[Code of Federal Regulations]

[Title 40, Volume 21]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR112.20]



[Page 40-47]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 112_OIL POLLUTION PREVENTION--Table of Contents

 

                     Subpart D_Response Requirements

 

Sec.  112.20  Facility response plans.





    (a) The owner or operator of any non-transportation-related onshore 

facility that, because of its location, could reasonably be expected to 

cause substantial harm to the environment by discharging oil into or on 

the navigable waters or adjoining shorelines shall prepare and submit a 

facility response



[[Page 41]]



plan to the Regional Administrator, according to the following 

provisions:

    (1) For the owner or operator of a facility in operation on or 

before February 18, 1993 who is required to prepare and submit a 

response plan under 33 U.S.C. 1321(j)(5), the Oil Pollution Act of 1990 

(Pub. L. 101-380, 33 U.S.C. 2701 et seq.) requires the submission of a 

response plan that satisfies the requirements of 33 U.S.C. 1321(j)(5) no 

later than February 18, 1993.

    (i) The owner or operator of an existing facility that was in 

operation on or before February 18, 1993 who submitted a response plan 

by February 18, 1993 shall revise the response plan to satisfy the 

requirements of this section and resubmit the response plan or updated 

portions of the response plan to the Regional Administrator by February 

18, 1995.

    (ii) The owner or operator of an existing facility in operation on 

or before February 18, 1993 who failed to submit a response plan by 

February 18, 1993 shall prepare and submit a response plan that 

satisfies the requirements of this section to the Regional Administrator 

before August 30, 1994.

    (2) The owner or operator of a facility in operation on or after 

August 30, 1994 that satisfies the criteria in paragraph (f)(1) of this 

section or that is notified by the Regional Administrator pursuant to 

paragraph (b) of this section shall prepare and submit a facility 

response plan that satisfies the requirements of this section to the 

Regional Administrator.

    (i) For a facility that commenced operations after February 18, 1993 

but prior to August 30, 1994, and is required to prepare and submit a 

response plan based on the criteria in paragraph (f)(1) of this section, 

the owner or operator shall submit the response plan or updated portions 

of the response plan, along with a completed version of the response 

plan cover sheet contained in Appendix F to this part, to the Regional 

Administrator prior to August 30, 1994.

    (ii) For a newly constructed facility that commences operation after 

August 30, 1994, and is required to prepare and submit a response plan 

based on the criteria in paragraph (f)(1) of this section, the owner or 

operator shall submit the response plan, along with a completed version 

of the response plan cover sheet contained in Appendix F to this part, 

to the Regional Administrator prior to the start of operations 

(adjustments to the response plan to reflect changes that occur at the 

facility during the start-up phase of operations must be submitted to 

the Regional Administrator after an operational trial period of 60 

days).

    (iii) For a facility required to prepare and submit a response plan 

after August 30, 1994, as a result of a planned change in design, 

construction, operation, or maintenance that renders the facility 

subject to the criteria in paragraph (f)(1) of this section, the owner 

or operator shall submit the response plan, along with a completed 

version of the response plan cover sheet contained in Appendix F to this 

part, to the Regional Administrator before the portion of the facility 

undergoing change commences operations (adjustments to the response plan 

to reflect changes that occur at the facility during the start-up phase 

of operations must be submitted to the Regional Administrator after an 

operational trial period of 60 days).

    (iv) For a facility required to prepare and submit a response plan 

after August 30, 1994, as a result of an unplanned event or change in 

facility characteristics that renders the facility subject to the 

criteria in paragraph (f)(1) of this section, the owner or operator 

shall submit the response plan, along with a completed version of the 

response plan cover sheet contained in Appendix F to this part, to the 

Regional Administrator within six months of the unplanned event or 

change.

    (3) In the event the owner or operator of a facility that is 

required to prepare and submit a response plan uses an alternative 

formula that is comparable to one contained in Appendix C to this part 

to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of 

this section, the owner or operator shall attach documentation to the 

response plan cover sheet contained in Appendix F to this part that 

demonstrates the reliability and analytical soundness of the alternative 

formula.



