Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Plan Requirements-Amendments, 77266-77293 [E6-21509]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 247 (Tuesday, December 26, 2006)]
[Rules and Regulations]
[Pages 77266-77293]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21509]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2005-0001; FRL-8258-3]
RIN 2050-AG23


Oil Pollution Prevention; Spill Prevention, Control, and 
Countermeasure Plan Requirements--Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
amending the Spill Prevention, Control, and Countermeasure (SPCC) Plan 
requirements by: first, providing the option for owners and operators 
of facilities that store 10,000 gallons of oil or less and meet other 
qualifying criteria to self-certify their SPCC Plans in lieu of review 
and certification by a Professional Engineer; second, providing an 
alternative to the general secondary containment requirement without 
requiring a determination of impracticability for facilities that have 
particular types of oil-filled equipment; third, defining and exempting 
particular vehicle fuel tanks and other on-board bulk oil storage 
containers used for motive power; and fourth, exempting mobile 
refuelers from the sized secondary containment requirements for bulk 
storage containers. The Agency also is removing and reserving the SPCC 
requirements for animal fats and vegetable oils that are specific to 
onshore oil production facilities, onshore oil drilling and workover 
facilities, and offshore oil drilling, production, or workover 
facilities. Finally, the Agency is extending the SPCC compliance dates 
for farms. These changes significantly reduce the burden imposed on the 
regulated community for complying with the SPCC requirements, while 
maintaining protection of human health and the environment. In a 
separate document in this Federal Register, the Agency is proposing to 
extend the compliance dates for all facilities.

DATES: This final rule is effective February 26, 2007.

ADDRESSES: The public docket for this final rule, Docket ID No. EPA-HQ-
OPA-2005-0001, contains the information related to this rulemaking, 
including the response to comment document. All documents in the docket 
are listed in the https://www.regulations.gov index. Although listed in 
the index, some information may not be publicly available, e.g., 
Confidential Business Information or other information the disclosure 
of which is restricted by 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 https://www.regulations.gov or in hard copy at the EPA Docket, EPA/
DC, EPA West, Room B102, 1301 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 of the 
Public Reading Room is 202-566-1744, and the telephone number to make 
an appointment to view the docket is 202-566-0276. The EPA Docket 
Center suffered damage due to flooding during the last week of June 
2006. The Docket Center is continuing to operate. However, during the 
cleanup, there will be temporary changes to Docket Center telephone 
numbers, addresses, and hours of operation for people who wish to visit 
the Public Reading Room to view documents. Consult EPA's Federal 
Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at 
https://www.epa.gov/epahome/dockets.htm for

[[Page 77267]]

current information on docket status, locations and telephone numbers.

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 rule, contact 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: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. Today's Action
    A. Qualified Facilities
    1. Overview of the Qualified Facilities Proposal
    2. Summary of This Final Rule for Qualified Facilities
    3. Eligibility Criteria
    a. Total Facility Oil Storage Capacity Threshold
    b. Reportable Discharge History
    4. Requirements for Qualified Facilities
    a. Self-Certification of Plan and Plan Amendment
    b. Elements of Self-Certification and Plan Amendments for Owners 
and Operators of Qualified Facilities
    c. Environmental Equivalence and Impracticability Determinations
    B. Qualified Oil-Filled Operational Equipment
    1. Oil-Filled Operational Equipment Definition
    2. Oil-Filled Manufacturing Equipment
    3. Eligibility Criteria
    a. Reportable Discharge History
    b. Consideration of Alternative Qualification Criteria
    4. Requirements for Qualified Oil-Filled Operational Equipment 
in Lieu of Secondary Containment
    a. Contingency Plans and Written Commitment of Manpower, 
Equipment and Materials
    b. Inspections or Monitoring Program
    c. Alternative Options Considered
    5. Qualified Oil-Filled Operational Equipment and Qualified 
Facilities Overlap
    C. Motive Power
    1. Definition of Motive Power
    2. Exemption
    D. Mobile Refuelers
    1. Definition of Mobile Refueler
    2. Amended Requirements
    E. Animal Fats and Vegetable Oils
    F. Extension of Compliance Dates for Farms
    1. Eligibility Criteria
    2. Compliance Date Extension for Farms
VI. 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
    J. Congressional Review Act

I. General Information

    The Environmental Protection Agency (EPA or the Agency) is amending 
the Spill Prevention, Control, and Countermeasure (SPCC) Plan 
requirements of the Oil Pollution Prevention regulation at 40 CFR part 
112 to streamline the regulatory requirements for owners and operators 
of a subset of facilities by: (1) Providing an option to allow the 
owners or operators of facilities with an oil storage capacity of 
10,000 gallons or less and who meet other qualifying criteria to self-
certify their SPCC Plans in lieu of review and certification by a 
Professional Engineer; (2) allowing owners and operators of facilities 
that have particular types of oil-filled operational equipment to use 
an oil spill contingency plan along with an inspection or monitoring 
program as an alternative to secondary containment for qualified 
equipment without requiring a determination of impracticability; (3) 
providing an exemption for newly defined ``motive power containers''; 
and (4) exempting mobile refuelers from the specifically sized 
secondary containment requirements for bulk storage containers. In 
addition, the Agency is removing and reserving certain SPCC 
requirements for animal fats and vegetable oils; and is extending the 
compliance dates for farms. The purpose of this rulemaking is to 
provide streamlined, alternative approaches for compliance with oil 
spill prevention requirements for these entities, and to improve net 
welfare by reducing the costs of regulation and improving compliance, 
resulting in greater environmental protection.

