After review of the submitted technical product
data, and the performance of required dispersant effectiveness and
toxicity tests, if appropriate, EPA will make a determination on
whether and under which category the mixed product should be listed on
the Schedule.
Sec. 300.920 Addition of products to Schedule.
(a) Dispersants. (1) To add a dispersant to the NCP Product
Schedule, submit the technical product data specified in
Sec. 300.915(a) to the Emergency Response Division (5202-G), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460. A dispersant must attain an effectiveness value of 45 percent or
greater in order to be added to the Schedule.
(2) EPA reserves the right to request further documentation of the
manufacturers' test results. EPA also reserves the right to verify test
results and consider the results of EPA's verification testing in
determining whether the dispersant meets listing criteria. EPA will,
within 60 days of receiving a complete application as specified in
Sec. 300.915(a) of this part, notify the manufacturer of its decision
to list the product on the Schedule, or request additional information
and/or a sample of the product in order to review and/or conduct
validation sampling. If EPA requests additional information and/or a
product sample, within 60 days of receiving such additional information
or sample, EPA will then notify the manufacturer in writing of its
decision to list or not list the product.
(3) Request for review of decision. (i) A manufacturer whose
product was determined to be ineligible for listing on the NCP Product
Schedule may request EPA's Administrator to review the determination.
The request must be made in writing within 30 days of receiving
notification of EPA's decision to not list the dispersant on the
Schedule. The request shall contain a clear and concise statement with
supporting facts and technical analysis demonstrating that EPA's
decision was incorrect.
(ii) The Administrator or his designee may request additional
information from the manufacturer, or from any other person, and may
provide for a conference between EPA and the manufacturer, if
appropriate. The Administrator or his designee shall render a decision
within 60 days of receiving the request, or within 60 days of receiving
requested additional information, if appropriate, and shall notify the
manufacturer of his decision in writing.
(b) Surface washing agents, surface collecting agents,
bioremediation agents, and miscellaneous oil spill control agents. (1)
To add a surface washing agent, surface collecting agent,
bioremediation agent, or miscellaneous oil spill control agent to the
NCP Product Schedule, the technical product data specified in
Sec. 300.915 must be submitted to the Emergency Response Division
(5202-G), U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460. If EPA determines that the required data were
submitted, EPA will add the product to the Schedule.
(2) EPA will inform the submitter in writing, within 60 days of the
receipt of technical product data, of its decision on adding the
product to the Schedule.
(c) The submitter may assert that certain information in the
technical product data submissions, including technical product data
submissions for sorbents pursuant to Sec. 300.915(g)(3), is
confidential business information. EPA will handle such claims pursuant
to the provisions in 40 CFR part 2, subpart B. Such information must be
submitted separately from non-confidential information, clearly
identified, and clearly marked ``Confidential Business Information.''
If the submitter fails to make such a claim at the time of submittal,
EPA may make the information available to the public without further
notice.
(d) The submitter must notify EPA of any changes in the
composition, formulation, or application of the dispersant, surface
washing agent, surface collecting agent, bioremediation agent, or
miscellaneous oil spill control agent. On the basis of this data, EPA
may require retesting of the product if the change is likely to affect
the effectiveness or toxicity of the product.
(e) The listing of a product on the NCP Product Schedule does not
constitute approval of the product. To avoid possible misinterpretation
or misrepresentation, any label, advertisement, or technical literature
that refers to the placement of the product on the NCP Product Schedule
must either reproduce in its entirety EPA's written statement that it
will add the product to the NCP Product Schedule under
Sec. 300.920(a)(2) or (b)(2), or include the disclaimer shown below. If
the disclaimer is used, it must be conspicuous and must be fully
reproduced. Failure to comply with these restrictions or any other
improper attempt to demonstrate the approval of the product by any NRT
or other U.S. Government agency shall constitute grounds for removing
the product from the NCP Product Schedule.
DISCLAIMER
[PRODUCT NAME] is on the U.S. Environmental Protection Agency's
NCP Product Schedule. This listing does NOT mean that EPA approves,
recommends, licenses, certifies, or authorizes the use of [PRODUCT
NAME] on an oil discharge. This listing means only that data have
been submitted to EPA as required by subpart J of the National
Contingency Plan, Sec. 300.915.
12. Appendix C to part 300 is revised to read as follows:
Appendix C to Part 300--Swirling Flask Dispersant Effectiveness Test,
Revised Standard Dispersant Toxicity Test, and Bioremediation Agent
Effectiveness Test
Table of Contents
1.0 Introduction
2.0 Swirling Flask Dispersant Effectiveness Test
3.0 Revised Standard Dispersant Toxicity Test
4.0 Bioremediation Agent Effectiveness Test
5.0 Bioremediation Agent Toxicity Test
6.0 Summary Technical Product Test Data Format
References
List of Illustrations
Figure Number
1 Swirling Flask Test Apparatus
List of Tables
Table Number
1 Major Ion Composition of ``Instant Ocean'' Synthetic Sea Salt
2 Test Oil Characteristics
3 Oil Standard Solutions: Concentrations in Final DCM Extractions
4 Synthetic Seawater [Toxicity Test]
5 Test Oil Characteristics: No. 2 Fuel Oil
6 Analytes Listed Under the Corresponding Internal Standard Used in
Calculating RRFs
7 Primary Ions Monitored for Each Target Analyte During GC/MS
Analysis
8 Analytes and Reference Compounds
9 Operating Conditions and Temperature Program of GC/MS
10 Two-Way ANOVA Table
11 Product Test Data, Total Aromatics
12 Summary Statistics for Product Test Data, Total Aromatics
13 Example Two-Way ANOVA Table
14 Pairwise Protected LSD Mean Separation
1.0 Introduction
1.1 Scope and Application. The methods described below apply to
``dispersants, surface washing agents, surface collecting agents,
bioremediation agents, and miscellaneous oil spill control agents''
involving subpart J (Use of Dispersants and Other Chemicals) in 40
CFR Part 300 (National Oil and Hazardous Substances Pollution
Contingency Plan). They are revisions and additions to the EPA's
Standard Dispersant Effectiveness and Toxicity Tests (1). The new
Swirling Flask Dispersant Effectiveness Test is used only for
testing dispersants. The Revised Standard Dispersant Toxicity Test
is used for testing dispersants, as well as surface washing agents,
surface collecting agents, and miscellaneous oil spill control
agents. The bioremediation agent effectiveness test is used for
testing bioremediation agents only.
1.2 Definitions. The definitions of dispersants, surface
washing agents, surface collecting agents, bioremediation agents,
and miscellaneous oil spill control agents are provided in 40 CFR
300.5.
2.0 Swirling Flask Dispersant Effectiveness Test
2.1 Summary of Method. This protocol was developed by
Environment Canada to provide a relatively rapid and simple testing
procedure for evaluating dispersant effectiveness (2). It uses a
modified Erlenmeyer flask to which a side spout has been added for
removing subsurface samples of water near the bottom of the flask
without disturbing a surface oil layer. Seawater and a surface layer
of oil are added to the flask. Turbulent mixing is provided by
placing the flask on a standard shaker table at 150 rpm for 20
minutes to induce a swirling motion to the liquid contents.
Following shaking, the flask is immediately removed from the shaker
table and maintained in a stationary position for 10 minutes to
allow the oil that will reform a slick to return to the water's
surface. A sample of water for chemical analysis is then removed
from the bottom of the flask through the side spout, extracted with
methylene chloride (dichloromethane-DCM), and analyzed for oil
content by UV-visible absorption spectrophotometry at wavelengths of
340, 370, and 400 nm (2).
2.2 Apparatus.
2.2.1 Modified Erlenmeyer Flask. Use 125-ml glass Erlenmeyer
flasks that have been modified to include an attachment of a glass side
spout that extends from the bottom of the flask upward to the neck
region, as shown in Figure 1.
2.2.2 Shaker Table. Use a shaker table with speed control unit
with variable speed (40-400 rpm) and an orbital diameter of
approximately 0.75 inches (2 cm) to provide turbulence to solutions
in test flasks.
2.2.3 Spectrophotometer. Use a UV-visible spectrophotometer
capable of measuring absorbance at 340, 370, and 400 nm. A Hitachi
Model U-2000 or equivalent is acceptable for this purpose.
2.2.4 Glassware. Glassware should consist of 5-, 10-, 25-, 100-
, and 500-ml graduated cylinders; 125-ml separatory funnels with
Teflon stopcocks; and 10-, 100-, and 1,000-ml volumetric flasks and
micropipettes.
BILLING CODE 6560-50-P
TR15SE94.005
BILLING CODE 6560-50-C
2.3 Reagents. 2.3.1 Synthetic seawater. The synthetic sea salt
``Instant Ocean,'' manufactured by Aquarium Systems of Mentor, OH,
can be used for this purpose. The synthetic seawater solution is
prepared by dissolving 34 g of the salt mixture in 1 liter of
distilled water (i.e., a salinity of 34 ppt). Table 1 provides a
list of the ion composition of the seasalt mixture.