[[Page 42]]



    (4) Preparation and submission of response plans--Animal fat and 

vegetable oil facilities. The owner or operator of any non-

transportation-related facility that handles, stores, or transports 

animal fats and vegetable oils must prepare and submit a facility 

response plan as follows:

    (i) Facilities with approved plans. The owner or operator of a 

facility with a facility response plan that has been approved under 

paragraph (c) of this section by July 31, 2000 need not prepare or 

submit a revised plan except as otherwise required by paragraphs (b), 

(c), or (d) of this section.

    (ii) Facilities with plans that have been submitted to the Regional 

Administrator. Except for facilities with approved plans as provided in 

paragraph (a)(4)(i) of this section, the owner or operator of a facility 

that has submitted a response plan to the Regional Administrator prior 

to July 31, 2000 must review the plan to determine if it meets or 

exceeds the applicable provisions of this part. An owner or operator 

need not prepare or submit a new plan if the existing plan meets or 

exceeds the applicable provisions of this part. If the plan does not 

meet or exceed the applicable provisions of this part, the owner or 

operator must prepare and submit a new plan by September 28, 2000.

    (iii) Newly regulated facilities. The owner or operator of a newly 

constructed facility that commences operation after July 31, 2000 must 

prepare and submit a plan to the Regional Administrator in accordance 

with paragraph (a)(2)(ii) of this section. The plan must meet or exceed 

the applicable provisions of this part. The owner or operator of an 

existing facility that must prepare and submit a plan after July 31, 

2000 as a result of a planned or unplanned change in facility 

characteristics that causes the facility to become regulated under 

paragraph (f)(1) of this section, must prepare and submit a plan to the 

Regional Administrator in accordance with paragraph (a)(2)(iii) or (iv) 

of this section, as appropriate. The plan must meet or exceed the 

applicable provisions of this part.

    (iv) Facilities amending existing plans. The owner or operator of a 

facility submitting an amended plan in accordance with paragraph (d) of 

this section after July 31, 2000, including plans that had been 

previously approved, must also review the plan to determine if it meets 

or exceeds the applicable provisions of this part. If the plan does not 

meet or exceed the applicable provisions of this part, the owner or 

operator must revise and resubmit revised portions of an amended plan to 

the Regional Administrator in accordance with paragraph (d) of this 

section, as appropriate. The plan must meet or exceed the applicable 

provisions of this part.

    (b)(1) The Regional Administrator may at any time require the owner 

or operator of any non-transportation-related onshore facility to 

prepare and submit a facility response plan under this section after 

considering the factors in paragraph (f)(2) of this section. If such a 

determination is made, the Regional Administrator shall notify the 

facility owner or operator in writing and shall provide a basis for the 

determination. If the Regional Administrator notifies the owner or 

operator in writing of the requirement to prepare and submit a response 

plan under this section, the owner or operator of the facility shall 

submit the response plan to the Regional Administrator within six months 

of receipt of such written notification.

    (2) The Regional Administrator shall review plans submitted by such 

facilities to determine whether the facility could, because of its 

location, reasonably be expected to cause significant and substantial 

harm to the environment by discharging oil into or on the navigable 

waters or adjoining shorelines.

    (c) The Regional Administrator shall determine whether a facility 

could, because of its location, reasonably be expected to cause 

significant and substantial harm to the environment by discharging oil 

into or on the navigable waters or adjoining shorelines, based on the 

factors in paragraph (f)(3) of this section. If such a determination is 

made, the Regional Administrator shall notify the owner or operator of 

the facility in writing and:

    (1) Promptly review the facility response plan;



[[Page 43]]



    (2) Require amendments to any response plan that does not meet the 

requirements of this section;

    (3) Approve any response plan that meets the requirements of this 

section; and

    (4) Review each response plan periodically thereafter on a schedule 

established by the Regional Administrator provided that the period 

between plan reviews does not exceed five years.