II. Entities Potentially Affected by This Rule

 
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               Industry sector                         NAICS code
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Oil Production...............................                     211111
Farms........................................                   111, 112
Electric Utility Plants......................                       2211
Petroleum Refining and Related Industries....                        324
Chemical Manufacturing.......................                        325
Food Manufacturing...........................                   311, 312
Manufacturing facilities using and storing                      311, 325
 animal fats and vegetable oils (AFVO).......
Metal Manufacturing..........................                   331, 332
Other Manufacturing..........................                      31-33
Real Estate Rental and Leasing...............                    531-533
Retail Trade.................................              441-446, 448,
                                                                 451-454
Contract Construction........................                         23
Wholesale Trade..............................                         42
Other Commercial.............................             492, 541, 551,
                                                                 561-562
Transportation...............................                    481-488
Arts Entertainment & Recreation..............                    711-713
Other Services (Except Public Administration)                    811-813
Petroleum Bulk Stations and Terminals........                       4247

[[Page 77268]]

 
Education....................................                         61
Hospitals & Other Health Care................                   621, 622
Accommodation and Food Services..............                   721, 722
Fuel Oil Dealers.............................                      45431
Gasoline stations............................                       4471
Information Finance and Insurance............                     51, 52
Mining.......................................                        212
Warehousing and Storage......................                        493
Religious Organizations......................                     813110
Military Installations.......................                     928110
Pipelines....................................                4861, 48691
Government...................................                         92
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    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 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-related and non-transportation-related facilities. A MOU 
among EPA, the U.S. Department of the Interior (DOI), and DOT, 
effective February 3, 1994, has re-delegated the responsibility to 
regulate certain offshore facilities from DOI to EPA.

IV. Background

    On July 17, 2002, EPA published a final rule amending the SPCC 
rule, formally known as the Oil Pollution Prevention regulation (40 CFR 
part 112), promulgated under the authority of section 311(j) of the 
CWA. (The SPCC rule was originally promulgated on December 11, 1973 (38 
FR 34164).) This rule included revised 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\ In addition, concerns were 
raised about the implementability of certain aspects of the 2002 rule.
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    \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.  112.2.
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    EPA has extended the dates for compliance with the 2002 rule by 
extending the dates for amending and implementing revised SPCC Plans in 
40 CFR 112.3(a), (b), and (c), most recently by notice dated February 
17, 2006 (71 FR 8462). Please see the Federal Register notice for 
further discussion on the compliance extensions. EPA took the most 
recent action in order to allow time to finalize the revisions in 
today's final rule and to provide the regulated community time to 
review and understand the material presented in the SPCC Guidance for 
Regional Inspectors, which was made available in December of 2005. The 
Agency also was concerned that the effects of the September 2005 
hurricanes on many industry sectors might adversely impact their 
ability to meet the compliance dates if no extension was provided.
    October 31, 2007 is the current deadline for amending and 
implementing revised SPCC Plans for facilities (including mobile 
facilities) that were in operation on or before August 16, 2002. 
Facilities that came into operation after August 16, 2002 also must 
prepare and implement an SPCC Plan on or before October 31, 2007. As 
discussed in Section V.F of this preamble, today's final rule provides 
an additional extension of the compliance date for farms. Today's rule, 
which is effective February 26, 2007, does not modify the compliance 
dates for owners and operators of facilities other than farms. 
Elsewhere in today's Federal Register, EPA is proposing to extend the 
compliance dates for owners and operators of facilities until July 1, 
2009 based on further SPCC regulatory revisions that EPA is 
considering, and that it expects to propose in 2007.
    On September 20, 2004, EPA published two Notices of Data 
Availability (NODAs). The first NODA solicited comments on submissions 
to EPA that suggested more focused requirements for owners and 
operators of 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 owners and operators of 
facilities with oil capacities below a certain threshold were discussed 
in the NODA-related documents. The second NODA solicited comments on 
whether alternate regulatory requirements would be appropriate for 
owners and operators of 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 final rule.
    Additionally, on December 2, 2005, EPA issued the SPCC Guidance for 
Regional Inspectors. This guidance document is intended to assist 
regional inspectors in reviewing implementation of the SPCC rule at a 
regulated facility. The guidance document is designed to facilitate an 
understanding of the rule's applicability, to help clarify the role of

[[Page 77269]]

the inspector in the review and evaluation of a facility owner or 
operator's compliance with the performance-based SPCC requirements, and 
to provide a consistent national policy on several SPCC-related issues. 
The guidance is available to 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 Web site at https://www.epa.gov/oilspill. This 
guidance document is a living document and will be revised, as 
necessary, to reflect any relevant future regulatory amendments, 
including today's action.
    Based on the comments received on the NODAs, as well as other 
information received, EPA proposed to amend the SPCC rule to address a 
number of issues raised, including those pertaining to qualified 
facilities, qualified oil-filled operational equipment, motive power 
containers, airport mobile refuelers, animal fats and vegetable oils, 
and the compliance date for farms. (See 70 FR 73524, December 12, 
2005.) EPA discusses each of these issues in Section V of this 
preamble. The preamble generally discusses the comments received on the 
proposal, EPA's response, and any modifications made to the proposal. 
For a more detailed discussion of the comments received and EPA's 
response, see ``Summary and Response to Comments,'' which is included 
in the docket for today's final rule.
    The scope of today's final rule was intended to address only 
certain targeted areas of the SPCC requirements, and 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,'' EPA is considering further amendments 
to address other areas where regulatory reform may be appropriate. For 
these additional areas, the Agency expects to issue a proposed rule in 
2007. Areas where regulatory reform may be appropriate include, and are 
not limited to, oil and natural gas exploration and production, farms, 
and Tier I facilities. EPA, in conjunction with DOE, has been 
conducting an energy impact analysis of the SPCC requirements, and, to 
the extent that the analysis is available, will consider it to inform 
the Agency's 2007 rulemaking.
    Because it is highly unlikely that the Agency will be able to 
promulgate such regulatory amendments before the current October 31, 
2007 compliance date for SPCC becomes effective, EPA believes it is 
appropriate to provide an extension of the compliance date. Such an 
extension has been proposed elsewhere in today's Federal Register.
    The Agency is not in a position, at this time, to indicate all the 
areas for possible regulatory reform that may be addressed as part of 
the 2007 SPCC proposal. Nevertheless, the Agency recognizes that owners 
and operators of facilities need time to determine which changes may be 
made to the rules that may impact the requirements they are subject to 
in order to determine when they need to comply with the new 
requirements.
    This approach would allow those potentially affected in the 
regulated community an opportunity to make changes to their facilities 
and to their SPCC Plans necessary to comply with the revised 
requirements, rather than with the existing requirements. Regarding 
modifications of the SPCC regulations, EPA is proposing in a separate 
notice in today's Federal Register to extend the deadlines for 
compliance to July 1, 2009.

