Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Plan Requirements-Amendments, 73524-73552 [05-23917]
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73524
Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[EPA–HQ–OPA–2005–0001; FRL–8007–2]
RIN 2050–AG23
Oil Pollution Prevention; Spill
Prevention, Control, and
Countermeasure Plan Requirements—
Amendments
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA or the Agency) is today
proposing to amend the Spill
Prevention, Control, and
Countermeasure (SPCC) Plan
requirements to reduce the regulatory
burden for certain facilities by:
Providing an option that would allow
owners/operators of facilities that store
less than 10,000 gallons of oil and meet
other qualifying criteria to self-certify
their SPCC Plans, in lieu of review and
certification by a Professional Engineer;
providing an alternative to the
secondary containment requirement,
without requiring a determination of
impracticability, for facilities that have
certain types of oil-filled equipment;
defining and providing an exemption
for motive power containers; and
exempting airport mobile refuelers from
the specifically sized secondary
containment requirements for bulk
storage containers. In addition, the
Agency also proposes to remove and
reserve certain SPCC requirements for
animal fats and vegetable oils and
proposes a separate extension of the
compliance dates for farms. In
proposing these changes, EPA is
significantly reducing the burden
imposed on the regulated community in
complying with the SPCC requirements,
while maintaining protection of human
health and the environment. Further,
the Agency requests comments on the
potential scope of future rulemaking. In
a separate document in today’s Federal
Register, the Agency is proposing to
extend the compliance dates for all
facilities.
DATES: Comments must be received on
or before February 10, 2006.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OPA–2005–0001 by one of the following
methods:
• Federal Rulemaking Portal:
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• Mail: The mailing address of the
docket for this rulemaking is EPA
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Docket Center (EPA/DC), Docket ID No.
EPA–HQ–OPA–2005–0001, 1200
Pennsylvania Avenue, NW.,
Washington, DC 20460.
• Hand Delivery: Such deliveries are
only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OPA–2005–
0001. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov.
The www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you submit an electronic comment,
EPA recommends that you include your
name and other contact information in
the body of the comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. Comments and suggestions
regarding the scope of any future
rulemaking should be clearly
differentiated from comments specific to
today’s proposal (e.g., label Suggestions
for Future Rulemaking and Comments
on Current Proposal).
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by a
statute. Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the EPA Docket, EPA/DC, EPA West,
Room B102, 1303 Constitution Ave.,
NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
202–566–1744, and the telephone
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number to make an appointment to view
the docket is 202–566–0276.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the
Superfund, TRI, EPCRA, RMP and Oil
Information Center at 800–424–9346 or
TDD 800–553–7672 (hearing impaired).
In the Washington, DC metropolitan
area, call 703–412–9810 or TDD 703–
412–3323. For more detailed
information on specific aspects of this
proposed rule, contact either Vanessa E.
Rodriguez at 202–564–7913
(rodriguez.vanessa@epa.gov), or Mark
W. Howard at 202–564–1964
(howard.markw@epa.gov), U.S.
Environmental Protection Agency, 1200
Pennsylvania Avenue, NW.,
Washington, DC, 20460–0002, Mail
Code 5104A.
SUPPLEMENTARY INFORMATION: This
proposed rule would amend the
requirements for Spill Prevention,
Control, and Countermeasure (SPCC)
Plans in 40 CFR part 112. First, the
proposal would provide an alternative
option for the owner/operator of a
facility that meets specific qualifying
criteria (hereafter referred to as a
‘‘qualified facility’’) to self-certify that
the facility’s SPCC Plan complies with
40 CFR part 112, in lieu of the
requirement for a Professional
Engineer’s (PE) review and certification.
Second, the proposal would provide an
alternative option for the owner/
operator of a facility with oil-filled
operational equipment that meets
specific qualifying criterion (hereafter
referred to as ‘‘qualified oil-filled
operational equipment’’) to establish
and document an inspection or
monitoring program, prepare a
contingency plan, and provide a written
commitment of manpower, equipment
and materials in lieu of secondary
containment for qualified oil-filled
operational equipment without being
required to make an individual
impracticability determination. Third,
the proposal would define and provide
an exemption for motive power
containers. Fourth, the proposal would
exempt airport mobile refuelers from
specifically sized secondary
containment requirements for bulk
storage containers. Fifth, the proposal
removes and reserves certain SPCC
requirements for animal fats and
vegetable oils. Finally, the proposal
provides a separate extension of the
compliance dates for farms and, in a
separate notice in today’s Federal
Register, the Agency is proposing to
extend the compliance dates for all
facilities. The contents of this preamble
are:
I. General Information
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II. Entities Potentially Affected by This
Proposed Rule
III. Statutory Authority and Delegation of
Authority
IV. Background
V. Today’s Action
A. Qualified Facilities
1. Eligibility Criteria
a. Total Facility Oil Storage Capacity
Threshold
b. Reportable Discharge History
2. Proposed Requirements for Qualified
Facilities
a. Self-Certification and Plan Amendments
b. Environmental Equivalence and
Impracticability Determinations
c. SPCC Plan Exceptions
3. Alternative Options Considered
a. Extension/Suspension Options
b. Multi-tiered Structure
c. One-time Notification
B. Qualified Oil-filled Operational
Equipment
1. Proposed Oil-Filled Operational
Equipment Definition
2. Eligibility Criteria—Reportable
Discharge History
3. Proposed Requirements for Qualified
Oil-Filled Operational Equipment In
Lieu of Secondary Containment
a. Contingency Plans and a Written
Commitment of Manpower, Equipment
and Materials
b. Inspections or Monitoring Program
4. Alternative Options Considered
a. Capacity Threshold Qualifier
b. Multi-Tiered Structure
c. Extension/Suspension Options
5. Qualified Facilities and Qualified OilFilled Operational Equipment Overlap
C. Motive Power
1. Definition of Motive Power
2. Proposed Exemption
3. Alternative Options Considered
a. Equipment-Based Motive Power
Exemption
b. Threshold-Based Motive Power
Exemption
c. Exclusion From Storage Capacity
Calculation
D. Airport Mobile Refuelers
1. Definition of Airport Mobile Refueler
2. Proposed Amended Requirements
E. Animal Fats and Vegetable Oils
VI. Proposed Extension of Compliance Dates
for Farms
A. Eligibility Criteria
B. Proposed Compliance Date Extension for
Farms
VII. Statutory and Executive Order Reviews
A. Executive Order 12866—Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132—Federalism
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045—Protection of
Children From Environmental Health &
Safety Risks
H. Executive Order 13211—Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
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I. General Information
To reduce regulatory burden for
qualified facilities and to address
several concerns involving oil-filled
operational equipment, motive power
containers, airport mobile refuelers, and
provisions specific to animal fats and
vegetable oils, EPA proposes to amend
the SPCC Plan requirements in 40 CFR
part 112. The Agency also proposes a
separate extension of the compliance
dates for farms. Specifically:
• EPA proposes an alternative option
for the owner/operator of a qualified
facility to self-certify his/her SPCC Plan,
prepared in accordance with 40 CFR
part 112, in lieu of review and
certification by a Professional Engineer
(PE). A qualified facility is a facility
subject to the SPCC requirements that
(1) has a maximum total facility oil
storage capacity of 10,000 gallons or
less; and (2) had no reportable oil
discharge as described in § 112.1(b)
during the ten years prior to selfcertification or, since becoming subject
to the SPCC requirements if the facility
has been in operation for less than ten
years. Under this proposed approach,
facility owners/operators of qualified
facilities choosing to self-certify their
SPCC Plans may not deviate from any
requirement of the SPCC rule under
§ 112.7(a)(2) (with two exceptions) and
may not make impracticability
determinations in their SPCC Plans as
described under § 112.7(d). The two
exceptions are that facility owners/
operators of qualified facilities choosing
to self-certify their SPCC Plans would
have flexibility with respect to the
security requirements and container
integrity testing.
• EPA proposes a definition for oilfilled operational equipment and
proposes that owners and operators of
facilities where qualified oil-filled
operational equipment is located have
the alternative of preparing an oil spill
contingency plan and a written
commitment of manpower, equipment
and materials, without having to
determine that secondary containment
is impracticable on an individual
equipment basis (make an individual
impracticability determination as
required in § 112.7(d)); and establish
and document an inspection or
monitoring program for this equipment
to detect equipment failure and/or a
discharge in lieu of providing secondary
containment for qualified oil-filled
operational equipment. Today’s
proposal would eliminate the current
requirement for an individual
impracticability determination for oilfilled operational equipment at a facility
that has had no discharges as described
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in § 112.1(b) from any oil-filled
operational equipment during the ten
years prior to the Plan certification date
or, since becoming subject to the SPCC
requirements if the facility has been in
operation for less than ten years.
• EPA proposes to exempt from the
SPCC rule certain motive power
containers. Motive power containers are
onboard bulk storage containers used
solely to power the movement of a
motor vehicle (i.e., fuel tanks), or
ancillary onboard oil-filled operational
equipment (i.e., hydraulics and
lubrication systems) used solely to
facilitate its operation. This exemption
would not apply to transfers of fuel or
other oil into motive power containers
at an otherwise regulated facility. This
exemption would not apply to a bulk
storage container mounted on a vehicle
for any purpose other than powering the
vehicle itself, for example, a tanker
truck or mobile refueler. Additionally,
this exemption would not apply to oil
drilling or workover equipment,
including rigs.
• EPA proposes to exempt airport
mobile refuelers from the specifically
sized secondary containment
requirements for bulk storage containers
under § 112.8(c)(2) and (11) of the SPCC
rule. Airport mobile refuelers are
vehicles found at airports that have
onboard bulk storage containers
designed for, or used to, store and
transport fuel for transfer into or from
an aircraft or ground service equipment.
The remaining provisions of § 112.8(c)
and the general secondary containment
requirements of § 112.7(c) would still
apply to the onboard bulk storage
containers on airport mobile refuelers
and the transfers associated with this
equipment.
• The Agency proposes to amend the
requirements for animal fats and
vegetable oils in Subpart C of Part 112
by removing § 112.13 (requirements for
onshore oil production facilities),
§ 112.14 (requirements for onshore oil
drilling and workover facilities), and
§ 112.15 (requirements for offshore oil
drilling, production, or workover
facilities) because these sections do not
apply to facilities that handle, store, or
transport animal fats and vegetable oils.
• EPA proposes to extend the
compliance dates for farms, while the
Agency considers whether the unique
nature of this sector warrants
differentiated requirements under the
SPCC rule.
• Under the current regulations in
§ 112.3(a), (b) and (c), a facility that was
in operation on or before August 16,
2002 must make any necessary
amendments to its SPCC Plan by
February 17, 2006, and fully implement
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its SPCC Plan by August 18, 2006. A
facility that came into operation after
August 16, 2002 but before August 18,
2006, must prepare and fully implement
an SPCC Plan on or before August 18,
2006. The owner or operator of an
onshore or offshore mobile facility must
maintain their Plan, but must amend
and implement it, if necessary to ensure
compliance with this part, on or before
August 18, 2006. In a separate notice in
today’s Federal Register, the Agency is
proposing to extend the compliance
dates for all facilities to October 31,
2007. Reviewers should refer to that
notice for a complete discussion of the
proposed extension. Regarding
modifications of the SPCC regulations,
to the extent practicable, EPA will
establish deadlines for compliance
implementation that commence one
year after promulgating the regulatory
revisions.
II. ENTITIES POTENTIALLY AFFECTED BY THIS PROPOSED RULE
Industry category
NAICS code
Crop and Animal Production ...................................................................................................................................
Crude Petroleum and Natural Gas Extraction .........................................................................................................
Coal Mining, Non-Metallic Mineral Mining and Quarrying .......................................................................................
Electric Power Generation, Transmission, and Distribution ....................................................................................
Heavy Construction .................................................................................................................................................
Petroleum and Coal Products Manufacturing .........................................................................................................
Other Manufacturing (including animal fats and vegetable oil manufacturing) .......................................................
Petroleum Bulk Stations and Terminals ..................................................................................................................
Automotive Rental and Leasing ..............................................................................................................................
Gasoline Service Stations .......................................................................................................................................
Fuel Oil Dealers .......................................................................................................................................................
Waste Management and Remediation ....................................................................................................................
Other Commercial Facilities (including Retail Stores, Apartment Buildings, Wholesalers and Janitorial Services)
Transportation (including Pipelines and Airports), Warehousing, and Marinas ......................................................
Elementary and Secondary Schools, Colleges .......................................................................................................
Federal, State, Local Government and Military Installations ..................................................................................
Hospitals/Nursing and Residential Care Facilities ..................................................................................................
The list of potentially affected entities
in the above table may not be
exhaustive. The Agency’s aim is to
provide a guide for readers regarding
those entities that potentially could be
affected by this action. However, this
action may affect other entities not
listed in this table. If you have questions
regarding the applicability of this action
to a particular entity, consult the person
listed in the preceding section entitled
FOR FURTHER INFORMATION CONTACT.
III. Statutory Authority and Delegation
of Authority
Section 311(j)(1)(C) of the Clean Water
Act (CWA or the Act), 33 U.S.C.
1321(j)(1)(C), requires the President to
issue regulations establishing
procedures, methods, equipment, and
other requirements to prevent
discharges of oil from vessels and
facilities and to contain such discharges.
The President delegated the authority to
regulate non-transportation-related
onshore facilities to the EPA in
Executive Order 11548 (35 FR 11677,
July 22, 1970), which has been replaced
by Executive Order 12777 (56 FR 54757,
October 22, 1991). A Memorandum of
Understanding (MOU) between the U.S.
Department of Transportation (DOT)
and EPA (36 FR 24080, November 24,
1971) established the definitions of
transportation- and non-transportationrelated facilities. An MOU among EPA,
the U.S. Department of Interior (DOI),
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and DOT, effective February 3, 1994,
has redelegated the responsibility to
regulate certain offshore facilities from
DOI to EPA.
IV. Background
On July 17, 2002, EPA published a
final rule amending the Oil Pollution
Prevention regulation (40 CFR part 112)
promulgated under the authority of
section 311(j) of the CWA. This revised
rule included requirements for SPCC
Plans and for Facility Response Plans
(FRPs). It also included new subparts
outlining the requirements for various
classes of oil; revised the applicability
of the regulation; amended the
requirements for completing SPCC
Plans; and made other modifications (67
FR 47042). The revised rule became
effective on August 16, 2002. After
publication of this rule, several
members of the regulated community
filed legal challenges to certain aspects
of the rule. Most of the issues raised in
the litigation have been settled,
following which EPA published
clarifications in the Federal Register to
several aspects of the revised rule (69
FR 29728, May 25, 2004).1
EPA has extended the dates for
revising and implementing revised
1 American Petroleum Institute v. Leavitt, No.
1:102CV02247 PLF and consolidated cases (D.D.C.
filed Nov. 14, 2002). The remaining issue to be
decided concerns the definition of ‘‘navigable
waters’’ in § 112.1.
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111–112
211
2121/2123/213114/213116
2211
234
324
31–33
42271
5321
447
4543
562
44–45, 51–55, 56172
482–486/488112–48819/4883/
48849/492–493/71393
611
92
621–623
SPCC Plans in 40 CFR 112.3(a) and (b)
several times, and has extended the
compliance date for 40 CFR 112.3(c)
(see 69 FR 48794 (August 11, 2004) for
further discussion on the extensions).
This action was taken by EPA in order
to provide the regulated community
with sufficient time to comply with the
2002 revised rule and to allow the
regulated community time to
understand the 2004 clarifications and
be able to incorporate them in their
updated SPCC Plans. The current
deadline for the preparation and
certification of revised SPCC Plans for
facilities maintaining their current SPCC
Plan is February 17, 2006. Plans must be
implemented by August 18, 2006.
Facilities that became subject to the
SPCC rule after August 16, 2002 are
currently required to develop and
implement their Plans by August 18,
2006.
On September 20, 2004, EPA
published two Notices of Data
Availability (NODAs). The first NODA
made available and solicited comments
on submissions to EPA suggesting more
focused requirements for facilities
subject to the SPCC rule that handle oil
below a certain threshold amount,
referred to as ‘‘certain facilities’’ (69 FR
56182). Streamlined approaches for
facilities with oil capacities below a
certain threshold were discussed in the
NODA documents. The second NODA
made available and solicited comments
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on whether alternate regulatory
requirements would be appropriate for
facilities with oil-filled and process
equipment (69 FR 56184). EPA has
reviewed the public comments and data
submitted in response to the NODAs in
developing today’s proposal.
In addition, the Agency considered
regulatory relief for airport mobile
refuelers in response to concerns raised
by the aviation sector. Airport mobile
refuelers are vehicles that are used on
an airport facility to refuel aircraft and
ground service equipment (such as belt
loaders, tractors, luggage transport
vehicles, deicing equipment, and lifts)
used at airports. The onboard bulk
storage containers on airport mobile
refuelers that are used to transport and
transfer fuel into or from aircraft and
ground service equipment are
considered mobile or portable bulk
storage containers under the SPCC rule
because they are used to store oil prior
to further distribution and use. As such,
they are subject to all applicable SPCC
rule provisions, including the sized
secondary containment provisions of
§ 112.8(c)(2) and (11). These provisions
require the secondary containment,
such as a dike or catchment basin, to be
sufficient to contain the capacity of the
largest single compartment or container
and include sufficient freeboard to
contain precipitation.
Regulated community members in the
aviation sector have expressed concern
that requiring such sized secondary
containment for airport mobile refuelers
is not practicable for safety and security
reasons. (Included in the Docket for
today’s proposal are the letters that have
been submitted to EPA regarding this
matter.) Specifically, it has been argued
that to require these refuelers to park in
specially designed secondary
containment areas located within an
airport’s aircraft operations area could
create a safety and security hazard
because it would require grouping of the
vehicles or place impediments in the
operations area. Additionally, requiring
mobile refuelers to return to
containment areas located within the
airport’s tank farm between refueling
operations may increase the risk of
accidents (and therefore accidental oil
discharge), as the vehicles would travel
with increased frequency through the
busy aircraft operations area. EPA
acknowledges these concerns and seeks
to provide relief for airport mobile
refuelers from the specifically sized
secondary containment requirements for
bulk storage containers, while
protecting the environment from
refueler spills, particularly those
associated with transfers. Consequently,
these refuelers remain subject to the
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other bulk storage container
requirements under § 112.8(c) and the
general secondary containment
requirements under § 112.7(c) which
also applies to the transfers of oil
associated with airport mobile refuelers.
In contrast to a mobile or portable
bulk storage container such as a mobile
refueler, a ‘‘motive power container’’ is
an integral part of a motor vehicle
(including aircraft), providing fuel for
propulsion or providing some other
operational function, such as lubrication
of moving parts or for operation of
onboard hydraulic equipment. Motive
power containers on vehicles used
solely at non-transportation related
facilities fall under EPA jurisdiction and
are subject to the SPCC regulation.
Examples of motive power vehicles
include, but are not limited to: buses;
recreational vehicles; some sport utility
vehicles; construction vehicles; aircraft;
farm equipment; and earthmoving
equipment (e.g., such as at a drilling or
workover facility). Examples of facilities
or locations that may be covered by the
SPCC requirements solely because of the
presence of motive power containers
include, but are not limited to, heavy
equipment dealers, commercial truck
dealers, and parking lots.
While the concept of ‘‘motive power’’
is not directly addressed in the SPCC
regulation, such vehicle fuel containers
may fall under the definition of ‘‘bulk
storage container’’ in § 112.2, while the
onboard lubrication system may be
considered oil-filled operational
equipment. Therefore, motive power
containers which store oil used for the
propulsion of a vehicle are subject to all
the requirements under § 112.8(c) if they
have a capacity of 55 gallons or more.
These requirements include specifically
sized secondary containment for bulk
storage containers, integrity testing
(visual plus non-destructive testing),
and a requirement to engineer
containers to avoid discharges (such as
an overfill alarm). Additionally, any oilfilled operational equipment with a
capacity of 55 gallons or more mounted
on a vehicle are subject to the general
secondary containment requirements
listed in § 112.7(c).
EPA recognizes that, in most cases,
the requirements of § 112.8(c), including
specifically sized secondary
containment and the general secondary
containment requirements under
§ 112.7(c), are not practicable for motive
power containers. It has never been
EPA’s intent to regulate motive power
containers. Therefore, EPA is proposing
to exempt such motive power containers
from the SPCC regulation.
In the July 17, 2002 final SPCC rule,
the Agency promulgated general
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requirements for SPCC Plans for all
facilities and all types of oil in § 112.7.
In response to the Edible Oil Regulatory
Reform Act (EORRA), EPA promulgated
separate subparts in part 112 for
facilities storing or using various classes
of oil, but the requirements in each
subpart are the same. EORRA required
most Federal agencies to differentiate
between and establish separate classes
for various types of oil, specifically,
between animal fats and oils and
greases, and fish and marine mammal
oils and oils of vegetable origin,
including oils from seeds, nuts, and
kernels; and other oils and greases,
including petroleum. The result of this
approach was that the new Subpart C
included requirements for animal fat
and vegetable oil (AFVO) facilities—
onshore facilities (excluding production
facilities) (§ 112.12), onshore oil
production facilities, (§ 112.14) onshore
oil drilling and workover facilities
(§ 112.13), and requirements for offshore
oil drilling, production, or workover
facilities (§ 112.15). While the Agency
recognized that some of these
requirements are not applicable to
facilities that handle, store or transport
AFVO, these sections were promulgated
because the Agency had not proposed
differentiated SPCC requirements for
public notice and comment. As a result,
the current requirements for petroleum
oils were also applied to animal fats and
vegetable oils. EPA is today proposing
to remove those sections from the SPCC
requirements that are not applicable or
appropriate to animal fats and vegetable
oils.
Additionally, EPA has issued the
SPCC Guidance for Regional Inspectors.
The guidance document is intended to
assist regional inspectors in reviewing a
facility’s implementation of the SPCC
rule. The document is designed to
facilitate an understanding of the rule’s
applicability, to help clarify the role of
the inspector in the review and
evaluation of the performance-based
SPCC requirements, and to provide a
consistent national policy on several
SPCC-related issues. The guidance is
also available to both the owners and
operators of facilities that may be
subject to the requirements of the SPCC
rule and to the general public on the
Agency’s website at www.epa.gov/
oilspill. This guidance is a living
document and will be revised, as
necessary, to reflect any relevant future
regulatory amendments in a timely
manner. Accordingly, EPA welcomes
comments from the regulated
community and the public on the
guidance document within 60 days of
this NPRM, as described on the website.
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The guidance document is a separate
effort from this rulemaking. EPA does
not plan to address comments on the
guidance document when taking final
action on this rule. Comments on the
guidance document should not be
submitted to the docket for this
rulemaking. Refer to the website
www.epa.gov/oilspill for the text of the
guidance document and for instructions
for providing suggestions on the
guidance document. The EPA urges
readers to review the guidance
document for assistance in
understanding the SPCC rule and
today’s proposal. Pursuant to today’s
proposal, EPA anticipates issuing an
updated guidance document in 2006 to
reflect finalization of this rulemaking
such that inspectors and the regulated
community have accurate and timely
information on SPCC requirements.
Although the scope of today’s
proposal was originally intended to
address only certain targeted areas of
the SPCC requirements, the Agency is
including several additional proposed
modifications to address a number of
issues and concerns raised by the
regulated community. As highlighted in
the EPA Regulatory Agenda and the
2005 OMB report on ‘‘Regulatory
Reform of the U.S. Manufacturing
Sector,’’ there are other issues under
consideration for possible future
rulemaking action. The modifications
proposed today do not preclude a future
rulemaking on other issues not
addressed in today’s proposal. Rather,
EPA is working to identify additional
areas where regulatory reform may be
appropriate. For these additional areas,
the Agency expects to issue a proposed
rule in 2007. Additionally, EPA in
conjunction with DOE will be
conducting an energy impact analysis of
the SPCC requirements, and will
consider the results of this analysis to
inform the Agency’s deliberations over
any future rulemaking. EPA is interested
in whether there are other aspects of the
SPCC regulatory requirements, beyond
those that are addressed in today’s
proposal, that should be the focus of
future rulemaking. The Agency also
requests that commenters who provide
suggestions regarding future rulemaking
clearly differentiate them from
comments submitted on today’s
proposal (e.g., label Suggestions for
Future Rulemaking and Comments on
Current Proposal). The Agency will not
address these suggestions when taking
final action on this proposed rule, but
will take them into consideration in
future rulemaking decisions.
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V. Today’s Action
A. Qualified Facilities
EPA proposes to amend the Oil
Pollution Prevention regulation (40 CFR
part 112) to provide an option to allow
the owner or operator of a facility that
meets the qualifying criteria (hereafter
referred to as a ‘‘qualified facility’’) to
self-certify the facility’s SPCC Plan in
lieu of certification by a licensed
professional engineer (PE). EPA
proposes to amend § 112.3 to describe
the SPCC eligibility criteria that a
regulated facility must meet in order to
be considered a qualified facility. A
qualified facility would be a facility
subject to the SPCC rule that (1) has an
aggregate facility oil storage capacity of
10,000 gallons or less; and (2) had no
discharges as described in § 112.1(b)
during the ten years prior to selfcertification or since becoming subject
to the SPCC requirements if less than
ten years. Facilities that have been
subject to SPCC for less than ten years,
including new facilities, would need to
demonstrate no discharges as described
in § 112.1(b) only for the period of time
they have been subject to the SPCC rule.
Self-certified Plans would not be
allowed to include ‘‘environmentally
equivalent’’ alternatives to required Plan
elements as provided in § 112.7(a)(2) or
to claim impracticability with respect to
any secondary containment
requirements as provided in § 112.7(d).
The two exceptions for which the owner
and operator would still be allowed to
use environmentally equivalent
measures are with respect to security
and integrity testing. Facilities with
complicated operations and lower
capacities may find that the current rule
offers a more cost-effective method of
achieving compliance than the proposed
option. Therefore, a qualified facility
could choose to follow the current SPCC
requirements (including the PE
certification) to take advantage of the
flexibility offered by PE-certified
impracticality determinations and
environmentally equivalent measures.