    (d)(1) The owner or operator of a facility for which a response plan 

is required under this part shall revise and resubmit revised portions 

of the response plan within 60 days of each facility change that 

materially may affect the response to a worst case discharge, including:

    (i) A change in the facility's configuration that materially alters 

the information included in the response plan;

    (ii) A change in the type of oil handled, stored, or transferred 

that materially alters the required response resources;

    (iii) A material change in capabilities of the oil spill removal 

organization(s) that provide equipment and personnel to respond to 

discharges of oil described in paragraph (h)(5) of this section;

    (iv) A material change in the facility's spill prevention and 

response equipment or emergency response procedures; and

    (v) Any other changes that materially affect the implementation of 

the response plan.

    (2) Except as provided in paragraph (d)(1) of this section, 

amendments to personnel and telephone number lists included in the 

response plan and a change in the oil spill removal organization(s) that 

does not result in a material change in support capabilities do not 

require approval by the Regional Administrator. Facility owners or 

operators shall provide a copy of such changes to the Regional 

Administrator as the revisions occur.

    (3) The owner or operator of a facility that submits changes to a 

response plan as provided in paragraph (d)(1) or (d)(2) of this section 

shall provide the EPA-issued facility identification number (where one 

has been assigned) with the changes.

    (4) The Regional Administrator shall review for approval changes to 

a response plan submitted pursuant to paragraph (d)(1) of this section 

for a facility determined pursuant to paragraph (f)(3) of this section 

to have the potential to cause significant and substantial harm to the 

environment.

    (e) If the owner or operator of a facility determines pursuant to 

paragraph (a)(2) of this section that the facility could not, because of 

its location, reasonably be expected to cause substantial harm to the 

environment by discharging oil into or on the navigable waters or 

adjoining shorelines, the owner or operator shall complete and maintain 

at the facility the certification form contained in Appendix C to this 

part and, in the event an alternative formula that is comparable to one 

contained in Appendix C to this part is used to evaluate the criterion 

in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of this section, the owner 

or operator shall attach documentation to the certification form that 

demonstrates the reliability and analytical soundness of the comparable 

formula and shall notify the Regional Administrator in writing that an 

alternative formula was used.

    (f)(1) A facility could, because of its location, reasonably be 

expected to cause substantial harm to the environment by discharging oil 

into or on the navigable waters or adjoining shorelines pursuant to 

paragraph (a)(2) of this section, if it meets any of the following 

criteria applied in accordance with the flowchart contained in 

Attachment C-I to Appendix C to this part:

    (i) The facility transfers oil over water to or from vessels and has 

a total oil storage capacity greater than or equal to 42,000 gallons; or

    (ii) The facility's total oil storage capacity is greater than or 

equal to 1 million gallons, and one of the following is true:

    (A) The facility does not have secondary containment for each 

aboveground storage area sufficiently large to contain the capacity of 

the largest aboveground oil storage tank within each storage area plus 

sufficient freeboard to allow for precipitation;



[[Page 44]]



    (B) The facility is located at a distance (as calculated using the 

appropriate formula in Appendix C to this part or a comparable formula) 

such that a discharge from the facility could cause injury to fish and 

wildlife and sensitive environments. For further description of fish and 

wildlife and sensitive environments, see Appendices I, II, and III of 

the ``Guidance for Facility and Vessel Response Plans: Fish and Wildlife 

and Sensitive Environments'' (see Appendix E to this part, section 13, 

for availability) and the applicable Area Contingency Plan prepared 

pursuant to section 311(j)(4) of the Clean Water Act;

    (C) The facility is located at a distance (as calculated using the 

appropriate formula in Appendix C to this part or a comparable formula) 

such that a discharge from the facility would shut down a public 

drinking water intake; or

    (D) The facility has had a reportable oil discharge in an amount 

greater than or equal to 10,000 gallons within the last 5 years.

