Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Rule Requirements-Amendments, 58378-58445 [E7-19701]
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58378
Federal Register / Vol. 72, No. 198 / Monday, October 15, 2007 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[EPA–HQ–OPA–2007–0584; FRL–8479–7]
RIN 2050–AG16
Oil Pollution Prevention; Spill
Prevention, Control, and
Countermeasure Rule Requirements—
Amendments
Environmental Protection
Agency.
ACTION: Proposed rule.
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AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA or the Agency) is
proposing to amend the Spill
Prevention, Control, and
Countermeasure (SPCC) rule in order to
provide increased clarity, to tailor
requirements to particular industry
sectors, and to streamline certain
requirements for a facility owner or
operator subject to the rule. Specifically,
EPA is proposing to: Exempt hot-mix
asphalt; exempt pesticide application
equipment and related mix containers
used at farms; exempt heating oil
containers at single-family residences;
amend the facility diagram requirement
to provide additional flexibility for all
facilities; amend the definition of
‘‘facility’’ to clarify the flexibility
associated with describing a facility’s
boundaries; define ‘‘loading/unloading
rack’’ to clarify the equipment subject to
the provisions for facility tank car and
tank truck loading/unloading racks;
provide streamlined requirements for a
subset of qualified facilities; amend the
general secondary containment
requirement to provide more clarity;
amend the security requirements for all
facilities; amend the integrity testing
requirements to allow a greater amount
of flexibility in the use of industry
standards at all facilities; amend the
integrity testing requirements for
containers that store animal fat or
vegetable oil and meet certain criteria;
streamline a number of requirements for
oil production facilities; and exempt
completely buried oil storage tanks at
nuclear power generation facilities.
These changes tailor requirements to
particular industries for easier and
increased compliance, resulting in
greater protection of human health and
the environment. EPA is also providing
clarification in the preamble to this
proposed rule on additional issues
raised by the regulated community.
DATES: Comments must be received on
or before December 14, 2007.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
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OPA–2007–0584, by one of the
following methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• Mail: EPA Docket, Environmental
Protection Agency, Mail code: 2822T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460.
• Hand Delivery: EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. 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–2007–
0584. 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
or e-mail. 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 send an e-mail
comment directly to EPA without going
through www.regulations.gov, your email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
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. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
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 statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
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either electronically in
www.regulations.gov or in hard copy at
the EPA Docket, EPA/DC, EPA West,
Room 3334, 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 for the Public Reading Room is
(202) 566–1744, and the telephone
number for the EPA Docket is (202)
566–0276.
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.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
The
contents of this preamble are:
I. General Information
II. Entities Potentially Affected by This
Proposed Rule
III. Statutory Authority and Delegation of
Authority
IV. Background
V. This Action
A. Hot-Mix Asphalt
1. Proposed Exemption for Hot-Mix
Asphalt
2. Alternative Options Considered
B. Farms
1. Exemption for Pesticide Application
Equipment and Related Mix Containers
2. Applicability of Mobile Refueler
Requirements to Farm Nurse Tanks
3. Alternative Options Considered
C. Residential Heating Oil Containers
1. Exemption for Residential Heating Oil
Containers
2. Alternative Option Considered:
Exemption for Residential Heating Oil
Containers Only at Farms
D. Definition of Facility
1. Proposed Revisions to the Definition of
Facility
2. Determining the Components of a
Facility: Examples of Aggregation or
Separation
3. Alternative Options Considered
E. Facility Diagram
1. Proposed Revision to the Facility
Diagram Requirement
2. Indicating Complicated Areas of Piping
or Oil-Filled Equipment on a Facility
Diagram
F. Loading/Unloading Racks
1. Proposed Loading/Unloading Rack
Definition
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2. Requirements for Loading/Unloading
Racks
3. Exclusions
4. Alternative Option Considered: No
Action
G. Tier I Qualified Facilities
1. Eligibility Criteria
2. Provisions for Tier I Qualified Facilities
3. SPCC Plan Template
4. Self-Certification and Plan Amendments
5. Tier II Qualified Facility Requirements
6. Alternative Options Considered: No
Action
H. General Secondary Containment
1. Proposed Revisions to the General
Secondary Containment Requirement
2. Alternative Option Considered: No
Action
3. General Secondary Containment for
Non-Transportation-Related Tank Trucks
I. Security
1. Proposed Revisions to the Security
Requirements
2. Alternative Option Considered: No
Action
J. Integrity Testing
1. Proposed Amendments to Integrity
Testing Requirements
2. Alternative Option Considered: No
Action
K. Animal Fats and Vegetable Oils
1. Differentiation Criteria
2. Required Recordkeeping
L. Oil Production Facilities
1. Definition of Production Facility
2. SPCC Plan Preparation and
Implementation
3. Flowlines and Intra-facility Gathering
Lines
4. Flow-Through Process Vessels
5. Small Oil Production Facilities
6. Produced Water Storage Containers
7. Clarification of the Definition of
Permanently Closed Containers
8. Oil and Natural Gas Pipeline Facilities
M. Man-Made Structures
1. Secondary Containment
2. Integrity Testing
N. Underground Emergency Diesel
Generator Tanks at Nuclear Power
Stations
O. Wind Turbines
P. Technical Corrections
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
The Environmental Protection Agency
(EPA or the Agency) is proposing
several amendments to the Spill
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Prevention, Control, and
Countermeasure (SPCC) rule to address
a number of issues that have been raised
by the regulated community. These
proposed amendments are intended to
increase clarity, tailor, and streamline
certain requirements for a facility owner
or operator who is required to prepare
an SPCC Plan. Specifically:
• EPA proposes to exempt hot-mix
asphalt (HMA) from the SPCC
requirements. EPA believes it is
unnecessary to apply the SPCC
requirements to HMA. EPA would
continue to regulate asphalt cement,
asphalt emulsions, and cutbacks, which
are not hot-mix asphalt, but is
describing in this notice the flexibility
contained in the SPCC rule regarding
these materials.