1. Eligibility Criteria
a. Total Facility Oil Storage Capacity
Threshold
EPA proposes to limit qualified
facilities to a total maximum storage
capacity of 10,000 gallons of oil. EPA
considered many different factors before
selecting this storage capacity. First,
EPA has established 10,000 gallons as a
threshold in several other rules relating
to oil discharges. This threshold
quantity is used in the National Oil and
Hazardous Substances Pollution
Contingency Plan (National
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Contingency Plan or NCP) to classify oil
discharges based on the location and
size of the discharge (see 40 CFR 300.5).
The NCP refers to discharges greater
than 10,000 gallons to inland waters as
‘‘major,’’ while other thresholds are
used to classify ‘‘minor’’ and ‘‘medium’’
discharges. The classes are provided as
guidance to the On-Scene Coordinator
(OSC), and serve as criteria for the
actions delineated in the NCP. It is
important to note, however, that the
NCP quantitative thresholds are only
provided to help the OSC determine
response action, and do not imply
associated degrees of hazard to the
public health or welfare, or
environmental damage. The NCP size
classes nevertheless define an oil
discharge to inland waters exceeding
10,000 gallons as a major discharge.
A discharge of 10,000 gallons or more
is also one of the factors used in
identifying facilities that must prepare
and submit a Facility Response Plan
(FRP) under § 112.20(f)(1). The FRP rule
applies to facilities that could
reasonably be expected to cause
substantial harm to the environment
due to a discharge to waters of the U.S.
and adjoining shorelines.
Second, state regulations also provide
support for the use of a 10,000-gallon
threshold. A number of states
differentiate regulatory requirements
based on a facility’s total storage
capacity, with some states specifying a
10,000-gallon threshold. For example,
Maryland requires that all commercial
facilities storing more than 10,000
gallons of oil obtain an oil operations
permit; Minnesota requires facilities
storing between 10,000 and 1,000,000
gallons of oil to prepare a prevention
and response plan; and Oregon places
special requirements on marine
facilities storing more than 10,000
gallons of oil. The 10,000-gallon
threshold is also frequently used in
setting requirements for certain storage
tanks. For example, New York requires
a ‘‘secondary containment system’’
around all aboveground storage tanks
(ASTs) with a storage capacity greater
than or equal to 10,000 gallons, and
Wisconsin caps the size of ASTs that
can be used for fueling vehicles at
10,000 gallons.
Finally, 10,000 gallons is a common
storage tank size, and EPA believes that
setting a maximum capacity at 10,000
gallons would address the concerns that
smaller facilities have raised. In fact, the
Small Business Administration Office of
Advocacy suggested that a 10,000-gallon
threshold is a reasonable volume to
address the concerns of facilities with
relatively smaller volumes of oil. The
Agency seeks comments on whether this
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threshold appropriately addresses the
concerns of facilities with relatively
smaller volumes of oil, while
maintaining the environmental
protection intended by the regulation. If
commenters suggest alternative volume
thresholds, it will be important for the
comments to also include a justification
for such alternative volume thresholds
in order for the Agency to adequately
consider the comments submitted. This
data would be useful in final rule
deliberations.
While EPA recognizes that a discharge
of less than 10,000 gallons can be
harmful, regardless of how the NCP
defines ‘‘major discharge,’’ EPA believes
that it is reasonable to allow facilities
with a capacity of no more than 10,000
gallons to prepare and implement a Plan
that complies with the SPCC rule
requirements and provides adequate
protection against discharges without
the involvement of a PE. These facilities
generally have less complex operations
and petroleum system configurations,
and smaller oil storage capacities than
other types of facilities subject to the
SPCC requirements. Thus, the Agency
believes that a responsible owner or
operator at these facilities should be
able to comply with the SPCC rule
provisions without review and
certification of the SPCC Plan by a PE,
and that simplifying the rule will result
in greater environmental protection by
improving compliance.
b. Reportable Discharge History
EPA proposes that a qualified facility
subject to the SPCC requirements must
have no reportable oil discharges as
described in § 112.1(b) during the ten
years prior to self-certification or since
becoming subject to the SPCC
requirements, whichever is less.
Facilities that have been subject to SPCC
for less than ten years, including new
facilities, would need to demonstrate no
discharges as described in § 112.1(b)
only for the period they have been
subject to SPCC. This criterion is based
on a proposal regarding oil-filled
electrical equipment submitted by the
Utility Solid Waste Activities Group
(USWAG), as described in the
documents supplementing the
September 20, 2004 NODA at 69 FR
56184. In its proposal, USWAG
recognized that facilities that pose a
risk, in terms of oil discharges in
quantities that are harmful (reportable
under 40 CFR part 110), should not be
granted relief. USWAG specifically
proposed a ten-year spill history as a
potential criterion to be eligible for
relief. In general, NODA commenters
expressed strong support for the
USWAG proposal. As in the case of oil-
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filled operational equipment, the
Agency believes that a clean spill
history is a suitable criterion for
demonstrating eligibility for Plan selfcertification, while still effectively
maintaining good prevention practices.
Part 110 defines a discharge of oil in
such quantities that may be harmful to
the public health, welfare, or the
environment of the United States as a
discharge of oil that violates applicable
water quality standards; a discharge of
oil that causes a film or sheen upon the
surface of the water or on adjoining
shorelines; or a discharge of oil that
causes a sludge or emulsion to be
deposited beneath the surface of the
water or adjoining shorelines (40 CFR
110.3). The Agency refers to such
discharges in § 112.1(b) of the rule. Any
person in charge of a facility must report
any such discharge of oil from the
facility to the National Response Center
(NRC) at 1–800–424–8802 immediately.
While EPA recognizes that past release
history does not necessarily translate
into a predictor of future performance,
the Agency believes that discharge
history is a reasonable indicator of a
facility owner or operator’s ability to
develop an SPCC Plan for the facility
without the involvement of a PE. Hence,
EPA proposes to use a facility’s
discharge history as a qualification
criterion indicating the facility’s ability
to effectively develop and implement its
SPCC Plan. By establishing a good oil
spill prevention history, a facility
qualifies for the self-certification option
offered in this proposal.
The Agency requests comments on
the appropriateness of a reportable
discharge history criterion for
determining the qualification of a
facility for the self-certification option,
whether it is necessary, and whether
there are other indicators of a facility’s
effective implementation of the oil
pollution prevention requirements
under part 112 that should be
considered. In addition, the Agency also
specifically requests comments on the
proposed ten-year period for which
facilities would be required to have had
no reportable discharges in order to
meet this qualification. The Agency
requests that any alternative criterion or
time period suggested include an
appropriate rationale and supporting
data to assist the Agency in considering
them for final action. The Agency is also
aware that events such as natural
disasters, acts of war or terrorism,
sabotage, or other calamities, beyond the
control or planning ability of the facility
owner or operator, may cause a
reportable oil discharge. The Agency
therefore requests comments on how to
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73529
account for such occurrences in the
discharge history criterion.
2. Proposed Requirements for Qualified
Facilities
a. Self-Certification and Plan
Amendments
Some in the regulated community,
particularly facilities with relatively
smaller volumes of oil, identified the
cost of the PE certification of SPCC
Plans as one of its major concerns. This
view was echoed in the comments
submitted in response to the NODAs.
The Agency has reviewed the
requirements in light of the information
provided and today proposes to allow
for self-certification of SPCC Plans by
owners and operators of qualified
facilities. With this proposal, the
Agency is responding to those concerns.
The elements of the proposed selfcertification requirement are very
similar in scope to those of the PE
certification: owners and operators that
choose to self-certify their Plans must
certify that they are familiar with the
requirements of the SPCC rule; they
have visited and examined the facility;
the Plan has been prepared in
accordance with accepted and sound
industry practices and standards;
procedures for required inspections and
testing have been established; the Plan
is being fully implemented; the facility
meets the qualification criteria set forth
under § 112.3(g)(1); the Plan does not
include any environmental equivalence
measures as described in § 112.7(a)(2);
the Plan contains no determinations of
impracticability under § 112.7(d); and
the Plan and the individual(s)
responsible for implementing the Plan
have the full approval of management
and the facility has committed the
necessary resources to fully implement
the Plan. The self-certification provision
would be optional. Under today’s
proposal, an owner or operator of a
qualified facility could choose to
comply with the current requirements
under part 112 if that is more suitable
to his/her particular situation.
Qualified facilities that choose to selfcertify would not automatically lose
eligibility for a self-certified Plan and be
required to obtain PE certification in the
event of a discharge as described in
§ 112.1(b). EPA has the authority to
require SPCC Plan amendments under
§ 112.4. Section 112.4(a) requires a
facility that has discharged more than
1,000 gallons of oil in a single discharge
as described in 40 CFR part 110, or that
has discharged more than 42 gallons of
oil in each of two discharges as
described in 40 CFR part 110 in any 12month period, to submit information to
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the EPA Regional Administrator (RA)
within 60 days of the date of the
discharge. As per § 112.4(d), the RA may
require the facility to amend its SPCC
Plan in order to prevent and contain
discharges, and the RA could require a
facility to obtain PE-certification of its
SPCC Plan. In addition, a discharge of
oil ‘‘in such quantities as may be
harmful’’, as defined in 40 CFR 110.3
that does not trigger the reporting
requirements of § 112.4(a) must still be
reported to the National Response
Center. Criminal action can be taken
against an owner or operator of a facility
if discharges are not reported. EPA also
receives copies of the NRC reports and
has the authority under § 112.1(f) to
require a facility to prepare and
implement an SPCC Plan or any
applicable part of a Plan. The time
frame for this review and amendment
process is described in § 112.4. The
facility may choose to appeal the RA’s
decision to require a Plan amendment
under § 112.4. The RA also has
authority to require preparation and
implementation of a Plan or applicable
part of a Plan under § 112.1(f).
The Agency requests comment on the
appropriateness of using the existing
authorities under the SPCC regulations
rather than establishing a separate
process that would automatically
require a facility to obtain PE review
and certification of the facility’s SPCC
Plan in the event of a reportable
discharge. The Agency requests that any
alternative approaches presented
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider them for final
action.
Under § 112.5 of the SPCC rule, an
owner or operator must review and
amend the SPCC Plan following any
change in facility design, construction,
operation or maintenance that
materially affects its potential for a
discharge as described in § 112.1(b). A
PE must then certify any and all of these
technical amendments to the SPCC
Plan, as currently required under
§ 112.3(d). Under today’s proposal,
technical amendments to SPCC Plans of
qualified facilities would not be
required to be certified by a PE. Instead,
an owner or operator would be allowed
to self-certify technical amendments to
the Plan under the proposed
§ 112.3(g)(2) provision, and facilities
with PE-certified Plans which qualify
for self-certification would be allowed
to choose to self-certify future technical
amendments rather than hire a
professional engineer to certify the
technical amendment. Facilities would
be required to document the selfcertification of a technical amendment
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in the SPCC Plan in accordance with
§ 112.3(g)(2).
b. Environmental Equivalence and
Impracticability Determinations
Under § 112.7, facility owners and
operators have the flexibility to deviate
from specific rule provisions if the Plan
states the reason for nonconformance
and if equivalent environmental
protection is provided by some other
means of spill prevention, control or
countermeasure. These
‘‘environmentally equivalent’’ measures
must be described in the SPCC Plan,
including how the equivalent
environmental protection will be
achieved based on good engineering
practice. Allowance for
‘‘environmentally equivalent’’
deviations is provided in § 112.7(a)(2)
and are only available for requirements
not related to secondary containment,
such as fencing and other security
measures, preventing catastrophic tank
failure due to brittle fracture, integrity
testing, and liquid level alarms. As part
of the SPCC Plan, any environmentally
equivalent measures are also required to
be certified by a PE. The PE’s SPCC Plan
certification requirements include
consideration of industry standards for
the Plan, which would include
equivalent environmental protection
measures.
The SPCC rule also provides
flexibility for owners/operators who
determine that the general secondary
containment requirements in § 112.7(c)
or any of the applicable additional
requirements for secondary containment
in subparts B and C are impracticable.
Where impracticability is demonstrated,
the SPCC rule allows facility owners
and operators the flexibility to instead
develop a contingency plan and comply
with additional requirements as
described in § 112.7(d). The SPCC Plan
must explain why containment
measures are not practicable, provide an
oil spill contingency plan that follows
the provisions of 40 CFR part 109
(Criteria for State, Local and Regional
Oil Removal Contingency Plans), and
provide a written commitment of
manpower, equipment, and materials
required to expeditiously control and
remove any quantity of oil discharged
that may be harmful as described in 40
CFR part 110. A PE must certify any
impracticability determinations, as well
as the contingency plan and additional
measures implemented in lieu of
containment. Because of the expertise
that a PE has in evaluating whether
particular measures provide equivalent
environmental protection and in
knowing how to effectively implement
such measures, EPA believes that the
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flexibility in these performance-based
provisions is best suited to SPCC Plans
that are reviewed and certified by a PE.
Today’s proposed amendment would
allow qualified facilities to opt out of
the PE certification, but would not allow
facilities that take advantage of this
option to include environmentally
equivalent measures in their SPCC Plans
pursuant to § 112.7(a)(2). EPA is
proposing this limitation on qualified
facilities because EPA believes that in
general, without the advantage of the
expertise and knowledge that a PE
brings to the development of an SPCC
Plan, deviations based on
environmental equivalence may not be
adequate. However, as discussed below,
EPA believes that allowing certain
deviations may be appropriate for at
least some owners of qualified facilities,
without employing PE expertise.
Therefore, EPA is proposing to allow
certain deviations with respect to
facility security and integrity testing of
bulk storage containers.
EPA is also proposing that qualified
facilities be precluded from claiming
impracticability and using contingency
planning in lieu of secondary
containment. EPA believes that a PE’s
knowledge and expertise is needed for
appropriate contingency planning and
other measures that must be put in place
in the absence of secondary
containment. Thus, requiring qualified
facilities that opt out of PE certification
to adhere to the current set of
requirements would maintain the same
standard of environmental protection
provided in the existing rule.
Today’s proposal would not preclude
a qualified facility from choosing
environmentally equivalent measures or
from demonstrating impracticability
with respect to secondary containment
requirements, although the qualified
facility would need to comply with the
current SPCC requirements (including
the PE certification) in order to utilize
the flexibility offered by PE-developed
impracticability determinations and
environmentally equivalent measures.
In some circumstances, it may be more
cost effective for a PE to prepare an
SPCC Plan which utilizes
environmentally equivalent measures or
contingency planning, than for the
owner/operator to comply with the
SPCC provisions as outlined in today’s
proposal. Also, facilities with
unconventional operations which
qualify for this alternative may find that
the current rule requirement for PE
certification offers a more cost-effective
method of achieving compliance
because it provides additional flexibility
through performance-based provisions.
The Agency requests comments on the
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appropriateness of restricting the use of
impracticability determinations and
environmentally equivalent measures by
those qualified facilities that choose the
option of self-certification in order to
ensure an adequate level of
environmental protection. Any
alternative approach presented must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider it for final action.
c. SPCC Plan Exceptions
Today’s proposal for self-certification
of qualified facilities would restrict the
use of alternative environmentally
equivalent measures for qualified
facilities that elect to develop their
SPCC Plan without the services of a PE.
The Agency’s concern is that these
facilities would no longer have a trained
professional, with knowledge to make
site-specific equivalence
determinations, reviewing and
certifying their Plan. However, EPA
recognizes that some of the prescriptive
provisions in the current regulatory
requirements may prove difficult for
some qualified facilities to meet.
While the Agency still believes that
generally allowing use of
environmentally equivalent measures in
self-certified Plans is not appropriate,
some degree of flexibility in two areas
may be appropriate for qualified
facilities. The Agency believes that it
can allow qualified facilities to comply
with a streamlined set of basic security
measures and integrity testing
requirements. The flexibility in these
proposed exceptions would be
analogous to the flexibility provided
under § 112.7(a)(2), which allows for
deviations from § 112.7(g) (security) and
§ 112.8(c)(6) (integrity testing) that
would not be available for these
facilities under today’s proposal.
EPA recognizes that there is no one
single approach to ensure proper facility
security. For example, the security
requirements of fencing and lighting
may not always be appropriate for sites
such as a national, state or local park
subject to SPCC, where the site layout
may be too extensive to fence, and
where perhaps the lighting of a solitary
field tank would invite, rather than
deter, would-be intruders. Qualified
facilities, in lieu of the requirements
under § 112.7(g) of this part, would be
allowed to prepare a security plan that
describes how the facility controls
access to the oil handling, processing
and storage areas; secures master flow
and drain valves; prevents unauthorized
access to starter controls on oil pumps;
secures out-of-service and loading/
unloading connections of oil pipelines;
prevents acts of vandalism; and assists
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in the discovery of oil discharges. (Note
that the security requirements in
§ 112.7(g) do not apply to production
facilities.)
Today’s proposal would allow a
qualified facility to develop a general
security plan that provides equivalent
environmental protection to the
requirements in § 112.7(g). The Agency
recognizes that these security provisions
can be approached differently by the
variety of facilities that would qualify
for self-certification under today’s
proposal. It should be noted that this is
an option and a qualified facility in
compliance with the current
requirements under § 112.7(g) would
not be required to develop a security
plan under the proposed § 112.3(g).
The security plan would be required
to address how the owner or operator
will:
• Secure all bulk storage containers,
piping and oil-filled equipment from
unauthorized access or acts of
vandalism which could result in a
discharge of oil;
• Secure appurtenances (valves and/
or drains) in the closed position to
prevent the flow of the contents of the
container which could result in a
discharge of oil;
• Secure pump controls in the ‘‘off’’
position when not in use and locate
facility pump controls to prevent
unauthorized access;
• Secure all loading or unloading
transfer connections for facility piping;
and
• Address whether security lighting is
appropriate to both ensuring the
discovery of oil discharges, and deter
vandalism.
This security plan would be required
to be documented in the qualified
facility’s SPCC Plan, and would include
a discussion of how the security plan
will be implemented and the required
training/inspections/maintenance for
security related equipment and
activities. The Agency recognizes the
unique nature of many of the facilities
that would qualify for Plan selfcertification, and as such, some
flexibility is appropriate so these
facilities can achieve compliance with
the security provisions of the current
SPCC rule. The application of the SPCC
security measures is often determined
by the facility’s geographical/spatial
factors and there is no ‘‘one-size-fits-all’’
answer to this serious compliance
requirement. For example, facilities
such as farms or national parks may
have unique characteristics that make
compliance with the current security
measures, such as potentially fencing
the entire facility footprint,
inappropriate.
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73531
The Agency is also proposing to
provide flexibility in the area of
integrity testing for qualified facilities.
The Agency continues to believe that
owners and operators should rely on the
appropriate use of industry standards
for the integrity testing requirements. As
EPA stated in its May 2004 letter to the
Petroleum Marketers Association of
America (available at https://
www.epa.gov/oilspill/pdfs/
PMAA_letter.pdf), the Agency
recognizes that in certain site-specific
circumstances, visual inspection may be
appropriate and sufficient for
compliance with the integrity testing
requirement. The Agency expects that
the selection of particular testing
methods to comply with the integrity
testing requirements in the current rule
and today’s proposal would be based on
industry inspection standards such as
the Steel Tank Institute (STI) SP–001,
American Petroleum Institute (API)
Standard 653 and API Recommended
Practice 12–R1. These industry
standards address the qualifications of
the tank inspector and the scope/
frequency of the testing/inspections.
Thus, in effect, the Agency is proposing
to allow owners and operators of
qualified facilities to consult and rely on
industry standards or qualified
container inspectors/testing personnel
to determine the appropriate
qualifications for tank inspectors/testing
personnel and the type/frequency of
integrity testing required for a particular
container size and configuration. The
Agency is proposing to allow qualified
facilities to make this determination in
accordance with industry standards
without the need to develop a PEapproved environmentally equivalent
deviation, as is currently required under
§ 112.7(a)(2). The Agency believes that
allowing this flexibility for qualified
facilities would increase compliance
and thus environmental protection.
The U.S. Small Business
Administration (SBA) Office of
Advocacy has suggested an additional
alternative approach for allowing
flexibility for integrity testing of small
shop-built tanks that is based on the
current SP001 standard. The current
SP001 standard allows periodic visual
inspections for shop-fabricated
aboveground storage tanks with a total
capacity of 5,000 gallons, and for which
there is spill control and a continuous
release detection method (i.e., Category
1 tanks). SBA Office of Advocacy has
suggested that EPA allow periodic
visual inspections for shop-fabricated
aboveground storage tanks at qualified
facilities, in accordance with this SP001
standard, but broaden the applicability
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to include shop-fabricated aboveground
storage tanks that have an oil capacity
of between 5,000 and 10,000 gallons. In
all other respects, the SP001 standard
would apply. In the SBA’s view, due to
the presence of spill control and a
continuous release detection method (in
accordance with the SP001 standard),
there appears to be little likelihood for
a discharge into navigable waters. The
SBA Office of Advocacy also believes
this additional option would make the
visual inspection option available to all,
and not a subset of, qualified facilities
and it would benefit those qualified
facilities having one tank above 5,000
gallons.
EPA is not proposing the SBA
additional approach for several reasons.
First the SBA approach would deviate
from the industry standards noted
above. Second, the Agency is unaware
of a technical basis to justify this
deviation. EPA must justify divergence
from accepted industry standards under
the National Technology Transfer and
Advancement Act (NTTAA) (see section
VII (I) for a description of NTTAA).
Third, industry standards are
periodically updated and revised to
account for changes in technology and
to remain consistent with good
engineering practice while this
approach would need to be revised
through rulemaking. Finally, EPA
believes that by allowing for a deviation
from existing industry standards,
compliance would become more
complex as facilities try to understand
the circumstances under which this
additional approach can be employed.
The Agency welcomes comment on this
additional approach as well as on the
proposed approach for integrity testing
for qualified facilities. In addition, once
the modifications proposed today are
promulgated, the Agency is willing to
continue to work with industry tank
inspection standard setting
organizations to update applicable
industry standards. Commenters who
have information on the scope and
criteria associated with the industry
visual inspection standards should
provide it to the standards setting
organizations and their national experts
for consideration.
At this time, EPA is aware that a
number of industry standards are
changing. Nevertheless, the Agency
believes that it may be appropriate to
allow the flexibility of alternative
integrity testing methods for these
qualified facilities to be consistent with
relevant industry standards. For
example, visual inspections may be
appropriate for the lower volume shopbuilt containers in certain
configurations that are likely to be
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present at most of these qualified
facilities. In the absence of an
environmental equivalency provision
that would allow an alternative integrity
testing method for qualified facilities,
the owner or operator would be required
to perform visual inspections plus nondestructive testing on all classes of
containers, regardless of size and
configuration. Qualified facilities would
have to bear the cost and burden of
conducting non-destructive testing that
may not be necessary under industry
standards. The Agency continues to
strongly recommend that facilities,
qualified for self-certification or
otherwise, utilize industry standards
that are appropriate to their particular
tank configurations in developing and
conducting tank inspection and testing
programs and when determining
inspector/testing personnel
qualifications.
The Agency requests comments on
whether the proposed requirements for
security and integrity testing for
qualified facilities provide appropriate
flexibility, while maintaining
environmental protection. Any
alternative approach presented must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider it for final action.
3. Alternative Options Considered
EPA considered other options for this
proposal. These options included (1)
providing an indefinite extension of
deadlines or a suspension of all SPCC
requirements; and (2) a multi-tiered
structure of requirements based on a
facility’s total regulated storage based on
the SBA proposal described in the
Certain Facilities NODA published last
year. The Agency also considered
requiring qualified facilities to make a
one-time notification to EPA they have
been in operation or subject to the SPCC
requirements for a period less than ten
years from the time of Plan certification,
and therefore could not show a ten-year
clean spill history as a qualifier. All of
these options would apply to a defined
set of ‘‘qualified facilities’’.
a. Extension/Suspension Options
Two additional options were
considered: An indefinite compliance
date extension and a suspension of all
requirements. Both options would apply
to a defined universe of ‘‘qualified’’
SPCC-regulated facilities. An indefinite
extension would provide an
undetermined future date for
compliance with the rule. As in past
extensions, all facilities that should
have had a Plan as of August 16, 2002
would be required to be in compliance
with the pre-2002 SPCC requirements
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during the interim period, including
those that could potentially take
advantage of today’s qualified facilities
proposal. A suspension of requirements
for qualified facilities would provide
relief for the affected universe until EPA
takes further action.
Both of these options would allow
EPA more time to decide how to
regulate qualified facilities without
delaying compliance for the entire
universe of SPCC-regulated facilities. In
contrast, the proposed option would set
forth explicit requirements for qualified
facilities that reduce compliance costs
within the current compliance date
schedule. Because these options would
only postpone the rule’s requirements
for qualified facilities and because the
Agency believes that the modifications
proposed today address the major
concerns raised by facilities that store
lower volumes of oil, EPA believes it
appropriate to go forward with today’s
proposal.
b. Multi-Tiered Structure
A multi-tiered structure option was
developed in response to comments
EPA received following publication of
the NODA for facilities that handle oil
below a certain threshold amount (69
FR 56182, September 20, 2004) and is
based on a previous analysis prepared
for the SBA Office of Advocacy (Jack
Faucett Associates, 2004) (hereafter
‘‘SBA proposal’’). This revised
regulatory structure would not only
relax requirements for PE certification,
but also requirements for preparing an
SPCC Plan itself, although under this
approach, the facility would still be
responsible for complying with the
substantive requirements of the SPCC
rule. It includes a tiered system based
on the total storage capacity of a facility,
as follows:
• Tier I would include facilities that
handle between 1,321 and 5,000 gallons
of oil (total storage capacity). These
facilities would not need a written SPCC
Plan (and therefore no PE certification
would be needed), but would have to
adhere to all other SPCC requirements.
• Tier II would include facilities
handling between 5,001 and 10,000
gallons of oil (total storage capacity).
These facilities would be required to
have a written SPCC Plan, but the Plan
would not need to be certified by a PE,
and a PE site visit would not be
required. Standardized plans could be
adopted by a facility conforming to
standard design and operating
procedures, without requiring PE
certification.
• Tier III would include the
remaining SPCC-regulated facilities
(total storage capacity greater than
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10,000 gallons). These facilities would
be required to have a written SPCC Plan
certified by a PE, as currently required
by the 2002 revised SPCC rule.