Table 1.--Major Ion Composition of ``Instant Ocean'' Synthetic Sea Salt
------------------------------------------------------------------------
Ionic
Concentration
Major Ion % Total at 34 ppt
Weight salinity (mg/
1)
------------------------------------------------------------------------
Chloride (C1-)............................... 47.470 18,740
Sodium (NA+)................................. 26.280 10,454
Sulfate (SO4-)............................... 6.602 2,631
Magnesium (Mg++)............................. 3.230 1,256
Calcium (Ca++)............................... 1.013 400
Potassium (K+)............................... 1.015 401
Bicarbonate (HCO3-).......................... 0.491 194
Boron (B).................................... 0.015 6.0
Strontium (Sr++)............................. 0.001 7.5
SOLIDS TOTAL................................. 86.11% 34,089.50
Water........................................ 13.88
TOTAL........................................ 99.99%
------------------------------------------------------------------------
Following the preparation, the saltwater solution is allowed to
equilibrate to the ambient temperature of the laboratory and should
be in the range of 223 deg.C.
2.3.2 Test oil. Two EPA/American Petroleum Institute (API)
standard reference oils, Prudhoe Bay and South Louisiana crude,
should be used for this test. These oils can be obtained from the
Resource Technology Corporation, 2931 Soldier Springs Road, P.O. Box
1346, Laramie, WY 82070, (307) 742-5452. These oils have been
thoroughly homogenized, as well as characterized physically and
chemically for previous EPA and API studies. Various selected
parameters are presented in Table 2.
Table 2.--Test Oil Characteristics
------------------------------------------------------------------------
Prudhoe Bay South Louisiana
crude oil crude oil
------------------------------------------------------------------------
Specific gravity\1\................. 0.894 kg/1...... 0.840 kg/1
API gravity\1\...................... 26.8 degrees.... 37.0 degrees
Sulfur.............................. 1.03 wt%........ 0.23 wt%
Sulfur compounds, profile........... ................ ................
Nitrogen............................ 0.20 wt%........ 0.031 wt%
Vanadium............................ 21 mg/1......... 0.95 mg/1
Nickel.............................. 11 mg/1......... 1.1 mg/1
Simulated distillation profile...... ................ ................
Infrared spectrum................... ................ ................
UV fluorescence spectrum............ ................ ................
Pour Point.......................... +25 deg.F...... 0 deg.F
Viscosity
at 40 deg.C........................ 14.09 cST....... 3.582 cST
at 100 deg.C....................... 4.059 cST....... 1.568 cST
Index............................... 210............. (2)
------------------------------------------------------------------------
\1\At 15 deg.C
\2\ANot calculable when viscosity at 100 deg.C is less than 2.0.
2.3.3 Methylene Chloride (Dichloromethane-DCM), pesticide
quality. For extraction of all sample water and oil-standard water
samples.
2.4 Pretest preparation. 2.4.1 Preparation and analysis of oil
standards. 2.4.1.1 Standard solutions of oil for calibrating the UV-
visible spectrophotometer are prepared with the specific reference
oils and dispersant used for a particular set of experimental test
runs. For experiments with no dispersant, only oil is used to make
the standard solution. For experiments with the oil plus dispersant,
the standard is made with a 1:10 (v:v) mixture of the dispersant to
the test oil (i.e., a dispersant-to-oil ratio of 1:10). This ratio
is used in the test tank with dispersant added. The presence of
water and certain dispersants in DCM extracts can affect absorbance
readings in a spectrophotometer. All standard solutions of oil (and
dispersant, if present) should be prepared in a stepwise manner that
reflects the analytical protocol used for the experimental water
samples.
2.4.1.2 To prepare the standards, prepare a parent oil-DCM
standard by mixing 1 part oil (plus 1/10 part premixed dispersant,
if applicable) to 9 parts DCM (i.e., 1:10 dilution of the oil v:v).
Add a specific volume of the parent oil-DCM standard to 30 ml of
synthetic seawater in a separatory funnel. Extract the oil-water
mixture with 5-ml volumes of DCM after 15 seconds of vigorous
shaking followed by a 2 minute stationary period to allow for phase
separation for each extraction. Repeat the extraction using a total
of three 5-ml portions of DCM. Adjust the final DCM volume for the
combined extracts to 20 ml with DCM in a 25-ml graduated cylinder.
2.4.1.3 The quantities of oil used to achieve the desired
concentrations in the final 20-ml DCM extracts for the standard oil-
solutions are summarized in Table 3. Specific masses for oil amounts
in standards are determined as volumes of oil multiplied by the
density of the oil.
2.4.2 Linear stability calibration of UV-Visible
spectrophotometer.
2.4.2.1 Before DCM-extracts of dispersed oil-water samples can
be analyzed for their oil content, the UV-visible spectrophotometer
must meet an instrument stability calibration criterion. This
criterion is determined with the six oil standards identified in
Table 3. Determine the absorbance of standards at each of the three
analytical wavelengths (i.e., 340, 370, and 400 nm). Determine the
response factors (RFs) for the test oil at each of the three
analytical wavelengths using the following equation:
RFx=C/Ax (1)
where:
RFx=Response factor at wavelength x (x=340, 370, or 400 nm)
C=Oil concentration, in mg of oil/ml of DCM in standard solution
Ax=Spectrophotometric absorbance of wavelength x
Table 3--Oil Standard Solutions: Concentrations in Final DCM
Extractions\1\
------------------------------------------------------------------------
Volume of parent
Final oil Final extract Total amount of oil-DCM std
concentration (mg/ volume (ml of oil in standard (l)
ml of DCM) DCM) (mg) added to
saltwater
------------------------------------------------------------------------
4.0................ 20.0 80.0 890
2.0................ 20.0 40.0 440
1.0................ 20.0 20.0 220
0.50............... 20.0 10.0 110
0.10............... 20.0 2.0 22
0.05............... 20.0 1.0 11
------------------------------------------------------------------------
\1\Assuming an oil density of 0.9 g/ml and an extraction efficiency of
100% for oil from the 30-ml of seawater.
2.4.2.2 Instrument stability for the initial calibration is
acceptable when the RFs for the five highest standard extracts of
oil are <20% different from the overall mean value for the five
standards. If this criterion is satisfied, analysis of sample
extracts can begin. RFs for the lowest concentration (0.05 mg oil/ml
DCM) are not included in the consideration because the absorbance is
close to the detection limit of the spectrophotometer (with
associated high variability in the value) for the 1-cm path-length
cell used for measurements. Absorbances 3.5 are not
included because absorbance saturation occurs at and above this
value.
2.4.2.3 If one or more of the standard oil extracts do not meet
this linear-stability criterion, then the ``offending'' standard(s)
can be prepared a second time (i.e., extraction of the specified
amount of oil from 30-ml or seawater for the ``offending'' standard
according to the pretest preparation procedure). If replacement of
the reanalyzed standard solution(s) in the standard curve meets the
linear-stability criterion (i.e., no RF >20% different from the
overall mean), then analysis of sample extracts can begin.
2.4.2.4 If the initial-stability criterion is still not
satisfied, analysis of sample extract cannot begin and the source of
the problem (e.g., preparation protocol for the oil standards,
spectrophotometer stability, etc.) must be corrected.
2.4.2.5 The initial six-point calibration of the UV-visible
spectrophotometer at the oil concentrations identified is required
at least once per test day.
2.5 Test procedure. 2.5.1 Preparation of premixed dispersant
oil. Prepare a premixed dispersant oil by mixing 1 part dispersant
to 10 parts oil. Store this mixture in a glass container. The
dispersant effectiveness test procedures are listed in steps 1-20:
1. Prepare 4 replicates (same test oil and dispersant), one
control (i.e., no dispersant), and one method blank and run at the
same time on the shaker table.
2. Add 1202 ml of synthetic seawater to each of the
modified 125-ml glass Erlenmeyer flasks. Measure and record the
water temperature.
3. Place the flasks securely into the attached slot on the
shaker table.
4. Carefully add 100 l of an oil-dispersant solution
onto the center of the water's surface using a positive displacement
pipette.
5. Agitate the flasks for 201 minutes at
15010 rpm on the shaker table.
6. After the 201 minutes shaking, remove the flasks
from the shaker table and allow them to remain stationary for
101 minutes for oil droplet ``settling.''
7. At the conclusion of the 10-minute settling period, carefully
decant a 30-ml sample through the side spout of the test flasks into
a 50-ml graduated cylinder.
Note: Discard the first 1-2 ml of sample water to remove
nonhomogeneous water-oil initially contained in the spout.
8. Transfer the samples from the graduated cylinder into a 125-
or 250-ml glass separatory funnel fitted with a Teflon stopcock.
9. Add 5 ml of pesticide-quality DCM to the separatory funnel
and shake vigorously for 15 seconds. Release the pressure carefully
from the separatory funnel through the stopcock into a fume hood.