V. Today's Action

A. Qualified Facilities

1. Overview of the Qualified Facilities Proposal
    On December 12, 2005 (70 FR 73524), EPA proposed to amend the SPCC 
rule 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 review and certification by a licensed Professional Engineer 
(PE). EPA proposed 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.
    As proposed, the eligibility criteria for a qualified facility 
would be a facility subject to the SPCC rule that (1) has an aggregate 
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. Self-certified Plans could not include 
``environmentally equivalent'' alternatives to required Plan elements 
as provided in Sec.  112.7(a)(2) or contingency planning in lieu of 
secondary containment as provided in Sec.  112.7(d) on the basis of 
``impracticability.'' However, the proposal included specified 
``environmentally equivalent'' measures with respect to security and 
integrity testing that would be available to facility owners and 
operators that choose to self-certify. Self-certification would be 
optional for owners and operators of facilities meeting the eligibility 
criteria, so that those owners and operators of qualified facilities 
that found the existing rules more cost-effective in achieving 
compliance with the SPCC requirements, would continue to have the 
option of complying with the streamlined approach or could choose to 
comply with the existing SPCC requirements (including the PE 
certification) to take advantage of the flexibility offered by PE-
certified impracticability determinations and environmentally 
equivalent measures.
    In general, the Agency agrees with the commenters who supported the 
qualified facilities proposal for self-certification and believe that 
this revision will relieve regulatory burden on small oil storage 
facilities. As one commenter noted, self-certification should result in 
greater compliance rates across the board. Therefore, today's rule 
finalizes the proposed provision with a few modifications.
    As described in the preamble to the proposed rule, EPA also 
considered, but did not propose, a multi-tiered structure option based 
on an analysis prepared for the U.S. Small Business Administration's 
(SBA) Office of Advocacy that included a tiered system for facilities 
that have total oil storage capacities between 1,321 and 5,000 gallons, 
between 5,001 and 10,000 gallons, and greater than 10,000 gallons. 
Under this option, Tier I facilities (1,321 to 5,000 gallons oil 
storage capacity) would not need a written SPCC Plan (and therefore no 
PE certification), but would adhere to all other SPCC requirements. 
Tier II facilities (5,001 to 10,000 gallons oil storage capacity) would 
be required to have a written SPCC Plan, but no PE certification 
requirement. Tier III facilities (greater than 10,000 gallons oil 
storage capacity) would be required to have a written SPCC Plan, 
certified by a PE. A significant number of commenters on the proposed 
rule supported a multi-tiered approach.
    The Agency continues to believe that a facility owner or operator 
cannot effectively implement an oil spill prevention program, or any 
other program (business or otherwise), without documentation of that 
program's action items. As a matter of practice, it would be extremely 
difficult for a facility owner or operator to be able to follow the 
regulatory requirements and to comply with all the recordkeeping 
components without the documentation that is the Plan itself. The Plan 
also serves as an important communication and training tool for both 
management and oil-handling personnel at the facility. The sole action 
of having to document compliance with all of the requirements can 
assist in

[[Page 77270]]