SBA also suggested that EPA
promulgate an interim final rule that
excludes small facilities with storage of
less than 10,000 gallons (the first two
tiers of their three-tier approach) from
SPCC Plan requirements, pending
completion of the full notice and
comment rulemaking for small facilities
to develop the aforementioned tiered
requirements. In order to provide
environmental protection in the interim
period, SBA recommended that EPA
require: (1) Regular visual inspections of
containers, (2) replacement or
retirement of leaking tanks, and (3)
compliance with the part 109
contingency plan requirements or their
equivalent. In this manner (according to
SBA), the EPA could address the reality
of the extremely low SPCC compliance
rate among small facilities, and would
work toward creating a rule that small
facilities would be likely to comply
with. SBA stated that such a move
would enhance, rather than detract
from, environmental protection.
This approach would provide
different levels of regulatory relief based
on total oil storage capacity alone,
basing degree of risk on the surrogate
measure facility size. Many commenters
on the NODA supported this approach,
which would reduce compliance costs
by eliminating the PE certification
requirement for facilities under 10,000
gallons. However, EPA believes that
such an approach poses significant
implementation problems both for the
regulated community and the regulators.
In particular, the Agency believes that
without the owner/operator developing
a Plan or documentation on how the
facility will comply or expects to
comply with the SPCC requirements, it
will be challenging for the facility to
both meet the substantive requirements
(for example, spill notification, response
and preparedness planning, equipment
maintenance, inspection and training,
secondary containment), as well as
provide documentation to the regulators
that the facility is in compliance.
Additionally, EPA inspectors
conducting site visits would have no
written Plan or documentation to assess
the facility’s effectiveness in
implementing its spill prevention
strategy.
Although EPA received general
comments supporting this option on a
conceptual level, neither the
information presented in the NODA nor
the comments addressed the practical
application of this alternative. The
Agency welcomes comments on this
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approach, as well as on the proposed
approach, the practical application of
the proposal and the rationale for its
adoption.
c. One-Time Notification
The Agency recognizes that some
facilities otherwise qualifying for
owner/operator self-certification will
have been in existence for fewer than
ten years and will consequently be
unable to demonstrate ten years without
a discharge as described in § 112.1(b).
Some of these facilities will have come
into existence after August 16, 2002,
and will not have been subject to SPCC
regulation until August 18, 2006; some
will be new facilities beginning
operation after that date. EPA agrees
with the USWAG comments that a
compliant discharge history of ten years
or more provides a higher degree of
assurance of continuing compliance
than a history of ten years or less. This
is particularly true when comparing tenyear compliant facilities to otherwise
qualified facilities which began
operations after August 16, 2002, and
whose owners or operators, to date,
have not been subject to the
requirements of the SPCC program, as
well as start-up facilities without any
operating history. EPA considered
whether owners or operators of newer
facilities that do not have ten years of
compliance and operation without a
discharge should be required to provide
a one-time notification to the Agency.
This notification would be submitted to
the Administrator within 30 days of
self-certifying a facility’s SPCC Plan and
would include the following
information: (1) Name of the facility
owner/operator; (2) mailing address of
the facility owner/operator; (3) type of
business conducted at the facility that is
subject to the requirements of this part;
(4) above-ground capacity of the facility;
(5) location of the facility by street
address or, if there is no street address,
by longitude and latitude; and (6) year
the facility began operations. These
notices could be provided by either
regular or electronic mail. The Agency
would have the opportunity to provide
some basic SPCC outreach and
educational support to these owners and
operators who, while otherwise
demonstrating the prerequisites for selfcertification, are unable to demonstrate
ten years without a discharge as
described in § 112.1(b). This one-time
notification requirement, if adopted,
would modify today’s proposed
qualified facilities option by increasing
its burden for some facilities. EPA
decided not to pursue this option
because it does not differ substantively
from the proposed action and the
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73533
additional burden of a notification
requirement was not considered
necessary.
The Agency welcomes comments on
these or other alternatives that could
serve to reduce the burden to smaller
oil-handling facilities in particular,
while at the same time maintaining
appropriate levels of environmental
protection by preventing discharges of
oil. Any alternative approach presented
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
B. Qualified Oil-Filled Operational
Equipment
EPA proposes to amend the Oil
Pollution Prevention regulation (40 CFR
part 112) to provide a definition of oilfilled operational equipment and an
optional alternative to the general
secondary containment requirements for
oil-filled operational equipment that
meets the qualifying criterion (hereafter
referred to as ‘‘qualified oil-filled
operational equipment’’). The proposal
would allow owners and operators of
facilities with qualified oil-filled
operational equipment to have the
alternative of preparing an oil spill
contingency plan and a written
commitment of manpower, equipment
and materials to expeditiously control
and remove any oil discharged that may
be harmful, without having to make an
individual impracticability
determination as required in § 112.7(d).
The owner or operator would also be
required to establish and document an
inspection or monitoring program for
this qualified oil-filled operational
equipment to detect equipment failure
and/or a discharge, in lieu of providing
secondary containment.
EPA proposes to add § 112.7(k) to
define the SPCC eligibility criterion that
qualified oil-filled operational
equipment must meet in order to be
considered qualified oil-filled
operational equipment. Eligibility of a
facility with oil-filled operational
equipment would be determined by
considering the reportable discharge
history from any oil-filled operational
equipment. The qualified oil-filled
operational equipment criterion
specifically requires that the facility had
no discharges as described in § 112.1(b)
from any oil-filled operational
equipment in the ten years prior to the
SPCC Plan certification date, or since
becoming subject to 40 CFR part 112 if
the facility has been in operation for less
than ten years.
This proposed action would provide
an alternative means of SPCC
compliance for this equipment;
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therefore, an owner/operator could
choose to follow the current SPCC
requirements to provide secondary
containment for each piece of qualified
oil-filled operational equipment in
accordance with § 112.7(c) if desired.
For example, oil-filled operational
equipment at electrical substations is
often surrounded by a gravel bed, which
serves as a passive fire quench system
and support for the facility grounding
network and can provide a restriction to
movement of any oil that may be
released. Gravel beds, if designed to
prevent a discharge as described in
§ 112.1(b) (i.e., drainage systems that do
not serve as a conduit to surface waters)
may meet the general secondary
containment requirements of § 112.7(c).
EPA further notes that facilities with oilfilled operational equipment located
within buildings with limited drainage,
which prevents a discharge as described
in § 112.1(b), may already meet the
requirements for general secondary
containment of § 112.7(c). If so, a
contingency plan for this equipment is
not necessary. Ultimately, this would be
a decision by the owner and/or operator.
1. Proposed Oil-Filled Operational
Equipment Definition
In July 2002, EPA clarified that oilfilled equipment (i.e., oil-filled
electrical, operating, and manufacturing
equipment) are not bulk storage
containers and therefore are not subject
to the bulk storage container provisions
in § 112.8(c), including specifically
sized secondary containment for bulk
storage containers and integrity testing.
However, as EPA stated in the preamble
to the July 2002 amendments, oil-filled
equipment is subject to general
secondary containment requirements
described in § 112.7(c), which can be
provided by various means including
drainage systems, spill diversion ponds,
etc. EPA believes these measures
provide for safety and also meet the
needs of section 311(j)(1)(C) of the
CWA.
Though there are times when general
secondary containment is practicable for
oil-filled operational equipment, the
Agency agreed to continue to evaluate
whether the general secondary
containment requirements found in
§ 112.7(c) should be modified for small
electrical and other types of equipment
which use oil for operating purposes.
On September 20, 2004, EPA published
a NODA which made available and
solicited comments on submissions to
EPA suggesting that alternate regulatory
requirements for facilities with oil-filled
and process equipment would be
appropriate (69 FR 56184). EPA has
reviewed the public comments and data
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submitted in response to this NODA and
presents today’s proposal in accordance
with our intention to consider
alternative containment options for
electrical and operational equipment.
Today’s proposal defines oil-filled
operational equipment as ‘‘equipment
which includes an oil storage container
(or multiple containers) in which the oil
is present solely to support the function
of the apparatus or the device. Oil-filled
operational equipment is not considered
a bulk storage container, and does not
include oil-filled manufacturing
equipment (flow-through process).’’
Examples of oil-filled operational
equipment include, but are not limited
to, hydraulic systems, lubricating
systems (e.g., those for pumps,
compressors and other rotating
equipment, including pumpjack
lubrication systems), gear boxes,
machining coolant systems, heat
transfer systems, transformers, circuit
breakers, electrical switches, and other
systems containing oil to enable the
operation of the devices.
Oil-filled operational equipment
differs from bulk storage containers in
several ways. Oil-filled operational
equipment typically has minimal oil
throughput because such equipment
does not require frequent transfers of
oil. Further, the oil contained in oilfilled operational equipment, such as
cooling or lubricating oil, is intrinsic to
the operation of the device and
facilitates the function of the
equipment. A leak of oil from some oilfilled operational equipment can be
detected by low-level alarms and remote
monitoring of the performance of the
equipment. For example, the loss of oil
from electrical equipment will result in
the equipment ceasing to operate, which
will result in a power outage. Utilities
have strong economic incentives to
prevent power outages, to discover and
respond to an outage, and to correct the
conditions that produced the outage as
quickly as possible. In addition, oilfilled operational equipment is often
subject to routine maintenance and
inspections to ensure proper operation.
Finally, oil-filled operational equipment
is designed, constructed, and
maintained according to specifications
for its particular operation and
construction materials are corrosionresistant.
However, the oil storage capacity of
oil-filled operational equipment still
counts towards the total oil storage
capacity of the facility. The SPCC
regulation defines storage capacity of a
container as the shell capacity of the
container. This definition applies to all
oil storage containers including bulk
storage containers and all oil-filled
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equipment. In order to determine the
storage capacity of an individual piece
of oil-filled operational equipment, the
owner/operator would consider the total
storage capacity of the piece of
equipment (i.e., add together the
capacity of multiple compartments or
reservoirs of oil storage). The owner or
operator must include the storage
capacity of oil-filled operational
equipment in order to determine
applicability of the SPCC regulation to
the facility.
As proposed today, oil-filled
manufacturing equipment (which
involves a flow-through process) would
not qualify for this alternative. Under
the current rule, oil-filled
manufacturing equipment (which is a
subset of oil-filled equipment) is not
defined as a bulk storage container. Oilfilled manufacturing equipment
includes, for example, process vessels,
conveyances such as piping associated
with a process, and equipment used in
the alteration, processing or refining of
crude oil and other non-petroleum oils,
including animal fats and vegetable oils
Oil-filled manufacturing equipment is
inherently more complicated than oilfilled operational equipment because it
typically involves a flow-through
process and is commonly
interconnected through piping. For
example, oil-filled manufacturing
equipment receives a continuous source
of oil, in contrast to the static capacity
of other, non-flow-through oil-filled
equipment.
Today’s proposal would not change
any requirements for oil-filled
manufacturing equipment. Oil-filled
manufacturing equipment remains
subject to the general SPCC
requirements under § 112.7, including a
demonstration of impracticability under
§ 112.7(d) if the SPCC Plan does not
provide for secondary containment as
required by § 112.7(c). The containers
associated with storage of raw products,
or the finished oil products are bulk
storage containers and are not
considered oil-filled manufacturing
equipment or oil-filled operational
equipment. Additionally, piping
systems not associated with the
alteration, processing or refining of
crude oil and other non-petroleum oils,
including animal fats and vegetable oils
are not considered oil-filled
manufacturing equipment. EPA expects
the owner/operator to delineate bulk
storage containers from the oil-filled
manufacturing equipment in the facility
SPCC Plan (e.g., on the facility diagram
and in discussion of compliance with
inspection requirements of the rule).
Additionally, while oil-filled
manufacturing equipment is not a bulk
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storage container and is therefore not
subject to the frequent visual inspection
requirement for bulk storage containers
under § 112.8(c)(6), EPA believes that it
is good engineering practice to have
some form of visual inspection or
monitoring for oil-filled manufacturing
equipment in order to prevent
discharges as described in § 112.1(b).
Furthermore, it is a challenge to comply
with several of the SPCC provisions (for
example, requirements for security
under § 112.7(g) and for
countermeasures for discharge
discovery under § 112.7(a)(3)(iv))
without some form of inspection or
monitoring program.
2. Eligibility Criteria—Reportable
Discharge History
Under today’s proposal, the
alternative to secondary containment for
qualified oil-filled operational
equipment would not be available to
facilities that have had a reportable
discharge from any oil-filled operational
equipment in the ten years prior to the
SPCC Plan certification date, or since
becoming subject to 40 CFR part 112 if
the facility has been in operation for less
than ten years. This criterion is based on
a proposal submitted by USWAG, as
described in the documents
supplementing the September 20, 2004
NODA at 69 FR 56184. In its proposal,
USWAG recognized that facilities that
pose a risk, in the form of discharges of
oil in quantities that are harmful
(reportable under 40 CFR part 110),
should not be granted regulatory relief.
In general, NODA commenters
expressed strong support for the
USWAG proposal.
40 CFR 110.3 defines a discharge of
oil ‘‘in such quantities that may be
harmful to the public health, welfare, or
the environment of the United States as
a discharge of oil that violates
applicable water quality standards; a
discharge of oil that causes a film or
sheen upon the surface of the water or
adjoining shorelines; or a discharge of
oil that causes a sludge or emulsion to
be deposited beneath the surface of the
water or adjoining shorelines. The
Agency refers to such discharges in
§ 112.1(b) of the rule. Any person in
charge of a facility must report any such
discharge of oil from the facility to the
National Response Center (NRC) at 1–
800–424–8802 immediately. While EPA
recognizes that past discharge history
does not necessarily predict future
performance, the Agency believes that
discharge history can be used as a
surrogate measure for a facility’s ability
to appropriately manage its oil. Hence,
as with the ‘‘qualified facilities’’
proposal, EPA proposes to use this
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discharge history criterion to identify a
facility’s ability to effectively implement
its SPCC Plan and prevent discharges in
quantities that may be harmful. In
establishing a good oil spill prevention
history, a facility then qualifies for the
oil spill contingency plan option offered
in this proposal. Because the Agency is
proposing to extend this relief to all oilfilled operational equipment, regardless
of the oil storage capacity of the
equipment, this criterion is critical in
establishing an appropriate balance
between environmental protection and
burden relief by identifying those
facilities which have demonstrated good
spill prevention practices in the past.
The Agency requests comments on
the appropriateness of a reportable
discharge history criterion for
determining the qualifications of a
facility with oil-filled operational
equipment for this alternative, whether
it is necessary, and whether there are
other measures of a facility’s effective
implementation of the oil pollution
prevention requirements for oil-filled
operational equipment under 40 CFR
part 112 that should be considered. In
addition, the Agency also specifically
requests comments on the proposed tenyear period by which facilities can meet
the discharge history criterion. Any
alternative time periods suggested must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider them for final
action. The Agency is also aware that
events such as natural disasters, acts of
war or terrorism, sabotage, or other
calamities, beyond the control or
planning ability of the facility owner or
operator, may cause a reportable oil
discharge. The Agency therefore
requests comments on how to account
for such occurrences in the discharge
history criterion.
3. Proposed Requirements for Qualified
Oil-Filled Operational Equipment in
Lieu of Secondary Containment
a. Contingency Plans and a Written
Commitment of Manpower, Equipment
and Materials
The regulated community,
particularly electrical facilities,
identified secondary containment for
oil-filled operational equipment as one
of its major cost concerns. This
sentiment was echoed in the comments
submitted in response to the NODAs.
With this proposal, the Agency is
responding to those concerns by
providing targeted relief without
compromising on environmental
protection. EPA believes that secondary
containment may be often impracticable
for oil-filled operational equipment due
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73535
to inherent design and safety
considerations, as well as site
configuration. The oil associated with
oil-filled operational equipment remains
inside the equipment and transfers do
not occur regularly; for oil-filled
electrical equipment (e.g., transformers)
transfers may occur infrequently, if at
all. Operational equipment is designed,
constructed, and maintained according
to specifications for its particular
operation and construction materials are
corrosion-resistant. The complexity of
the equipment and the nature of the use
of this equipment may not lend itself to
traditional bulk storage containment
methods and thus flexibility is
appropriate in this area and may
improve compliance with oil pollution
prevention measures. The proposed
amendments to § 112.7 would give a
facility with qualified oil-filled
operational equipment the option of
implementing an oil spill contingency
plan and written commitment of
manpower, equipment, and materials
required to expeditiously control and
remove any quantity of oil discharged
that may be harmful in lieu of secondary
containment for this equipment,
without having to make an
impracticability determination for each
piece of equipment. It should be noted
that the use of a contingency plan does
not relieve the owner/operator of
liability associated with an oil discharge
to navigable waters or adjoining
shorelines that violates the provisions of
40 CFR part 110.
In the preamble to the 2002
amendments, EPA discusses how any
facility which makes a determination of
impracticability and has submitted a
Facility Response Plan (FRP) under
§ 112.20 is exempt from the contingency
planning requirement because such a
response plan is more comprehensive
than a contingency plan following 40
CFR part 109. The Agency believes that
this should also apply to a facility with
qualified oil-filled operational
equipment which would choose to
utilize contingency planning in lieu of
secondary containment in accordance
with today’s proposal. If such a facility
has already developed an FRP to
comply with § 112.20, then it would not
need to also develop a contingency plan
in accordance with 40 CFR part 109 for
the qualified oil-filled operational
equipment.
Since, by definition, oil-filled
operational equipment is not considered
a bulk storage container, the facility
owner or operator is not required to
comply with the bulk storage
requirements under § 112.8(c) or to
conduct both periodic integrity testing
of the containers and periodic integrity
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and leak testing of the valves and piping
as described under § 112.7(d). However,
EPA believes that inspections or
monitoring are important when there is
no secondary containment in place.
Therefore, EPA is proposing to require
facilities with qualified oil-filled
operational equipment choosing the
proposed alternative to secondary
containment to develop and implement
an inspection or monitoring program, as
further discussed in section B.3.b. of
this section of the preamble. Since this
proposal for qualified oil-filled
operational equipment would provide
an optional method of SPCC
compliance, a facility with such
equipment could choose to follow the
current SPCC requirements and provide
general secondary containment in
accordance with § 112.7(c) for this
equipment if desired. Ultimately, this
would be a decision of the owner and/
or operator.
Facilities with qualified oil-filled
operational equipment that choose the
proposed alternative to secondary
containment and that subsequently
experience a discharge would not
automatically lose eligibility for today’s
proposed relief. Owners/operators of
facilities which discharge oil in
quantities that may be harmful from oilfilled operational equipment should reevaluate the effectiveness of the SPCC
Plan (specifically the contingency plan,
written commitment of resources and
inspections/monitoring alternative
discussed in today’s proposal) and
determine the need for secondary
containment measures in lieu of
contingency planning. Additionally, the
Regional Administrator (RA) may
determine that a facility is no longer
eligible to have a contingency plan in
lieu of secondary containment without
making an impracticability
determination, and such facilities may
be required to amend their Plans to
provide secondary containment for their
oil-filled operational equipment. The
RA has the authority to require SPCC
Plan amendments under § 112.4.
Section 112.4(a) requires a facility that
has discharged more than 1,000 gallons
of oil in a single discharge as described
in 40 CFR part 110, or that discharged
more than 42 gallons of oil in each of
two discharges as described in 40 CFR
part 110 in any 12-month period to
submit information to the RA within 60
days of the date of the discharge. As per
§ 112.4(d), the RA has the authority to
require the facility to amend its SPCC
Plan in order to prevent and contain
discharges; e.g., the RA may require a
facility to install secondary containment
for oil-filled operational equipment. In
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addition, a discharge of oil under 40
CFR part 110 that does not trigger the
reporting requirements of § 112.4(a)
must still be reported to the National
Response Center. EPA also receives
copies of the NRC reports and has the
authority under § 112.1(f) to require a
facility to prepare and implement an
SPCC Plan or any applicable part of a
Plan. Thus, the RA may require a Plan,
partial Plan, or amendments to the Plan
to achieve full compliance with the rule,
as deemed appropriate to prevent
further discharges in quantities that may
be harmful.
b. Inspections or Monitoring Program
Facility owners or operators that wish
to take advantage of this proposed
alternative would be required to
develop an appropriate set of
procedures for inspections or a
monitoring program for qualified oilfilled operational equipment. For
facilities that rely on contingency
planning in lieu of secondary
containment for qualified oil-filled
operational equipment, discharge
discovery by inspection or monitoring is
of paramount importance for effective
and timely implementation of the
contingency plan. An inspection or a
monitoring program would ensure that
facilities are alerted quickly of
equipment failures and/or discharges. A
written description of the inspection or
monitoring program would be required
to be included in the SPCC Plan. Under
the existing requirement in § 112.7(e),
the owner or operator would be required
to keep a record of inspections and tests,
signed by the appropriate supervisor or
inspector, for a period of three years.
Records of inspections and tests kept
under usual and customary business
practices suffice (e.g., records of
inspections and tests required by this
rule may be maintained in electronic or
any other format which is readily
accessible to the facility and to EPA
personnel).
While oil-filled operational
equipment is not a bulk storage
container and is therefore not subject to
the frequent visual inspection
requirement for bulk storage containers
under § 112.8(c)(6), EPA believes that it
is good engineering practice to have
some form of visual inspection or
monitoring for oil-filled operational
equipment in order to prevent
discharges as described in § 112.1(b).
Additionally, it is a challenge to comply
with several of the SPCC provisions (for
example, requirements for security
under § 112.7(g) and for
countermeasures for discharge
discovery under § 112.7(a)(3)(iv))
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without some form of inspection or
monitoring program.
A facility owner/operator must be
able to quickly detect a discharge from
qualified oil-filled operational
equipment in order for a contingency
plan to be effective. Oil-filled
operational equipment may be
frequently monitored by employees
tending to the operation, and in such a
case, discharges of oil would be noticed
quickly. For many types of operational
equipment, particularly oil-filled
electrical equipment, releases of oil
rapidly decrease the functionality of the
equipment—for oil-filled electrical
equipment, loss of dielectric fluid leads
to equipment failure and an interruption
of electric power transmission. The
need for equipment reliability assures
prompt detection of releases of oil,
enhancing the probability of a prompt
response action. Therefore, in lieu of
secondary containment, today’s
proposal for qualified oil-filled
operational equipment includes the
requirement for a facility owner/
operator to establish and document an
inspection or monitoring program, in
addition to the preparation of a
contingency plan, and a written
commitment of manpower, equipment,
and materials to expeditiously control
and remove oil discharged.
The Agency requests comments on
the appropriateness of this requirement
as a qualification for this alternative,
and whether there are other measures
that a facility could take to ensure that
a contingency plan is activated in a
timely manner upon equipment failure
or discharge. The Agency also requests
comments on whether there are other
requirements that should be added for
facilities with oil-filled operational
equipment to be able to establish and
document an inspection or monitoring
program, use a contingency plan, and
provide a written commitment of
manpower, equipment and materials in
lieu of secondary containment for
qualified oil-filled operational
equipment. Any alternative approach
presented must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
Alternative Options Considered
EPA considered alternative
approaches to address streamlined
requirements for small oil-filled
operational equipment. One option was
similar to the qualified facilities
proposal, in which eligibility of a
facility with oil-filled operational
equipment would be determined by
considering capacity thresholds and
reportable discharge history from any
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oil-filled operational equipment.
Another option would call for a tiered
set of requirements for electrical and
other oil-filled operational equipment.
EPA also considered options similar to
those presented for the qualified
facilities proposal: (1) providing an
indefinite extension of the Plan revision
and implementation dates for certain
types of oil-filled operational
equipment; and (2) suspending all SPCC
requirements for certain types of oilfilled operational equipment.
a. Capacity Threshold Qualifier
The Agency considered an alternative
approach based on various levels of
aggregate oil storage capacity at a
facility for determining which facilities
would be eligible for reduced burden as
qualified oil-filled operational
equipment. EPA considered limiting the
proposed option by including two
alternative storage capacity thresholds
from which the owner/operator may
determine the equipment or facility’s
eligibility: (1) The storage capacity of an
individual piece of oil-filled operational
equipment is 1,320 gallons or less,
regardless of the facility’s total oil-filled
operational equipment aggregate
capacity; or (2) the aggregate oil-filled
operational equipment storage capacity
at the facility is 10,000 gallons or less.
EPA also considered an alternative
range of thresholds for both an
individual piece of oil-filled operational
equipment (ranging from 2,640 to 5,000
gallons) and for the facility aggregate
capacity of 20,000 gallons in order to
provide a greater degree of burden
reduction than the alternative
thresholds considered by EPA. In
determining potential threshold
capacities, EPA considered current
thresholds in the rule, as well as
proposals by industry. This was
intended to limit this relief to small
pieces of oil-filled operational
equipment or to facilities storing smaller
aggregate volumes of oil in oil-filled
operational equipment. The total facility
oil-filled operational equipment storage
capacity threshold addresses the colocation of oil-filled operational
equipment within a facility.
The Agency decided not to propose a
threshold criterion because we believe
this equipment is unique and different
from bulk storage containers and
manufacturing equipment (flow-through
process) such that the spill history alone
suffices as a qualifying criterion to
determine eligibility. The Agency was
also concerned with the limited amount
of information provided in response to
the NODA. The data submitted in
response to the NODA was primarily
from the electrical industry and the
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Agency has no information describing
the types of oil-filled operational
equipment, capacities and distribution
for other industries. Additionally, we
have limited specific information on the
various sizes of oil-filled electrical
equipment to assist in establishing a
threshold for an individual piece of
equipment.
The Agency seeks comments on
whether eligibility for qualified oilfilled operational equipment status
should be based on a specific level of
aggregate oil-filled operational
equipment storage capacity at a given
facility. The Agency seeks comments on
whether a threshold criterion achieves
an appropriate balance of facility
burden and environmental protection
for oil-filled operational equipment.
Any available data specific to either the
capacity, location, or size distribution of
oil-filled operational equipment within
a facility or within a specific industry
sector would be useful in Agency
deliberations for final rulemaking.