    (2)(i) To determine whether a facility could, because of its 

location, reasonably be expected to cause substantial harm to the 

environment by discharging oil into or on the navigable waters or 

adjoining shorelines pursuant to paragraph (b) of this section, the 

Regional Administrator shall consider the following:

    (A) Type of transfer operation;

    (B) Oil storage capacity;

    (C) Lack of secondary containment;

    (D) Proximity to fish and wildlife and sensitive environments and 

other areas determined by the Regional Administrator to possess 

ecological value;

    (E) Proximity to drinking water intakes;

    (F) Spill history; and

    (G) Other site-specific characteristics and environmental factors 

that the Regional Administrator determines to be relevant to protecting 

the environment from harm by discharges of oil into or on navigable 

waters or adjoining shorelines.

    (ii) Any person, including a member of the public or any 

representative from a Federal, State, or local agency who believes that 

a facility subject to this section could, because of its location, 

reasonably be expected to cause substantial harm to the environment by 

discharging oil into or on the navigable waters or adjoining shorelines 

may petition the Regional Administrator to determine whether the 

facility meets the criteria in paragraph (f)(2)(i) of this section. Such 

petition shall include a discussion of how the factors in paragraph 

(f)(2)(i) of this section apply to the facility in question. The RA 

shall consider such petitions and respond in an appropriate amount of 

time.

    (3) To determine whether a facility could, because of its location, 

reasonably be expected to cause significant and substantial harm to the 

environment by discharging oil into or on the navigable waters or 

adjoining shorelines, the Regional Administrator may consider the 

factors in paragraph (f)(2) of this section as well as the following:

    (i) Frequency of past discharges;

    (ii) Proximity to navigable waters;

    (iii) Age of oil storage tanks; and

    (iv) Other facility-specific and Region-specific information, 

including local impacts on public health.

    (g)(1) All facility response plans shall be consistent with the 

requirements of the National Oil and Hazardous Substance Pollution 

Contingency Plan (40 CFR part 300) and applicable Area Contingency Plans 

prepared pursuant to section 311(j)(4) of the Clean Water Act. The 

facility response plan should be coordinated with the local emergency 

response plan developed by the local emergency planning committee under 

section 303 of Title III of the Superfund Amendments and Reauthorization 

Act of 1986 (42 U.S.C. 11001 et seq.). Upon request, the owner or 

operator should provide a copy of the facility response plan to the 

local emergency planning committee or State emergency response 

commission.

    (2) The owner or operator shall review relevant portions of the 

National Oil and Hazardous Substances Pollution Contingency Plan and 

applicable Area Contingency Plan annually and, if necessary, revise the 

facility response plan to ensure consistency with these plans.

    (3) The owner or operator shall review and update the facility 

response



[[Page 45]]



plan periodically to reflect changes at the facility.

    (h) A response plan shall follow the format of the model facility-

specific response plan included in Appendix F to this part, unless you 

have prepared an equivalent response plan acceptable to the Regional 

Administrator to meet State or other Federal requirements. A response 

plan that does not follow the specified format in Appendix F to this 

part shall have an emergency response action plan as specified in 

paragraphs (h)(1) of this section and be supplemented with a cross-

reference section to identify the location of the elements listed in 

paragraphs (h)(2) through (h)(10) of this section. To meet the 

requirements of this part, a response plan shall address the following 

elements, as further described in Appendix F to this part:

    (1) Emergency response action plan. The response plan shall include 

an emergency response action plan in the format specified in paragraphs 

(h)(1)(i) through (viii) of this section that is maintained in the front 

of the response plan, or as a separate document accompanying the 

response plan, and that includes the following information:

    (i) The identity and telephone number of a qualified individual 

having full authority, including contracting authority, to implement 

removal actions;

    (ii) The identity of individuals or organizations to be contacted in 

the event of a discharge so that immediate communications between the 

qualified individual identified in paragraph (h)(1) of this section and 

the appropriate Federal officials and the persons providing response 

personnel and equipment can be ensured;

    (iii) A description of information to pass to response personnel in 

the event of a reportable discharge;

    (iv) A description of the facility's response equipment and its 

location;

    (v) A description of response personnel capabilities, including the 

duties of persons at the facility during a response action and their 

response times and qualifications;

    (vi) Plans for evacuation of the facility and a reference to 

community evacuation plans, as appropriate;

    (vii) A description of immediate measures to secure the source of 

the discharge, and to provide adequate containment and drainage of 

discharged oil; and

    (viii) A diagram of the facility.