uncovering flaws in the program's implementation, and may serve as a 
tool to correct them. Additionally, the documentation of compliance 
with the rule's requirements in a written Plan serves as a facility-
specific oil spill response and prevention planning exercise which is 
designed to improve oil spill prevention. Nevertheless, the Agency 
understands the concerns, particularly of owners and operators of 
facilities with a smaller oil storage capacity and likely more limited 
resources, of the potential effort needed to develop a complicated 
Plan. Thus, the Agency has been exploring the possibility of developing 
a further simplified Plan for facilities that handle between 1,320 and 
5,000 gallons of oil. However, because the Agency is considering 
removing or changing some of the regulatory requirements and developing 
a standardized form/checklist for ease of implementation, the Agency 
chose not to finalize this option without taking further comment. 
Therefore, although EPA is not adopting a multi-tiered approach in 
today's final rule, the Agency intends to propose a simplified approach 
for facilities that handle between 1,320 and 5,000 gallons of oil 
within the near future. In that proposal, the Agency expects to discuss 
the implementation of the SPCC rule for these facilities.
    The preamble to the proposed rule also described an approach 
whereby the Agency would require owners and operators of qualified 
facilities to make a one-time notification to EPA if 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. The comments 
generally opposed a notification requirement, arguing that it would 
impose additional burden with no clear benefit for the regulated 
community. EPA is not adopting this one-time notification requirement, 
because the Agency does not believe it would offer any further 
environmental protection. The additional burden of a notification 
requirement was not considered necessary and would be contrary to the 
intent of today's rule.
2. Summary of This Final Rule for Qualified Facilities
    Today's rule finalizes the proposed option with modifications to 
the reportable discharge history criterion and to the self-
certification limitations for qualified facilities. The final rule also 
places the alternative self-certification provisions in Sec.  112.6, 
rather than in Sec.  112.3(g) as proposed. A facility owner or operator 
may qualify to prepare a Plan that meets the alternative requirements 
in Sec.  112.6 of today's final rule, in lieu of a Plan prepared in 
accordance with the general requirements contained in Sec.  112.7 and 
the applicable requirements in subparts B and C of the rule. Finally, 
today's action allows a qualified facility owner or operator to use 
environmentally equivalent measures or an impracticability 
determination provided they are certified by a PE.
    To qualify for this option, a facility must meet the following 
eligibility criteria: the facility had no single discharge as described 
in Sec.  112.1(b) exceeding 1,000 U.S. gallons or no two discharges as 
described in Sec.  112.1(b) each exceeding 42 U.S. gallons within any 
twelve month period in the three 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 three years, and the 
facility has 10,000 gallons or less in aggregate aboveground oil 
storage capacity. Discharges as described in Sec.  112.1(b) that are 
the result of natural disasters, acts of war, or terrorism will not 
disqualify a facility owner or operator from using the self-
certification option.
    An owner or operator of a qualified facility may prepare, self-
certify and implement an SPCC Plan that complies with all of the 
applicable requirements of the rule in accordance with Sec.  112.6 of 
today's final rule. No PE certification is required for qualified 
facilities' Plans. A qualified facility owner or operator also may 
choose to prepare a Plan in accordance with the general Plan 
requirements in Sec.  112.7 and applicable requirements in subparts B 
and C, including having the Plan certified by a Professional Engineer 
as required under Sec.  112.3(d). The qualified facility approach in 
today's final rule is optional; owners or operators of facilities that 
qualify may choose not to exercise this option.
    In proposing this option for facilities handling smaller amounts of 
oil, the Agency sought to focus on those smaller operations that may be 
concerned about the impact of utilizing a PE on their limited budget. 
Some of the current noncompliance with the SPCC regulation may be 
attributed to those concerns. The Agency believes that providing a 
simpler, less costly option for owners and operators of these smaller, 
less complex facilities will improve the overall compliance for the 
SPCC regulation, ultimately resulting in greater environmental 
protection.
3. Eligibility Criteria
a. Total Facility Oil Storage Capacity Threshold
    EPA proposed to limit the maximum aggregate oil storage capacity at 
a qualified facility to 10,000 gallons or less. EPA considered many 
different factors before selecting this maximum storage capacity. As 
explained in the preamble to the proposal (70 FR 73529), EPA has 
established 10,000 gallons as a threshold in several other rules 
relating to oil discharges. The National Oil and Hazardous Substances 
Pollution Contingency Plan size classes define an oil discharge to 
inland waters exceeding 10,000 gallons as a major discharge. An oil 
discharge of 10,000 gallons or more to waters of the U.S. and adjoining 
shorelines that could reasonably be expected to cause substantial harm 
to the environment also is one of the factors used in identifying 
facilities whose owners and operators must prepare and submit a 
Facility Response Plan (see 40 CFR 112.20(f)(1)(D). A number of State 
regulations also differentiate regulatory requirements based on a 
facility's total storage capacity, with some States specifying a 
10,000-gallon threshold (e.g., Maryland, Minnesota, Oregon, New York, 
Wisconsin). Finally, 10,000 gallons is a common storage container size.
    More commenters supported than opposed the proposed threshold 
eligibility criterion of total oil storage capacity of 10,000 gallons 
or less, while others offered alternative thresholds. Many commenters 
supported the idea of establishing tiers for qualified facilities. (As 
noted earlier, the Agency intends to propose a more streamlined 
approach for owners and operators of facilities with a total oil 
storage capacity of 5,000 gallons or less.) Many supporters believed 
that the proposed 10,000-gallon threshold would reduce the financial 
burden on owners and operators of small facilities. Among commenters 
that opposed the threshold, at least one stated that the proposed 
10,000-gallon threshold did not provide enough regulatory relief to 
owners and operators of small facilities, but others noted that smaller 
storage sizes do not necessarily correlate with lower spill risk.
    Facilities handling smaller amounts of oil are typically simpler in 
layout and operation. Most facilities with an oil storage capacity of 
10,000 gallons or less are in industrial sectors that are end-consumers 
of oil (i.e. farms, real estate, rental and leasing, retail trade, 
construction [see the Regulatory Impact Analysis for this action, found 
in the docket for today's final rule]). These

[[Page 77271]]