10. Allow the funnel to remain in a stationary position for 2
minutes to allow phase-separation of the water and DCM.
11. Drain the DCM layer from the separatory funnel into a glass-
stoppered, 25-ml graduated glass cylinder.
12. Repeat the DCM-extraction process two additional times.
13. Combine the three extracts in the graduated cylinder and
adjust the final volume to 20-ml with additional DCM.
14. Analyze the samples using a UV-spectrophotometer at 340,
370, and 400 nm-wavelengths and determine the quantity of oil as
follows:
Cx=(Ax)x(RFx)x(VDCM)x(Vtw/Vew)
(2)
where:
Cx=Total mass of dispersed oil in swirling flask at wavelength
x (x=340, 370, or 400 nm)
Ax=Spectrophotometric absorbance at wavelength x
RFx=Mean response factor at wavelength x (determined from
equation 1)
VDCM=Final volume of DCM-extract of water sample (20 ml)
Vtw=Total water volume in swirling flask vessel (120 ml)
Vew=Volume of water extracted for dispersed oil content (30 ml)
15. Obtain three concentration values for oil in each
experimental water sample (340, 370, and 400 nm).
16. Determine the mean of three values as follows:
Cmean=(C340+C370+C400)/3 (3)
Note: Means will be used for all dispersion-performance
calculations. Samples where one of the values for C340,
C370, or C400 is more than 30% different from Cmean
will be flagged. Whenever oil measurements are flagged as having a
concentration based on one wavelength as >30% different from
Cmean, raw data will be evaluated to establish that the
measurements are valid. In addition, attempts will be made to
correlate the difference to oil type, dispersant test, or dispersant
used. If no errors or correlations are apparent and >10% of all oil
measurements are flagged, the mean concentration data will be used
in the calculation for dispersant performance and the subject data
will be flagged.
17. Determine the dispersant performance (i.e., percent of oil
that is dispersed, or EFF) based on the ratio of oil dispersed in
the test system to the total oil added to the system as follows:
EFF (in %)=(Cmean/CTOT)x100 (4)
where:
Cmean=Mean value for total mass of dispersed oil in the
swirling flask determined by spectrophotometric analysis
CTOT=Total mass of oil initially added to the experimental
swirling flask
18. Calculate EFF using equation 4 for coupled experiments with
and without dispersant (EFFc and EFFd, respectively).
EFFc is the effectiveness of the control and represents natural
dispersion of the oil in the test apparatus. EFFd is the
measured uncorrected value.
19. Calculate the final dispersant performance of a chemical
dispersant agent after correcting for natural dispersion using
equation 5.
EFFD=EFFd--EFFc (5)
where:
EFFD=% dispersed oil due to dispersant only
EFFd=% dispersed oil with dispersant added
EFFc= % dispersed oil with no dispersant added
20. Calculate the average dispersant effectiveness value by
summing the corrected values (EFFD) for each of the four
replicates for each of the two test oils and dividing this sum by
eight.
2.6 Performance criterion. The dispersant product tested will
remain in consideration for addition to the NCP Product Schedule if
the average dispersant effectiveness, as calculated in section 2.5
above, is at least 45% (i.e., 50%5%).
2.7 Quality Control (QC) procedures for measurements of oil
concentrations. 2.7.1 UV-visible spectrophotometric measurements. At
least 5% of all UV-visible spectrophotometric measurements will be
performed in duplicate as a QC check on the analytical measurement
method. The absorbance values for the duplicates should agree within
5% of their mean value.
2.7.2 Method blanks. Analytical method blanks involve an
analysis of seawater blanks (i.e., seawater but no oil or dispersant
in a swirling flask vessel) through testing and analytical
procedures (3, pp 79-80). Method blanks are analyzed with a
frequency of at least 1 for every 12 experimental swirling flask
samples. Oil concentrations in method blanks must be <5% of that
occurring for 100% dispersion of oil in testing apparatus.
3.0 Revised standard dispersant toxicity test
3.1 Summary of method. The standard toxicity test for
dispersants and other products involves exposing two species
(Menidia beryllina (silversides) and Mysidopsis bahia (mysid
shrimp)) to five concentrations of the test product and No. 2 fuel
oil alone and in a 1:10 mixture of product to oil. To aid in
comparing results from assays performed by different workers,
reference toxicity tests are conducted using dodecyl sodium sulfate
(DSS) as a reference toxicant. The test length is 96 hours for
Menidia and 48 hours for Mysidopsis. LC50s are calculated based
on mortality data at the end of the exposure period (for method of
calculation, see section 3.6 below).
3.2 Selection and preparation of test materials.
3.2.1 Test organisms.
3.2.1.1 Menidia beryllina. Obtain fish (silversides) from a
single source for each series of toxicity tests. In-house cultures
are recommended wherever it is cost-effective; however, organisms
are available from commercial suppliers. Information on the source
of test organisms and any known unusual condition to which fish were
exposed before use should be included in the data report. Use of
animals previously treated with pesticides or chemotherapeutic
agents should be avoided. Organisms should not be used if they
appear to be unhealthy, discolored, or show signs of stress. Use 7-
day old larval fish. Fish should be cultured in accordance with the
methods outlined in Middaugh, et al. (5). There should be no need to
acclimate organisms to the 251 deg.C temperature
recommended for the toxicity tests if laboratory stock cultures of
Menidia are maintained at the recommended culture temperature of
251 deg.C. If test organisms must be obtained from a
commercial source, it may become necessary to acclimate test fish to
the test temperature of 251 deg.C, a pH of
8.00.2, and 202 ppt salinity since changes
in temperature may occur during shipping. Eliminate groups of fish
having a mortality of more than 10% during the first 48 hours, and
more than 5% thereafter. During acclimation, organisms should be
maintained on a diet of freshly hatched Artemia (brine shrimp)
nauplii. Feed the fish daily to satiation during the acclimation
period, and once daily during the 96-hour test. Care should be taken
daily to remove excess food and fecal material from beakers during
the test. Use only those organisms that feed actively and that
appear to be healthy. Organisms should be free of disease, external
parasites, and any signs of physical damage or stress. Discard any
fish injured or dropped while handling.
3.2.1.2 Mysidopsis bahia. Several methods for culturing
Mysidopsis bahia (mysid shrimp) may be used and are noted in
Appendix A of Methods for Measuring the Acute Toxicity of Effluents
and Receiving Waters to Freshwater and Marine Organisms (6). To
ensure uniformity of mysids, recently hatched mysids should be
collected daily from stock cultures and identified by the date of
hatch. Mysids used in 48-hour tests should be from a single day's
collection, but may have an age range of 5-7 days old. In cases
where in-house cultures of mysids are unavailable, organisms may be
purchased from a commercial source. Information on the source of
test organisms should be submitted in the data report.
3.2.2 Preparation of experimental water. Filtered natural
seawater is recommended for use since it represents a natural source
of saltwater containing an inherent population of microorganisms.
Synthetic seawater formulated according to the following method can
serve as an acceptable alternative to filtered, natural seawater for
toxicity tests performed in laboratories in which natural seawater
is unavailable.
3.2.3 Synthetic seawater formation. To prepare standard
seawater, mix technical-grade salts with 900 liters of distilled or
demineralized water in the order and quantities listed in Table 4.
These ingredients must be added in the order listed and each
ingredient must be dissolved before another is added. Stir
constantly after each addition during preparation until dissolution
is complete. Add distilled or demineralized water to make up to
1,000 liters. The pH should now be 8.00.2. To attain the
desired salinity of 201 ppt, dilute again with distilled
or demineralized water at time of use.
3.3 Sampling and storage of test materials. Toxicity tests are
performed with No. 2 fuel oil having the characteristics defined in
Table 5. Store oil used for toxicity tests in sealed containers to
prevent the loss of volatiles and other changes. For ease in
handling and use, it is recommended that 1,000-ml glass containers
be used. To ensure comparable results in the bioassay tests, use
oils packaged and sealed at the source. Dispose of unused oil in
each open container on completion of dosing to prevent its use at a
later date when it may have lost some of its volatile components.
Run all tests in a bioassay series with oil from the same container
and with organisms from the same group collected or secured from the
same source.
Table 4.--Synthetic Seawater
[Toxicity Test]
------------------------------------------------------------------------
Salt (g)\1\
------------------------------------------------------------------------
NaF........................................................ 1.9
SrCl2 6H2O........................................ 13.0
H3BO2...................................................... 20.0
KBr........................................................ 67.0
KCl........................................................ 466.0
CaC12 2H2O........................................ 733.0
Na2SO4..................................................... 2,660.0
MgCl2 6H2O........................................ 3,330.0
NaCl....................................................... 15,650.0
Na2SiO3 9H2O...................................... 13.0
EDTA2...................................................... 0.4
NaHCO3..................................................... 133.0
------------------------------------------------------------------------
\1\Amount added to 900 liters of water, as described in the text.
\2\Ethylenediaminetetraacetate tetrasodium salt.