    (2) Facility information. The response plan shall identify and 

discuss the location and type of the facility, the identity and tenure 

of the present owner and operator, and the identity of the qualified 

individual identified in paragraph (h)(1) of this section.

    (3) Information about emergency response. The response plan shall 

include:

    (i) The identity of private personnel and equipment necessary to 

remove to the maximum extent practicable a worst case discharge and 

other discharges of oil described in paragraph (h)(5) of this section, 

and to mitigate or prevent a substantial threat of a worst case 

discharge (To identify response resources to meet the facility response 

plan requirements of this section, owners or operators shall follow 

Appendix E to this part or, where not appropriate, shall clearly 

demonstrate in the response plan why use of Appendix E of this part is 

not appropriate at the facility and make comparable arrangements for 

response resources);

    (ii) Evidence of contracts or other approved means for ensuring the 

availability of such personnel and equipment;

    (iii) The identity and the telephone number of individuals or 

organizations to be contacted in the event of a discharge so that 

immediate communications between the qualified individual identified in 

paragraph (h)(1) of this section and the appropriate Federal official 

and the persons providing response personnel and equipment can be 

ensured;

    (iv) A description of information to pass to response personnel in 

the event of a reportable discharge;

    (v) A description of response personnel capabilities, including the 

duties of persons at the facility during a response action and their 

response times and qualifications;

    (vi) A description of the facility's response equipment, the 

location of the equipment, and equipment testing;

    (vii) Plans for evacuation of the facility and a reference to 

community evacuation plans, as appropriate;



[[Page 46]]



    (viii) A diagram of evacuation routes; and

    (ix) A description of the duties of the qualified individual 

identified in paragraph (h)(1) of this section, that include:

    (A) Activate internal alarms and hazard communication systems to 

notify all facility personnel;

    (B) Notify all response personnel, as needed;

    (C) Identify the character, exact source, amount, and extent of the 

release, as well as the other items needed for notification;

    (D) Notify and provide necessary information to the appropriate 

Federal, State, and local authorities with designated response roles, 

including the National Response Center, State Emergency Response 

Commission, and Local Emergency Planning Committee;

    (E) Assess the interaction of the discharged substance with water 

and/or other substances stored at the facility and notify response 

personnel at the scene of that assessment;

    (F) Assess the possible hazards to human health and the environment 

due to the release. This assessment must consider both the direct and 

indirect effects of the release (i.e., the effects of any toxic, 

irritating, or asphyxiating gases that may be generated, or the effects 

of any hazardous surface water runoffs from water or chemical agents 

used to control fire and heat-induced explosion);

    (G) Assess and implement prompt removal actions to contain and 

remove the substance released;

    (H) Coordinate rescue and response actions as previously arranged 

with all response personnel;

    (I) Use authority to immediately access company funding to initiate 

cleanup activities; and

    (J) Direct cleanup activities until properly relieved of this 

responsibility.

    (4) Hazard evaluation. The response plan shall discuss the 

facility's known or reasonably identifiable history of discharges 

reportable under 40 CFR part 110 for the entire life of the facility and 

shall identify areas within the facility where discharges could occur 

and what the potential effects of the discharges would be on the 

affected environment. To assess the range of areas potentially affected, 

owners or operators shall, where appropriate, consider the distance 

calculated in paragraph (f)(1)(ii) of this section to determine whether 

a facility could, because of its location, reasonably be expected to 

cause substantial harm to the environment by discharging oil into or on 

the navigable waters or adjoining shorelines.