facilities are commonly not in an oil production or distribution 
business and tend to use oil on-site for heating purposes, or to fuel 
emergency power generators or heavy machinery. The configuration of the 
oil-related equipment tends to be relatively standard and simple. Oil 
is commonly stored in a few bulk storage containers which are often 
bought off-the-shelf from a tank manufacturer or installer (e.g., 
standard UL-142 tanks) and connected with few short lengths of piping 
in a standard configuration that changes relatively little from one 
facility to another.
    Additionally, these facilities typically do not have significant 
transfers of oil because they do not further distribute the oil. A 
survey conducted by EPA of oil storage facilities (1995 SPCC Survey of 
Oil Storage Facilities) found that the larger the storage capacity at a 
facility, the greater the likelihood of larger spills, more spills, and 
more cleanup costs annually. Our regression analyses of the 1995 survey 
data (see ``Analysis of the Relationship between Facility 
Characteristics and Oil Spill Risk,'' found in today's docket) 
confirmed similar linkages for facilities with a greater number of 
tanks and larger annual throughput. These analyses were performed 
because storage capacity, number of tanks, and throughput were 
identified as important individual factors in explaining the total 
annual spill volume, number of spills, and cleanup costs. Thus, these 
factors were used together in a multivariate regression model to ensure 
that these three variables continue to be statistically significant 
variables when assessing whether there is potential bias (i.e., an 
overstatement of the importance of the variable in explaining the 
variation in the dependent variable). After performing these analyses, 
storage capacity and number of tanks were found to be statistically 
significant in relation to all three measures of spill risk (i.e., 
total number, volume, and cleanup costs of oil spills). The Agency 
believes simple oil storage configuration, in conjunction with the 
smaller quantities of oil handled at qualified facilities, makes self-
certification an appropriate alternative. Therefore, the Agency has 
decided to maintain the maximum aggregate oil storage capacity for 
qualified facilities at 10,000 gallons as proposed.
    The development of streamlined requirements for owners and 
operators of those facilities with a smaller size or storage volume is 
not new; industry standards, engineering codes and practices, State 
regulations, local fire codes and local ordinances often recognize the 
differences between sizes and complexity of their target facilities 
and/or equipment and as a result incorporate simplified requirements. 
The Agency believes that today's action provides an alternative 
compliance option for owners and operators of facilities handling 
smaller amounts of oil that will ultimately result in increased 
environmental protection by making it easier and less burdensome to 
comply.
    EPA recognizes that an oil discharge of less than 10,000 gallons 
can be harmful (see 40 CFR part 110, where the Agency defines what 
constitutes a discharge of oil in quantities that may be harmful). 
Nevertheless, EPA believes that it is reasonable to allow owners and 
operators of facilities with a capacity of no more than 10,000 gallons 
the option to prepare and implement SPCC Plans without the involvement 
of a PE (except in those cases where environmental equivalence or an 
impracticability determination is requested by an owner or operator and 
that the owner or operator chooses to have a PE certify part or all of 
the facility SPCC Plan). Therefore, the Agency is adopting in today's 
rule a threshold capacity of 10,000 gallons as a criterion for those 
facilities that are qualified for self-certification.
    Some commenters argued that the 10,000-gallon threshold would still 
preclude owners and operators of smaller facilities from taking 
advantage of the self-certification alternative. For example, a 
facility with two 5,000-gallon storage containers and a few totes just 
exceeds the 10,000-gallon threshold. Commenters argued that these kinds 
of facilities have low volumes of oil and simple operations, and that 
perhaps a slightly higher threshold would be more appropriate. The 
Agency recognizes that regardless of the threshold quantity selected, 
there are likely to be facilities just above that threshold that will 
be excluded. To the extent that facility owners or operators want to 
take advantage of the streamlined approach, they always have the option 
of reducing the storage capacity of oil at their facility by either 
removing containers from the facility inventory, or permanently closing 
containers in accordance with Sec.  112.2.
    Other commenters suggested higher threshold quantities, generally 
based upon the quantities of oil used or stored in their particular 
industry sector. EPA does not agree that this provides a rational basis 
for raising the threshold limit for qualified facilities. Higher 
thresholds would potentially allow owners and operators of facilities 
(in some cases unmanned) with more complex operations or more complex 
oil system configurations, designs and layouts, and with the potential 
for an increased number of transfers, the option of foregoing the 
services of a PE. Thus, self-certification for owners and operators of 
more complex facilities would not be commensurate with their potential 
spill risks.
    By limiting the self-certification option to owners and operators 
of facilities with a maximum aggregate oil storage capacity of 10,000 
gallons, the Agency believes that an owner or operator of a qualified 
facility should be able to self-certify compliance the facility's SPCC 
Plan, and that offering this simpler and streamlined alternative will 
result in greater environmental protection by improving compliance with 
the SPCC rule. Owners and operators of facilities handling smaller 
amounts of oil would still be required to comply with the SPCC 
requirements and to prevent and prepare to respond to oil discharges to 
navigable waters and adjoining shorelines, but they would be able to do 
so in a less costly manner. We believe this alternative certification 
provision will prove to be an incentive for compliance.
b. Reportable Discharge History
    Clean Water Act section 311(b)(3) prohibits ``the discharge of oil 
* * * into or upon the navigable waters of the United States, the 
adjoining shorelines, or into or upon the waters of the contiguous 
zone'' or in connection with specified activities in waters ``in such 
quantities as may be harmful * * *.'' Section 311(b)(4) requires 
regulations to define the quantities of oil, ``the discharge of which 
may be harmful to the public health or welfare or the environment of 
the United States, * * *.'' 33 U.S.C. 1321(b)(3), (4). In part 110, EPA 
defines a ``discharge of oil in such quantities that may be harmful'' 
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 as reportable discharges or as ``a discharge as described in 
Sec.  112.1(b)'' of the rule. Any person in charge of a facility must 
report any such discharge of oil to waters of the United States, 
adjoining shorelines, the contiguous zone or in connection with 
specified activities in waters from the facility to the National 
Response Center (NRC) at 1-800-424-8802 immediately. While EPA 
recognizes that past discharge

[[Page 77272]]

