Facility response plans

Scope

A facility that could reasonably be expected to cause "substantial harm" to the environment by discharging oil into or on navigable waters is required to prepare and submit a Facility Response Plan (FRP) to the appropriate EPA Regional Office. A facility is reasonably expected to pose "substantial harm" if according to 112.20(f)(1), it:

1. Has a total oil storage capacity greater than or equal to 42,000 gallons and it transfers oil over water to/from vessels; or
2. Has a total oil storage capacity greater than or equal to 1 million gallons and meets one of the following conditions:
   • Does not have sufficient secondary containment for each aboveground storage area;
   • Is located at a distance such that a discharge from the facility could cause “injury” to fish, wildlife, and sensitive environments;
   • Is located at a distance such that a discharge from the facility would shut down a public drinking water intake; or
   • Has had, within the past five years, a reportable discharge greater than or equal to 10,000 gallons.

Once an FRP are submitted to the region, the EPA Regional Administrator (RA) will review and determine if the facility has the potential, not just for substantial harm, but for significant and substantial harm. If the RA determines that the facility could cause significant and substantial harm, the FRP requires approval by the RA.

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 1 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 112.20(f)(3), including these factors:

• 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.

Regulatory citations

• 40 CFR 112 — Oil pollution prevention
• 40 CFR 112 Subpart D — Response requirements
• 40 CFR 112 Appendix C — Substantial harm criteria
• 40 CFR 112 Appendix D — Determination of a worst case discharge planning volume
• 40 CFR 112 Appendix E — Determination and evaluation of required response resources for facility response plans
• 40 CFR 112 Appendix F — Facility-specific response plan

Key definitions

• Animal fat: A non-petroleum oil, fat, or grease of animal, fish, or marine mammal origin.
• Complex: A facility possessing a combination of transportation-related and non-transportation-related components that is subject to the jurisdiction of more than one Federal agency under section 311(j) of the CWA.
• Contract or other approved means: (1) A written contractual agreement with an oil spill removal organization that identifies and ensures the availability of the necessary personnel and equipment within appropriate response times; and/or (2) A written certification by the owner or operator that the necessary personnel and equipment resources, owned or operated by the facility owner or operator, are available to respond to a discharge within appropriate response times; and/or (3) Active membership in a local or regional oil spill removal organization that has identified and ensures adequate access through such membership to necessary personnel and equipment to respond to a discharge within appropriate response times in the specified geographic area; and/or (4) Any other specific arrangement approved by the Regional Administrator upon request of the owner or operator.
• Discharge: 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, 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 40 CFR 11, the term discharge shall not include any discharge of oil that is authorized by a permit issued under section 13 of the River and Harbor Act of 1899 (33 U.S.C. 407).
• Facility: Any mobile or fixed, onshore or offshore building, property, parcel, lease, structure, installation, equipment, pipe, or pipeline (other than a vessel or a public vessel) used in oil well drilling operations, oil production, oil refining, oil storage, oil gathering, oil processing, oil transfer, oil distribution, and oil waste treatment, or in which oil is used, as described in appendix A to this part. The boundaries of a facility depend on several site-specific factors, including but not limited to, the ownership or operation of buildings, structures, and equipment on the same site and types of activity at the site. Contiguous or non-contiguous buildings, properties, parcels, leases, structures, installations, pipes, or pipelines under the ownership or operation of the same person may be considered separate facilities. Only this definition governs whether a facility is subject to 40 CFR 112.
• Fish and wildlife and sensitive environments: Areas that may be identified by their legal designation or by evaluations of Area Committees (for planning) or members of the Federal On-Scene Coordinator's spill response structure (during responses). These areas may include wetlands, National and State parks, critical habitats for endangered or threatened species, wilderness and natural resource areas, marine sanctuaries and estuarine reserves, conservation areas, preserves, wildlife areas, wildlife refuges, wild and scenic rivers, recreational areas, national forests, Federal and State lands that are research national areas, heritage program areas, land trust areas, and historical and archaeological sites and parks. These areas may also include unique habitats such as aquaculture sites and agricultural surface water intakes, bird nesting areas, critical biological resource areas, designated migratory routes, and designated seasonal habitats.
• Injury: A measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource resulting either directly or indirectly from exposure to a discharge, or exposure to a product of reactions resulting from a discharge.
• Maximum extent practicable: Within the limitations used to determine oil spill planning resources and response times for on-water recovery, shoreline protection, and cleanup for worst case discharges from onshore non-transportation-related facilities in adverse weather. It includes the planned capability to respond to a worst case discharge in adverse weather, as contained in a response plan that meets the requirements in 112.20 or in a specific plan approved by the Regional Administrator.
• Navigable waters: Waters of the United States, including the territorial seas, as defined in 120.2.
• Non-petroleum oil: Oil of any kind that is not petroleum-based, including but not limited to: Fats, oils, and greases of animal, fish, or marine mammal origin; and vegetable oils, including oils from seeds, nuts, fruits, and kernels.
• Oil: Oil of any kind or in any form, including, but not limited to: fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil.
• Oil spill removal organization: An entity that provides oil spill response resources, and includes any for-profit or not-for-profit contractor, cooperative, or in-house response resources that have been established in a geographic area to provide required response resources.
• Onshore facility: Any facility of any kind located in, on, or under any land within the United States, other than submerged lands.
• Owner or operator: Any person owning or operating an onshore facility or an offshore facility, and in the case of any abandoned offshore facility, the person who owned or operated or maintained the facility immediately prior to such abandonment.
• Petroleum oil: Petroleum in any form, including but not limited to crude oil, fuel oil, mineral oil, sludge, oil refuse, and refined products.
• Regional Administrator: The Regional Administrator of the Environmental Protection Agency, in and for the Region in which the facility is located.
• Storage capacity: The shell capacity of a container.
• Significant and substantial harm criteria: The criteria listed at 112.20(f)(3).
• Substantial harm criteria: The criteria listed at 112.20(f)(1).
• Transportation-related and non-transportation-related: As applied to an onshore or offshore facility, are defined in the Memorandum of Understanding between the Secretary of Transportation and the Administrator of the Environmental Protection Agency, dated November 24, 1971, (Appendix A of 40 CFR 112).
• Vegetable oil: A non-petroleum oil or fat of vegetable origin, including but not limited to oils and fats derived from plant seeds, nuts, fruits, and kernels.
• Vessel: 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.