Comments specific to establishing a
threshold criterion for oil-filled
operational equipment should include
supporting data that: (1) Demonstrates
why the suggested volume threshold is
preferred; and (2) estimates the number
(or percentage) of facilities that would
be eligible for qualified oil-filled
operational equipment status. Any
alternative approach presented should
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider it for final action.
b. Multi-Tiered Structure
The tiered structure option was
considered in response to comments
EPA received following publication of a
Notice of Data Availability for oil-filled
equipment (69 FR 56184, September 20,
2004) and is based on a previous
proposal put forth by USWAG that
focused on electrical equipment. A
central element of this option would
allow the facility owner or operator to
define each discrete unit of this type of
oil-filled equipment as a facility. This
option would also establish three tiers
for regulated onshore oil-filled
operational equipment based on the
storage capacity of the equipment.
Individual pieces of oil-filled
operational equipment with an oil
storage capacity of 1,320 gallons or less
(Tier 1) would have been exempt from
all SPCC requirements. For individual
pieces of oil-filled operational
equipment with a capacity greater than
1,320 but less than 20,000 gallons and
which meet additional qualifying
criteria (Tier II), facility owners and
operators would have the option of
preparing a contingency plan in lieu of
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73537
an SPCC Plan. Such an approach would
have exempted a significant portion of
the regulated universe with oil-filled
operational equipment from the
development of an SPCC Plan entirely
and instead would only need to develop
a contingency plan and a written
commitment of manpower, equipment
and materials in the event of a
discharge. Tier III would require that all
other oil-filled operational equipment
with capacities greater than 20,000
gallons for an individual piece of
equipment be required to comply with
the current SPCC rule.
Although the Agency agrees that some
regulatory modifications are appropriate
for facilities containing oil-filled
operational equipment, there is still a
reasonable potential for discharge from
this equipment and coverage by some
type of SPCC Plan is warranted. The
Agency believes this is true even for
facilities composed entirely of oil-filled
operational equipment. EPA also has
concerns about the suggestion to allow
facility owners and operators to define
each piece of oil-filled equipment as a
separate facility because of the potential
for greater rule complexity,
implementation questions and
confusion across the wide variety of
facilities covered by the SPCC rule. For
example, the Agency may have to define
and develop criteria that would be used
by the facility owner or operator to
determine which equipment is a
separate facility, which is not, and how
the elements of a facility plan would
address these differences. Uncertainty
and confusion about the definition of a
facility could lead to a greater lack of
compliance and the potential for greater
environmental harm.
c. Extension/Suspension Options
EPA could propose an indefinite
extension to the compliance dates,
similar to the previous extensions
already granted, that would apply to oilfilled operational equipment. This
action would allow EPA more time to
decide how to regulate oil-filled
operational equipment without delaying
compliance for the entire universe of
SPCC-regulated facilities and
equipment. However, the extension
would be for a yet-to-be-determined
length of time, and for an unspecified
set of requirements. Since so many
facilities have oil-filled operational
equipment, if changes to these
requirements are delayed, a significant
number of facilities might have to
modify their existing Plans more than
once to accommodate future rule
changes. As with past extensions, EPA
would continue to require that oil-filled
operational equipment comply with pre-
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2002 SPCC requirements during the
interim period at facilities that should
have had an SPCC Plan as of August 16,
2002, providing no immediate relief.
A suspension of all requirements for
oil-filled operational equipment would
provide immediate relief until further
notice and provided EPA with more
time to decide how to regulate this
equipment. The Agency is concerned
that this option provides no
environmental protection during the
time that new requirements are
developed.
EPA welcomes comments on these or
other alternatives that could reduce the
burden at facilities with oil-filled
operational equipment, while
maintaining appropriate levels of
environmental protection. The Agency
is also interested in comments related to
the application of the USWAG proposal
to other types of oil-filled operational
equipment. Any alternative approaches
presented must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider
them for final action.
Qualified Facilities and Qualified OilFilled Operational Equipment Overlap
Some facilities would meet the
criteria for both qualified facilities and
qualified oil-filled operational
equipment. Such facilities would be
able to benefit from both of the burdenreduction options proposed under
today’s action. The owner or operator
could choose to develop a contingency
plan and a written commitment of
manpower, equipment and materials in
lieu of secondary containment for
qualified oil-filled operational
equipment. Since no impracticability
determination would be required for
qualified oil-filled operational
equipment, the owner or operator could
self-certify his/her SPCC Plan and
would not be required to have a PE
develop and certify the contingency
plan for the qualified oil-filled
operational equipment. The
responsibility of preparing a
contingency plan and identifying the
necessary equipment, materials and
manpower to implement the
contingency plan would fall on the
owner or operator of the qualified
facility.
C. Motive Power
There are some motive power
containers already exempt from the
SPCC requirements based on the rule
exemption for containers with an oil
storage capacity of less than 55 gallons.
However, there are certain motor
vehicles (including aircraft) that contain
oil in capacities greater than or equal to
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55 gallons solely for the purpose of
providing fuel for propulsion, or solely
to facilitate the operation of the vehicle.
The concept of ‘‘motive power’’ is not
addressed in the SPCC regulations, but
the EPA–DOT MOU in Appendix A to
40 CFR part 112 specifically refers to the
transportation of oil, not to
transportation in the general sense. As
a result, oil storage containers with a
capacity greater than 55 gallons used for
motive power fall under the SPCC rule
and secondary containment and other
SPCC requirements apply. However,
EPA never intended to regulate motive
power containers on buses, sport utility
vehicles, small construction vehicles,
aircraft and farm equipment, or facilities
or locations such as heavy equipment
dealers, commercial truck dealers, or
certain parking lots that may be subject
to the SPCC requirements (including
bulk storage containment, inspection,
and overfill protection) solely because
of the presence of motive power
containers. Nor does EPA intend to
require facilities otherwise subject to the
SPCC rule to include motive power
containers in their Plans.
1. Definition of Motive Power
EPA proposes to amend the Oil
Pollution Prevention regulation (40 CFR
part 112) to exempt motive power
containers, defined as ‘‘onboard bulk
storage containers used solely to power
the movement of a motor vehicle, or
ancillary onboard oil-filled operational
equipment used solely to facilitate its
operation.’’ This definition is intended
to describe containers such as the fuel
tanks that are used solely to provide fuel
for a motor vehicle’s movement or the
hydraulic and lubrication operational
oil-filled containers used solely for
other ancillary functions of a motor
vehicle. This definition would not
include transfers of fuel or other oil into
motive power containers at an otherwise
regulated facility, or a bulk storage
container mounted on a vehicle for any
purpose other than powering the vehicle
itself, for example, a tanker truck or
refueler. The definition of motive power
containers would not include oil
drilling or workover equipment.
Specifically, it would not apply to the
drilling or workover rigs themselves;
however, other earthmoving equipment
(such as a bulldozer, trucks, or earthmoving equipment) located at a drilling
or workover facility would be included
in the scope of the definition. Similarly,
seismic exploration vehicles located at,
for example, oil and gas drilling,
workover and production facilities,
would be included in the scope of the
definition of motive power.
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The Agency is seeking comments on
the proposed definition of motive power
containers or if there are any other
definitions for ‘‘motive power’’ that
would be more suitable. Any alternative
approach presented must include an
appropriate rationale and supporting
data in order for the Agency to be able
to consider it for final action.
2. Proposed Exemption
This proposed rule amendment would
exempt motive power containers, as
defined above, from SPCC rule
applicability through a proposed
additional paragraph under the general
applicability section, § 112.1(d).
Furthermore, these storage containers
would not be counted toward facility
capacity under § 112.1(d)(2). EPA
recognizes that there is a potential for an
oil discharge as described in § 112.1(b)
from motive power containers, such as
from a breach in the fuel storage
container, from an overfill event, or
from a rupture of oil-filled operational
equipment such as a hydraulic line on
heavy construction equipment. EPA has
the authority, under 311(j)(1)(C) of the
CWA, to impose requirements to
prevent oil discharges from motive
power containers. The Regional
Administrator has the option under
§ 112.1(f) to require facilities with
motive power containers to prepare and
implement an SPCC Plan or any
applicable part, if a determination is
made that it is necessary in order to
prevent a discharge of oil into waters of
the United States.
EPA notes that although this proposal
provides the fuel tanks and ancillary oilfilled operational equipment on motor
vehicles with an exemption from SPCC
requirements, oil transfer activities
occurring within an SPCC covered
facility would continue to be regulated.
An example of such an activity would
be the transfer from an onsite tank via
a dispenser to motive power containers.
This transfer activity is subject to the
general secondary containment
requirements of § 112.7(c), but is not
subject to the requirements of § 112.7(h),
because it does not occur across a
loading/unloading rack. Regulating a
transfer between unregulated motive
power containers and a regulated tank is
required by § 112.1(b), which requires
that the SPCC rule apply to owners or
operators of facilities that transfer oil
and oil products. Another example
would be an airport mobile refueler at
an SPCC-regulated airport that transfers
oil to motive power containers or to an
aircraft. That transfer activity would
again be subject to the general
secondary containment requirements of
§ 112.7(c), but not subject to the
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requirements of § 112.7(h), again
because it does not generally occur
across a loading/unloading rack.
An onboard bulk storage container
that supplies oil for the movement of a
vehicle or operation of onboard
equipment, and at the same time is used
for the distribution or storage of this oil
is not subject to this proposed
exemption. For example, a mobile
refueler that has an onboard bulk
storage container used to distribute fuel
to other vehicles on a site may also draw
its engine fuel (for propulsion) from that
container. Because EPA continues to
consider bulk storage containers
mounted on vehicles or towed by a
vehicle (such as a typical cargo tanker
truck) subject to certain transfer-related
SPCC requirements, these containers are
not subject to today’s proposed
exemption. As noted above, the
exemption applies only to onboard bulk
storage containers used solely to
provide motive power or to facilitate the
operation of the vehicle.
EPA is not extending the exemption
for motive power containers to oil
drilling and workover equipment,
including rigs. The Agency believes that
due to the unique nature of oil drilling
and workover rig operations and the
large amounts and high flow rates of oil
associated with these activities, it would
not be appropriate or environmentally
sound to exempt them from the SPCC
requirements, and thus they should
remain subject to 40 CFR part 112. The
purpose of offering the exemption is to
offer relief for a particular set of
equipment (e.g., automobiles) that may
be present at an otherwise regulated
SPCC facility, and not to offer relief for
facilities that may be mobile and move
from place to place as in the case of a
drilling or workover rig. Although
drilling and workover equipment,
including rigs, are not exempt, other
motive power equipment located at
drilling or workover facilities (e.g.,
trucks, automobiles, bulldozers, seismic
exploration vehicles or other earthmoving equipment) would be exempted.
The agency believes that the general
protection and the spill response and
planning activities provided at an
otherwise regulated SPCC facility will
help the facility to address the spills
associated with these motive power
containers. However, the specific
provisions (such as blowout prevention)
which are present in the current rule for
drilling or workover rigs, need to be
preserved to maintain an adequate level
of environmental protection for these
unique activities. Therefore, an
exemption for drilling and workover
equipment, including rigs, is
inappropriate.
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3. Alternative Options Considered
EPA considered other options to
address motive power containers greater
than 55 gallons in size. These options
included: (1) Exemption of all motive
power containers, except motive power
containers on aircraft and mining
equipment, which would be subject to
the general requirements under § 112.7;
(2) exemption of all motive power
containers below a certain gallon
threshold, with containers above this
threshold remaining subject to the
general requirements under § 112.7; and
(3) exclusion of motive power
containers only from the facility storage
capacity calculation and bulk storage
container requirements.
a. Equipment-Based Motive Power
Exemption
EPA could choose to exempt motive
power containers, except containers on
aircraft and mining equipment, from the
requirements of 40 CFR part 112. The
majority of motive power containers
would be exempt from the SPCC rule.
EPA would require that the containers
on aircraft and mining equipment be
covered by the SPCC requirements
because these containers typically have
much larger volume than other motive
power containers and potentially pose a
greater threat to the environment in the
event of a discharge as described in
112.1(b). However, in the context of
motive power containers, there is no
information on the degree of likelihood
of a discharge from motive power
containers of different oil storage
capacities nor is there data available to
EPA specific to mining and aircraft
equipment discharges that would justify
this option. Therefore, the Agency chose
not to propose this option.
b. Threshold-Based Motive Power
Exemption
Another option considered was to
exempt motive power containers with a
capacity below a certain threshold, and
requiring containers with a capacity
above the established threshold to have
appropriate containment under
§ 112.7(c). Those motive power
containers included in the rule would
only be required to have general
containment, and would be exempt
from all other requirements in §§ 112.7
and 112.8(c). However, EPA rejected
this option because it has no basis for
choosing an appropriate threshold for
these containers and there is no data
that clearly supports any specific
quantity. In addition, it would still
present implementation problems for
those motive power containers that were
subject to the regulation.
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73539
c. Exclusion From Storage Capacity
Calculation
EPA could exclude motive power
containers from the storage capacity
determination at a regulated facility and
from the definition of bulk storage
container to clarify that these containers
are not counted towards the 1,320
gallon aboveground oil storage
threshold for the regulation.
Nevertheless, the facility would have to
consider these containers in their
overall facility SPCC Plan. Although
motive power containers would not be
considered bulk storage containers, they
would be subject to the general
requirements of the rule under § 112.7,
including the provision for secondary
containment. The facility SPCC Plan
would have to identify the presence of
motive power containers on-site, in
addition to their reasonable potential for
discharge as per § 112.7(b). This option
is more complex for the regulated
community and is not a clear exemption
of motive power containers.
Each of these alternative options was
rejected because they did not address
the implementation issues with
regulating motive power containers
under the SPCC requirements. The
Agency welcomes comments on these or
other alternatives that could serve to
reduce the burden for facilities with
motive power containers, while at the
same time maintaining appropriate
levels of environmental protection. Any
alternative approaches presented must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider them for final
action.
D. Airport Mobile Refuelers
Airport mobile refuelers are vehicles
that are used on an airport to refuel
aircraft and ground service equipment.
Their onboard bulk storage containers
are used to transport and transfer fuel
and are subject to the SPCC rule because
they are containers used to store oil
prior to use, while being used, or prior
to further distribution in commerce. As
such, they are subject to all applicable
SPCC rule provisions, including the
secondary containment provisions of
§ 112.8(c)(2) (applicable to all bulk
storage containers) and § 112.8(c)(11)
(applicable more specifically to mobile/
portable bulk storage containers). These
provisions require a secondary means of
containment, such as a dike or
catchment basin, sufficient to contain
the capacity of the largest single
compartment or container with
sufficient freeboard to contain
precipitation.
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Regulated community members in the
aviation sector have expressed concern
that requiring sized secondary
containment for airport mobile refuelers
is not practicable for safety and security
reasons. They argue that requiring
refuelers to park in specially designed
secondary containment areas located
within an airport’s aircraft operations
area could create a safety and security
hazard because it entails grouping the
vehicles or placing impediments in the
operations area. In addition, they claim
that requiring mobile refuelers to return
to containment areas located within the
airport’s tank farm between refueling
operations may increase the risk of
accidents (and therefore accidental oil
discharge), as the vehicles would travel
with increased frequency through the
busy aircraft operations area. They also
claim that providing secondary
containment for mobile refuelers during
airport operations presents inherent
difficulties and point to controls on
design, inspection, maintenance and
operation of mobile refuelers imposed
by the Federal Aviation
Administration’s Advisory Circulars.
For example, the storage containers on
the mobile refuelers must be
manufactured to U.S. DOT–406
specifications for pressure vessels (49
CFR 178.346).
EPA is aware that certain airports
subject to FAA’s regulations at 14 CFR
part 139 require certification by the
FAA Administrator or his delegated
agent. As part of this certification, the
Agency understands that compliance
with Uniform Fire Code requirements,
among other requirements in 14 CFR
part 139, must be detailed in the Airport
Certification Manual to obtain FAA
approval and thus an Airport Operating
Certificate per part 139. The Agency
understands that the applicable Uniform
Fire Code includes National Fire
Protection Association’s (NFPA) 30,
Flammable and Combustible Liquids
Code, NFPA 407, Standard for Aircraft
Fuel Servicing and NFPA 415, Standard
on Airport Terminal Buildings, Fueling
Ramp Drainage, and Loading Walkways.
In particular, NFPA 407 requires that
aircraft fuel servicing vehicles and carts
shall be positioned so that a clear path
of egress from the aircraft for fuel
servicing vehicles shall be maintained
[5.12.1]. Further, in NFPA 415, the code
specifically states that in no case shall
the design of a drainage system of any
aircraft fueling ramp allow fuel to
collect on the aircraft fueling ramp or
adjacent ground surfaces where it
constitutes a fire hazard [5.1.4]. As such,
EPA believes that subjecting mobile
airport refuelers to the specifically sized
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secondary containment requirements at
§ 112.8(c)(2) and (11) would directly
conflict with the Uniform Fire Code
applicable to fuel handling at airports.
EPA believes, however, that these bulk
storage containers should remain
subject to the general secondary
containment requirements at § 112.7(c)
as this provision affords sufficient
flexibility to the owner/operator and
certifying PE to select a spill prevention
method that would not conflict with the
applicable Uniform Fire Code. Thus,
EPA is proposing to exempt airport
mobile refuelers from the specifically
sized secondary containment
requirements for bulk storage containers
in § 112.8(c)(2) and (11). EPA believes
that this exemption is appropriate for
airport mobile refuelers, so as not to
conflict with the specific Uniform Fire
Code requirements for airport fueling
activities, while preserving
environmental protection (especially for
fuel transfers associated with airport
mobile refuelers), afforded by the spill
prevention provisions outlined in
§ 112.7(c). EPA also believes that this
clarification for airport mobile refuelers
applies to mobile refuelers operating at
all airports, both those certified under
14 CFR part 139 and non-certified
airports.
1. Definition of Airport Mobile Refueler
EPA proposes to amend the Oil
Pollution Prevention regulation (40 CFR
part 112) to exempt airport mobile
refuelers from the requirements of
§ 112.8(c)(2) and (11). In today’s
proposal, EPA defines an airport mobile
refueler as ‘‘a vehicle with an onboard
bulk storage container designed for, or
used to, store and transport fuel for
transfer into or from an aircraft or
ground service equipment.’’ This
definition is adapted from definitions in
the U.S. DOT Federal Aviation
Administration’s Advisory Circular 150/
5230–4 on Aircraft Fuel Storage,
Handling, and Dispensing on Airports,
and NFPA 407 for Aircraft Fuel
Servicing. The definition is intended to
describe vehicles of various sizes
equipped with a bulk storage container
such as a cargo tank (tank trucks, tank
full trailers, tank semitrailers, etc.) that
are used to fuel or defuel aircraft at
airports.
2. Proposed Amended Requirements
This proposed amendment would
revise § 112.8(c)(2) and (11) to
specifically exempt airport mobile
refuelers, as defined above, from these
provisions. Since airport mobile
refuelers are mobile or portable bulk
storage containers, the other provisions
of § 112.8(c) would still apply.
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Secondary containment systems
sufficient to contain the capacity of the
largest single compartment or container
with sufficient freeboard to contain
precipitation would no longer be
required. Notwithstanding, there is a
potential for oil discharges as described
in § 112.1(b) from airport mobile
refuelers. Indeed, there are documented
cases of reportable discharges while fuel
is transferred from storage into the
mobile refuelers and during aircraft
refueling activities. Fuel leaks have
occurred while the mobile refueler is
parked or idle. Therefore, the general
secondary containment requirements of
§ 112.7(c) would continue to apply to
airport mobile refuelers under this
proposal.
Section 112.7(c) lists several
appropriate containment methods a
facility owner or operator can provide,
including curbs, gutters, barriers, or
sorbent materials. However, EPA
recognizes that permanent containment
structures such as curbs may not be
appropriate in all cases. The Agency
made informal contact with nine airport
engineering and construction firms who
indicated that providing sized
secondary containment areas for airport
mobile refuelers is not a common
practice. We also learned that mobile
refuelers are not involved in every
airport fueling operation, and when
refuelers are present, there is no
standard method for ensuring sized
secondary containment. EPA cautions
that these results are drawn from only
a small number of firms that provide
construction and engineering support
for the aviation industry rather than
directly from the airport owners or
operators.
Appropriate containment and/or
diversionary structures or equipment
must be designed to prevent a discharge
as described in § 112.1(b). The Agency
believes general secondary containment
should be designed to address the most
likely discharge from the primary
containment system. Section § 112.7(c)
allows for the use of certain types of
active containment measures
(countermeasures or spill response
capability) which prevent a discharge to
navigable waters or adjoining
shorelines. Active containment
measures are those that require
deployment or other specific action by
the owner or operator. These measures
may be deployed either before an
activity involving the handling of oil
starts, or in reaction to a discharge so
long as the active measure is designed
and can reasonably be implemented to
prevent an oil spill from reaching
navigable water or adjoining shorelines.
Passive measures are permanent
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installations and do not require
deployment or action by the owner/
operator. The efficacy of active
containment measures to prevent a
discharge depends on their technical
effectiveness (e.g., mode of operation,
absorption rate), placement and
quantity, and timely deployment prior
to, or following a discharge. For
discharges that occur only during
manned activities, such as those
occurring during transfers, an active
measure (e.g, sock, mat, other portable
barrier, or land-based response
capability) may be appropriate,
provided that the measure is capable of
containing the oil discharge volume and
rate, and is timely and properly
constructed/deployed. The Agency also
believes that these active measures may
be appropriately applied to other
situations (e.g., when the refueler is not
engaged in transfer operations or
moving around the facility).
EPA believes that the general
provisions for secondary containment
address the most likely spill scenarios
associated with this equipment (i.e.,
transfers from the refuelers to the
aircraft). Section 112.7(c) does not
prescribe a size for a secondary
containment structure but does require
appropriate containment and/or
diversionary structures or equipment to
prevent a discharge as described in
§ 112.1(b). These proposed revisions
would maintain environmental
protection, while still allowing the
necessary flexibility for compliance
with the general secondary containment
requirements of the rule.
Alternatively, EPA considered
whether the general secondary
containment requirements of § 112.7(c)
should be applied to airport mobile
refuelers only during any fuel transfer
activity and not while the refueler is
moving or out of service (e.g. parked or
idle) provided that the facility is in
compliance with current NFPA 407 and
NFPA 415 requirements and any
applicable FAA requirements that
govern fuel handling. If a facility is not
in compliance with NFPA 407, and 415
and FAA requirements, then it must
comply with the general secondary
containment requirements at all times.
The Agency did not propose this
approach because NFPA 407 and NFPA
415 are designed for fire protection
rather than environmental protection; a
properly designed drainage system that
meets the intent of NFPA 407 and NFPA
415 might not adequately prevent fuel
from being discharged in quantities that
may be harmful. In addition, EPA has
no information on the degree of
compliance with, alternatives to, or
applicability of, NFPA 407 and NFPA
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415 to all airport facilities.
Consequently, EPA did not propose this
approach. EPA welcomes comment on
this issue.
The Agency seeks comments on the
proposed definition for ‘‘airport mobile
refuelers,’’ the adequacy of general
secondary containment requirements for
preventing discharges as described in
§ 112.1(b) from airport mobile refuelers,
whether the proposed regulatory relief
satisfies the concerns of airport owners
and/or operators, and the ability to
apply active measures as described in
§ 112.7(c). Additionally, the Agency
seeks comments on whether the relief
provided specific to § 112.8(c)(2) and
(11) should be more broadly applied to
other types of mobile refuelers or
railcars that are subject to § 112.8(c)(2)
and (11) and § 112.12(c)(2) and (11).
Any alternative approaches presented
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider them for
final action.
E. Animal Fats and Vegetable Oils
In 1995, Congress enacted the Edible
Oil Regulatory Reform Act (EORRA), 33
U.S.C. 2720. That statute requires most
Federal agencies to differentiate
between, and establish separate classes
for, various types of oil, specifically,
animal fats and oils and greases, and
fish and marine mammal oils, and for
oils of vegetable origin, including oils
from seeds, nuts, and kernels; and other
oils and greases, including petroleum.
EORRA also requires affected agencies
to apply standards to the different
classes, based on considerations of
differences in the physical, chemical,
biological, and other properties of these
oils and on the environmental effects of
the oils.
In the July 17, 2002 final SPCC rule,
the Agency promulgated general
requirements in § 112.7 for SPCC Plans
for all facilities and all types of oil, as
well as additional requirements tailored
to specific types of facilities in §§ 112.8
through 112.15. At that time, in
response to EORRA, EPA established
separate subparts in the rule for
facilities storing or using the various
classes of oil listed in that act. Subpart
C (§§ 112.12 through 112.15) sets out the
requirements for facilities with animal
fats and oils and greases, and fish and
marine mammal oils; and for oils of
vegetable origin, including oils from
seeds, nuts, fruits, and kernels
(hereinafter ‘‘animal fats and vegetable
oils’’ or ‘‘AFVO’’). Subpart B (§§ 112.8
through 112.11) sets out the
requirements for facilities with
petroleum oils and non-petroleum oils
other than AFVO. The Agency
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73541
promulgated the identical requirements
for facilities storing or using all classes
of oil in the final rule. As a result,
certain requirements, including
requirements for types of facilities that
only exist in the petroleum sector, also
apply to facilities handling animal fats
and vegetable oils.2
In today’s proposal, the Agency
proposes to amend Subpart C of part
112 by removing § 112.13 (requirements
for onshore oil production facilities),
§ 112.14 (requirements for onshore oil
drilling and workover facilities), and
§ 112.15 (requirements for offshore oil
drilling, production, or workover
facilities). As members of the regulated
community pointed out, facilities that
process, store, use, or transport animal
fats and/or vegetable oils (AFVO) do not
engage in production, drilling or
workover. EPA agrees that these
sections should not be included in part
112, subpart C and therefore proposes to
remove them from the rule. The Agency
seeks comment on the proposal to
remove and reserve these sections of
Subpart C of the regulation.
The Agency has not developed a
proposal following the 1999 Advanced
Notice of Proposed Rulemaking
regarding differentiation of AFVO from
petroleum and other oils in the SPCC
rule (64 FR 17227). To assist the Agency
in its ongoing consideration of this
issue, EPA requests suggestions for
additional amendments that would
differentiate AFVOs from other classes
of oils in the SPCC rule and scientific
support for those amendments. In
particular, EPA is seeking information
that specifically addresses the criteria
for differentiation set forth in EORRA,
33 U.S.C. 2720(b); that is, differences in
the physical, chemical, biological, and
other properties, as well as the
environmental effects, of various types
of oil, in order for the Agency to support
a rationale for differentiation of oil spill
prevention requirements. The Agency
will continue to examine these issues to
determine the appropriateness of
amendments to the regulatory scheme
which differentiate the SPCC
requirements for AFVO from the
requirements for petroleum and other
oils.