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 his smaller oil storage capacity facility without the 
involvement of a PE.
    EPA proposed 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 time period 
is less. The Agency proposed using a facility's reportable discharge 
history as a reasonable indicator of the effective implementation of an 
SPCC Plan based on an established record of good oil spill prevention. 
The reportable discharge history criterion was intended to limit the 
option of self-certification to owners and operators of those 
facilities that had demonstrated an effective implementation of spill 
prevention measures in the past.
    The commenters who supported the proposed reportable discharge 
requirement agree that it is important for a facility to have a clean 
spill history. However, a significant number of commenters argued 
against the proposed reportable discharge history criterion as an 
appropriate criterion, and that the small storage capacity alone should 
be sufficient to allow self-certification. One reason is that some 
reportable discharges are not the facility owner or operator's fault, 
but caused by outside sources. For example, a number of commenters 
pointed to the recent hurricanes in the Gulf Coast states that led to 
oil discharges that were not within the control of the facility owner 
or operator. A further reason is that facilities that have a clean 
discharge history might not always remain spill-free. As for the 
proposed ten-year period, one commenter stated that facility owners and 
operators are only required to keep records for SPCC Plans for three 
years; most owners and operators keep them for five years. Another 
commenter stated that a discharge history of ten years would almost be 
impossible to prove. Another commenter believed that the qualification 
for a qualified facility should not be based on the ten-year discharge 
history, but should be based on the discharge history under the current 
operator. A few commenters believed that risk of discharge should 
determine self-certification. Additionally, many commenters recommended 
alternative discharge history timeframes in place of the ten-year 
timeframe EPA proposed. Half of the commenters believed that three 
years should be the time frame for the reportable discharge history 
since the SPCC record-keeping requirement for facility owners and 
operators is three years. Two commenters mentioned that if a discharge 
occurs and the Regional Administrator (RA) responds, and after review 
of the SPCC Plan the RA does not require an amendment in the Plan, then 
the discharge should not count against the facility owner or operator 
when determining its compliance with a spill-history criterion.
    After consideration of the comments received, EPA is finalizing the 
reportable discharge criterion for qualified facilities but for three 
years, rather than ten years. The Agency agrees with commenters that a 
ten-year spill history is unreasonable, particularly since the facility 
owner or operator is only required to keep records for three years. In 
addition, EPA is modifying the types of discharges that must be 
considered for this criterion. The final rule provides that for the 
three 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 three years, the owner or operator of a 
facility must certify that the facility has (1) had no single discharge 
as described in Sec.  112.1(b) exceeding 1,000 U.S. gallons or (2) had 
no two discharges as described in Sec.  112.1(b) each exceeding 42 U.S. 
gallons within any twelve month period. When determining spill history, 
the gallon amount specified in the criterion (either 1,000 or 42) 
refers to the amount of oil that actually reaches waters of the United 
States, adjoining shorelines, the contiguous zone or in connection with 
specified activities in waters and not the total amount of oil spilled. 
For example, a facility only experiencing one discharge over the past 
ten years in which 1,500 gallons of oil discharged onto the ground but 
only 20 gallons reached waters of the United States (causing a sheen 
and reportable to the NRC) would meet the reportable discharge history 
criterion. However, a facility having 1,500 gallon discharge to waters 
of the United States would not meet the reportable discharge history 
criterion.
    In the preamble to the proposed rule, EPA requested comment on how 
extreme events such as natural disasters, acts of war or terrorism, 
sabotage or other calamities might potentially affect the discharge 
history criterion for qualified facilities. Many commenters stated that 
it would not be appropriate to include these events in the discharge 
history criterion. The Agency agrees that those reportable discharges 
caused by external factors beyond the control of the facility owner or 
operator such as natural disasters, acts of war, or terrorism should 
not disqualify owners and operators of otherwise qualified facilities 
from taking advantage of the self-certification option. Therefore, we 
have excluded those events from consideration in the reportable 
discharge criterion in today's final rule. The Agency did not include 
sabotage/vandalism in the final list of reportable discharge history 
extreme events because these are not necessarily beyond the control or 
planning ability of the facility owner or operator. Only those 
discharges as described in Sec.  112.1(b) that are the result of 
natural disasters, acts of war, or terrorism will not disqualify any 
owner or operator of an otherwise qualified facility from using the 
self-certification option.
    The discharge criterion finalized in today's rule is similar to the 
provision in Sec.  112.4(a) for discharges that must be reported to the 
EPA Regional Administrator (RA). A discharge that must be reported to 
the RA pursuant to Sec.  112.4(a) may result from improper Plan 
implementation, rather than from a deficiency in the Plan itself, which 
would likely not cause the RA to require the facility owner or operator 
to amend its Plan. Therefore, the EPA does not agree with the 
commenters that suggested excluding those discharges as described in 
Sec.  112.1(b) from the eligibility criterion that have been 
investigated by the RA with no subsequent requirement for a Plan 
amendment.
    The determination of eligibility based on reportable discharge 
history is made at the time the SPCC Plan is certified--i.e., when the 
SPCC Plan is amended to comply with the SPCC rule revisions in today's 
final rule and those promulgated in July 2002. Once the compliance date 
extension ends, Plans must be amended, certified and implemented. Any 
discharges to navigable waters and adjoining shorelines that occur from 
a qualified facility after the SPCC Plan has been certified do not 
impact the eligibility of an owner or operator of the qualified 
facility to take advantage of the self-certification option. The 
facility does not lose eligibility status as a result of a discharge as 
described in Sec.  112.1(b), unless the RA requires an amendment to the 
SPCC Plan in accordance with Sec.  112.4(d) and specifically requires 
PE-certification. If an owner or operator cannot certify that the 
facility meets the eligibility criterion at the initial date of Plan 
certification, but can later demonstrate a clean spill history of three 
years, as well as compliance with any remedial actions required by the 
RA