3.4 General test conditions and procedures for toxicity tests.
3.4.1 Temperature. For these toxicity tests, use test solutions
with temperatures of 251 deg.C.
3.4.2 Dissolved oxygen and aeration.
3.4.2.1 Menidia. Because oils contain toxic, volatile materials,
and because the toxicity of some water-soluble fractions of oil and
degradation products are changed by oxidation, special care must be
used in the oxygenation of test solutions. Aeration during the test
is generally not recommended but should be used to maintain the
required dissolved oxygen (DO) in cases where low DO is observed.
The DO content of test solutions must not drop below 60% saturation
during the first 48 hours of a static acute (96-hour) test and must
remain between 40-100% after the first 48 hours of the test.
Aeration at a rate of 10015 bubbles per minute is
supplied by a serological pipette as needed for maintenance of DO.
If aeration is necessary, all test chambers should be aerated. At
this rate, and with the proper weight of fish, DO concentration
should remain slightly above 4 ppm over a 96-hour period. Take DO
measurements daily.
Table 5.--Test Oil Characteristics: No. 2 Fuel Oil
------------------------------------------------------------------------
Characteristic Minimum Maximum
------------------------------------------------------------------------
Gravity ( deg.API).................................. 32.1 42.8
Viscosity kinematic at 100 deg.F (cs)............... 2.35 3.00
Flash point ( deg.F)................................ 150 ...
Pour point ( deg.F)................................. ... 0
Cloud point ( deg.F)................................ ... 10
Sulfur (wt %)....................................... ... 0.35
Aniline point ( deg.F).............................. 125 180
Carbon residue (wt %)............................... ... 0.16
Water (vol %)....................................... ... 0
Sediment (wt %)..................................... ... 0
Aromatics (vol %)................................... 10 15
Distillation:
IBP ( deg.F)........................................ 347 407
10% ( deg.F)........................................ 402 456
50% ( deg.F)........................................ 475 530
90% ( deg.F)........................................ 542 606
End Point ( deg.F).................................. 596 655
Neutralization No................................... ... 0.05
------------------------------------------------------------------------
3.4.2.2 Mysidopsis. Achieve sufficient DO by ensuring that the
surface area to volume ratio of the test solution exposed is large
enough. Oxygen content should remain high throughout the test
because of the low oxygen demand of the organisms. Aeration is not
recommended during 48-hour acute toxicity tests unless the DO falls
below 60% saturation.
3.4.3 Controls. With each fish or mysid test or each series of
simultaneous tests of different solutions, perform a concurrent
control test in exactly the same manner as the other tests and under
the conditions prescribed or selected for those tests. Use the
diluent water alone as the medium in which the controls are held.
There must be no more than 10% mortality among the controls during
the course of any valid test.
3.4.4 Reference toxicant. To aid in comparing results from tests
performed by different workers and to detect changes in the
condition of the test organisms that might lead to different
results, perform reference toxicity tests with reagent grade DSS in
addition to the usual control tests. Prepare a stock solution of DSS
immediately before use by adding 1 gram of DSS per 500 ml of test
water solution. Use exploratory tests before the full scale tests
are begun to determine the amount of reference standard to be used
in each of the five different concentrations.
3.4.5 Number of organisms. At a minimum, 20 organisms of a given
species are exposed for each test concentration. For the toxicity
test procedures using Menidia, place 10 fish in each of two jars.
For the toxicity tests using Mysidopsis, place 10 larvae in each of
two containers.
3.4.6 Transfer of organisms. Organisms should be handled as
little as possible in order to minimize stress. Transfer Menidia and
Mysidopsis from the acclimatization aquaria to the test chambers
with a pipette or a wide-bore, smooth glass tube (4 to 8 mm internal
diameter) fitted with a rubber bulb. Dip nets should be avoided when
handling larval fish and mysids. Do not hold fish out of the water
longer than necessary and discard any specimen accidentally dropped
or otherwise mishandled during transfer.
3.4.6.1 Mysidopsis. To have the mysids ready for study, mysids
may be sorted 24 hours prior to initiation of the 48-hour test.
Transfer the mysids to a beaker containing a small volume of water;
this vessel serves as a holding chamber during randomized transfer
of the organisms to test solutions. Mysids are randomly selected
from the batch of mysids in the holding chamber, and transferred to
50-ml beakers containing a small volume of seawater. One mysid is
added per beaker using a small piece of flexible 500-m
screening until all of the beakers contain one mysid. The process of
random selection and sorting is continued until the appropriate
number of mysids has been delivered to each of the 50-ml beakers.
The mysids are gently released from the 50-ml beakers into larger
beakers filled with an appropriate volume of 20-ppt seawater (25
deg.C) to bring the total volume to 200 ml. The beakers are randomly
placed into a temperature-controlled water bath to acclimate
overnight at 25 deg.C. The mysids are transferred to larger beakers
(1-liter) for the 48-hour test after the addition of 800 ml of the
test solution. A total of 10 mysids per beaker are used for 48-hour
acute toxicity tests. A minimum of two replicate chambers are used
for each test concentration and control.
3.4.6.2 Menidia and Mysidopsis are fed 50 brine shrimp nauplii/
organism daily during the 96-hour and 48-hour tests. Excess food
should be removed daily by aspirating with a pipette.
3.4.7 Test duration and observations. 3.4.7.1 Menidia. Observe
the number of dead fish in each test container and record at the end
of each 24-hour period. Fish are considered dead upon cessation of
respiratory and all other overt movements, whether spontaneous or in
response to mild mechanical prodding. Remove dead fish as soon as
observed. Also note and report when the behavior of test fish
deviates from that of control fish. Such behavioral changes would
include variations in opercular movement, coloration, body
orientation, movement, depth in container, schooling tendencies, and
others. Abnormal behavior of the test organisms (especially during
the first 24 hours) is a desirable parameter to monitor in a
toxicity test because changes in behavior and appearance may precede
mortality. Toxicants can reduce an organism's ability to survive
natural stresses. In these cases, the mortality is not directly
attributed to the toxicant, but most certainly is an indirect
effect. Reports on behavioral changes during a toxicity test can
give insight into the non-acute effects of the tested material. At
the end of the 96-hour period, terminate the fish tests and
determine the LC50 values. The acute toxicity test is
terminated after four days of exposure. The number of surviving fish
are counted and recorded for each chamber in accordance with
standard EPA methods (6). The LC50 is calculated using survival
data from the test in accordance with the methods described in the
guidelines (6).
3.4.7.2 Mysidopsis. Terminate the mysid test after 48 hours of
incubation. To count the dead animals accurately, place the exposure
vessels on a light table such that light passes through the bottom
of the vessel. Most of the dead mysids will be on the bottom of the
beaker and can readily be seen against the background of the light
table. Also search the top of the liquid for mysids trapped there by
surface tension. Exercise caution when determining death of the
animals. Occasionally, an animal appears dead, but closer
observation shows slight movement of an appendage or a periodic
spasm of its entire body. For these tests, animals exhibiting any
movement when touched with a pipette tip are considered alive.
Account for all test animals to ensure accuracy since Mysidopsis
bahia may disintegrate or be cannibalized by other mysids. Consider
individuals not accounted for as dead. At the end of 48 hours of
exposure, terminate the mysid assay and determine the LC50
values in accordance with the methods described in the guidelines
(6).
3.4.8 Physical and chemical determinations. 3.4.8.1 Menidia.
Determine the temperature, DO, and pH of the test solutions before
the fish are added and at P24-, 48-, 72-, and 96-hour exposure
intervals. It is necessary to take measurements from only one of the
replicates of each of the toxicant series.
3.4.8.2 Mysidopsis. Determine the temperature, DO, and pH of
the test solutions before the nauplii are added and at the 24- and
48-hour exposure interval. Measure DO and pH in only one of the
replicates of each of the toxicant series.
3.4.9 Testing laboratory. An ordinary heated or air-conditioned
laboratory room with thermostatic controls suitable for maintaining
the prescribed test temperatures generally will suffice to conduct
the toxicity tests. Where ambient temperatures cannot be controlled
to 251 deg.C, use water baths with the necessary
temperature controls.
3.4.10 Test containers. For tests with fish or mysids, use 1-
liter glass beakers measuring approximately 10 cm in diameter. In
conducting the test, add to each beaker 1 liter of the test solution
or seawater formulation aerated to saturation with DO. To add the
liter volume easily and accurately, use a large volume (1-liter)
graduated cylinder. Process all required glassware before each test.
Immerse in normal hexane for 10 minutes. Follow this with a thorough
rinse with hot tap water; three hot detergent scrubs; an additional
hot tap-water rinse; and three rinses with distilled water. Oven or
air dry the glassware in a reasonably dust-free atmosphere.