VI. Proposed Extension of Compliance
Dates for Farms
The agricultural community has
provided EPA with additional
2 The Agency also responded to a petition it
received on August 12, 1994 to treat facilities that
handle, store or transport animal fats and/or
vegetable oils differently from those facilities that
store petroleum based oil. EPA denied that petition,
and published the denial in a Federal Register
notice (see 62 FR 54508, October 20, 1997).
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information and data which suggests
that the universe of farms subject to the
SPCC rule may be much larger than EPA
estimated in the preparation of the 2002
SPCC rule revisions. EPA believes that
the unique characteristics of farms pose
particular challenges to SPCC
compliance and that further
consideration of the requirements as
they relate to farms is warranted. We are
particularly concerned that many of
these farms are small and that subjecting
them to these requirements may not be
necessary. Therefore, EPA intends to
review the impact of the SPCC
requirements on farms and will take
action in a future rulemaking.
While determining if the agriculture
sector warrants specific consideration
under the SPCC rule, EPA proposes to
extend the compliance dates for
preparing or amending and
implementing SPCC Plans for farms that
have a total storage capacity of less than
10,000 gallons. Our basis for taking this
action is several fold. First, there are
factors concerning the physical layout of
a farm that make this sector unique
within the universe of SPCC-regulated
facilities. For example, farms vary
considerably in design and size (less
than an acre to many thousand acres).
Further, the environment in which
farms operate varies considerably from
other industries. Farmers often own
and/or farm land that are
noncontiguous, and may be separated
by roads and other obstacles. Oil is
generally not centrally stored and oil
containers may be widely dispersed.
Certain SPCC requirements (such as
fencing, lighting, etc.) may be
disproportionately difficult and
expensive for farmers to implement, and
provide little environmental benefit.
Also, because farms are often residential
properties, under the existing rule,
home heating oil tanks may be required
to be covered by the farm’s SPCC Plan.
Other rule provisions, including
security, would also affect the
residential portions of a farm. For these
reasons, we are proposing an extension
of the compliance date for farms with a
total storage capacity of less than 10,000
gallons. See Section B below, for details.
A. Eligibility Criteria
EPA proposes the 10,000-gallon
threshold for farms to be consistent with
the threshold quantity used in the NCP
to classify oil discharges to inland
waters as ‘‘major’’ (40 CFR 300.5). Thus,
a facility storing less than 10,000 gallons
of oil could not be involved in a major
discharge based on the NCP quantitative
criterion alone, although use of this
numerical criteria is not meant to imply
that smaller discharges are not harmful.
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This same 10,000-gallon threshold
discharge volume is also one factor used
in identifying facilities that must
prepare and submit a Facility Response
Plan (FRP) under § 112.20(f)(1). In
addition, 10,000 gallons is a common
storage capacity and such a threshold
would extend the compliance dates for
a significant portion of the farm sector.
Data provided by the agricultural
industry and the U.S. Department of
Agriculture indicate that the average
aggregated aboveground oil storage
capacity at farms surveyed in 2005 was
5,550 gallons; approximately 83 percent
of surveyed farms have aggregated oil
storage below 10,000 gallons. Farms
with less than 1,000 acres had an
average oil storage capacity of less than
2,500 gallons; farms with over 1,000
acres had an average oil storage capacity
of almost 8,000 gallons. (See ‘‘Fuel/Oil
Storage and Delivery for Farmers and
Cooperatives,’’ USDA, March 2005, in
the docket for today’s proposal.)
The Agency seeks comments on
whether this threshold appropriately
addresses the concerns of farms with
relatively smaller volumes of oil, while
maintaining the environmental
protection intended by the regulation. If
commenters suggest alternative volume
thresholds, it will be important for the
comments to also include a justification
for such alternative volume thresholds
in order for the Agency to adequately
consider the comments submitted. This
data would be useful in final rule
deliberations.
The Agency considers a farm as a
specific type of facility under the SPCC
rule and proposes a specific definition
for farm under today’s proposal. For this
proposed extension, EPA would define
‘‘farm,’’ in part, by adapting the
definition used by the National
Agricultural Statistics Service (NASS) in
its Census of Agriculture. NASS defines
a farm as any place from which $1,000
or more of agricultural products were
produced and sold, or normally would
have been sold, during the census year.
Operations receiving $1,000 or more in
Federal government payments are
counted as farms, even if they have no
sales and otherwise lack the potential to
have $1,000 or more in sales.
EPA also considered the definition it
uses to exempt farm tanks under the
Underground Storage Tank (UST)
regulations at 40 CFR part 280. The
Resource Conservation and Recovery
Act (RCRA) as amended, section
9001(1)(A), exempts farm and
residential USTs storing less than 1,100
gallons of motor fuel for
‘‘noncommercial’’ purposes. As defined
in 40 CFR 280.12, a farm tank is a tank
located on a tract of land devoted to the
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production of crops or raising of
animals, including fish. The preamble to
the UST rule explains that the term
‘‘farm’’ includes fish hatcheries,
rangeland, and nurseries with growing
operations, but does not include
laboratories where animals are raised,
land used to grow timber, and pesticide
aviation operations. This term also does
not include retail stores or garden
centers where the product of nursery
farms is marketed, but not produced,
nor does EPA interpret the term ‘‘farm’’
to include golf courses or other places
dedicated primarily to recreational,
aesthetic, or other non-agricultural
activities. (See 53 FR 37082, 37117,
September 23, 1988.)
EPA also considered defining a farm
by listing the appropriate North
American Industry Classification
System (NAICS) codes, but we believe
that the definition proposed today in
§ 112.2, along with the 10,000 gallon
threshold quantity, more effectively
identifies the sector to which the
extension would appropriately apply.
Potentially affected entities that fall
within certain NAICS codes, including
111 (Crop Production) and 112 (Animal
Production), are likely to fall within the
proposed definition of farm and should
consider the definition and eligibility
criteria further to determine if the
proposed extension applies.
EPA utilized elements of the UST
definition of farm, in combination with
the Census definition, in developing
today’s proposal. By combining
elements of both of these approaches,
the Agency believes the proposed
definition more specifically targets the
intended universe for the extension.
EPA seeks comment on the proposed
definition for farms, and whether an
alternate definition of ‘‘farm’’ may be
more appropriate. Comments may also
address the proposed 10,000 gallon
threshold for qualifying for the
extension, and whether an alternative
threshold may be more appropriate. Any
alternative approaches presented must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider them for final
action.
B. Proposed Compliance Date Extension
for Farms
With today’s action, EPA proposes to
extend the compliance dates for the
owner or operator of a farm, as defined
in proposed § 112.2, that has a total
storage capacity of 10,000 gallons or
less, to prepare or amend and
implement the farm’s SPCC Plan. The
Agency proposes to extend the farm
compliance dates until EPA completes
information collection and analysis to
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determine if differentiated SPCC
requirements may be appropriate for
farms. If the Agency determines that
differentiated requirements for farms are
warranted, the Agency will publish a
notice in the Federal Register proposing
new compliance dates for eligible farms.
In working to determine how to
properly address farms under the SPCC
regulation, EPA will be partnering with
USDA to acquire information to
determine if differentiation may be
appropriate. EPA believes that, at this
time, an extension is appropriate
because of the large scope of the
agricultural community that may be
subject to the SPCC requirements, the
fact that many farms are small, and the
time needed to determine how the SPCC
requirements should apply if at all, and
the effect of today’s proposal on the
farm sector. We are also considering as
an alternative approach to exempt farms
below a set oil storage capacity
threshold (such as 10,000 or 20,000
gallons) from the SPCC regulation.
EPA seeks comment on whether the
proposed extension is warranted, or if a
specific time period would be more
appropriate than the proposed
indefinite extension. EPA also requests
comment on whether it is more
appropriate to exempt all farms having
less than a certain oil storage capacity
threshold (such as 10,000 or 20,000
gallons) from all SPCC requirements.
Any alternative approaches presented
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider them for
final action.
VII. Statutory and Executive Order
Reviews
A. Executive Order 12866—Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), the Agency
must determine whether a regulatory
action is ‘‘significant’’ and therefore
subject to Office of Management and
Budget (OMB) review and the
requirements of the Executive Order.
The order defines ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
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(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
Under the terms of Executive Order
12866, this action has been judged as a
‘‘significant regulatory action’’ because
it will have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities. Therefore, this action was
submitted to OMB for review and the
Agency has prepared a regulatory
analysis in support of today’s action,
titled, ‘‘Regulatory Analysis of the Spill
Prevention, Control, and
Countermeasure Proposed Rule’’
(November 2005). Changes made in
response to OMB suggestions or
recommendations will be documented
in the public record. EPA requests
comments from the public on the costs
and benefits of any of the possible
regulatory changes discussed in this
proposed rulemaking, as well as on
appropriate methodologies for assessing
them.
1. Summary of Regulatory Analysis
The regulatory analysis developed in
support of today’s action considers
changes in regulatory compliance costs
for affected facility owners and
operators, changes in paperwork
burden, and impacts on small
businesses. In addition, EPA examined
qualitatively the potential impacts of the
regulatory options on oil discharge risk.
EPA intends to continue to update its
estimates and assumptions for use in the
analysis supporting the final rule.
a. General Approach
This analysis develops benefit and
cost estimates for the proposed actions
in the four major components of the
proposed rule:
Qualified facilities with smaller
storage capacities;
• Oil-filled operational equipment;
• Motive power;
• Airport mobile refuelers.
The analysis then assesses the
impacts of the alternative regulatory
options that EPA considered.
For each of the components, the
benefits consist of reductions in social
costs accruing from reductions in
compliance costs. The main steps used
to estimate the compliance cost impacts
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73543
of the SPCC Proposed Rule are as
follows:
Develop the baseline universe of
SPCC-regulated facilities and unit cost
of compliance estimates for the analysis;
• Estimate the number of facilities
affected by each of the proposed
options;
• Estimate unit compliance costs for
all elements of the proposed options;
• Estimate compliance cost savings to
potentially affected facilities; and
• Annualize compliance cost savings
over a ten-year period and discount the
estimates to the current year.
EPA also considered the potential
impacts of the proposed rule and
alternative options on the risk of oil
discharges, which could lead to harmful
environmental, human health, and
welfare consequences. Because of the
lack of data on regulated entities and
their likely response to the regulatory
options, the magnitude of such risks is
highly uncertain. Therefore, EPA
examined the general nature of the
proposed and alternative changes to
assess possible effects on risk.
b. Baseline for the Analysis
The impacts of the proposed
regulation depend on the assumed
baseline of industry behavior in the
absence of a new rulemaking. EPA
developed a baseline for the regulatory
analysis to assess the change in
regulatory compliance costs associated
with each of the proposed options,
mutually exclusive of each other. The
baseline provides the benchmark from
which changes in regulatory behavior,
caused by the proposed options, are
measured.
EPA is aware of industry concerns
regarding potential non-compliance
among certain facility sizes or sectors,
although no reliable empirical evidence
exists to assess the scope and magnitude
of such non-compliance. EPA explicitly
considered whether to incorporate noncompliance in its regulatory analysis of
the 2002 revised rule: ‘‘It is possible that
some facilities have misinterpreted the
existing regulation and are not currently
in full compliance with existing
requirements, but there is no practical
way to measure the level of noncompliance. Moreover, the costs of
coming into compliance with the
clarified requirements are not properly
attributed to this final regulation.’’
This rule does not impact any
facilities that are not already required to
meet the standards of the SPCC rule.
The costs of SPCC requirements were
already imposed on the regulated
community by prior rulemaking in 1973
and 2002. For the benefit-cost analysis,
therefore, EPA is treating these costs as
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liabilities the regulated entities
currently have—whether or not they
have actually made the capital
expenditures to comply. In this
analytical construct, these firms are
simply delaying the expenditures for the
costs they already carry. Therefore, EPA
used as its baseline the requirements
under 40 CFR part 112 (‘‘SPCC rule’’),
as amended in 2002 (67 FR 47042). EPA
does recognize, however, that there is
non-compliance with the SPCC
requirements by some portion of the
regulated community.
c. Description of SPCC-Regulated
Universe
Aggregate
capacity
I ............
1,320 to 10,000
gallons.
10,001 to 42,000
gallons.
42,001 to 1 million gallons.
greater than 1
million gallons.
II ...........
III ..........
IV ..........
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Today, EPA is proposing to provide
an option for qualified facilities to
eliminate the requirement for PE
certification, and to provide flexibility
with respect to security measures and
integrity testing for these facilities. This
proposed option would provide the
greatest relief to owners and operators of
new facilities that are preparing their
first SPCC Plan, as well as cost savings
for owners and operators of existing
facilities that make substantive changes
to their Plans in the future.
a. Universe of Affected Facilities
This section describes the universe of
facilities subject to current and
proposed SPCC regulations. Calculating
the number of regulated entities is not
straightforward. The SPCC rule does not
include a notification requirement and,
with certain exceptions, owners and
operators do not submit their SPCC
Plans to EPA. The Agency has invested
considerable resources into estimating
the number of entities affected by the
SPCC rule.
EPA has updated its previous
estimates of the number of regulated
facilities. The Agency used data from
the 2002 Economic Census, the Census
of Agriculture, and a variety of other
governmental and non-governmental
sources to estimate the number of
regulated facilities in a large set of
industrial and commercial sectors.
Since data were not available for all
states, the basic estimation procedure
involved extrapolating from eight state
databases using information from the
U.S. Census Bureau. The estimates of
the SPCC universe were developed for
31 industry sectors. Full documentation
of the estimates appears in the
Regulatory Analysis document
accompanying this proposal.
In total, EPA estimates that 618,000
facilities are currently regulated under
the SPCC rule. Oil production facilities
(28 percent), farms (25 percent) and
electric utility plants (8 percent)
account for most of the SPCC-regulated
facilities. Following is a table that
summarizes the estimated number of
regulated facilities, by size category:
Category
2. Qualified Facilities
As noted above, EPA estimates that
approximately 322,000 facilities with
storage capacities below 10,000 gallons
are subject to the SPCC requirements in
the first year. Over the next ten years,
approximately 335,000 facilities with
storage capacities below 10,000 gallons
would be subject to SPCC on average.
As with all of the regulatory options
considered in developing today’s
proposed rule, facilities would have the
choice of complying with the existing
SPCC rule (as amended in 2002) or
taking advantage of the proposed
change. EPA assumes that facilities
would likely choose an alternative
requirement if (a) they met the criteria,
and (b) it was less costly or otherwise
offered greater benefits than the existing
requirement. As with the other options
being considered today, EPA does not
know how many facilities would meet
the criteria and choose to avail
themselves of the ‘‘Qualified Facility’’
options. Therefore, EPA examined the
impact of the ‘‘Qualified Facility’’
options under three scenarios: 25
percent, 50 percent, and 75 percent of
Category I facilities would likely meet
‘‘Qualified Facility’’ status and decide to
implement this approach. EPA
estimated that the 84,000 facilities
would choose to take advantage of this
option under the 25-percent scenario;
167,000 facilities under the 50-percent
scenario, and 251,000 facilities under
the 75 percent scenario.
b. Compliance Cost Savings
The main assumptions affecting all
regulatory options were based on
Number of
updated assumptions from the analyses
facilities
conducted for the 2002 final rule. For
322,000 example, EPA revised the cost estimate
for obtaining Professional Engineer (PE)
216,000 certification of a new SPCC Plan. The
estimate increased from $1,120 to
77,000 $2,000 for a PE to certify a new Plan and
from $560 to $750 for a PE to certify a
3,000
technical change to an existing Plan.
The estimates are based on findings
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from discussions with several
engineering firms.
The unit cost of integrity testing was
estimated based on interviews with
several tank inspectors. EPA calculated
the total cost of integrity testing per
facility by multiplying for a single tank
by the number of tanks per facility.3
EPA multiplied burden hour
estimates by the hourly wage rates for
specific labor categories to determine
the per-facility costs associated with the
proposed rule’s paperwork
requirements. The labor wage rates for
private industry were derived from the
March 2005 U.S. Department of Labor’s
Employment Cost Indexes and Levels.4
EPA estimates that if 50 percent of the
facilities complied with the alternative
proposed today for qualified facilities
that this option could reduce
compliance costs by $22.5 million and
$18.4 million per year, discounted at 3
percent and 7 percent, respectively. EPA
assumed that the proposed flexibility for
integrity testing would reduce the unit
cost of testing by 50 percent. If 25
percent of facilities under 10,000
gallons qualified for this option,
compliance costs would decrease by
$11.2 million and $9.19 million per
year, discounted at 3 percent and 7
percent, respectively. If 75 percent of
facilities under 10,000 gallons qualified
for this option, compliance costs would
be reduced by $33.7 million and $27.6
million per year, discounted at 3
percent and 7 percent, respectively.
3. Oil-Filled Operational Equipment
Today, EPA is proposing to allow
owners and operators of facilities
featuring certain kinds of oil-filled
operational equipment to establish and
document an inspection or monitoring
program, prepare an oil spill
contingency plan and provide a written
commitment of manpower, equipment,
and materials in lieu of providing
secondary containment without making
an individual impracticability
determination. The option is limited to
facilities that have had no discharges as
described in § 112.1(b) from any oilfilled operational equipment in the ten
years prior to the SPCC Plan
certification date, or since becoming
subject to 40 CFR part 112 if the facility
has been in operation for less than ten
years.
a. Universe of Affected Facilities
The proposed changes for qualified
oil-filled operational equipment could
3 The number of tanks per facility was calculated
using state oil tank databases.
4 United States Department of Labor, Bureau of
Labor Statistics, Employer Costs for Employee
Compensation, June 2005.
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address such items as hydraulic
systems, lubricating systems (e.g., those
for pumps, compressors, pumpjacks,
and other rotating equipment including
pumpjack lubrication systems), gear
boxes, machining coolant systems, heat
transfer systems, transformers, circuit
breakers, electrical switches, and other
systems containing oil to enable
operation of the devices. Due to data
and time limitations, EPA focused its
economic analysis on the electric utility
sector. Consequently, the analysis likely
underestimates the total cost savings
from the proposed ‘‘qualified oil-filled
operational equipment’’ action and the
alternative options.
Specifically, EPA used data on the
number of substations listed by each
major utility reporting to the Federal
Energy Regulatory Commission (FERC).5
A national estimate was extrapolated
from these data using the ratio of the
megawatt hours sold by utilities to the
estimated total retail megawatt hours of
electricity sold nationwide according to
the EIA.
EPA estimated that the total number
of new facilities with total oil-filled
operational equipment would be
approximately 2,040 in the first year.
Over the next ten years, approximately
2,450 new facilities are expected to be
added annually on average. This
number underestimates the universe of
facilities affected by the proposed
change, since it does not include oilfilled operational equipment from other
industries. Facilities with qualified oilfilled operational equipment are
expected to use a contingency plan with
a written commitment of manpower,
equipment and materials and have an
established inspections/monitoring
program.
EPA assumed that existing SPCCregulated facilities with qualified oilfilled operational equipment would
already have secondary containment or
a determination of impracticability of
secondary containment with a
contingency plan and a written
commitment of manpower, equipment
and materials in accordance with
§ 112.7(d). In such cases, facilities
would not benefit from this option. EPA
has provided an economic impact
analysis (Appendix A to the Regulatory
Analysis), which examines avoided
facility expenditures.
5 Major regulated utilities must file FERC Form
No. 1, on which utilities report information on their
substations and electrical equipment. ‘‘Major’’ is
defined as having (1) one million megawatt hours
or more; (2) 100 megawatt hours of annual sales for
resale; (3) 500 megawatt hours of annual power
exchange delivered; or (4) 500 megawatt hours of
annual wheeling for others (deliveries plus losses).
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EPA acknowledges that some fraction
of new facilities would, according to the
current SPCC rule requirements,
provide an impracticability
determination and provide a
contingency plan and a written
commitment of manpower, equipment
and materials, rather than pursue
secondary containment. In these cases,
the proposed action’s cost savings
would be lower, since owners and
operators would only be avoiding an
impracticability determination rather
than secondary containment. EPA does
not know what fraction of facilities falls
into this situation, and has decided not
to incorporate the scenario in the
analysis. As a result, EPA’s analysis
likely overestimates the cost savings to
facilities in the electric utility industry
from the proposed action.
However, EPA believes that the
overall assessment of cost savings from
this component of the rule may be
significantly underestimated. This is
due to the omission of potential cost
savings that would accrue to all other
industries outside of electrical utilities.
b. Compliance Cost Savings
EPA estimates that this component of
the proposal could reduce compliance
costs by as much as $56.7 million and
$45.9 million per year, discounted at 3
percent and 7 percent, respectively. EPA
calculated cost savings based on the
assumption that new facilities with
qualified oil-filled operational
equipment would save the difference
between the cost of secondary
containment and the cost of preparing a
contingency plan and a written
commitment of manpower, equipment
and materials. EPA estimated annual
per-facility cost savings of $9,000 to
$61,000 for new facilities, depending on
a facility’s size and other characteristics.
The Agency recognizes, that at some
facilities, owners or operators with PEcertified SPCC Plans have made a
determination that secondary
containment is impracticable, and have
implemented contingency plans and a
written commitment of manpower,
equipment and materials for the nonqualified oil-filled operational
equipment. Such facilities would not
see significant cost savings from this
component of the current rule. The
analysis of cost savings underestimate
the number of facilities with qualified
oil-filled operational equipment, but
overestimates the cost savings for
facilities that have been counted.
4. Motive Power
It is not EPA’s intent to regulate
onboard bulk storage containers used
solely to power the movement of a
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motor vehicle, or ancillary onboard oilfilled operational equipment used solely
to facilitate its operation. Although EPA
has no empirical data on the amount of
such storage at facilities regulated by the
SPCC rule, EPA does not expect that
many facility owners and operators have
included motive power in their oil
storage capacity calculations and SPCC
Plans. For those who have considered
motive power storage, EPA assumes that
the volume that would be exempt under
the proposed rule would not represent
a large fraction of the facility’s aggregate
capacity.
a. Universe of Affected Facilities
To identify industries that are
potentially affected by motive power
exemptions, EPA started with
information from industry comments to
the 2002 SPCC rule. Commenters from
the crop production, forestry/logging,
and utilities industries indicated they
had motive power equipment. EPA
identified additional industry groups by
examining industries targeted by the
major motive power equipment
manufacturers. Caterpillar, Deere &
Company, Kubota Corporation, Joy
Global Inc., CNH Global NV, and Terex
Corporation are some of the largest
motive power equipment
manufacturers. Each company lists the
industries targeted by their products.
EPA used these listings as the basis for
classifying industries likely to have
motive power containers.
EPA has no empirical data on the
number of facilities with motive power
containers with oil storage of 55 gallons
or greater. To estimate the number of
facilities affected by the ‘‘Motive
Power’’ proposed rule, EPA examined
three scenarios: 10 percent, 25 percent,
and 50 percent of the facilities in sectors
with motive power may be affected by
the proposed regulatory option. EPA
estimated that 29,000 facilities have
‘‘motive power’’ oil storage under the
10-percent scenario; 71,600 facilities
under the 25-percent scenario; and
143,000 facilities under the 50-percent
scenario.
b. Compliance Cost Savings
EPA assumed that ten percent of the
facilities in industries identified as
having motive power containers might
take advantage of the proposed
exemption. Other facilities could also
have motive power containers, however
EPA expects that they have not
considered such storage as part of their
compliance with the SPCC rule. Because
EPA expects most facilities with motive
power containers to meet the SPCC
rule’s oil storage thresholds, regardless
of motive power, EPA assumes that the
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cost savings from the proposed
exemption will be modest, with the
possibility of saving small amounts of
compliance costs, principally for
secondary containment for these motive
power containers. EPA estimates that
the proposed option will reduce
compliance costs by $0.92 million and
$0.75 million per year, discounted at 3
percent and 7 percent, respectively. The
main benefit of the proposed option
would be to provide greater clarity of
EPA’s regulatory intent.
EPA also examined two other
scenarios: 25 percent and 50 percent of
facilities in industries identified as
having motive power containers might
take advantage of the proposed
exemption. Under the 25-percent
scenario, compliance costs would be
reduced by $2.29 million and $1.87
million per year, discounted at 3
percent and 7 percent, respectively.
Under the 50-percent scenario,
compliance costs would be reduced by
$4.58 million and $3.74 million,
discounted at 3 percent and 7 percent,
respectively.
5. Airport Mobile Refuelers
EPA proposes to exempt airport
mobile refuelers from the specifically
sized bulk storage secondary
containment requirements of
§ 112.8(c)(2) and (11). EPA defines an
airport mobile refueler as a ‘‘vehicle
with an onboard bulk storage container
designed for, or used to, store and
transport fuel for transfer into or from
aircraft or ground service equipment.’’
The general secondary containment
requirements of § 112.7(c) would still
apply to these airport mobile refuelers
and to the transfers associated with this
equipment. Since airport mobile
refuelers are mobile or portable bulk
storage containers, the other provisions
of § 112.8(c) would still apply.
The Agency researched regulatory
compliance of airports with SPCC
requirements for secondary
containment, and found that some
airports do not have sized secondary
containment in place. EPA found that
secondary containment for mobile
refuelers is not a common practice and
that mobile refuelers rarely have a
designated area to park. Factors such as
the land value at many commercial
airports prohibits a single, designated
parking area for mobile refuelers.6 EPA
analyzed potential cost savings to the
industry using an assumption that new
facilities would have to provide
secondary containment in accordance
6 For detail, see ‘‘Results of Research Project on
Airport Engineering and Construction Firms’’, Abt
Associates Inc. memorandum, 2004.
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with § 112.8(c)(2) and (11) for airport
mobile refuelers. Therefore, the
estimated annual cost savings consist of
the potential expenditures avoided of
providing secondary containment for
new airport mobile refuelers.
The Agency estimated the total
number of new airports at 479 in the
first year. Over the next ten years,
approximately 535 new airports are
expected to be added annually on
average. EPA assumed one to three
mobile refuelers per airport,7 or
approximately two per airport on
average. EPA estimates that this
component of the proposal could reduce
compliance costs by $6.43 million and
$5.23 million per year, discounted at 3
percent and 7 percent, respectively. The
derivation of these estimates is
explained in Chapter 8 of the Regulatory
Analysis.