[[Page 77273]]

following a spill, then a technical amendment to the Plan can be self-
certified and the Plan can be revised to allow for qualified status.
4. Requirements for Qualified Facilities
    In today's rule, the Agency is creating a new section, Sec.  112.6, 
with requirements specific for qualified facilities whose owners and 
operators choose to self-certify their Plans. Owners and operators of 
qualified facilities with an aggregate aboveground oil storage capacity 
of 10,000 gallons of oil or less may choose to comply with the 
requirements in Sec.  112.6 by completing and implementing a self-
certified SPCC Plan. A qualified facility's Plan, whether certified by 
a PE or self-certified, must comply with all of the applicable 
requirements of Sec.  112.7 and subparts B and C of the rule. We note, 
however, that a facility's SPCC Plan does not need to conform to any 
particular format. There is flexibility with respect to how a facility 
owner or operator chooses to maintain the documentation comprising the 
facility's Plan, just as there is flexibility with respect to how the 
owner or operator chooses to carry out the elements of the Plan.
a. Self-Certification of Plan and Plan Amendment
    The commenters who supported self-certification for owners and 
operators of qualified facilities believed that it would relieve burden 
on the owners and operators. The commenters who opposed self-
certification did so for four main reasons. First, some commenters 
believe that the preparation of the SPCC Plan requires scientific, 
engineering, and professional judgment skills that are unique to 
engineers. Second, some commenters believe owners and operators of 
small facilities often cannot afford the cost of responding to a spill, 
and it is important that the SPCC Plan is prepared carefully and 
thoroughly by a PE. Third, some commenters believe that not having a PE 
involved would adversely affect public health, safety, and welfare. 
Fourth, some commenters believe that the proposal would allow non-
engineers to perform a function that is only allowed by engineers under 
the National Council of Examiners for Engineering and Surveying, a 
Model Law adopted by the majority of States.
    The self-certification option is designed for owners and operators 
of those facilities that store smaller amounts of oil. These smaller 
amounts of oil generally translate to facilities with simpler, pre-
engineered installations, such as restaurants, office buildings, family 
farms, automotive repair shops, and rural electrical substations. EPA 
believes that a differentiated option for users of smaller amounts of 
oil has merit as other official bodies, such as standards setting 
organizations have provided differentiations in their standards for 
smaller users of oil. For example, the National Fire Protection 
Association (NFPA) provides differentiated requirements based on type 
of facility and size of tanks. Specifically, NFPA 30 (Flammable and 
Combustible Liquids Code, 2000 Edition) applies to tanks that exceed 
3,000 liters (793 gallons) and does not apply to facilities storing 
flammable and combustible liquids as covered by NFPA 395, Standard for 
the Storage of Flammable and Combustible Liquids at Farms and Isolated 
Sites. The Agency believes that the relative simplicity of operations 
at facilities using smaller amounts of oil has served as a basis for 
other official bodies to develop requirements that are simpler in 
scope.
    To this end, the Agency is amending the certification language so 
that it clearly states that the owner or operator of the facility is 
the certifying official for those who choose the option to self-certify 
the Plan for qualified facilities. The Agency also intends to develop 
materials to assist these owners or operators in developing SPCC Plans. 
It should also be remembered that while owners and operators of these 
facilities may choose not to have their SPCC Plans certified by a PE, 
they will still be required to comply with all of the SPCC requirements 
and to develop and implement a spill prevention program in accordance 
with good engineering practices, and they may do so by following 
regulatory guidance, industry recommended practices and standard design 
and operation protocols. Finally, to the extent that a State has 
adopted a law, such as one based on the National Council of Examiners 
for Engineering and Surveying, that requires that a PE to perform 
certain functions, including certifying Plans, nothing in today's rule 
affects whether a facility owner or operator would be required to 
utilize a PE to meet the state or local requirements since today's rule 
does not pre-empt any State or local requirements.
    The Agency believes providing the added flexibility of self-
certification for the smaller oil handlers/simpler operations will 
yield an increase in overall compliance for this segment of the 
regulated community, which will result in improved compliance with the 
rule and as a result, improve overall spill prevention and 
environmental protection. However, owners or operators of some 
qualified facilities with complicated operations may nonetheless find 
that having a PE-certified Plan offers a more cost-effective method of 
achieving compliance than the proposed option. Therefore, a qualified 
facility owner or operator could choose to follow the existing SPCC 
requirements (including the PE certification).
    The Agency also proposed and is finalizing today that an owner or 
operator of a qualified facility may self-certify technical amendments 
to the Plan, including modification of site diagrams, and that owners 
and operators of facilities with PE-certified Plans that qualify for 
self-certification can choose to self-certify future technical 
amendments rather than hire a PE to certify the technical amendment. 
Owners and operators of facilities that are not eligible to self-
certify are required to have a PE certify such modifications. In all 
cases, any technical amendment in an SPCC Plan must be certified in 
writing. As described in the preamble to the proposed rule, the Agency 
notes that under the existing SPCC regulations, the RA, after reviewing 
the facility's Plan, has the authority in Sec.  112.4 to require an 
owner or operator of a facility that has had a discharge as described 
in Sec.  112.1(b) or that poses an imminent danger of a discharge as 
described in Sec.  112.1(b), to amend its SPCC Plan, including 
requiring PE certification in accordance with Sec.  112.3(d).
b. Elements of Self-Certification and Plan Amendments for Owners and 
Operators of Qualified Facilities
    The finalized requirements for owners and operators of qualified 
facilities are similar to those in the proposed qualified facilities 
option in the proposed rule. An owner or operator of a qualified 
facility may choose to comply with the requirements in Sec.  112.6 by 
completing and implementing a self-certified SPCC Plan in lieu of 
having a PE certified Plan. The SPCC Plan must comply with all of the 
applicable requirements of Sec.  112.7 and subparts B and C of the 
rule.
    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); the Plan does 
not include any