3.5 Preparation of test concentrations. 3.5.1 Menidia. Place
test jars (approximately 22.5 cm in height, 15 cm in diameter, 11 cm
in diameter at the mouth) containing 2 liters of synthetic seawater
on a reciprocal shaker. The shaker platform should be adapted to
hold firmly six of the toxicity test jars. Add the desired amount of
the petroleum product (if applicable) under test directly to each
test jar. Dispense the appropriate amount of toxicant (if
applicable) into the jars with a pipette. Tightly cap the test jars
and shake for 5 minutes at approximately 315 to 333 2-cm (0.75-inch)
strokes per minute in a reciprocal shaker or at approximately 150 to
160 rpm on orbital shakers. At the completion of shaking, remove the
jars from the shaker and dispense 1 liter of the mixture to each of
the 1-liter glass beakers. Randomly place beakers in a constant-
temperature water bath or room, take water quality measurements, add
fish, and initiate aeration.
3.5.2 Mysidopsis. 3.5.2.1 To prepare test solutions for
products and oil/product mixtures, blend or mix the test solutions
with an electric blender having: speeds of 10,000 rpm or less; a
stainless-steel cutting assembly; and a 1-liter borosilicate jar. To
minimize foaming, blend at speeds below 10,000 rpm.
3.5.2.2 For the product test solution, add 550 ml of the
synthetic seawater to the jar, then with the use of a gas-tight
calibrated glass syringe with a Teflon-tipped plunger, add 0.55 ml
of the product and mix for 5 seconds.
3.5.2.3 For the oil test solution, add 550 ml of the synthetic
seawater to the jar. Then with the use of a gas-tight calibrated
glass syringe equipped with a Teflon-tipped plunger, add 0.55 ml of
the oil and mix for 5 seconds.
3.5.2.4 For the oil/product mixture, add 550 ml of the
synthetic seawater to the mixing jar. While the blender is in
operation, add 0.5 ml of the oil under study with the use of a
calibrated syringe with a Teflon-tipper plunger and then 0.05 ml of
the product as indicated above. Blend for 5 seconds after addition
of product. These additions provide test solutions of the product,
oil, and the oil/product mixture at concentrations of 1,000 ppm.
3.5.2.5 Immediately after the test solutions are prepared, draw
up the necessary amount of test solution with a gas-tight Teflon-
tipped glass syringe of appropriate size and dispense into each of
the five containers in each series. If the series of five
concentrations to be tested are 10, 18, 32, 56, and 100 ppm, the
amount of the test solution in the order of the concentrations
listed above would be as follows: 10, 18, 32, 56, and 100 ml.
3.5.2.6 Each time a syringe is to be filled for dispensing to
the series of test containers, start the mixer and withdraw the
desired amount in the appropriate syringe while the mixer is in
operation. Turn off immediately after the sample is taken to limit
the loss of volatiles.
3.5.2.7 Use exploratory tests before the full-scale test is set
up to determine the concentration of toxicant to be used in each of
the five different concentrations. After adding the required amounts
of liquid, bring the volume in each of the test containers up to 800
ml with the artificial seawater. To ensure keeping each of the
series separate, designate on the lid of each container the date,
the material under test, and its concentration.
3.5.2.8 When the desired concentrations are prepared, gently
release into each beaker the 10 test Mysidopsis (previously
transferred into 200 ml of medium). This provides a volume of 1
liter in each test chamber. A pair of standard cover glass forceps
with flat, bent ends is an ideal tool for handling and tipping the
small beaker without risk of contaminating the medium.
3.5.2.9 After adding the test animals, incubate the test
beakers at 251 deg.C for 48 hours. Recommended lighting
is 2,000 lumens/m\2\ (200 ft-c) of diffused, constant, fluorescent
illumination.
3.5.2.10 Wash the blender thoroughly after use and repeat the
above procedures for each series of tests. Wash the blender as
follows: rinse with normal hexane; pour a strong solution of
laboratory detergent into the blender to cover the blades; fill the
container to about half of its volume with hot tap water; operate
the blender for about 30 seconds at high speed; remove and rinse
twice with hot tap water, mixing each rinse for 5 seconds at high
speed; and then rinse twice with distilled water, mixing each rinse
for 5 seconds at high speed.
3.6 Calculating and reporting. At the end of the test period,
the toxicity tests are terminated and the LC50 values are
determined.
3.6.1 Calculations. The LC50 is the concentration lethal
to 50% of the test population. It can be calculated as an
interpolated value based on percentages of organisms surviving at
two or more concentrations, at which less than half and more than
half survived. The LC50 can be estimated with the aid of
computer programs or graphic techniques (log paper). The 95%
confidence intervals for the LC50 estimate should also be
determined.
3.6.2 Reporting. The test product and oil and their source and
storage are described in the toxicity test report. Note any observed
changes in the experimental water or the test solutions. Also
include the species of fish used; the sources, size, and condition
of the fish; data of any known treatment of the fish for disease or
infestation with parasites before their use; and any observations on
the fish behavior at regular intervals during the tests. In addition
to the calculated LC50 values, other data necessary for
interpretation (e.g., DO, pH, other physical parameters, and the
percent survival at the end of each day of exposure at each
concentration of toxicant) should be reported.
3.7 Summary of procedures. 3.7.1 Menidia:
1. Prepare adequate stocks of the appropriate standard dilution
water.
2. Add 2 liters of the standard dilution water to the test jars.
Each test consists of 5 replicates of each of 5 concentrations of
the test material, a control series of 5 beakers, and a standard
reference series of 5 different concentrations for a total of 35
beakers. Simultaneous performance of toxicity tests on the oil,
product, and oil/product mixture requires a total of 105 beakers.
3. Add the determined amount (quarter points on the log scale)
of test material to the appropriate jars. Preliminary tests will be
necessary to define the range of definitive test concentrations.
4. Cap the jars tightly with the Teflon-lined screw caps and
shake for 5 minutes at 315 to 333 2-cm (0.75-inch) strokes per
minute on a reciprocal shaker.
5. Remove the jars from the shaker, take water quality data,
dispense 1 liter of solution to the 1-liter glass beaker, and add 10
acclimated fish per beaker.
6. Aerate with 10015 bubbles per minute through a 1-
ml serological pipette, as needed, to maintain DO above 4.0 mg/l.
7. Observe and record mortalities, water quality, and behavioral
changes every 24 hours.
8. After 96 hours, terminate the test, and calculate LC50
values and corresponding confidence limits.
3.7.2 Mysidopsis:
1. Initiate the procedure for hatching the Mysidopsis in
sufficient time before the toxicity test is to be conducted so that
5-7 day old larvae are available.
2. With the use of a small pipette, transfer 10 Mysidopsis into
small beakers, each containing 200 ml of the proper synthetic
seawater.
3. To prepare the test stock product and oil solutions, add 550
ml of the artificial seawater to the prescribed blender jar. By
means of a gas-tight glass syringe with a Teflon-tipped plunger, add
0.55 ml of the product (or oil) and mix at 10,000 rpm for 5 seconds.
To prepare the test stock oil/product mixture, add 550 ml of the
standard seawater to the blender jar. While the blender is in
operation (10,000 rpm), add 0.5 ml of the oil, then 0.05 ml of the
product with the use of a calibrated syringe with a Teflon-tipped
plunger. Blend for 5 seconds after adding the product. One ml of
these stock solutions added to the 100 ml of standard seawater in
the test containers yields a concentration of 10 ppm product, oil,
or oil/product combination (the test will be in a ratio of 1 part
product to 10 parts of oil).
4. Each test consists of 5 replications of each of 5
concentrations of the material under study, a control series of 5
beakers and a standard reference series of 5 different
concentrations, for a total of 35 beakers. Simultaneous performance
of toxicity tests on the oil, product, and oil/product mixture
requires a total of 105 beakers. Immediately after preparing the
test solution of the product or oil/product solution, and using an
appropriately sized syringe, draw up the necessary amount of test
solution and dispense into each of the five containers in each
series. Each time a syringe is to be filled for dispensing to the
series of test containers, start the mixer and withdraw the desired
amount in the appropriate syringe while the mixer is in operation.
Turn mixer off immediately after the sample is taken to limit the
loss of volatiles. After adding the required amount of the test oil/
product or product mixture, bring the volume of liquid in each of
the test containers up to 800 ml with the artificial seawater. When
the desired concentrations have been prepared, gently release into
each beaker the 10 mysids previously transferred into 200 ml of
medium. This provides a volume of 1 liter in each test chamber.
5. Wash the blender as prescribed for each series of tests.
6. Incubate the test beakers at 251 deg.C for 48
hours with the prescribed lighting.
7. Terminate the experiment after 48 hours, observe and record
the mortalities, and determine the LC50s and corresponding
confidence limits.
4.0 Bioremediation agent effectiveness test
4.1 Summary of method. The bioremediation agent effectiveness
testing protocol is designed to determine a product's ability to
biodegrade oil by quantifying changes in the oil composition
resulting from biodegradation. The protocol tests for microbial
activity and quantifies the disappearance of saturated hydrocarbons
and polynuclear aromatic hydrocarbons (PAHs). The sample preparation
procedure extracts the oil phase into dichloromethane (DCM), with a
subsequent solvent exchange into hexane. To effectively accomplish
the goals of the testing protocol, it is necessary to normalize the
concentration of the various analytes in oil to a non-biodegradable
marker, either C2-or C3-phenanthrene, C2-chrysene, or
hopane1 (7). The test method targets the relatively easy to
degrade normal alkanes and the more resistant and toxic PAHs. It
normalizes their concentrations to C2-or C3-phenanthrene,
C2-chrysene, or C3017(H), 21 (H)-hopane
on an oil weight basis (mg marker/kg oil, mg target analyte/kg oil).