6. Projected Impacts on Human Health,
Welfare, and the Environment
The main benefit of the proposed rule
is lower compliance costs for certain
types of facilities and equipment. EPA
expects these reduced expenditures to
translate to net social benefits. These
benefits may be partially offset by
potential increases in risk of oil
discharges, due to less stringent
requirements compared to the existing
SPCC rule.
However, EPA has designed the
proposed rule to minimize increases in
environmental risk. For example, EPA is
providing an option to avoid
Professional Engineer certification for
qualified facilities that have no history
of reportable discharges. Any decision
to apply environmental equivalence or
pursue an impracticability
determination would still require PE
certification, except for security and
integrity testing. For the other relief
offered in the proposal, most facilities
will have general secondary
containment that would help prevent
discharges as described in § 112.1(b). In
summary, although the magnitude of
any increase in risk under each of the
proposed options is unclear, EPA does
not believe that these changes in spill
risk are significant.
To the extent that lower compliance
costs encourage greater overall
compliance, the proposed rule may
actually prevent discharges from
currently non-compliant facilities that
would occur in its absence.
7. Alternative Regulatory Options
EPA considered other options for
addressing public comments to the
7 Based on Federal Aviation Administration
estimates (https://www.faa.gov/data—statistics/).
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NODAs published on September 20,
2004. Following are summaries of the
changes in compliance costs estimated
for each alternative option (for qualified
facilities and qualified oil-filled
operational equipment), as well as
EPA’s rationale for rejecting the
alternative option.
a. Qualified Facilities
As an alternative option, EPA
considered a notification requirement
for qualified facilities that have been
operating for less than ten years, along
with eliminating the requirement for PE
certification and providing flexibility for
integrity testing and security for all
qualified facilities. EPA estimates that
the alternative option could reduce
compliance costs by $22.3 million and
$18.4 million per year, discounted at 3
percent and 7 percent, respectively. To
arrive at these figures, EPA assumed
that 50 percent of facilities under 10,000
gallons would qualify for this option.
EPA also assumed that the proposed
flexibility for integrity testing would
reduce the unit cost of testing by 50
percent. EPA assumed that the total
burden of notification for a facility
would be three hours: one hour of
managerial time, one hour of technical
time, and one hour of clerical time. If 25
percent of facilities under 10,000
gallons qualified for this option,
compliance costs would decrease by
$11.2 million and $9.13 million per
year, discounted at 3 percent and 7
percent, respectively. If 75 percent of
facilities under 10,000 gallons qualified
for this option, compliance costs would
be reduced by $33.5 million and $27.4
million per year, discounted at 3
percent and 7 percent, respectively. EPA
decided not to pursue this option
because it does not differ substantively
from the proposed option; an additional
notification burden was not considered
necessary.
As an alternative option, EPA
considered establishing three facilitysize tiers according to SBA’s
recommendations based on facility’s
total oil storage capacity (Jack Faucett
Associates, 2004). EPA estimates that
this alternative option could reduce
compliance costs by $42.9 million and
$35.0 million per year, discounted at 3
percent and 7 percent, respectively. To
arrive at these estimates, EPA assumed
that all SPCC-regulated facilities with
oil storage capacity between 1,320 and
5,000 gallons would take advantage of
the option, eliminating the cost of
preparing and maintaining a written
SPCC Plan. Additionally, EPA assumed
that all SPCC-regulated facilities with
oil storage capacity between 5,001 and
10,000 gallons would take advantage of
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the option and eliminate the cost of PE
certification.
The cost savings associated with the
three-tier plans, however, come at the
expense of losses in environmental
protection. Although EPA agrees that a
reduction in burden may be appropriate
for facilities handling smaller quantities
of oils, smaller facilities still pose risks
to the environment given the nature of
the product. Therefore, some type of
Plan or documentation is warranted
even for these smaller facilities. The
tiered option also raises significant
implementation issues. For example,
certain facilities would require
compliance with the SPCC rule without
a written SPCC Plan. EPA believes that
a facility would not be able to properly
implement oil spill prevention
measures—including notification,
equipment maintenance, inspection and
training—without written
documentation to inform the owner or
operator of his/her responsibilities.
Additionally, EPA inspectors
conducting on-site visits would have no
written Plan or documentation to assess
the facility’s effectiveness in
implementing their spill prevention
strategy. Even with model plans, owners
or operators of larger facilities may not
have the expertise to create their own
SPCC Plan without input from a PE.
EPA also considered two additional
options to provide relief to qualified
facilities: a compliance date extension
and a suspension of all requirements.
These options would not have an
impact on compliance costs, but would
only delay expenditures at affected
facilities. EPA decided against these
options because owners or operators of
qualified facilities would remain
uncertain about the timing and type of
future requirements that would apply to
them. The preferred option would set
forth explicit requirements for qualified
facilities that reduce compliance costs
within the current compliance date
schedule. The extension/suspension
options also would pose additional
problems related to implementation and
environmental protection.
b. Oil-Filled Equipment
EPA explored a three-tiered structure
option in response to comments on the
Notice of Data Availability (NODA) for
oil-filled operational equipment (69 FR
56184, September 20, 2004). The option
is based on a proposal put forth by the
Utility Solid Waste Activities Group
(USWAG). The option would allow an
owner or operator to define discrete
units of equipment as individual
facilities and reduce requirements
imposed on units with capacities less
than 20,000 gallons. EPA estimates that
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this alternative option could reduce
compliance costs by $17.6 million and
$14.2 million per year, discounted at 3
percent and 7 percent, respectively.
EPA also considered two
administrative options to provide relief
to oil-filled operational equipment: a
compliance date extension and a
suspension of all requirements. These
options would not have an impact on
compliance costs, but would only delay
expenditures at affected facilities. EPA
decided against these options because
facility owners or operators would
remain uncertain about the timing and
nature of requirements that eventually
would apply to them. Since many
facilities have oil-filled operational
equipment, delaying changes to these
requirements could lead to a significant
number of facilities needing to modify
their existing Plans more than once to
accommodate future rule changes. A
suspension would increase the risk of
discharge at facilities with qualified oilfilled operational equipment during the
interim period, due to the delayed
implementation of preventive measures.
8. Key Limitations of the Analysis
One of the main limitations of the
regulatory analysis is EPA’s lack of data
on facilities regulated under the SPCC
rule. As mentioned earlier, the rule does
not include (and never included) a
notification requirement and, with
certain exceptions, regulated entities do
not need to submit their SPCC Plans to
EPA. Without conducting a statistically
valid survey, EPA is limited to data
already collected by state or federal
agencies or by proprietary sources. Such
data are collected for diverse purposes
and are not necessarily ideal for
evaluating regulatory options, because
they often omit portions of the regulated
universe or lack sufficient detail to
ascertain the impacts of changes in
certain requirements. The type of
information collected also varies among
the different sources. Data provided by
industry organizations or individual
businesses are often anecdotal or based
on surveys that are not statistically
valid, and cannot be reliably
extrapolated to a larger universe. As a
result of this limitation of data on
regulated facilities, EPA has had to rely
on updated figures from 1996 for most
industry sectors, as well as federal and
proprietary sources for a small number
of other sectors. Because none of these
sources give adequate detail to evaluate
the potential impacts of individual
regulatory options, EPA has chosen to
examine various scenarios for each
option to bound the range of cost
savings that could occur.
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73547
Approaches to compliance will
depend on site-specific circumstances.
For example, compliance costs vary not
only on the volume of oil stored and
handled, but also on the types of oil at
a site, the number of tanks (and their
volume), and the locations of the tanks
across a site. Given the wide range of
industries and facility sizes affected by
the SPCC rule—as well as geographical
and climatic conditions—it is difficult
to specify a realistic baseline against
which regulatory changes can be
measured. Therefore, it is also difficult
to estimate the changes that could occur
under various regulatory options.
Finally, many of the cost assumptions
used in the regulatory analysis are based
on interviews with a limited number of
PEs. It is very difficult to simply assess
‘‘typical’’ costs when the costs of
compliance are closely related to sitespecific factors. Ideally, future analyses
could explicitly account for such
variability in costs.
9. Conclusions
Applying both a 3 percent and a 7
percent discount rate, the proposed
regulatory changes could yield
compliance cost savings of $22.5
million and $18.4 million for the
‘‘qualified facility’’ option; $56.7
million and $45.9 million for the
‘‘qualified oil-filled operational
equipment’’ option; $0.92 million and
$0.75 million for ‘‘motive power’’
exemption; and $6.43 million and $5.23
million for airports with mobile
refuelers, respectively. Costs of these
components are not summed, since
simple addition would overstate cost
savings by not accounting for
interactions between the impacts of the
different components. EPA does not
believe that these cost reductions would
be offset by any significant losses in
environmental protection.
B. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR)
document prepared by EPA has been
assigned EPA ICR number 0328.12.
EPA does not collect the information
required by SPCC rule on a routine
basis. SPCC Plans ordinarily need not be
submitted to EPA, but must generally be
maintained at the facility. Preparation,
implementation, and maintenance of an
SPCC Plan by the facility helps prevent
oil discharges, and mitigates the
environmental damage caused by such
discharges. Therefore, the primary user
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of the data is the facility. While EPA
may, from time to time, request
information under these regulations,
such requests are not routine.
Although the facility is the primary
data user, EPA also uses the data in
certain situations. EPA reviews SPCC
Plans: (1) When it requests a facility to
submit a Plan after certain oil discharges
or to evaluate an extension request; and,
(2) as part of EPA’s inspection program.
State and local governments also use the
data, which are not necessarily available
elsewhere and can greatly assist local
emergency preparedness efforts.
Preparation of the information for
affected facilities is required under
section 311(j)(1) of the Act as
implemented by 40 CFR part 112.
In the absence of this proposed
rulemaking, EPA estimates that
approximately 618,000 facilities would
be subject to the SPCC rule in 2006 and
have SPCC Plans. In addition, EPA
estimates that approximately 4,520 new
facilities would become subject to SPCC
requirements annually. In the absence of
this proposed rulemaking, EPA projects
that the average annual public reporting
and recordkeeping burden for this
information collection would be
1,980,000 hours.
Under today’s proposed rulemaking,
qualified facilities would no longer need
a licensed Professional Engineer to
certify their Plans. Facilities that store
oil solely in motive power containers
would no longer be regulated, while
other facilities with oil storage in
addition to motive power containers
may incur lower compliance costs.
Today’s proposal would also allow
greater use of contingency plans and
written commitment of manpower,
equipment and resources without
requiring an impracticability
determination when combined with an
inspection or monitoring program as an
alternative to secondary containment for
qualified oil-filled operational
equipment. It would also allow airport
mobile refuelers to fall under a facility’s
general secondary containment
requirements, rather than require
specifically sized secondary
containment.
Under the proposed rule, an estimated
372,000 regulated facilities would
annually be subject to the SPCC
information collection requirements of
this rule during the information
collection period. This figure excludes
farms with oil storage capacity of 10,000
gallons or less, to reflect the proposed
compliance extension. Under this
proposed rule, the estimated annual
average burden over the next 3-year ICR
period would be approximately
1,490,000 hours, resulting in a 25
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percent average reduction. The
estimated average annual public
reporting for individual facilities
already regulated under the SPCC rule
would range between 3.46 and 6.04
hours, while the burden for newly
regulated facilities would range between
37.2 and 64.1 hours as a result of this
proposal. The net annualized capital
and start-up costs for the SPCC
information collection portion of the
rule would average $0.32 million and
net annualized operation and
maintenance (O&M) costs are estimated
to be $26 million for all of these
facilities combined.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
To comment on the Agency’s need for
this information, the accuracy of the
burden estimates, and any suggested
methods for minimizing respondent
burden, including the use of automated
collection techniques, EPA has
established a public docket for this rule,
which includes this ICR, under Docket
ID number EPA–HQ–OPA–2005–0001.
Submit any comments related to the ICR
for this proposed rule to EPA and OMB.
See ADDRESSES section at the beginning
of this notice for where to submit
comments to EPA. Send comments to
OMB at the Office of Information and
Regulatory Affairs, Office of
Management and Budget, 725 17th
Street, NW., Washington, DC 20503,
Attention: Desk Office for EPA. Since
OMB is required to make a decision
concerning the ICR between 30 and 60
days after December 12, 2005, a
comment to OMB is best assured of
having its full effect if OMB receives it
by February 10, 2006. The final rule will
respond to any OMB or public
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comments on the information collection
requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions. For purposes of assessing
the impacts of today’s proposed rule on
small entities, small entity is defined as:
(1) A small business as defined in the
SBA’s regulations at 13 CFR 121.201—
the SBA defines small businesses by
category of business using North
American Industry Classification
System (NAICS) codes, and in the case
of farms and production facilities,
which constitute a large percentage of
the facilities affected by this proposed
rule, generally defines small businesses
as having less than $500,000 in
revenues or 500 employees,
respectively; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise that is independently owned
and operated and is not dominant in its
field.
After considering the economic
impacts of today’s proposed rule on
small entities, the Agency certifies that
this action would not have a significant
economic impact on a substantial
number of small entities. In determining
whether a rule has a significant
economic impact on a substantial
number of small entities, the impact of
concern is any significant adverse
economic impact on small entities,
since the primary purpose of the
regulatory flexibility analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the
proposed rule on small entities.’’ 5
U.S.C. 603 and 604. Thus, an agency
may certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, or
otherwise has a positive economic effect
on all of the small entities subject to the
rule.
This proposed rule would reduce
regulatory burden on qualified facilities
and qualified oil-filled operational
equipment. Qualified facilities would
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no longer need a licensed Professional
Engineer to certify their Plans. Facilities
that store oil solely in motive power
containers would no longer be
regulated, while other facilities with oil
storage in addition to motive power
containers may incur lower compliance
costs. Today’s proposal would also
allow greater use of contingency plans
and a written commitment of
manpower, equipment and materials
without requiring an impracticability
determination as an alternative to
secondary containment for qualified oilfilled operational equipment when
combined with an established and
documented inspection or monitoring
program. It would also allow airport
mobile refuelers to fall under a facility’s
general secondary containment
requirements rather than require
specifically sized secondary
containment. We have therefore
concluded that today’s proposed rule
would relieve regulatory burden for
small entities and welcome comments
on issues related to such impacts.
Overall, EPA estimates that today’s
proposal would reduce annual
compliance costs by $81 million (net
present value) using nominal dollars
and $98 million using annualized
values with constant dollars. Small
facilities, in particular, would benefit.
For example, EPA estimates that the
proposed rule would lower compliance
costs by $22.5 million and $18.4 million
at 3 percent and 7 percent discount rate
for facilities with less than 10,000
gallons of oil storage capacity.
After considering the economic
impacts of today’s proposed rule on
small entities, I certify that this action
will not have a significant economic
impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under section 202 of UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any one year. Before
promulgating an EPA rule for which a
written statement is needed, section 205
of UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
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effective or least burdensome alternative
that achieves the objectives of the rule.
The provisions of section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most-effective or
least burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted.
Before EPA establishes any regulatory
requirements that may significantly or
uniquely affect small governments,
including tribal governments, it must
have developed under section 203 of
UMRA a small government agency plan.
The plan must provide for notifying
potentially affected small governments,
enabling officials of affected small
governments to have meaningful and
timely input in the development of EPA
regulatory proposals with significant
Federal intergovernmental mandates,
and informing, educating, and advising
small governments on compliance with
the regulatory requirements. EPA has
determined that this proposed rule does
not contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and tribal
governments, in the aggregate, or the
private sector in any one year. Today’s
proposed rule would reduce burden and
costs on affected facilities by
approximately $81 million per year (net
present value) using nominal dollars
and $98 million per year using
annualized values with constant dollars.
EPA has determined that this
proposed rule contains no regulatory
requirements that might significantly or
uniquely affect small governments. As
explained above, the effect of the
proposed rule would be to reduce
burden and costs for qualified regulated
facilities, including certain small
governments that are subject to the rule.
E. Executive Order 13132—Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
This proposed rule does not have
federalism implications. It would not
have substantial direct effects on the
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73549
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Under CWA
section 311(o), States may impose
additional requirements, including more
stringent requirements, relating to the
prevention of oil discharges to navigable
waters. EPA encourages States to
supplement the Federal SPCC program
and recognizes that some States have
more stringent requirements. 56 FR
54612 (October 22, 1991). This proposed
rule would not preempt State law or
regulations. Thus, Executive Order
13132 does not apply to this proposed
rule.
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
On November 6, 2000, the President
issued Executive Order 13175 (65 FR
67249) entitled, ‘‘Consultation and
Coordination with Indian Tribal
Governments.’’ Executive Order 13175
took effect on January 6, 2001, and
revokes Executive Order 13084 (Tribal
Consultation) as of that date.
Today’s proposed rule would not
significantly or uniquely affect
communities of Indian tribal
governments. Therefore, we have not
consulted with a representative
organization of tribal groups.
G. Executive Order 13045—Protection of
Children From Environmental Health &
Safety Risks
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), applies to any rule that:
(1) Is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866; and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency. EPA
interprets Executive Order 13045 as
applying only to those regulatory
actions that are based on health or safety
risks, such that the analysis required
under section 5–501 of the Order has
the potential to influence the regulation.
This proposed rule is not subject to
Executive Order 13045 because the
Agency does not have reason to believe
the environmental health or safety risks
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§ 112.1
addressed by this action present a
disproportionate risk to children.
H. Executive Order 13211—Actions
That Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not a
‘‘significant energy action’’ as defined in
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards such as materials
specifications, test methods, sampling
procedures, and business practices that
are developed or adopted by voluntary
consensus standards bodies. The
NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This proposed rule does not involve
technical standards. Therefore, NTTAA
does not apply.
List of Subjects in 40 CFR Part 112
Environmental protection, Oil
pollution, Penalties, Petroleum,
Reporting and recordkeeping
requirements.
Dated: December 2, 2005.
Stephen L. Johnson,
Administrator.
For the reasons stated in the
preamble, the Environmental Protection
Agency proposes to amend 40 CFR part
112 as follows:
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C.
2720; and E.O. 12777 (October 18, 1991), 3
CFR, 1991 Comp., p. 351.
Subpart A [Amended]
2. Amend § 112.1 by revising
paragraph (d)(2)(ii) and adding
paragraph (d)(7) to read as follows:
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General applicability.
*
*
*
*
*
(d) * * *
(2) * * *
(ii) The aggregate aboveground storage
capacity of the facility is 1,320 gallons
or less of oil. For the purposes of this
exemption, only containers with a
capacity of 55 gallons or greater are
counted. The aggregate aboveground
storage capacity of a facility excludes
the capacity of a container that is
‘‘permanently closed,’’ or a ‘‘motive
power container’’ as defined in § 112.2.
*
*
*
*
*
(7) Any ‘‘motive power container,’’ as
defined in § 112.2. The transfer of fuel
or other oil into a motive power
container at an otherwise regulated
facility is not subject to this exemption.
*
*
*
*
*
3. Amend § 112.2 by adding
definitions for ‘‘Airport mobile
refueler’’, ‘‘Farm’’, ‘‘Motive power
container’’, and ‘‘Oil-filled operational
equipment’’ in alphabetical order to
read as follows:
§ 112.2
Definitions.
*
*
*
*
*
Airport mobile refueler means a
vehicle with an onboard bulk storage
container designed, or used to store and
transport fuel for transfer into or from
aircraft or ground service equipment.
*
*
*
*
*
Farm means a facility on a tract of
land devoted to the production of crops
or raising of animals, including fish,
which produced and sold, or normally
would have produced and sold, $1,000
or more of agricultural products during
a year.
*
*
*
*
*
Motive power container means any
onboard bulk storage containers used
solely to power the movement of a
motor vehicle, or ancillary onboard oilfilled operational equipment used solely
to facilitate its operation. An onboard
bulk storage container which is used to
store or transfer oil for further
distribution is not a motive power
container. The definition of motive
power equipment does not include oil
drilling or workover equipment,
including rigs.
*
*
*
*
*
Oil-filled operational equipment
means equipment which includes an oil
storage container (or multiple
containers) in which the oil is present
solely to support the function of the
apparatus or the device. Oil-filled
operational equipment is not considered
a bulk storage container, and does not
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include oil-filled manufacturing
equipment (flow-through process).
*
*
*
*
*
4. Amend § 112.3 by designating the
existing text of paragraph (a) as (a)(1)
and adding (a)(2), designating the
existing text of paragraph (b) as (b)(1)
and adding (b)(2), revising the
introductory text of paragraph (d), and
adding paragraph (g) to read as follows:
§ 112.3 Requirement to prepare and
implement a Spill Prevention, Control, and
Countermeasure Plan.
*
*
*
*
*
(a)(1) * * *
(2) If your farm has a total oil storage
capacity of 10,000 gallons or less, the
compliance dates described in
paragraph (a)(1) of this section are
delayed indefinitely or until the Agency
publishes a final rule in the Federal
Register establishing a new compliance
date.
(b)(1) * * *
(2) If your farm has a total oil storage
capacity of 10,000 gallons or less, the
compliance dates described in
paragraph (b)(1) of this section are
delayed indefinitely or until the Agency
publishes a final rule in the Federal
Register establishing a new compliance
date.
*
*
*
*
*
(d) Except as provided in paragraph
(g) of this section, a licensed
Professional Engineer must review and
certify a Plan for it to be effective to
satisfy the requirements of this part.
*
*
*
*
*
(g) Qualified Facilities. The owner or
operator of a facility that meets the
qualification criteria in paragraph (g)(1)
of this section may choose to self-certify
the facility’s SPCC Plan and any
technical amendments to the Plan in
lieu of certification by a licensed
Professional Engineer.
(1) Qualification Criteria. A facility is
qualified for owner or operator selfcertification of its SPCC Plan if it meets
the following criteria:
(i) The aggregate aboveground storage
capacity of the facility, as determined
according to § 112.1, is 10,000 gallons or
less; and
(ii) The facility either:
(A) Has been in operation for at least
ten years immediately prior to the date
of self-certification and in the ten-year
period immediately prior to selfcertification had no discharges as
described in § 112.1(b); or
(B) Is beginning operations or has
been in operation for fewer than ten
years without any discharges of oil as
described in § 112.1(b).
(2) Self-Certification. If you are the
owner or operator of a qualified facility
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and you choose to self-certify your Plan
or technical amendments to your Plan,
you must certify in the Plan that:
(i) You are familiar with the
requirements of this part;
(ii) You or your agent have visited and
examined the facility;
(iii) The Plan has been prepared in
accordance with accepted and sound
industry practices and standards, and
with the requirements of this part;
(iv) Procedures for required
inspections and testing have been
established;
(v) The Plan is being fully
implemented;
(vi) The facility meets the
qualification criteria set forth under
§ 112.3(g)(1);
(vii) The Plan does not utilize the
environmental equivalence and
impracticability provisions under
§ 112.7(a)(2) and 112.7(d), except as
described in paragraph (g)(3) of this
section; and
(viii) The Plan and individual(s)
responsible for implementing the Plan
have the full approval of management
and the facility has committed the
necessary resources to fully implement
the Plan.
(3) Self-Certified Plan Exceptions.
Except as provided in this
subparagraph, a self-certified SPCC Plan
must comply with § 112.7 and the
applicable requirements in subparts B
and C of this part:
(i) Environmental Equivalence. The
Plan may not include alternate methods
to the applicable requirements listed in
§ 112.7(a)(2).
(ii) Impracticability. The Plan may not
include any impracticability
determinations as described under
§ 112.7(d).
(iii) Security (excluding oil
production facilities). The owner or
operator must choose to either:
(A) Comply with the requirements
under § 112.7(g); or
(B) Prepare a security plan that
describes how the facility controls
access to the oil handling, processing
and storage areas; secures master flow
and drain valves; prevents unauthorized
access to starter controls on oil pumps;
secures out-of-service and loading/
unloading connections of oil pipelines;
addresses the appropriateness of
security lighting to both prevent acts of
vandalism and assist in the discovery of
oil discharges.
(iv) Bulk Storage Container
Inspections. In lieu of the requirements
in §§ 112.8(c)(6) and 112.12(c)(6), an
owner/operator must test/inspect each
aboveground container for integrity on a
regular schedule and whenever material
repairs are made. The owner or operator
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must determine, in accordance with
industry standards, the appropriate
inspector/testing personnel
qualifications, the frequency and type of
testing/inspections which take into
account container size, configuration,
and design (such as containers that are:
equipped with a floating roof, shop
built, field erected, skid-mounted,
elevated, equipped with a liner, double
walled, or partially buried). Examples of
these integrity tests include, but are not
limited to: visual inspection, hydrostatic
testing, radiographic testing, ultrasonic
testing, acoustic emissions testing, or
other systems of non-destructive testing.
You must keep comparison records and
you must also inspect the container’s
supports and foundations. In addition,
you must frequently inspect the outside
of the container for signs of
deterioration, discharges, or
accumulation of oil inside diked areas.
Records of inspections and tests kept
under usual and customary business
practices satisfy the recordkeeping
requirements of this paragraph.
5. Amend § 112.5 by revising
paragraph (c) to read as follows:
§ 112.5 Amendment of Spill Prevention,
Control, and Countermeasure Plan by
owners or operators.
*
*
*
*
*
(c) Except as provided in § 112.3(g),
have a Professional Engineer certify any
technical amendments to your Plan in
accordance with § 112.3(d).
6. Amend § 112.7 by revising
paragraph (a)(2), (c) introductory text,
(d) introductory text, and adding
paragraph (k) to read as follows:
§ 112.7 General requirements for Spill
Prevention, Control, and Countermeasure
Plans.