Summary of requirements

• Determine if 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.
• Determine if the facility has a total oil storage capacity greater than or equal to one million gallons. If so, also determine if one of the following criteria are met:
  • Does not have sufficient secondary containment for each aboveground storage area;
  • Is located at a distance such that a discharge from the facility could cause "injury" to fish, wildlife, and sensitive environments;
  • Is located at a distance such that a discharge from the facility would shut down a public drinking water intake; or
  • Has had, within the past five years, a reportable discharge greater than or equal to 10,000 gallons.
• After making the above determinations, use the answers to determine if the facility could reasonably be expected to cause “substantial harm” to the environment by discharging oil into or on navigable waters.
• If substantial harm is not expected, then:
  • Complete and maintain at the facility the certification form in 40 CFR 112 Appendix C Attachment C-II. See 112.20(e) regarding what to do if alternative formulas were used.
  • Maintain the C-II certification form with the facility oil Spill Prevention, Control and Countermeasure (SPCC) Plan, if applicable.
• If substantial harm is expected, then:
• Prepare a written FRP. Include the elements listed in detail at 112.20(h) and described in Appendix F. These plan elements are summarized as follows:
  1. Emergency response action plan
  2. Facility information
  3. Information about emergency response
  4. Hazard evaluation
  5. Response planning levels
  6. Discharge detection systems
  7. Plan implementation
  8. Self-inspection, drills/exercises, and response training
  9. Diagrams
  10. Security systems
  11. Response plan cover sheet
• Submit the FRP to the appropriate EPA Regional Office.
• Make any amendments requested by EPA.
• Upon request, provide a copy of the FRP to the local emergency planning committee or state emergency response commission.
• Review relevant portions of the National Oil and Hazardous Substances Pollution Contingency Plan and applicable Area Contingency Plan annually and, if necessary, revise the FRP to ensure consistency with these plans.
• Review and update the FRP periodically to reflect changes at the facility on a schedule established by the EPA RA provided that the period between plan reviews does not exceed five years.
• Revise and resubmit revised portions of the FRP within 60 days of each facility change that materially may affect the response to a worst case discharge.
• Provide a copy of any administrative changes to the EPA RA as the revisions occur.
• Maintain logs of discharge prevention meetings, training sessions, and drills/exercises. These logs may be maintained as an annex to the FRP.