[Code of Federal Regulations]
[Title 40, Volume 27]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR300.305]

[Page 49-50]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 300_NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN
--Table of Contents
 
          Subpart D_Operational Response Phases for Oil Removal
 
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

[[Page 50]]

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.