The analytical technique uses a high resolution gas chromatograph/
mass spectrometer (GC/MS) because of its high degree of chemical
separation and spectral resolution. GC/MS has long been used to
study the weathering and fate of oil spilled into the environment.
For quantitative analyses, the instrument is operated in the
selective ion detection (SIM) mode at a scan rate of greater than
1.5 scans per second to maximize the linear quantitative range and
precision of the instrument. The sample preparation method does not
exclude analysis of selected samples by GC/MS in the full scanning
mode of operation to qualitatively assess changes in the oil not
accounted for by the SIM approach. Performed concurrently with the
chemical analysis described above is a microbiological analysis. The
microbiological analysis is performed to determine and monitor the
viability of the microbial cultures being studied. Under this
procedure, microbial enumerations of hydrocarbon degraders are
performed at each sampling event using a microtiter Most Probable
Number (MPN) determination.
---------------------------------------------------------------------------
\1\Although any of these biomarkers can be used to conduct this
test, it is recommended that hopane be used.
---------------------------------------------------------------------------
4.2 Apparatus. The following materials and equipment are
required for the protocol: Appropriate flasks and other glassware;
sterile tubes; graduated cylinders (100-ml); deionized water; p-
iodonitrotetrazolium violet dye; weighing pans or paper; 250-ml
borosilicate glass Erlenmeyer flasks with screw tops; Pasteur
pipettes; laboratory notebook; microtiter MPN plates (24-well)
multi-channel pipetting device; dilution tube and caps; autoclave;
environmental room or incubator; balance accurate to 0.1 mg (XD-
400); GC/MS instrument equipped with a DB-5 capillary column (30 m,
0.25-mm I.D., and 0.25-m film thickness) and a split/
splitless injection port operating in the splitless mode, such as
Hewlett-Packard 5890/5971 GC/MS (recommended for use); and an
autosampler for testing multiple samples.
4.3 Reagents and culture medium. 4.3.1 Preparation of
seawater. All products are tested in clean natural seawater. Clean
natural seawater means that the source of this seawater must not be
heavily contaminated with industrial or other types of effluent. For
example, seawater should not be obtained from a source near shipping
channels or discharges of industrial or municipal wastewater, or
with high turbidity. The seawater is used within seven days of
collection. No microbial inoculum is added.
4.3.2 Preparation of oil. A medium weight crude oil, Alaska
North Slope (ANS), is artificially weathered by heating to 521 deg.F
to remove the light end hydrocarbons prior to experimental start-up
(ANS 521). The method is described in the Draft International
Standard ISO/DIS 8708 ``Crude Petroleum Oil--Determination of
Distillation Characteristics Using 15 Theoretical Plates Columns''
by the International Organization for Standardization (8). The
ANS521 crude oil can be obtained from the National Environmental
Technology Applications Center's (NETAC) Bioremediation Products
Evaluation Center (BPEC), University of Pittsburgh Applied Research
Center, 615 William Pitt Way, Pittsburgh, PA, 15238, (412) 826-5511.
The crude oil is heated to 190 deg.C (374 deg.F) under atmospheric
pressure. The system is then cooled and placed under vacuum (or
under an atmospheric pressure of 20 mm Hg) for the final
distillation to an atmospheric equivalent boiling point of 272 deg.C
(521 deg.F).
4.3.3 Preparation of mineral nutrient solution. If a commercial
product is strictly a microbial agent and does not contain its own
nutrients, a mineral nutrient solution will be provided if requested
by the product manufacturer or vendor. If a commercial product
contains its own nutrients, no further nutrients will be added. The
nutrient solution is a modified salt solution and is described
below.
4.3.3.1 Nutrient preparation:
1. N&P Salts. The following salts are added to distilled water
and made up to a 1,000-ml volume. Adjust final pH to 7.8. The
solution is sterilized by autoclaving at 121 deg.C at 15 psig for 20
minutes or by filtering through a sterile 0.22 m membrane
filter.
Na2HPO4.2H2--18.40 g
KNO3--76.30 g
2. MgSO4.7H2O solution. Dissolve 22.50 g in 1,000 ml
distilled water. The solution is sterilized by autoclaving at
121 deg.C at 15 psig for 20 minutes.
3. CaCl2 solution. Dissolve 27.50 g in 1,000 ml of
distilled water. The solution is sterilized by autoclaving at
121 deg.C at 15 psig for 20 minutes.
4. FeCl36H2O solution. Dissolve 0.25 g in
1,000 ml of distilled water. The solution is sterilized by
autoclaving at 121 deg.C at 15 psig for 20 minutes.
5. Trace Element Solution. The following salts are added to
distilled water and made up to a 1,000-ml volume. The solution is
sterilized by autoclaving at 121 deg.C at 15 psig for 20 minutes.
MnSO4.H2O--30.2 mg
H3BO3--57.2 mg
ZnSO4.7H2O--42.8 mg
(NH4)6Mo7(O2)4--34.7 mg
The pH of the nutrient solution is adjusted with a pH meter
calibrated at room temperature (approximately 25 deg.C) using
commercial buffers of pH 4.0, 7.0, and 10.0 (Fisher Scientific), as
appropriate, prior to use. The pH is adjusted with concentrated HCl
or 10 M NaOH, as appropriate.
4.3.3.2 Final concentrations: Ten (10) ml of solution 1 and 2
ml of solutions 2-5 are added to non-sterile seawater and made up to
a 1,000-ml volume immediately prior to test start-up. This seawater/
mineral nutrient solution is used for all flasks containing products
requiring nutrient supplements and for the flasks containing no
commercial additive. Seawater without the above nutrient solutions
is used for products containing their own source of nutrients.
4.4 Pretest preparation.
4.4.1 Experimental setup.
4.4.1.1 The procedure consists of an experimental shaker flask
setup and the specific set of microbiological and chemical analyses
that are performed on individual product samples. The following test
flasks (labeled with unique identifiers) are prepared and set up on
a gyratory shaker at day 0 to reflect the following treatment
design:
----------------------------------------------------------------------------------------------------------------
No. of samples at sampling Total No. of analytical
times determinations
Treatment -------------------------------------------------------------------
Microbial
Day 0 Day 7 Day 28 counts Gravimetric GC/MS
----------------------------------------------------------------------------------------------------------------
Control..................................... 3 3 3 9 9 9
Nutrient.................................... 3 3 3 9 9 9
Product..................................... 3 3 3 9 9 9
----------------------------------------------------------------------------------------------------------------
Control = Oil + Seawater
Nutrient = Oil + Seawater + Nutrient
Product = Oil + Seawater + Product (+ Nutrient, if required).
4.4.1.2 For each test, a sheet listing the number of flasks,
types of controls, number of replicates, product to be tested, and
other information is prepared. The following steps should be adhered
to for the experimental setup:
1. Borosilicate glass Erlenmeyer flasks (250-ml) are thoroughly
cleaned and autoclaved for 20 minutes at 120 deg.C at 15 psi, then
dried in the drying oven.
2. Flasks are labeled with the appropriate code: product or
control, sample day, and letter indicating replicate.
3. 100 ml of seawater is added to each flask.
4. For nutrient and product treatments that require the addition
of nutrients, seawater containing the nutrient solution is prepared.
5. Pasteur pipettes should be sterilized in advance. Break off
the tip to provide a larger opening prior to sterilization.
6. Pour the approximate amount of oil to be used from the large
stock bottle into a sterile beaker. Keep the beaker covered when oil
is not being removed.
7. The labeled flasks containing seawater and other additions,
as necessary, are placed on the balance. The flask is tared. The
appropriate amount of oil (0.5 g) is added drop by drop using a
sterile Pasteur pipette with the tip broken off to provide a wider
opening. Care is taken to avoid splashing the oil or getting it on
the sides of flasks. Precautions are taken when handling and
charging the flasks to minimize the likelihood of contamination by
exogenous microbes. This includes using a new sterile pipette for
each series of flasks.
8. The weight of the oil is recorded in the laboratory notebook.
9. The product is prepared and added to the appropriate flasks
according to the manufacturer's or vendor's instructions.
10. Flasks are carried upright and carefully placed in the
holders on the shaker table to minimize the amount of oil that might
adhere to the side of the flasks. Flasks in which a significant
amount of oil is splashed on the sides are redone.
11. The prepared flasks are shaken at 200 rpm at 20 deg.C until
such time that they will be removed for sampling.
