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17834 Federal Register / Vol. 45. No. 55 / Wednesday. March 19. 1980 / Rules and Regulationa 



determined. A definition of minor 

 discharge which excludes less than 

 reportable quantities will discourage 

 efforts to remove such spills. For these 

 reasons, the Council determined not to 

 change the definition of minor discharge 

 of hazardous substances. 



The comments also recommended 

 establishing a practical lower limit in 

 the definition of a minor oil spill such as 

 California's 10 gallon limi t The Council 

 determined however that the existing 

 definition in i 1510.S(r)(l). "less than 

 1000 gallons", is woridng well and 

 should not be changed. 

 Comments on Section 1510M— Federal 

 Responsibility 



Some comments pointed out that the 

 proposed language for % 1510.21(a) did 

 not adequately reflect 5 311(c)(1) of the 

 Clean Water Act by omitting the 

 modifier "substantial" before "threat" 

 Section 311(c)(1) specifies Federal 

 response actions where there are 

 discharges or a "substantial threat" of 

 such discharge. The Council agrees with 

 these cnmments. Since this problem was 

 presented in other parts of the proposed 

 revisions, the Council is correcting it by 

 changing the definition of "potential 

 discharge," in } lS10.5(n). to mean "any 

 accident or other circumstance which 

 constitutes a substantial threat of a 

 discharge of oil or hazardous 

 substance." Thus, subject to § 311(c)(1), 

 Federal responsibility exists for 

 discharges and potential discharges. 

 These changes address these same 

 comments with respect to S J 1510.Zl(b], 

 1510.S3(a), and 1510.63(b). 



Comments on Section 1510.36(b) — On- 

 Scene Coordinator 



A number of companies and 

 organizations involved in the carriage of 

 bulk petroleum and chemicals in inland 

 waters requested that i lS10.36(b) be 

 changed to provide that the U.S. Coast 

 Guard (rather than the Environmental 

 Protection Agency) furnish or provide 

 the On-Scene Coordinator for all 

 navigable waters of the United States 

 which are used by waterbome 

 commerce. The principal reasons given 

 in support of this change are: (1) that the 

 Coast Guard is already required to be 

 involved in inland waterway discharges 

 in order to evaluate compliance with 

 pollution prevention regulations and to 

 evaluate penalty assessments, and (2) 

 that it would be an unnecessary 

 duplication of federal agency resources 

 to have the EPA act as Qn-Scene 

 Coordinator for inland waterway spills. 

 Furthermore EPA's capability to act 

 quickly as the On-Scene Coordinator 

 was questioned by some commenters. 



The National Response Team which 

 has overall operational and 

 implementing responsibility for the 

 National Contingency Plan 

 recommended that 5 15ia38(b) not be 

 changed because in certain inland 

 waterway regions EPA provides the 

 most effective On-Scene Coordinator, 

 while in others (where the Coast Guard 

 is the most efiective), EPA normally 

 predesignates the Coast Guard to serve 

 as the inland waterway OCS. The 

 National Response Team therefore 

 recommended that the existing 

 flexibility in allowing both the EPA and 

 the Coast Guard to be On-Scene 

 Coordinators for inland waterways 

 (depending on the circumstances) is 

 preferable to a fixed rule assigning only 

 the Coast Guard to that function. Based 

 on the National Response Team's 

 experience and recommendations, the 

 Council therefore determined to leave 

 i 1510.38(b) unchanged 



Some commenters expressed concern 

 that the proposed revisions to the Plan 

 (particularly } 1510.36(a)(3) with respect 

 to compliance with the Endangered 

 Species Act and with respect to the use 

 of chemical dispersants gnvemed by 

 Annex X) diminished the On-Scene 

 Coordinator's authority and 

 effectiveness to respond qoickly to a 

 spill. These commenters requested that 

 S lS10.36(a)(3) and Annex X be changed 

 to eliminate restrictions on the OSC's 

 authority. 



Section lS10J6(a)(3) provides that 

 advice to the On-Scene Coordinator 

 provided by the Fish aiui Wildlife 

 Service (Department of the Interior) or 

 by the National Marine Fisheries 

 Service Pepartment of Commerce) on 

 cleanup actions that may affect 

 endangered species shall be considered 

 at all times and be binding on the On- 

 Scene Coordinator unless in the OSC's 

 judgment contrary actions must be taken 

 to protect human life. The Council does 

 not regard this provision as a new 

 limitation on the OSCs authority to act 

 but rather as an incorporation of the 

 requirements of the Endangered Species 

 Act which, since 1973, has applied to all 

 activities of federal agencies and 

 responsible federal officials. In essence, 

 this provision is designed to assist the 

 OSC to comply with the Endangered 

 Species Act through the expertise of the 

 Fish and Wildlife Service (FWS) and die 

 National Marine Fisheries Service 

 (NMFS), in circumstances where 

 cleanup actions may affect endangered 

 species. Whenever the OSC determines 

 that certain actians must be taken to 

 protect human life, the OSCs judgment 

 will prevail over FWS or NMFS advice 

 to the contrary. For these reasons the 



Council determined to leave this part of 

 § 1510.36(a)(3) unchanged. Annex X is 

 modified to include a cross-reference to 

 § 1510.36(al(3). These changes do not 

 affect the OSCs authority to use 

 chemical dispersants such as to 

 substantially reduce explosion or fire 

 hazards to property where there is no 

 threat to endangered species. 



With respect to the use of chemical 

 dispersants covered by Annex X, 

 several commenters recommended that 

 the On-Scene Coordinator be provided 

 with authority to allow the spiller or his 

 agents to use registered chemical 

 dispersants in offshore areas for 

 protection of sensitive environmental or 

 commercial fishery areas ivithout the 

 concurrence of the EPA representative 

 on the Regional Response Team. The 

 National Response Team carefully 

 considered this request but concluded 

 that the continuing involvement of EPA 

 representatives before use of chemical 

 dispersants outweighs any benefits to be 

 derived by allowing the spiller to use 

 dispersants in such areas without 

 advance EPA concurrence. The Council 

 adopted the National Response Team's 

 recommendation with respect to this 

 issue. However, it is the intent of the 

 Plan that the EPA Regional Response 

 Team member continue to work closely 

 with the Coast Guard On-Scene 

 Coordinators to provide greater 

 guidance—in advance of spills— on the 

 circumstances that justify use of 

 chemical dispersants. 



Several commenters felt that the 

 priorities of the Plan were insufficiently 

 spelled out and recommended that the 

 p rimar y goals of a Spill response be (1) 

 to protect human life and limb and (2) to 

 minimize ecological impacts of spills. 

 The National Response Team believes 

 that these priorities are inherent in the 

 Plan and are already covered in 

 S 1510.36(a)(3) and Annex X The 

 Council agrees with the NRT and that 

 On-Scene Coordinators have adequate 

 explicit guidance on these priorities. 



One comment recommended that 

 9 15ia36(a)(l) be clarified to provide 

 that the first official from an agency 

 with responsibility under the Plan to 

 arrive at the scene of a discharge is to 

 function as acting OSC (if otiier than the 

 predesignated OSC) until the OSC 

 arrives. The NRT determined that 

 5 1510.36(a)(1) already is suffidenUy 

 clear on this point by providing that the 

 first official to arrive on scene "shall 

 coordinate activities under the plan until 

 the OSC arrives." "Shall coordinate 

 activities" includes authority to act ai 



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