[[Page 77274]]

environmental equivalence measures as described in Sec.  112.7(a)(2) or 
determinations of impracticability under Sec.  112.7(d) unless each 
alternative method and/or determination has been reviewed and certified 
by a PE in accordance with Sec.  112.6(d); and the Plan and the 
individual(s) responsible for implementing the Plan have the full 
approval of management and the facility owner or operator has committed 
the necessary resources to fully implement the Plan.
    The qualified facility self-certification approach is optional. 
Under today's final rule, an owner or operator of a qualified facility 
may choose to prepare and implement a PE-certified SPCC Plan to comply 
with the requirements under 40 CFR part 112.
c. Environmental Equivalence and Impracticability Determinations
    Under Sec.  112.7, all 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 the deviations are 
available only for the specific requirements listed in Sec.  
112.7(a)(2), such as fencing and other security measures, evaluation of 
the potential for catastrophic tank failure due to brittle fracture, 
integrity testing, and overfill prevention. Environmental equivalence 
is not available for secondary containment or the administrative or 
recordkeeping requirements of the SPCC rule. As part of the SPCC Plan, 
any environmentally equivalent measures are required to be certified by 
a PE and the owner or operator, and the PE is required to consider 
industry standards in the development of the Plan. Thus, when a PE 
certifies a Plan that includes any environmentally equivalent 
protection measure, the PE is certifying that these alternative 
measures are consistent with relevant industry standards.
    The SPCC rule also provides flexibility for owners or 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, Sec.  112.7(d) allows facility owners 
and operators the flexibility to instead develop a contingency plan and 
comply with additional requirements. The SPCC Plan must explain why 
secondary containment measures are not practicable. Section 112.7(d) 
requires that, when containment for bulk storage containers is deemed 
impracticable, the owner or operator must conduct both periodic 
integrity testing of the containers and periodic integrity and leak 
testing of the valves and piping. The owner or operator also must 
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 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 determinations that secondary containment is 
impracticable, as well as the additional measures implemented in lieu 
of secondary 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. The same expertise 
is necessary in determining whether the required secondary containment 
is impracticable.
    EPA proposed that when a Plan is self-certified, the owner or 
operator would not be able to use environmentally equivalent measures 
or to make impracticability determinations with respect to secondary 
containment. Instead, EPA proposed specific alternative measures for 
compliance with security and integrity testing requirements at 
qualified facilities that self-certify. The commenters who supported 
this approach indicated that it added a safety factor into the self-
certification. Most commenters opposed this approach because 
impracticability determinations and environmental equivalence were 
originally created to relieve burden, and owners and operators of small 
facilities still need the flexibility these mechanisms provide. Some 
commenters believed that the agricultural industry would be negatively 
affected because the environmental equivalence and impracticability 
provisions are an important element to reduce the burden on owners and 
operators of these facilities due to topography and operations. As for 
the proposed specific alternative to environmentally equivalent 
measures for security, one commenter supported this proposal.
    With respect to integrity testing, the Agency proposed to allow 
self-certifying owners and operators of qualified facilities to perform 
integrity testing by relying on industry standards for the integrity 
testing requirements as an alternative to the existing bulk storage 
containing integrity testing requirements. All but one commenter 
supported the proposal. One commenter supported it, but also wanted 
visual inspection of individual shop-fabricated tanks up to 10,000 
gallons. Another commenter agreed, but believed that the expense of the 
Steel Tank Institute's (STI) Tank Inspection Standard, SP001 (July 
2005), was high and the STI standard and accompanying checklists are 
not applicable to small facilities. A hybrid approach also was 
suggested whereby owners and operators of qualified facilities would be 
allowed to use the self-certification option, and, in the event that an 
environmental equivalency or impracticability determination is needed, 
the owner or operator must consult a PE for just that aspect of their 
program, rather than requiring a full PE review and approval of the 
entire Plan.
    The Agency continues to believe that the flexibility afforded by 
the environmental equivalence or impracticability determinations should 
be available only to owners and operators of facilities having those 
elements reviewed and certified by a PE. At the same time, the Agency 
recognizes that by restricting these options for owners and operators 
of qualified facilities, the alternative of self-certification may not 
be as attractive for some owners or operators because they will lose 
the added flexibility of further tailoring the SPCC requirements to 
their facility's characteristics. The Agency agrees with commenters 
that under the proposed rule, there would likely be certain 
circumstances where, because of cost considerations, a facility owner 
or operator would not choose to self-certify because it would be more 
cost effective for a PE to prepare an SPCC Plan that utilizes 
environmentally equivalent measures or impracticability determinations.
    In today's final rule, the Agency therefore is adopting a hybrid 
approach. This approach finalizes the alternatives for addressing 
security measures and integrity testing and also allows owners or 
operators of self-certified facilities to include environmentally 
equivalent measures with respect to requirements other than facility 
security and integrity testing, as well as to make

[[Page 77275]]

impracticability determinations, provided they have a PE certify these 
environmentally equivalent measures or impracticability determinations. 
Because qualified facilities typically have less complex operations and 
petroleum system configurations and storage capacities than other 
facilities subject to SPCC requirements, EPA believes that the 
alternative requirements for facility security and bulk storage 
container integrity testing finalized today are appropriate for self-
certification. However, today's rule does not preclude a qualified 
facility from choosing to have a PE certify the integrity testing and/
or security measures in the facility's Plan as environmentally 
equivalent measures. For example, where there are no industry standards 
to guide integrity testing at a qualified facility, the alternative 
integrity testing option in Sec.  112.6(c)(4)(ii) is not available. 
However, the facility owner/operator is allowed to have a PE certify an 
integrity testing protocol in the Plan that is environmentally 
equivalent to the applicable requirements in subpart B or C. The Agency 
believes that this ``hybrid'' approach will further expand the 
flexibility offered by the self-certification compliance option to 
owners and operators of qualified facilities without compromising 
proper environmental protection.
    Similarly, EPA is adopting a hybrid approach to certification of 
technical amendments to a qualified facility's SPCC Plan in Sec.  
112.5. PE-certified sections of a qualified facility's ``hybrid'' SPCC 
Plan require PE certification of any technical amendments to that 
portion of the Plan. Technical amendments to the non-PE certified 
sections of a qualified facility's ``hybrid'' Plan can be certified by 
the owner or operator.

B. Qualified Oil-Filled Operation