    (5) Response planning levels. The response plan shall include 

discussion of specific planning scenarios for:

    (i) A worst case discharge, as calculated using the appropriate 

worksheet in Appendix D to this part. In cases where the Regional 

Administrator determines that the worst case discharge volume calculated 

by the facility is not appropriate, the Regional Administrator may 

specify the worst case discharge amount to be used for response planning 

at the facility. For complexes, the worst case planning quantity shall 

be the larger of the amounts calculated for each component of the 

facility;

    (ii) A discharge of 2,100 gallons or less, provided that this amount 

is less than the worst case discharge amount. For complexes, this 

planning quantity shall be the larger of the amounts calculated for each 

component of the facility; and

    (iii) A discharge greater than 2,100 gallons and less than or equal 

to 36,000 gallons or 10 percent of the capacity of the largest tank at 

the facility, whichever is less, provided that this amount is less than 

the worst case discharge amount. For complexes, this planning quantity 

shall be the larger of the amounts calculated for each component of the 

facility.

    (6) Discharge detection systems. The response plan shall describe 

the procedures and equipment used to detect discharges.

    (7) Plan implementation. The response plan shall describe:

    (i) Response actions to be carried out by facility personnel or 

contracted personnel under the response plan to ensure the safety of the 

facility and to mitigate or prevent discharges described in paragraph 

(h)(5) of this section or the substantial threat of such discharges;



[[Page 47]]



    (ii) A description of the equipment to be used for each scenario;

    (iii) Plans to dispose of contaminated cleanup materials; and

    (iv) Measures to provide adequate containment and drainage of 

discharged oil.

    (8) Self-inspection, drills/exercises, and response training. The 

response plan shall include:

    (i) A checklist and record of inspections for tanks, secondary 

containment, and response equipment;

    (ii) A description of the drill/exercise program to be carried out 

under the response plan as described in Sec.  112.21;

    (iii) A description of the training program to be carried out under 

the response plan as described in Sec.  112.21; and

    (iv) Logs of discharge prevention meetings, training sessions, and 

drills/exercises. These logs may be maintained as an annex to the 

response plan.

    (9) Diagrams. The response plan shall include site plan and drainage 

plan diagrams.

    (10) Security systems. The response plan shall include a description 

of facility security systems.

    (11) Response plan cover sheet. The response plan shall include a 

completed response plan cover sheet provided in Section 2.0 of Appendix 

F to this part.

    (i)(1) In the event the owner or operator of a facility does not 

agree with the Regional Administrator's determination that the facility 

could, because of its location, reasonably be expected to cause 

substantial harm or significant and substantial harm to the environment 

by discharging oil into or on the navigable waters or adjoining 

shorelines, or that amendments to the facility response plan are 

necessary prior to approval, such as changes to the worst case discharge 

planning volume, the owner or operator may submit a request for 

reconsideration to the Regional Administrator and provide additional 

information and data in writing to support the request. The request and 

accompanying information must be submitted to the Regional Administrator 

within 60 days of receipt of notice of the Regional Administrator's 

original decision. The Regional Administrator shall consider the request 

and render a decision as rapidly as practicable.

    (2) In the event the owner or operator of a facility believes a 

change in the facility's classification status is warranted because of 

an unplanned event or change in the facility's characteristics (i.e., 

substantial harm or significant and substantial harm), the owner or 

operator may submit a request for reconsideration to the Regional 

Administrator and provide additional information and data in writing to 

support the request. The Regional Administrator shall consider the 

request and render a decision as rapidly as practicable.

    (3) After a request for reconsideration under paragraph (i)(1) or 

(i)(2) of this section has been denied by the Regional Administrator, an 

owner or operator may appeal a determination made by the Regional 

Administrator. The appeal shall be made to the EPA Administrator and 

shall be made in writing within 60 days of receipt of the decision from 

the Regional Administrator that the request for reconsideration was 

denied. A complete copy of the appeal must be sent to the Regional 

Administrator at the time the appeal is made. The appeal shall contain a 

clear and concise statement of the issues and points of fact in the 

case. It also may contain additional information from the owner or 

operator, or from any other person. The EPA Administrator may request 

additional information from the owner or operator, or from any other 

person. The EPA Administrator shall render a decision as rapidly as 

practicable and shall notify the owner or operator of the decision.



[59 FR 34098, July 1, 1994, as amended at 65 FR 40798, June 30, 2000; 66 

FR 34560, June 29, 2001; 67 FR 47151, July 17, 2002]