*
*
*
*
*
(a) * * *
(2) Comply with all applicable
requirements listed in this part. Except
as provided in § 112.3(g), your Plan may
deviate from the requirements in
paragraphs (g), (h)(2) and (3), and (i) of
this section and the requirements in
subparts B and C of this part, except the
secondary containment requirements in
paragraphs (c) and (h)(1) of this section,
and §§ 112.8(c)(2), 112.8(c)(11),
112.9(c)(2), 112.10(c), 112.12(c)(2), and
112.12(c)(11), where applicable to a
specific facility, if you provide
equivalent environmental protection by
some other means of spill prevention,
control, or countermeasure. Where your
Plan does not conform to the applicable
requirements in paragraphs (g), (h)(2)
and (3), and (i) of this section, or the
requirements of subparts B and C of this
part, except the secondary containment
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73551
requirements in paragraph (c) and (h)(1)
of this section, and §§ 112.8(c)(2),
112.8(c)(11), 112.9(c)(2), 112.10(c),
112.12(c)(2), and 112.12(c)(11), you
must state the reasons for
nonconformance in your Plan and
describe in detail alternate methods and
how you will achieve equivalent
environmental protection. If the
Regional Administrator determines that
the measures described in your Plan do
not provide equivalent environmental
protection, he may require that you
amend your Plan, following the
procedures in § 112.4(d) and (e).
*
*
*
*
*
(c) Provide appropriate containment
and/or diversionary structures or
equipment to prevent a discharge as
described in § 112.1(b), except as
provided in paragraph (k) of this section
for qualified oil-filled operational
equipment. The entire containment
system, including walls and floor, must
be capable of containing oil and must be
constructed so that any discharge from
a primary containment system, such as
a tank or pipe, will not escape the
containment system before cleanup
occurs. At a minimum, you must use
one of the following prevention systems
or its equivalent:
*
*
*
*
*
(d) Provided your Plan is certified by
a licensed Professional Engineer under
§ 112.3(d), if you determine that the
installation of any of the structures or
pieces of equipment listed in paragraphs
(c) and (h)(1) of this section, and
§§ 112.8(c)(2), 112.8(c)(11), 112.9(c)(2),
112.10(c), 112.12(c)(2) and 112.12(c)(11)
to prevent a discharge as described in
§ 112.1(b) from any onshore or offshore
facility is not practicable, you must
clearly explain in your Plan why such
measures are not practicable; for bulk
storage containers, conduct both
periodic integrity testing of the
containers and periodic integrity and
leak testing of the valves and piping;
and, unless you have submitted a
response plan under § 112.20, provide
in your Plan the following:
*
*
*
*
*
(k) Qualified Oil-Filled Operational
Equipment. The owner or operator of a
facility with oil-filled operational
equipment that meets the qualification
criteria in paragraph (k)(1) of this
section may choose to implement for
this qualified oil-filled operational
equipment the alternate requirements as
described in paragraph (k)(2) of this
section in lieu of applying the general
secondary containment requirements of
paragraph (c) of this section.
(1) Qualification Criteria—Reportable
Discharge History: The facility where
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the oil-filled operational equipment is
located either:
(i) Has been in operation for at least
ten years immediately prior to the date
of Plan certification and in the ten-year
period immediately prior to the Plan
certification date had no discharges as
described in § 112.1(b) from any oilfilled operational equipment, or
(ii) Is beginning operations or has
been in operation for fewer than ten
years without any discharges as
described in § 112.1(b) from any oilfilled operational equipment;
(2) Alternative Requirements to
General Secondary Containment. The
owner or operator of a facility with
qualified oil-filled operational
equipment must:
(i) Establish and document the facility
procedures for inspections or a
monitoring program to detect equipment
failure and/or a discharge; and
(ii) Unless you have submitted a
response plan under § 112.20, provide
in your Plan the following:
(A) An oil spill contingency plan
following the provisions of part 109 of
this chapter.
(B) A written commitment of
manpower, equipment, and materials
required to expeditiously control and
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Jkt 208001
remove any quantity of oil discharged
that may be harmful.
Subpart B—[Amended]
7. Amend § 112.8 by revising
paragraphs (c)(2) and (c)(11) to read as
follows:
§ 112.8 Spill Prevention, Control, and
Countermeasure Plan requirements for
onshore facilities (excluding production
facilities).
*
*
*
*
*
(c) * * *
(2) Construct all bulk storage tank
installations (except airport mobile
refuelers) so that you provide a
secondary means of containment for the
entire capacity of the largest single
container and sufficient freeboard to
contain precipitation. You must ensure
that diked areas are sufficiently
impervious to contain discharged oil.
Dikes, containment curbs, and pits are
commonly employed for this purpose.
You may also use an alternative system
consisting of a drainage trench
enclosure that must be arranged so that
any discharge will terminate and be
safely confined in a facility catchment
basin or holding pond.
*
*
*
*
*
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(11) Position or locate mobile or
portable oil storage containers to
prevent a discharge as described in
§ 112.1(b). Except in the cases of airport
mobile refuelers, you must furnish a
secondary means of containment, such
as a dike or catchment basin, sufficient
to contain the capacity of the largest
single compartment or container with
sufficient freeboard to contain
precipitation.
*
*
*
*
*
Subpart C—[Amended]
§ 112.12 Specific Spill Prevention, Control,
and Countermeasure Plan requirements.
8. Amend § 112.12 by revising the
section heading to read as set forth
above.
§ 112.13
[Removed and Reserved]
9. Remove and reserve § 112.13.
§ 112.14
[Removed and Reserved]
10. Remove and reserve § 112.14.
§ 112.15
[Removed and Reserved]
11. Remove and reserve § 112.15.
[FR Doc. 05–23917 Filed 12–9–05; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\12DEP3.SGM
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Agencies
[Federal Register Volume 70, Number 237 (Monday, December 12, 2005)]
[Proposed Rules]
[Pages 73524-73552]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23917]
[[Page 73523]]
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Part III
Environmental Protection Agency
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40 CFR Part 112
Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Plan Requirements--Amendments; Proposed Rule
Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 /
Proposed Rules
[[Page 73524]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2005-0001; FRL-8007-2]
RIN 2050-AG23
Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure Plan Requirements--Amendments
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
today proposing to amend the Spill Prevention, Control, and
Countermeasure (SPCC) Plan requirements to reduce the regulatory burden
for certain facilities by: Providing an option that would allow owners/
operators of facilities that store less than 10,000 gallons of oil and
meet other qualifying criteria to self-certify their SPCC Plans, in
lieu of review and certification by a Professional Engineer; providing
an alternative to the secondary containment requirement, without
requiring a determination of impracticability, for facilities that have
certain types of oil-filled equipment; defining and providing an
exemption for motive power containers; and exempting airport mobile
refuelers from the specifically sized secondary containment
requirements for bulk storage containers. In addition, the Agency also
proposes to remove and reserve certain SPCC requirements for animal
fats and vegetable oils and proposes a separate extension of the
compliance dates for farms. In proposing these changes, EPA is
significantly reducing the burden imposed on the regulated community in
complying with the SPCC requirements, while maintaining protection of
human health and the environment. Further, the Agency requests comments
on the potential scope of future rulemaking. In a separate document in
today's Federal Register, the Agency is proposing to extend the
compliance dates for all facilities.
DATES: Comments must be received on or before February 10, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2005-0001 by one of the following methods:
Federal Rulemaking Portal: www.regulations.gov. Follow the
on-line instructions for submitting comments.
Mail: The mailing address of the docket for this
rulemaking is EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-
2005-0001, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Hand Delivery: Such deliveries are only accepted during
the Docket's normal hours of operation, and special arrangements should
be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2005-0001. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of the comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. Comments and suggestions regarding the scope of any future
rulemaking should be clearly differentiated from comments specific to
today's proposal (e.g., label Suggestions for Future Rulemaking and
Comments on Current Proposal).
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by a statute. Certain other material,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the EPA
Docket, EPA/DC, EPA West, Room B102, 1303 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is 202-566-1744, and the telephone
number to make an appointment to view the docket is 202-566-0276.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP and Oil Information Center at 800-424-9346
or TDD 800-553-7672 (hearing impaired). In the Washington, DC
metropolitan area, call 703-412-9810 or TDD 703-412-3323. For more
detailed information on specific aspects of this proposed rule, contact
either Vanessa E. Rodriguez at 202-564-7913
(rodriguez.vanessa@epa.gov), or Mark W. Howard at 202-564-1964
(howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC, 20460-0002, Mail Code 5104A.
SUPPLEMENTARY INFORMATION: This proposed rule would amend the
requirements for Spill Prevention, Control, and Countermeasure (SPCC)
Plans in 40 CFR part 112. First, the proposal would provide an
alternative option for the owner/operator of a facility that meets
specific qualifying criteria (hereafter referred to as a ``qualified
facility'') to self-certify that the facility's SPCC Plan complies with
40 CFR part 112, in lieu of the requirement for a Professional
Engineer's (PE) review and certification. Second, the proposal would
provide an alternative option for the owner/operator of a facility with
oil-filled operational equipment that meets specific qualifying
criterion (hereafter referred to as ``qualified oil-filled operational
equipment'') to establish and document an inspection or monitoring
program, prepare a contingency plan, and provide a written commitment
of manpower, equipment and materials in lieu of secondary containment
for qualified oil-filled operational equipment without being required
to make an individual impracticability determination. Third, the
proposal would define and provide an exemption for motive power
containers. Fourth, the proposal would exempt airport mobile refuelers
from specifically sized secondary containment requirements for bulk
storage containers. Fifth, the proposal removes and reserves certain
SPCC requirements for animal fats and vegetable oils. Finally, the
proposal provides a separate extension of the compliance dates for
farms and, in a separate notice in today's Federal Register, the Agency
is proposing to extend the compliance dates for all facilities. The
contents of this preamble are:
I. General Information
[[Page 73525]]
II. Entities Potentially Affected by This Proposed Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. Today's Action
A. Qualified Facilities
1. Eligibility Criteria
a. Total Facility Oil Storage Capacity Threshold
b. Reportable Discharge History
2. Proposed Requirements for Qualified Facilities
a. Self-Certification and Plan Amendments
b. Environmental Equivalence and Impracticability Determinations
c. SPCC Plan Exceptions
3. Alternative Options Considered
a. Extension/Suspension Options
b. Multi-tiered Structure
c. One-time Notification
B. Qualified Oil-filled Operational Equipment
1. Proposed Oil-Filled Operational Equipment Definition
2. Eligibility Criteria--Reportable Discharge History
3. Proposed Requirements for Qualified Oil-Filled Operational
Equipment In Lieu of Secondary Containment
a. Contingency Plans and a Written Commitment of Manpower,
Equipment and Materials
b. Inspections or Monitoring Program
4. Alternative Options Considered
a. Capacity Threshold Qualifier
b. Multi-Tiered Structure
c. Extension/Suspension Options
5. Qualified Facilities and Qualified Oil-Filled Operational
Equipment Overlap
C. Motive Power
1. Definition of Motive Power
2. Proposed Exemption
3. Alternative Options Considered
a. Equipment-Based Motive Power Exemption
b. Threshold-Based Motive Power Exemption
c. Exclusion From Storage Capacity Calculation
D. Airport Mobile Refuelers
1. Definition of Airport Mobile Refueler
2. Proposed Amended Requirements
E. Animal Fats and Vegetable Oils
VI. Proposed Extension of Compliance Dates for Farms
A. Eligibility Criteria
B. Proposed Compliance Date Extension for Farms
VII. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045--Protection of Children From
Environmental Health & Safety Risks
H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
To reduce regulatory burden for qualified facilities and to address
several concerns involving oil-filled operational equipment, motive
power containers, airport mobile refuelers, and provisions specific to
animal fats and vegetable oils, EPA proposes to amend the SPCC Plan
requirements in 40 CFR part 112. The Agency also proposes a separate
extension of the compliance dates for farms. Specifically:
EPA proposes an alternative option for the owner/operator
of a qualified facility to self-certify his/her SPCC Plan, prepared in
accordance with 40 CFR part 112, in lieu of review and certification by
a Professional Engineer (PE). A qualified facility is a facility
subject to the SPCC requirements that (1) has a maximum total facility
oil storage capacity of 10,000 gallons or less; and (2) had no
reportable oil discharge as described in Sec. 112.1(b) during the ten
years prior to self-certification or, since becoming subject to the
SPCC requirements if the facility has been in operation for less than
ten years. Under this proposed approach, facility owners/operators of
qualified facilities choosing to self-certify their SPCC Plans may not
deviate from any requirement of the SPCC rule under Sec. 112.7(a)(2)
(with two exceptions) and may not make impracticability determinations
in their SPCC Plans as described under Sec. 112.7(d). The two
exceptions are that facility owners/operators of qualified facilities
choosing to self-certify their SPCC Plans would have flexibility with
respect to the security requirements and container integrity testing.
EPA proposes a definition for oil-filled operational
equipment and proposes that owners and operators of facilities where
qualified oil-filled operational equipment is located have the
alternative of preparing an oil spill contingency plan and a written
commitment of manpower, equipment and materials, without having to
determine that secondary containment is impracticable on an individual
equipment basis (make an individual impracticability determination as
required in Sec. 112.7(d)); and establish and document an inspection
or monitoring program for this equipment to detect equipment failure
and/or a discharge in lieu of providing secondary containment for
qualified oil-filled operational equipment. Today's proposal would
eliminate the current requirement for an individual impracticability
determination for oil-filled operational equipment at a facility that
has had no discharges as described in Sec. 112.1(b) from any oil-
filled operational equipment during the ten years prior to the Plan
certification date or, since becoming subject to the SPCC requirements
if the facility has been in operation for less than ten years.
EPA proposes to exempt from the SPCC rule certain motive
power containers. Motive power containers are onboard bulk storage
containers used solely to power the movement of a motor vehicle (i.e.,
fuel tanks), or ancillary onboard oil-filled operational equipment
(i.e., hydraulics and lubrication systems) used solely to facilitate
its operation. This exemption would not apply to transfers of fuel or
other oil into motive power containers at an otherwise regulated
facility. This exemption would not apply to a bulk storage container
mounted on a vehicle for any purpose other than powering the vehicle
itself, for example, a tanker truck or mobile refueler. Additionally,
this exemption would not apply to oil drilling or workover equipment,
including rigs.
EPA proposes to exempt airport mobile refuelers from the
specifically sized secondary containment requirements for bulk storage
containers under Sec. 112.8(c)(2) and (11) of the SPCC rule. Airport
mobile refuelers are vehicles found at airports that have onboard bulk
storage containers designed for, or used to, store and transport fuel
for transfer into or from an aircraft or ground service equipment. The
remaining provisions of Sec. 112.8(c) and the general secondary
containment requirements of Sec. 112.7(c) would still apply to the
onboard bulk storage containers on airport mobile refuelers and the
transfers associated with this equipment.
The Agency proposes to amend the requirements for animal
fats and vegetable oils in Subpart C of Part 112 by removing Sec.
112.13 (requirements for onshore oil production facilities), Sec.
112.14 (requirements for onshore oil drilling and workover facilities),
and Sec. 112.15 (requirements for offshore oil drilling, production,
or workover facilities) because these sections do not apply to
facilities that handle, store, or transport animal fats and vegetable
oils.
EPA proposes to extend the compliance dates for farms,
while the Agency considers whether the unique nature of this sector
warrants differentiated requirements under the SPCC rule.
Under the current regulations in Sec. 112.3(a), (b) and
(c), a facility that was in operation on or before August 16, 2002 must
make any necessary amendments to its SPCC Plan by February 17, 2006,
and fully implement
[[Page 73526]]
its SPCC Plan by August 18, 2006. A facility that came into operation
after August 16, 2002 but before August 18, 2006, must prepare and
fully implement an SPCC Plan on or before August 18, 2006. The owner or
operator of an onshore or offshore mobile facility must maintain their
Plan, but must amend and implement it, if necessary to ensure
compliance with this part, on or before August 18, 2006. In a separate
notice in today's Federal Register, the Agency is proposing to extend
the compliance dates for all facilities to October 31, 2007. Reviewers
should refer to that notice for a complete discussion of the proposed
extension. Regarding modifications of the SPCC regulations, to the
extent practicable, EPA will establish deadlines for compliance
implementation that commence one year after promulgating the regulatory
revisions.
II. Entities Potentially Affected by This Proposed Rule
------------------------------------------------------------------------
Industry category NAICS code
------------------------------------------------------------------------
Crop and Animal Production............... 111-112
Crude Petroleum and Natural Gas 211
Extraction..............................
Coal Mining, Non-Metallic Mineral Mining 2121/2123/213114/213116
and Quarrying...........................
Electric Power Generation, Transmission, 2211
and Distribution........................
Heavy Construction....................... 234
Petroleum and Coal Products Manufacturing 324
Other Manufacturing (including animal 31-33
fats and vegetable oil manufacturing)...
Petroleum Bulk Stations and Terminals.... 42271
Automotive Rental and Leasing............ 5321
Gasoline Service Stations................ 447
Fuel Oil Dealers......................... 4543
Waste Management and Remediation......... 562
Other Commercial Facilities (including 44-45, 51-55, 56172
Retail Stores, Apartment Buildings,
Wholesalers and Janitorial Services)....
Transportation (including Pipelines and 482-486/488112-48819/4883/
Airports), Warehousing, and Marinas..... 48849/492-493/71393
Elementary and Secondary Schools, 611
Colleges................................
Federal, State, Local Government and 92
Military Installations..................
Hospitals/Nursing and Residential Care 621-623
Facilities..............................
------------------------------------------------------------------------
The list of potentially affected entities in the above table may
not be exhaustive. The Agency's aim is to provide a guide for readers
regarding those entities that potentially could be affected by this
action. However, this action may affect other entities not listed in
this table. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
III. Statutory Authority and Delegation of Authority
Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33
U.S.C. 1321(j)(1)(C), requires the President to issue regulations
establishing procedures, methods, equipment, and other requirements to
prevent discharges of oil from vessels and facilities and to contain
such discharges. The President delegated the authority to regulate non-
transportation-related onshore facilities to the EPA in Executive Order
11548 (35 FR 11677, July 22, 1970), which has been replaced by
Executive Order 12777 (56 FR 54757, October 22, 1991). A Memorandum of
Understanding (MOU) between the U.S. Department of Transportation (DOT)
and EPA (36 FR 24080, November 24, 1971) established the definitions of
transportation- and non-transportation-related facilities. An MOU among
EPA, the U.S. Department of Interior (DOI), and DOT, effective February
3, 1994, has redelegated the responsibility to regulate certain
offshore facilities from DOI to EPA.
IV. Background
On July 17, 2002, EPA published a final rule amending the Oil
Pollution Prevention regulation (40 CFR part 112) promulgated under the
authority of section 311(j) of the CWA. This revised rule included
requirements for SPCC Plans and for Facility Response Plans (FRPs). It
also included new subparts outlining the requirements for various
classes of oil; revised the applicability of the regulation; amended
the requirements for completing SPCC Plans; and made other
modifications (67 FR 47042). The revised rule became effective on
August 16, 2002. After publication of this rule, several members of the
regulated community filed legal challenges to certain aspects of the
rule. Most of the issues raised in the litigation have been settled,
following which EPA published clarifications in the Federal Register to
several aspects of the revised rule (69 FR 29728, May 25, 2004).\1\
---------------------------------------------------------------------------
\1\ American Petroleum Institute v. Leavitt, No. 1:102CV02247
PLF and consolidated cases (D.D.C. filed Nov. 14, 2002). The
remaining issue to be decided concerns the definition of ``navigable
waters'' in Sec. 112.1.
---------------------------------------------------------------------------
EPA has extended the dates for revising and implementing revised
SPCC Plans in 40 CFR 112.3(a) and (b) several times, and has extended
the compliance date for 40 CFR 112.3(c) (see 69 FR 48794 (August 11,
2004) for further discussion on the extensions). This action was taken
by EPA in order to provide the regulated community with sufficient time
to comply with the 2002 revised rule and to allow the regulated
community time to understand the 2004 clarifications and be able to
incorporate them in their updated SPCC Plans. The current deadline for
the preparation and certification of revised SPCC Plans for facilities
maintaining their current SPCC Plan is February 17, 2006. Plans must be
implemented by August 18, 2006. Facilities that became subject to the
SPCC rule after August 16, 2002 are currently required to develop and
implement their Plans by August 18, 2006.
On September 20, 2004, EPA published two Notices of Data
Availability (NODAs). The first NODA made available and solicited
comments on submissions to EPA suggesting more focused requirements for
facilities subject to the SPCC rule that handle oil below a certain
threshold amount, referred to as ``certain facilities'' (69 FR 56182).
Streamlined approaches for facilities with oil capacities below a
certain threshold were discussed in the NODA documents. The second NODA
made available and solicited comments
[[Page 73527]]
on whether alternate regulatory requirements would be appropriate for
facilities with oil-filled and process equipment (69 FR 56184). EPA has
reviewed the public comments and data submitted in response to the
NODAs in developing today's proposal.
In addition, the Agency considered regulatory relief for airport
mobile refuelers in response to concerns raised by the aviation sector.
Airport mobile refuelers are vehicles that are used on an airport
facility to refuel aircraft and ground service equipment (such as belt
loaders, tractors, luggage transport vehicles, deicing equipment, and
lifts) used at airports. The onboard bulk storage containers on airport
mobile refuelers that are used to transport and transfer fuel into or
from aircraft and ground service equipment are considered mobile or
portable bulk storage containers under the SPCC rule because they are
used to store oil prior to further distribution and use. As such, they
are subject to all applicable SPCC rule provisions, including the sized
secondary containment provisions of Sec. 112.8(c)(2) and (11). These
provisions require the secondary containment, such as a dike or
catchment basin, to be sufficient to contain the capacity of the
largest single compartment or container and include sufficient
freeboard to contain precipitation.
Regulated community members in the aviation sector have expressed
concern that requiring such sized secondary containment for airport
mobile refuelers is not practicable for safety and security reasons.
(Included in the Docket for today's proposal are the letters that have
been submitted to EPA regarding this matter.) Specifically, it has been
argued that to require these refuelers to park in specially designed
secondary containment areas located within an airport's aircraft
operations area could create a safety and security hazard because it
would require grouping of the vehicles or place impediments in the
operations area. Additionally, requiring mobile refuelers to return to
containment areas located within the airport's tank farm between
refueling operations may increase the risk of accidents (and therefore
accidental oil discharge), as the vehicles would travel with increased
frequency through the busy aircraft operations area. EPA acknowledges
these concerns and seeks to provide relief for airport mobile refuelers
from the specifically sized secondary containment requirements for bulk
storage containers, while protecting the environment from refueler
spills, particularly those associated with transfers. Consequently,
these refuelers remain subject to the other bulk storage container
requirements under Sec. 112.8(c) and the general secondary containment
requirements under Sec. 112.7(c) which also applies to the transfers
of oil associated with airport mobile refuelers.
In contrast to a mobile or portable bulk storage container such as
a mobile refueler, a ``motive power container'' is an integral part of
a motor vehicle (including aircraft), providing fuel for propulsion or
providing some other operational function, such as lubrication of
moving parts or for operation of onboard hydraulic equipment. Motive
power containers on vehicles used solely at non-transportation related
facilities fall under EPA jurisdiction and are subject to the SPCC
regulation. Examples of motive power vehicles include, but are not
limited to: buses; recreational vehicles; some sport utility vehicles;
construction vehicles; aircraft; farm equipment; and earthmoving
equipment (e.g., such as at a drilling or workover facility). Examples
of facilities or locations that may be covered by the SPCC requirements
solely because of the presence of motive power containers include, but
are not limited to, heavy equipment dealers, commercial truck dealers,
and parking lots.
While the concept of ``motive power'' is not directly addressed in
the SPCC regulation, such vehicle fuel containers may fall under the
definition of ``bulk storage container'' in Sec. 112.2, while the
onboard lubrication system may be considered oil-filled operational
equipment. Therefore, motive power containers which store oil used for
the propulsion of a vehicle are subject to all the requirements under
Sec. 112.8(c) if they have a capacity of 55 gallons or more. These
requirements include specifically sized secondary containment for bulk
storage containers, integrity testing (visual plus non-destructive
testing), and a requirement to engineer containers to avoid discharges
(such as an overfill alarm). Additionally, any oil-filled operational
equipment with a capacity of 55 gallons or more mounted on a vehicle
are subject to the general secondary containment requirements listed in
Sec. 112.7(c).
EPA recognizes that, in most cases, the requirements of Sec.
112.8(c), including specifically sized secondary containment and the
general secondary containment requirements under Sec. 112.7(c), are
not practicable for motive power containers. It has never been EPA's
intent to regulate motive power containers. Therefore, EPA is proposing
to exempt such motive power containers from the SPCC regulation.
In the July 17, 2002 final SPCC rule, the Agency promulgated
general requirements for SPCC Plans for all facilities and all types of
oil in Sec. 112.7. In response to the Edible Oil Regulatory Reform Act
(EORRA), EPA promulgated separate subparts in part 112 for facilities
storing or using various classes of oil, but the requirements in each
subpart are the same. EORRA required most Federal agencies to
differentiate between and establish separate classes for various types
of oil, specifically, between animal fats and oils and greases, and
fish and marine mammal oils and oils of vegetable origin, including
oils from seeds, nuts, and kernels; and other oils and greases,
including petroleum. The result of this approach was that the new
Subpart C included requirements for animal fat and vegetable oil (AFVO)
facilities--onshore facilities (excluding production facilities) (Sec.
112.12), onshore oil production facilities, (Sec. 112.14) onshore oil
drilling and workover facilities (Sec. 112.13), and requirements for
offshore oil drilling, production, or workover facilities (Sec.
112.15). While the Agency recognized that some of these requirements
are not applicable to facilities that handle, store or transport AFVO,
these sections were promulgated because the Agency had not proposed
differentiated SPCC requirements for public notice and comment. As a
result, the current requirements for petroleum oils were also applied
to animal fats and vegetable oils. EPA is today proposing to remove
those sections from the SPCC requirements that are not applicable or
appropriate to animal fats and vegetable oils.
Additionally, EPA has issued the SPCC Guidance for Regional
Inspectors. The guidance document is intended to assist regional
inspectors in reviewing a facility's implementation of the SPCC rule.
The document is designed to facilitate an understanding of the rule's
applicability, to help clarify the role of the inspector in the review
and evaluation of the performance-based SPCC requirements, and to
provide a consistent national policy on several SPCC-related issues.
The guidance is also available to both the owners and operators of
facilities that may be subject to the requirements of the SPCC rule and
to the general public on the Agency's website at www.epa.gov/oilspill.
This guidance is a living document and will be revised, as necessary,
to reflect any relevant future regulatory amendments in a timely
manner. Accordingly, EPA welcomes comments from the regulated community
and the public on the guidance document within 60 days of this NPRM, as
described on the website.