4.4.2 Sampling. The control and treatments (nutrient and
product flasks) are sampled three times over a 28-day period: day 0,
day 7, and day 28. The entire flask is sacrificed for analysis; a
0.5-ml aliquot is removed from each flask for the microbiological
analysis and the remainder of each flask is used for the chemical
analysis. Specific procedures for both the microbiological and
chemical analysis are described below. At the time of each sampling
event, physical observations of each flask should be recorded.
4.5 Microbiological analysis. To monitor the viability of the
microbial cultures being studied, microbial enumerations of
hydrocarbon degraders are performed at each sampling event using a
microtiter MPN determination. This is used as an indicator of the
relative change in biomass. This test design relies on using growth
response as an indication of enhanced activity as compared to a ``no
addition'' control.
4.5.1 Media preparation. Media for microbial enumerations are
carefully prepared according to manufacturer's or other instructions
and sterilized using appropriate methods.
4.5.1.1 General media treatment: Buy Bushnell-Haas (B-H) broth
in quantities to last no longer than one year. Use media on a first-
in, first-out basis. When practical, buy media in quarter-pound
multiples, rather than one-pound multiples to keep supply sealed as
long as possible. Keep an inventory of media, including kind,
amount, lot number, expiration date, date received, and date opened.
Check inventory before reordering media. Discard media that are
caked, discolored, or show other deterioration.
4.5.1.2 Sterile saline (pH adjusted):
1. Weigh 30 g of NaCl.
2. Dissolve in enough water to make 1,000 ml.
3. Adjust pH to 8.0 with NaOH (10M and 0.5M).
4. Sterilize by autoclaving for 15 minutes at 15 psig.
4.5.1.3 Standard nutrient concentrate (add 1 ml to each 100 ml
of Bushnell-Haas medium for MPNs):
1. Weigh compounds listed below, dissolve in DIH2O, dilute
to 1 liter.
Potassium Phosphate, monobasic KH2PO4--0.633 g
Potassium Phosphate, dibasic K2HPO4--1.619 g
Sodium Phosphate, dibasic Na2HPO4--2.486 g
Ammonium Chloride NH4Cl--3.850 g
Magnesium Sulfate, heptahydrate MgSO47H2O--4.500 g
Calcium Chloride, dihydrate CaCl22H2O--7.290 g
Ferric Chloride, hexahydrate FeCl36H2O--0.250 g
Trace Elements
Manganese Sulfate, monohydrate MnSO2H2O--6.04 mg
Boric Acid H3Bo3--11.44 mg
Zinc Sulfate, heptahydrate ZnSO47H2O--8.56 mg
Ammonium Moybdate, tetrahydrate
(NH4)6Mo7O244H2O--6.94 mg
2. Adjust pH to 6.0.
3. Stir solution for approximately 3 hours, then filter through
a Buchner funnel using #1 paper, which will retain approximately 3.8
g of insolubles.
4. Then filter through a 0.45 micron filter into sterile
bottles.
5. Cap bottles, label, and store in refrigerator until used.
4.5.1.4 Quality assurance/Quality control (QA/QC):
1. Periodically check the effectiveness of sterilization using
commercially available tapes or Bacillus stearothermophilus spore
suspensions, following the instructions with these products.
2. Maintain a media log book that includes the dates, kinds and
amounts of media made, pH, and any problems or observations.
3. Before use, check plates and tubes for signs of
contamination, drying, or other problems.
4.5.1.5 Safety/Special precautions:
1. Note any safety or other precautions for particular media.
2. Note precautions to be followed when using the autoclave.
3. Use gloves and other protective clothes when handling media.
4. Use care in handling hot media.
4.5.2 Microbial enumeration. Standardized techniques for
performing Most Probable Number microbial enumerations are described
below.
4.5.2.1 Dilutions:
1. Prior to sacrificing each flask, remove 0.5 ml of water from
each flask and add it to a tube of 4.5 ml sterile phosphate buffer
(1:10 dilution) as prepared in the Standard Methods for the
Examination of Water and Wastewater (9). Using sterile technique,
mix and perform serial dilutions (0.5 ml of previous dilution to 4.5
ml of sterile phosphate buffer) to 10-9 dilution.
4.5.2.2 Inoculating MPN plates (oil degrader):
1. Prepare sufficient sterile 0.4 M NaCl (23.4 g NaCl/1,000 ml
B-H) and B-H at pH 7.0 to fill the number of wells required for the
test (1.75 ml/well).
2. Using sterile technique, add 1.75 ml of B-H broth to each
well.
3. Label the top of the plate with the proper dilution for each
row.
4. Add 0.1 ml of fluid from each dilution tube to each well in
the appropriate row, starting with the most dilute.
5. After adding the fluid to all the wells, add 20 l of
sterilized No. 2 fuel oil to the top of each well.
6. Incubate each plate at 20 deg.C.
7. After 14 days of incubation, add 100 l of p-
iodotetrazolium violet dye (50 mg/10 ml of D.I. water) to each well
to determine growth.
8. View plates against a white background to determine if color
is present. Development of a purple or pink color upon standing for
45 minutes constitutes a positive test.
9. Record the number of positive wells and the dilutions at
which they occur.
10. Enter data into a computerized enumeration method using
``MPN Calculator'' software program (version 2.3 or higher) by
Albert J. Klee, U.S. EPA Office of Research and Development, Risk
Reduction Engineering Laboratory, Cincinnati, OH.
4.5.2.3 Quality assurance/Quality control:
1. Check pH of medium before preparing wells (pH should be
approximately 8.0). Adjust pH, if necessary, with dilute NaOH.
2. Keep prepared tetrazolium violet dye solution in the
refrigerator in an amber bottle when not in use.
3. Have all laboratory personnel periodically run MPNs on the
same sample to test precision.
4.5.2.4 Safety/Special precautions:
1. Use sterile technique in preparing solutions, dilutions,
plates, and MPN wells.
2. Do not pipette potentially hazardous solutions by mouth.
3. Autoclave all plates and wells before discarding.
4.6 Chemical analysis of oil composition.
4.6.1 Sample procedure. After 0, 7, and 28 days of incubation
on a rotary shaker, the appropriate flasks are sacrificed and
extracted with dichloromethane and spiked with a surrogate recovery
standard. A 10-ml aliquot of the DCM layer is used for the
gravimetric analysis. If significant biodegradation is evident in
the results of the gravimetric analysis, then a solvent exchange
into hexane takes place prior to the GC/MS analysis. Follow steps 1-
19 below when preparing for the chemical analysis.
1. After 0, 7, and 28 days of rotary shaking and incubating at
20 deg.C, the reaction vessels are sacrificed. Prior to the chemical
analysis, a 0.5-ml sample of the aqueous phase is removed for the
microbiological analysis (see Microbial Enumeration above).
2. A surrogate recovery standard is prepared in the following
manner: 1,000 mg of d10-phenanthrene and 1,000 mg of
5-androstane are measured into a 500-ml volumetric flask
and DCM is added to the mark to produce a 2,000-ng/l stock
solution.
3. A 100-l aliquot of the surrogate solution is added
to each test flask. The final concentration of surrogates in each
flask is approximately 4 ng/l of solvent in the final
extract. The aliphatics and marker data should be corrected for
percent recovery of the 5-androstane surrogate and the
aromatics for the d10-phenanthrene surrogate.
4. The contents of the flask are placed into a 250-ml separatory
funnel.
5. Measure a total volume of 50 ml DCM for use in the
extraction. Use 3 10-ml fractions to rinse the flask into the funnel
and transfer the remaining aliquot of DCM to the funnel.
6. Stopper and mix vigorously by shaking (approximately 50
times) while ventilating properly.
7. Each funnel is set aside to allow the DCM and water layers to
partition. This may take 5-10 minutes for some products, or up to 3
hours if the product has caused the formation of an emulsion.
8. Drain the first 10 ml of the DCM (bottom) layer, collect,
cap, uniquely label, and use for gravimetric analysis (see below).
Drain the remaining 40 ml and dry it by passing it through a funnel
packed with anhydrous sodium sulfate.
9. Assemble a Kuderna-Danish (KD) concentrator by attaching a
Snyder column to an evaporation flask with a graduated concentrator
tube. Align vertically and partially immerse concentrator tube in a
water bath (10). Set the water bath to the appropriate temperature
to maintain proper distillation.
10. Collect the de-watered extract into the KD concentrator.
11. Evaporate DCM to approximately 10 ml, then add approximately
50 ml of the exchange solvent (hexane) and concentrate the volume to
10 ml.
12. Rinse the flask into the concentrator tube with 50 ml hexane
and concentrate to 10 ml. Repeat one more time with 50 ml of hexane.
13. Remove concentrator tube with the recovered 10 ml of sample
volume. The heavier residual material should be present as a
precipitate (bottom layer).
14. Centrifuge to aid the separation of the hexane from the
precipitant fraction.
15. Place hexane-soluble fraction (top layer)--approximately 1.0
ml--into a GC/MS vial for analysis (see GC/MS Analysis Procedure
below). If column fouling and deterioration of separation
characteristics occur, an alumina column sample cleanup method can
be considered (see Alternative GC/MS Sample Cleanup Procedure
below).
