• If a facility meets the substantial harm criteria, a Facility Response Plan (FRP) must be submitted to EPA.
• If a facility does not meet substantial harm criteria, a certification form stating this must be included with the facility’s SPCC Plan.

Substantial harm criteria are used to determine whether a facility “could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters or adjoining shorelines.”

Whether a facility does or does not meet the substantial harm criteria, it must make a determination. Many facilities do not meet the substantial harm criteria and thus do not need to submit a Facility Response Plan. However, these owners or operators must complete and maintain at the facility a certification form indicating that the facility does not meet the substantial harm criteria (Part 112.20(e)).

An owner or operator can use the certification form found in Part 112 Appendix C, or a comparable alternative form (112.20(e)). Owners or operators may refer to the “Flowchart of Criteria for Substantial Harm,” Attachment C-I to Appendix C of Part 112, to determine whether they meet the substantial harm criteria. Then:

• If the facility DOES NOT meet the substantial harm criteria, the owner or operator of a spill prevention, control, and countermeasure (SPCC)-regulated facility must complete and maintain at the facility the certification form contained in Part 112 Appendix C Attachment C-II “Certification of the Applicability of the Substantial Harm Criteria.” (Many facility owner/operators include a copy of Attachment C-II as an appendix to the SPCC Plan.)
• If a facility DOES meet the SPCC applicability AND the substantial harm criteria, a Facility Response Plan must be prepared and submitted to the Environmental Protection Agency (EPA) Regional Administrator.

Regardless of the outcome, in the event an alternative formula that is comparable to one contained in Appendix C to Part 112 is used to evaluate the criteria, the owner or operator must attach documentation to the certification form that demonstrates the reliability and analytical soundness of the comparable formula and must notify the EPA Regional Administrator in writing that an alternative formula was used.

What are the criteria?

Subparagraph 112.20(f)(1) sets forth the criteria a facility owner or operator must use to determine whether its facility poses substantial harm to the environment. There are two criteria for making this determination. Either:

• The facility transfers oil over water and has a total oil storage capacity greater than or equal to 42,000 gallons, or
• The facility has a total oil storage capacity of one million gallons and one the following is true:
  • There is not sufficient secondary containment for each aboveground storage area;
  • The facility is located such that a discharge of oil could harm sensitive environments;
  • The facility is located such that discharge of oil would shut down a public drinking water intake; or
  • The facility has had a reportable oil discharge within the last five years in an amount greater than or equal to 10,000 gallons.

Significant and substantial harm

Some substantial harm facilities may meet the criteria for a significant and substantial harm facility. After a Facility Response Plan (FRP) has been submitted, the RA may determine that a facility has the potential, not just for substantial harm, but for significant and substantial harm. If the RA makes that determination, under the Oil Pollution Act (OPA) the RA must review and approve the FRP.

A facility may be a significant and substantial harm facility if it meets the over water transfer criterion, has a total oil storage capacity of one million gallons or more, and meets one or more of the other substantial harm factors mentioned above. Also, the RA may consider any of the additional significant and substantial harm factors set out in subparagraph 112.20(f)(3). The additional significant and substantial harm factors include:

• Frequency of past spills;
• Proximity to navigable waters;
• Age of oil storage tanks; and
• Other facility-specific and region-specific information, including local impacts on public health.