[[Page 73528]]
The guidance document is a separate effort from this rulemaking. EPA
does not plan to address comments on the guidance document when taking
final action on this rule. Comments on the guidance document should not
be submitted to the docket for this rulemaking. Refer to the website
www.epa.gov/oilspill for the text of the guidance document and for
instructions for providing suggestions on the guidance document. The
EPA urges readers to review the guidance document for assistance in
understanding the SPCC rule and today's proposal. Pursuant to today's
proposal, EPA anticipates issuing an updated guidance document in 2006
to reflect finalization of this rulemaking such that inspectors and the
regulated community have accurate and timely information on SPCC
requirements.
Although the scope of today's proposal was originally intended to
address only certain targeted areas of the SPCC requirements, the
Agency is including several additional proposed modifications to
address a number of issues and concerns raised by the regulated
community. As highlighted in the EPA Regulatory Agenda and the 2005 OMB
report on ``Regulatory Reform of the U.S. Manufacturing Sector,'' there
are other issues under consideration for possible future rulemaking
action. The modifications proposed today do not preclude a future
rulemaking on other issues not addressed in today's proposal. Rather,
EPA is working to identify additional areas where regulatory reform may
be appropriate. For these additional areas, the Agency expects to issue
a proposed rule in 2007. Additionally, EPA in conjunction with DOE will
be conducting an energy impact analysis of the SPCC requirements, and
will consider the results of this analysis to inform the Agency's
deliberations over any future rulemaking. EPA is interested in whether
there are other aspects of the SPCC regulatory requirements, beyond
those that are addressed in today's proposal, that should be the focus
of future rulemaking. The Agency also requests that commenters who
provide suggestions regarding future rulemaking clearly differentiate
them from comments submitted on today's proposal (e.g., label
Suggestions for Future Rulemaking and Comments on Current Proposal).
The Agency will not address these suggestions when taking final action
on this proposed rule, but will take them into consideration in future
rulemaking decisions.
V. Today's Action
A. Qualified Facilities
EPA proposes to amend the Oil Pollution Prevention regulation (40
CFR part 112) to provide an option to allow the owner or operator of a
facility that meets the qualifying criteria (hereafter referred to as a
``qualified facility'') to self-certify the facility's SPCC Plan in
lieu of certification by a licensed professional engineer (PE). EPA
proposes to amend Sec. 112.3 to describe the SPCC eligibility criteria
that a regulated facility must meet in order to be considered a
qualified facility. A qualified facility would be a facility subject to
the SPCC rule that (1) has an aggregate facility oil storage capacity
of 10,000 gallons or less; and (2) had no discharges as described in
Sec. 112.1(b) during the ten years prior to self-certification or
since becoming subject to the SPCC requirements if less than ten years.
Facilities that have been subject to SPCC for less than ten years,
including new facilities, would need to demonstrate no discharges as
described in Sec. 112.1(b) only for the period of time they have been
subject to the SPCC rule. Self-certified Plans would not be allowed to
include ``environmentally equivalent'' alternatives to required Plan
elements as provided in Sec. 112.7(a)(2) or to claim impracticability
with respect to any secondary containment requirements as provided in
Sec. 112.7(d). The two exceptions for which the owner and operator
would still be allowed to use environmentally equivalent measures are
with respect to security and integrity testing. Facilities with
complicated operations and lower capacities may find that the current
rule offers a more cost-effective method of achieving compliance than
the proposed option. Therefore, a qualified facility could choose to
follow the current SPCC requirements (including the PE certification)
to take advantage of the flexibility offered by PE-certified
impracticality determinations and environmentally equivalent measures.
1. Eligibility Criteria
a. Total Facility Oil Storage Capacity Threshold
EPA proposes to limit qualified facilities to a total maximum
storage capacity of 10,000 gallons of oil. EPA considered many
different factors before selecting this storage capacity. First, EPA
has established 10,000 gallons as a threshold in several other rules
relating to oil discharges. This threshold quantity is used in the
National Oil and Hazardous Substances Pollution Contingency Plan
(National Contingency Plan or NCP) to classify oil discharges based on
the location and size of the discharge (see 40 CFR 300.5). The NCP
refers to discharges greater than 10,000 gallons to inland waters as
``major,'' while other thresholds are used to classify ``minor'' and
``medium'' discharges. The classes are provided as guidance to the On-
Scene Coordinator (OSC), and serve as criteria for the actions
delineated in the NCP. It is important to note, however, that the NCP
quantitative thresholds are only provided to help the OSC determine
response action, and do not imply associated degrees of hazard to the
public health or welfare, or environmental damage. The NCP size classes
nevertheless define an oil discharge to inland waters exceeding 10,000
gallons as a major discharge.
A discharge of 10,000 gallons or more is also one of the factors
used in identifying facilities that must prepare and submit a Facility
Response Plan (FRP) under Sec. 112.20(f)(1). The FRP rule applies to
facilities that could reasonably be expected to cause substantial harm
to the environment due to a discharge to waters of the U.S. and
adjoining shorelines.
Second, state regulations also provide support for the use of a
10,000-gallon threshold. A number of states differentiate regulatory
requirements based on a facility's total storage capacity, with some
states specifying a 10,000-gallon threshold. For example, Maryland
requires that all commercial facilities storing more than 10,000
gallons of oil obtain an oil operations permit; Minnesota requires
facilities storing between 10,000 and 1,000,000 gallons of oil to
prepare a prevention and response plan; and Oregon places special
requirements on marine facilities storing more than 10,000 gallons of
oil. The 10,000-gallon threshold is also frequently used in setting
requirements for certain storage tanks. For example, New York requires
a ``secondary containment system'' around all aboveground storage tanks
(ASTs) with a storage capacity greater than or equal to 10,000 gallons,
and Wisconsin caps the size of ASTs that can be used for fueling
vehicles at 10,000 gallons.
Finally, 10,000 gallons is a common storage tank size, and EPA
believes that setting a maximum capacity at 10,000 gallons would
address the concerns that smaller facilities have raised. In fact, the
Small Business Administration Office of Advocacy suggested that a
10,000-gallon threshold is a reasonable volume to address the concerns
of facilities with relatively smaller volumes of oil. The Agency seeks
comments on whether this
[[Page 73529]]
threshold appropriately addresses the concerns of facilities with
relatively smaller volumes of oil, while maintaining the environmental
protection intended by the regulation. If commenters suggest
alternative volume thresholds, it will be important for the comments to
also include a justification for such alternative volume thresholds in
order for the Agency to adequately consider the comments submitted.
This data would be useful in final rule deliberations.
While EPA recognizes that a discharge of less than 10,000 gallons
can be harmful, regardless of how the NCP defines ``major discharge,''
EPA believes that it is reasonable to allow facilities with a capacity
of no more than 10,000 gallons to prepare and implement a Plan that
complies with the SPCC rule requirements and provides adequate
protection against discharges without the involvement of a PE. These
facilities generally have less complex operations and petroleum system
configurations, and smaller oil storage capacities than other types of
facilities subject to the SPCC requirements. Thus, the Agency believes
that a responsible owner or operator at these facilities should be able
to comply with the SPCC rule provisions without review and
certification of the SPCC Plan by a PE, and that simplifying the rule
will result in greater environmental protection by improving
compliance.
b. Reportable Discharge History
EPA proposes that a qualified facility subject to the SPCC
requirements must have no reportable oil discharges as described in
Sec. 112.1(b) during the ten years prior to self-certification or
since becoming subject to the SPCC requirements, whichever is less.
Facilities that have been subject to SPCC for less than ten years,
including new facilities, would need to demonstrate no discharges as
described in Sec. 112.1(b) only for the period they have been subject
to SPCC. This criterion is based on a proposal regarding oil-filled
electrical equipment submitted by the Utility Solid Waste Activities
Group (USWAG), as described in the documents supplementing the
September 20, 2004 NODA at 69 FR 56184. In its proposal, USWAG
recognized that facilities that pose a risk, in terms of oil discharges
in quantities that are harmful (reportable under 40 CFR part 110),
should not be granted relief. USWAG specifically proposed a ten-year
spill history as a potential criterion to be eligible for relief. In
general, NODA commenters expressed strong support for the USWAG
proposal. As in the case of oil-filled operational equipment, the
Agency believes that a clean spill history is a suitable criterion for
demonstrating eligibility for Plan self-certification, while still
effectively maintaining good prevention practices.
Part 110 defines a discharge of oil in such quantities that may be
harmful to the public health, welfare, or the environment of the United
States as a discharge of oil that violates applicable water quality
standards; a discharge of oil that causes a film or sheen upon the
surface of the water or on adjoining shorelines; or a discharge of oil
that causes a sludge or emulsion to be deposited beneath the surface of
the water or adjoining shorelines (40 CFR 110.3). The Agency refers to
such discharges in Sec. 112.1(b) of the rule. Any person in charge of
a facility must report any such discharge of oil from the facility to
the National Response Center (NRC) at 1-800-424-8802 immediately. While
EPA recognizes that past release history does not necessarily translate
into a predictor of future performance, the Agency believes that
discharge history is a reasonable indicator of a facility owner or
operator's ability to develop an SPCC Plan for the facility without the
involvement of a PE. Hence, EPA proposes to use a facility's discharge
history as a qualification criterion indicating the facility's ability
to effectively develop and implement its SPCC Plan. By establishing a
good oil spill prevention history, a facility qualifies for the self-
certification option offered in this proposal.
The Agency requests comments on the appropriateness of a reportable
discharge history criterion for determining the qualification of a
facility for the self-certification option, whether it is necessary,
and whether there are other indicators of a facility's effective
implementation of the oil pollution prevention requirements under part
112 that should be considered. In addition, the Agency also
specifically requests comments on the proposed ten-year period for
which facilities would be required to have had no reportable discharges
in order to meet this qualification. The Agency requests that any
alternative criterion or time period suggested include an appropriate
rationale and supporting data to assist the Agency in considering them
for final action. The Agency is also aware that events such as natural
disasters, acts of war or terrorism, sabotage, or other calamities,
beyond the control or planning ability of the facility owner or
operator, may cause a reportable oil discharge. The Agency therefore
requests comments on how to account for such occurrences in the
discharge history criterion.
2. Proposed Requirements for Qualified Facilities
a. Self-Certification and Plan Amendments
Some in the regulated community, particularly facilities with
relatively smaller volumes of oil, identified the cost of the PE
certification of SPCC Plans as one of its major concerns. This view was
echoed in the comments submitted in response to the NODAs. The Agency
has reviewed the requirements in light of the information provided and
today proposes to allow for self-certification of SPCC Plans by owners
and operators of qualified facilities. With this proposal, the Agency
is responding to those concerns. The elements of the proposed self-
certification requirement are very similar in scope to those of the PE
certification: owners and operators that choose to self-certify their
Plans must certify that they are familiar with the requirements of the
SPCC rule; they have visited and examined the facility; the Plan has
been prepared in accordance with accepted and sound industry practices
and standards; procedures for required inspections and testing have
been established; the Plan is being fully implemented; the facility
meets the qualification criteria set forth under Sec. 112.3(g)(1); the
Plan does not include any environmental equivalence measures as
described in Sec. 112.7(a)(2); the Plan contains no determinations of
impracticability under Sec. 112.7(d); and the Plan and the
individual(s) responsible for implementing the Plan have the full
approval of management and the facility has committed the necessary
resources to fully implement the Plan. The self-certification provision
would be optional. Under today's proposal, an owner or operator of a
qualified facility could choose to comply with the current requirements
under part 112 if that is more suitable to his/her particular
situation.
Qualified facilities that choose to self-certify would not
automatically lose eligibility for a self-certified Plan and be
required to obtain PE certification in the event of a discharge as
described in Sec. 112.1(b). EPA has the authority to require SPCC Plan
amendments under Sec. 112.4. Section 112.4(a) requires a facility that
has discharged more than 1,000 gallons of oil in a single discharge as
described in 40 CFR part 110, or that has discharged more than 42
gallons of oil in each of two discharges as described in 40 CFR part
110 in any 12-month period, to submit information to
[[Page 73530]]
the EPA Regional Administrator (RA) within 60 days of the date of the
discharge. As per Sec. 112.4(d), the RA may require the facility to
amend its SPCC Plan in order to prevent and contain discharges, and the
RA could require a facility to obtain PE-certification of its SPCC
Plan. In addition, a discharge of oil ``in such quantities as may be
harmful'', as defined in 40 CFR 110.3 that does not trigger the
reporting requirements of Sec. 112.4(a) must still be reported to the
National Response Center. Criminal action can be taken against an owner
or operator of a facility if discharges are not reported. EPA also
receives copies of the NRC reports and has the authority under Sec.
112.1(f) to require a facility to prepare and implement an SPCC Plan or
any applicable part of a Plan. The time frame for this review and
amendment process is described in Sec. 112.4. The facility may choose
to appeal the RA's decision to require a Plan amendment under Sec.
112.4. The RA also has authority to require preparation and
implementation of a Plan or applicable part of a Plan under Sec.
112.1(f).
The Agency requests comment on the appropriateness of using the
existing authorities under the SPCC regulations rather than
establishing a separate process that would automatically require a
facility to obtain PE review and certification of the facility's SPCC
Plan in the event of a reportable discharge. The Agency requests that
any alternative approaches presented include an appropriate rationale
and supporting data in order for the Agency to be able to consider them
for final action.
Under Sec. 112.5 of the SPCC rule, an owner or operator must
review and amend the SPCC Plan following any change in facility design,
construction, operation or maintenance that materially affects its
potential for a discharge as described in Sec. 112.1(b). A PE must
then certify any and all of these technical amendments to the SPCC
Plan, as currently required under Sec. 112.3(d). Under today's
proposal, technical amendments to SPCC Plans of qualified facilities
would not be required to be certified by a PE. Instead, an owner or
operator would be allowed to self-certify technical amendments to the
Plan under the proposed Sec. 112.3(g)(2) provision, and facilities
with PE-certified Plans which qualify for self-certification would be
allowed to choose to self-certify future technical amendments rather
than hire a professional engineer to certify the technical amendment.
Facilities would be required to document the self-certification of a
technical amendment in the SPCC Plan in accordance with Sec.
112.3(g)(2).
b. Environmental Equivalence and Impracticability Determinations
Under Sec. 112.7, facility owners and operators have the
flexibility to deviate from specific rule provisions if the Plan states
the reason for nonconformance and if equivalent environmental
protection is provided by some other means of spill prevention, control
or countermeasure. These ``environmentally equivalent'' measures must
be described in the SPCC Plan, including how the equivalent
environmental protection will be achieved based on good engineering
practice. Allowance for ``environmentally equivalent'' deviations is
provided in Sec. 112.7(a)(2) and are only available for requirements
not related to secondary containment, such as fencing and other
security measures, preventing catastrophic tank failure due to brittle
fracture, integrity testing, and liquid level alarms. As part of the
SPCC Plan, any environmentally equivalent measures are also required to
be certified by a PE. The PE's SPCC Plan certification requirements
include consideration of industry standards for the Plan, which would
include equivalent environmental protection measures.
The SPCC rule also provides flexibility for owners/operators who
determine that the general secondary containment requirements in Sec.
112.7(c) or any of the applicable additional requirements for secondary
containment in subparts B and C are impracticable. Where
impracticability is demonstrated, the SPCC rule allows facility owners
and operators the flexibility to instead develop a contingency plan and
comply with additional requirements as described in Sec. 112.7(d). The
SPCC Plan must explain why containment measures are not practicable,
provide an oil spill contingency plan that follows the provisions of 40
CFR part 109 (Criteria for State, Local and Regional Oil Removal
Contingency Plans), and provide a written commitment of manpower,
equipment, and materials required to expeditiously control and remove
any quantity of oil discharged that may be harmful as described in 40
CFR part 110. A PE must certify any impracticability determinations, as
well as the contingency plan and additional measures implemented in
lieu of containment. Because of the expertise that a PE has in
evaluating whether particular measures provide equivalent environmental
protection and in knowing how to effectively implement such measures,
EPA believes that the flexibility in these performance-based provisions
is best suited to SPCC Plans that are reviewed and certified by a PE.
Today's proposed amendment would allow qualified facilities to opt
out of the PE certification, but would not allow facilities that take
advantage of this option to include environmentally equivalent measures
in their SPCC Plans pursuant to Sec. 112.7(a)(2). EPA is proposing
this limitation on qualified facilities because EPA believes that in
general, without the advantage of the expertise and knowledge that a PE
brings to the development of an SPCC Plan, deviations based on
environmental equivalence may not be adequate. However, as discussed
below, EPA believes that allowing certain deviations may be appropriate
for at least some owners of qualified facilities, without employing PE
expertise. Therefore, EPA is proposing to allow certain deviations with
respect to facility security and integrity testing of bulk storage
containers.
EPA is also proposing that qualified facilities be precluded from
claiming impracticability and using contingency planning in lieu of
secondary containment. EPA believes that a PE's knowledge and expertise
is needed for appropriate contingency planning and other measures that
must be put in place in the absence of secondary containment. Thus,
requiring qualified facilities that opt out of PE certification to
adhere to the current set of requirements would maintain the same
standard of environmental protection provided in the existing rule.
Today's proposal would not preclude a qualified facility from
choosing environmentally equivalent measures or from demonstrating
impracticability with respect to secondary containment requirements,
although the qualified facility would need to comply with the current
SPCC requirements (including the PE certification) in order to utilize
the flexibility offered by PE-developed impracticability determinations
and environmentally equivalent measures. In some circumstances, it may
be more cost effective for a PE to prepare an SPCC Plan which utilizes
environmentally equivalent measures or contingency planning, than for
the owner/operator to comply with the SPCC provisions as outlined in
today's proposal. Also, facilities with unconventional operations which
qualify for this alternative may find that the current rule requirement
for PE certification offers a more cost-effective method of achieving
compliance because it provides additional flexibility through
performance-based provisions. The Agency requests comments on the
[[Page 73531]]
appropriateness of restricting the use of impracticability
determinations and environmentally equivalent measures by those
qualified facilities that choose the option of self-certification in
order to ensure an adequate level of environmental protection. Any
alternative approach presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider it
for final action.
c. SPCC Plan Exceptions
Today's proposal for self-certification of qualified facilities
would restrict the use of alternative environmentally equivalent
measures for qualified facilities that elect to develop their SPCC Plan
without the services of a PE. The Agency's concern is that these
facilities would no longer have a trained professional, with knowledge
to make site-specific equivalence determinations, reviewing and
certifying their Plan. However, EPA recognizes that some of the
prescriptive provisions in the current regulatory requirements may
prove difficult for some qualified facilities to meet.
While the Agency still believes that generally allowing use of
environmentally equivalent measures in self-certified Plans is not
appropriate, some degree of flexibility in two areas may be appropriate
for qualified facilities. The Agency believes that it can allow
qualified facilities to comply with a streamlined set of basic security
measures and integrity testing requirements. The flexibility in these
proposed exceptions would be analogous to the flexibility provided
under Sec. 112.7(a)(2), which allows for deviations from Sec.
112.7(g) (security) and Sec. 112.8(c)(6) (integrity testing) that
would not be available for these facilities under today's proposal.
EPA recognizes that there is no one single approach to ensure
proper facility security. For example, the security requirements of
fencing and lighting may not always be appropriate for sites such as a
national, state or local park subject to SPCC, where the site layout
may be too extensive to fence, and where perhaps the lighting of a
solitary field tank would invite, rather than deter, would-be
intruders. Qualified facilities, in lieu of the requirements under
Sec. 112.7(g) of this part, would be allowed to prepare a security
plan that describes how the facility controls access to the oil
handling, processing and storage areas; secures master flow and drain
valves; prevents unauthorized access to starter controls on oil pumps;
secures out-of-service and loading/unloading connections of oil
pipelines; prevents acts of vandalism; and assists in the discovery of
oil discharges. (Note that the security requirements in Sec. 112.7(g)
do not apply to production facilities.)
Today's proposal would allow a qualified facility to develop a
general security plan that provides equivalent environmental protection
to the requirements in Sec. 112.7(g). The Agency recognizes that these
security provisions can be approached differently by the variety of
facilities that would qualify for self-certification under today's
proposal. It should be noted that this is an option and a qualified
facility in compliance with the current requirements under Sec.
112.7(g) would not be required to develop a security plan under the
proposed Sec. 112.3(g).
The security plan would be required to address how the owner or
operator will:
Secure all bulk storage containers, piping and oil-filled
equipment from unauthorized access or acts of vandalism which could
result in a discharge of oil;
Secure appurtenances (valves and/or drains) in the closed
position to prevent the flow of the contents of the container which
could result in a discharge of oil;
Secure pump controls in the ``off'' position when not in
use and locate facility pump controls to prevent unauthorized access;
Secure all loading or unloading transfer connections for
facility piping; and
Address whether security lighting is appropriate to both
ensuring the discovery of oil discharges, and deter vandalism.
This security plan would be required to be documented in the
qualified facility's SPCC Plan, and would include a discussion of how
the security plan will be implemented and the required training/
inspections/maintenance for security related equipment and activities.
The Agency recognizes the unique nature of many of the facilities that
would qualify for Plan self-certification, and as such, some
flexibility is appropriate so these facilities can achieve compliance
with the security provisions of the current SPCC rule. The application
of the SPCC security measures is often determined by the facility's
geographical/spatial factors and there is no ``one-size-fits-all''
answer to this serious compliance requirement. For example, facilities
such as farms or national parks may have unique characteristics that
make compliance with the current security measures, such as potentially
fencing the entire facility footprint, inappropriate.
The Agency is also proposing to provide flexibility in the area of
integrity testing for qualified facilities. The Agency continues to
believe that owners and operators should rely on the appropriate use of
industry standards for the integrity testing requirements. As EPA
stated in its May 2004 letter to the Petroleum Marketers Association of
America (available at https://www.epa.gov/oilspill/pdfs/PMAA_
letter.pdf), the Agency recognizes that in certain site-specific
circumstances, visual inspection may be appropriate and sufficient for
compliance with the integrity testing requirement. The Agency expects
that the selection of particular testing methods to comply with the
integrity testing requirements in the current rule and today's proposal
would be based on industry inspection standards such as the Steel Tank
Institute (STI) SP-001, American Petroleum Institute (API) Standard 653
and API Recommended Practice 12-R1. These industry standards address
the qualifications of the tank inspector and the scope/frequency of the
testing/inspections. Thus, in effect, the Agency is proposing to allow
owners and operators of qualified facilities to consult and rely on
industry standards or qualified container inspectors/testing personnel
to determine the appropriate qualifications for tank inspectors/testing
personnel and the type/frequency of integrity testing required for a
particular container size and configuration. The Agency is proposing to
allow qualified facilities to make this determination in accordance
with industry standards without the need to develop a PE-approved
environmentally equivalent deviation, as is currently required under
Sec. 112.7(a)(2). The Agency believes that allowing this flexibility
for qualified facilities would increase compliance and thus
environmental protection.
The U.S. Small Business Administration (SBA) Office of Advocacy has
suggested an additional alternative approach for allowing flexibility
for integrity testing of small shop-built tanks that is based on the
current SP001 standard. The current SP001 standard allows periodic
visual inspections for shop-fabricated aboveground storage tanks with a
total capacity of 5,000 gallons, and for which there is spill control
and a continuous release detection method (i.e., Category 1 tanks). SBA
Office of Advocacy has suggested that EPA allow periodic visual
inspections for shop-fabricated aboveground storage tanks at qualified
facilities, in accordance with this SP001 standard, but broaden the
applicability
[[Page 73532]]
to include shop-fabricated aboveground storage tanks that have an oil
capacity of between 5,000 and 10,000 gallons. In all other respects,
the SP001 standard would apply. In the SBA's view, due to the presence
of spill control and a continuous release detection method (in
accordance with the SP001 standard), there appears to be little
likelihood for a discharge into navigable waters. The SBA Office of
Advocacy also believes this additional option would make the visual
inspection option available to all, and not a subset of, qualified
facilities and it would benefit those qualified facilities having one
tank above 5,000 gallons.
EPA is not proposing the SBA additional approach for several
reasons. First the SBA approach would deviate from the industry
standards noted above. Second, the Agency is unaware of a technical
basis to justify this deviation. EPA must justify divergence from
accepted industry standards under the National Technology Transfer and
Advancement Act (NTTAA) (see section VII (I) for a description of
NTTAA). Third, industry standards are periodically updated and revised
to account for changes in technology and to remain consistent with good
engineering practice while this approach would need to be revised
through rulemaking. Finally, EPA believes that by allowing for a
deviation from existing industry standards, compliance would become
more complex as facilities try to understand the circumstances under
which this additional approach can be employed. The Agency welcomes
comment on this additional approach as well as on the proposed approach
for integrity testing for qualified facilities. In addition, once the
modifications proposed today are promulgated, the Agency is willing to
continue to work with industry tank inspection standard setting
organizations to update applicable industry standards. Commenters who
have information on the scope and criteria associated with the industry
visual inspection standards should provide it to the standards setting
organizations and their national experts for consideration.
At this time, EPA is aware that a number of industry standards are
changing. Nevertheless, the Agency believes that it may be appropriate
to allow the flexibility of alternative integrity testing methods for
these qualified facilities to be consistent with relevant industry
standards. For example, visual inspections may be appropriate for the
lower volume shop-built containers in certain configurations that are
likely to be present at most of these qualified facilities. In the
absence of an environmental equivalency provision that would allow an
alternative integrity testing method for qualified facilities, the
owner or operator would be required to perform visual inspections plus
non-destructive testing on all classes of containers, regardless of
size and configuration. Qualified facilities would have to bear the
cost and burden of conducting non-destructive testing that may not be
necessary under industry standards. The Agency continues to strongly
recommend that facilities, qualified for self-certification or
otherwise, utilize industry standards that are appropriate to their
particular tank configurations in developing and conducting tank
inspection and testing programs and when determining inspector/testing
personnel qualifications.
The Agency requests comments on whether the proposed requirements
for security and integrity testing for qualified facilities provide
appropriate flexibility, while maintaining environmental protection.
Any alternative approach presented must include an appropriate
rationale and supporting data in order for the Agency to be able to
consider it for final action.
3. Alternative Options Considered
EPA considered other options for this proposal. These options
included (1) providing an indefinite extension of deadlines or a
suspension of all SPCC requir