16. Analyze by GC/MS using the conditions determined by the U.S.
EPA Risk Reduction Engineering Laboratory, Water and Hazardous Waste
Treatment Research Division, in Cincinnati, OH, which follows U.S.
EPA Method 8270 (see GC/MS Analysis Procedure below).
17. Calculate surrogate recovery. If surrogate recovery is less
than 85 percent for the marker relative to the surrogate recovery
standard (d10-phenanthrene), then the water layer should be
extracted again using three separate extractions with DCM. Pool the
three extractions with original extract and concentrate to 10 ml,
and reanalyze by GC/MS.
18. Drain the seawater into a storage sample vial/container.
19. Seal the vial with a Teflon-lined cap and store frozen. This
water layer is kept in case additional extractions are necessary.
4.6.2 Gravimetric analysis. The initial means to evaluate the
effectiveness of a bioremediation agent for oil spill response is
through gravimetric analysis. A statistically significant difference
(p < 0.05) in analytical weight of the oil from the control system
as compared to the analytical weight of the oil treated with a
bioremediation agent indicates biodegradation has successfully
occurred. Hence, the disappearance of oil should be accompanied by
significant decreases in total oil residue weight of extractable
materials versus a control. If no significant decrease in oil
residue weight is observed, the need to perform further chemical
analysis should be evaluated. Follow steps 1-3 to conduct the
gravimetric analysis.
1. The 10 ml of DCM extract (from Sample Procedure step 8 above)
is placed in a small vial and concentrated to dryness by nitrogen
blowdown techniques using a steady stream of nitrogen (pre-purified
gas). If the oil is severely biodegraded, a larger volume of DCM
(>10 ml) may be necessary for the gravimetric analysis.
2. The residue is weighed 3 times for the gravimetric weight of
oil. Record the weight of the oil.
3. Compare statistically (p < 0.05) the weight of the product
treatment versus the weight of the control from each respective time
period. If a significant decrease is observed in the sampling (flask
containing bioremediation agent) weight, then proceed with the
remainder of the sample procedure.
4.6.3 GC/MS analysis. Often, analysis of saturated and aromatic
hydrocarbons by capillary gas chromatography of DCM extracts leads
to column fouling and deterioration of separation characteristics.
An alternative, simple ``one-step'' alumina sample cleanup procedure
can be performed on oil before injection; this cleanup removes both
asphaltenes and polar compounds and can be applied to DCM extracts
as well. This procedure is described in steps 1-11 below.
4.6.3.1 Alternative GC/MS sample cleanup procedure:
1. Weigh 4.0 g alumina (neutral, 80-200 mesh) into scintillation
vials covered loosely with aluminum foil caps. Prepare one
scintillation vial per sample. Heat for 18 hours at 300 deg.C or
longer. Place in a desiccator of silica until needed.
2. Add 5.0 ml of DCM to a glass luerlok multi-fit syringe (e.g.,
BD #2471) with stopcock (e.g., Perfectum #6021) in closed position,
stainless steel syringe needle (18 gauge), and PTFE frits. Clamp in
a vertical position.
3. Transfer 4.0 g of prepared alumina to a plastic weighing boat
and fill syringe slowly while applying continuous vibration (e.g.,
Conair #HM 11FF1).
4. Add a second PTFE frit and push into place on top of the
alumina bed.
5. Drain 5.0 ml DCM to the top level of the column frit to await
sample addition and discard DCM.
6. Weigh 50 mg 0.1 mg ANS521 oil into a tared vial.
7. Premeasure 10 ml of DCM into a graduated cylinder. Add 0.2 to
0.3 ml of the DCM to the tared oil vial. Mix and transfer solvent to
the column bed with a Pasteur pipette. Open stopcock and collect in
a 10-ml volumetric flask. Repeat until approximately 1.0 ml (do not
exceed 1.0 ml) of DCM has rinsed the vial and inner walls of the
syringe body into the 10-ml flask.
8. Transfer balance of DCM from the graduated cylinder to the
column and regulate the solvent flow rate to approximately 1 to 2
ml/minute. Collect all eluent in the 10-ml flask.
9. Transfer a known volume of eluent to another scintillation
vial and blow down to dryness (nitrogen).
10. Determine and record weight.
11. Dissolve in 1.0 ml hexane for the GC/MS analysis procedure
(see below).
4.6.3.2 GC/MS analysis procedure:
Immediately prior to injection, an internal standard solution of
four deuterated compounds is spiked into the sample extracts and
injected. Samples are quantified using the internal standard
technique (10) for both the aliphatic and aromatic fractions of the
oil extracts in order to provide sufficient information that the oil
is being degraded. To help ensure that the observed decline in
target analytes is caused by biodegradation rather than by physical
loss from mishandling or inefficient extraction, it is necessary to
normalize the concentrations of the target analytes via a
``conserved internal marker.'' Conserved internal markers that have
been found useful for quantification are C2- or C3-
phenanthrene, C2-chrysene, and
C3017(H),21(H)-hopane. Deuterated internal
standards are used to calculate the relative response factor (RRF)
for the target analyte(s). To compute the ``normalized
concentrations,'' the target analyte concentration at a given
sampling time is simply divided by the selected conserved analyte
concentration at the same sampling time (11). Conduct the GC/MS
analysis using the following procedure.
1. One (1) ml of the hexane extract (from Sample Procedure step
15 above) is placed into a 1.5-ml vial for use on the autosampler of
the GC/MS instrument.
2. To this solution, 20 l of a 500-ng/l
solution of the internal standards is added and the vial is capped
for injection. The final concentration of the internal standards in
each sample is 10 ng/l. This solution contains 4 deuterated
compounds: d8-naphthalene, d10-anthracene, d12-
chrysene, and d12-perylene.
3. At the start of any analysis period, the mass spectrometer
(MS) is tuned to PFTBA by an autotune program, such as the Hewlett-
Packard quicktune routine, to reduce operator variability. Set the
GC/MS in the SIM mode at a scan rate of 1.5 scans/second to maximize
the linear quantitative range and precision of the instrument. Set
all other conditions to those specified in Instrument Configuration
and Calibration section below.
4. An instrument blank and a daily standard are analyzed prior
to analysis of unknowns. Internal standards are combined with the
sample extracts and coinjected with each analysis to monitor the
instrument's performance during each run.
5. Information that should be included on the acquisition form
include operator's name and signature, date of extraction, date and
time of autotune, date of injection(s), instrument blank, daily
standard mix injection, GC column number, and standards for the 5-
point calibration curve.
6. If the instrument is operated for a period of time greater
than 12 hours, the tune will be checked and another daily standard
analyzed prior to continuing with analyses.
Table 6.--Analytes Listed Under the Corresponding Internal Standard Used for Calculating RRFs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Internal Standard d8-naphthalene d10-anthracene d12-chrysene d12-perylene
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alkanes............................ nC10-nC15................ nC16-nC23................ nC24-nC29................ nC30-nC35.
Pristane................. ......................... C3017(H), 21(H)-
hopane.
Phytane.................. ......................... ..................................
5-androstane.... ......................... ..................................
Aromatics.......................... Naphthalene.............. Dibenzothiophene......... Fluoranthene............. Benzo(b)fluoranthene.
Fluorene................. Pyrene................... Benzo(k)fluoranthene.
Anthracene............... Chrysene................. Benzo(e)pyrene.
Phenanthrene............. ......................... Benzo(a)pyrene.
Perylene.
Indeno(g,h,i)pyrene.
Dibenzo(a,h) anthracene.
Benzo(1,2,3-cd)perylene.
--------------------------------------------------------------------------------------------------------------------------------------------------------
7. The MS is calibrated using a modified version of EPA Method
8270 (10). Specifically, the concentrations of internal standards
are 10 ng/l instead of 40 ng/l. A five-point
calibration curve is obtained for each compound listed in Table 6
prior to sample analysis at 1, 5, 10, 25, and 50 ng/l. A 5-
point calibration must be conducted on a standard mix of compounds
to determine RRFs for the analytes. The standard mix (excluding the
marker) for this calibration curve may be obtained from Absolute
Standards, Inc., 498 Russell St., New Haven, CT, 06513, (800) 368-
1131. If C3017(H),21(H)-hopane is used, it
may be obtained from Dr. Charles Kennicutt II, Geochemical and
Environmental Research Group, Texas A&M University, 833 Graham Rd.,
College Station, TX, 77845, (409) 690-0095.
8. Calculate each compound's relative response factor to its
corresponding deuterated internal standard indicated above, using
the following equation:
RRF=(AxCis)/(AisCx)(6)
where:
RRF=relative response factor
Ax=peak area of the characteristic ion for the compound being
measured (analyte)
Ais=peak area of the characteristic ion for the specific
internal standard
Cx=concentration of the compound being measured (ng/l)
Cis=concentration of the specific internal standard (10 ng/