• EPA proposes certain tailored
requirements benefiting farms.
Specifically, EPA proposes to exempt
pesticide application equipment and
related mix containers used at farms,
that may currently be subject to the
SPCC rule when crop oil or adjuvant oil
are added to formulations. In addition,
EPA seeks to clarify that the amendment
related to mobile refuelers, as
promulgated in the December 2006 rule
amendments (71 FR 77266, December
26, 2006), can be used by farmers to
address oil spill prevention
requirements for fuel nurse tanks.
• EPA proposes to exempt residential
heating oil containers, i.e., those used
solely at single-family residences, from
the SPCC requirements. This exemption
would apply to aboveground containers,
as well as completely buried heating oil
tanks at single-family residences,
including those located at farms.
• EPA proposes to modify the
definition of ‘‘facility’’ to clarify that
contiguous or non-contiguous buildings,
properties, parcels, leases, structures,
installations, pipes, or pipelines may be
considered separate facilities, and to
specify that the ‘‘facility’’ definition
governs the applicability of 40 CFR part
112. These proposed revisions would
allow an owner or operator to separate
or aggregate containers to determine the
facility boundaries, based on such
factors as ownership or operation of the
buildings, structures, containers, and
equipment on the site, the activities
being conducted, property boundaries,
and other relevant considerations.
• EPA proposes to revise the facility
diagram requirement at § 112.7(a)(3) to
clarify how containers, fixed and
mobile, are identified on the facility
diagram. Where facility diagrams
become complicated due to the presence
of multiple fixed oil storage containers
or complex piping/transfer areas at a
facility, the owner or operator would be
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able to include that information
separately in the SPCC Plan in an
accompanying table or key. For any
mobile or portable containers located in
a certain area of the facility, an owner
or operator would be able to mark that
area on the diagram where such
containers are stored. If the total number
of mobile or portable containers changes
on a frequent basis, the owner or
operator would be able to indicate the
potential range in number of containers
and the anticipated contents and
capacities of the mobile or portable
containers maintained at the facility in
the Plan.
• EPA proposes to define the term
‘‘loading/unloading rack’’ and specify
that this definition would govern the
applicability of the provision at
§ 112.7(h), Facility tank car and tank
truck loading/unloading rack. This
amendment would provide clarity to the
regulated community over whether this
provision applies to a facility.
Furthermore, EPA is proposing to
specifically exclude oil production
facilities and farms from the
requirements at § 112.7(h), because
loading/unloading racks are not
typically found at these facilities
(loading/unloading activities at these
facilities will remain subject to the
general secondary containment
requirements of § 112.7(c)). EPA also
proposes editorial revisions to the
provision at § 112.7(h) for clarity.
• EPA proposes to streamline and
tailor the SPCC requirements for a
subset of qualified facilities. Qualified
facilities were addressed in a recent
amendment to the SPCC rule (71 FR
77266, December 26, 2006). The owner
or operator of such a facility was
provided an option to self-certify his
SPCC Plan and comply with other
streamlined requirements. This
proposed rule further defines a subset of
qualified facilities (‘‘Tier I qualified
facilities’’) as those that meet the current
qualified facilities eligibility criteria and
that have no oil storage containers with
an individual storage capacity greater
than 5,000 gallons. A Tier I qualified
facility would have the option to
complete a self-certified SPCC Plan
template (proposed as Appendix G to 40
CFR part 112) in lieu of a full SPCC
Plan. By completing the SPCC Plan
template, an owner or operator of a Tier
I qualified facility would certify that the
facility complies with a set of
streamlined SPCC rule requirements.
All other qualified facilities will be
designated ‘‘Tier II qualified facilities’’.
• EPA proposes to amend the general
secondary containment requirement at
§ 112.7(c) to make clear that the scope
of secondary containment takes into
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consideration the typical failure mode,
and most likely quantity of oil that
would be discharged, consistent with
current Agency guidance. This proposed
amendment would also provide
additional examples of prevention
systems for onshore facilities found at
§ 112.7(c)(1).
• EPA proposes to amend the facility
security requirements at § 112.7(g) to
allow an owner or operator to tailor his
security measures to the facility’s
specific characteristics and location. A
facility owner or operator would be
required to describe in the SPCC Plan
how he secures and 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; and
addresses the appropriateness of
security lighting to both prevent acts of
vandalism and assist in the discovery of
oil discharges. This proposed action
would extend the streamlined security
requirements that EPA provided to a
qualified facility in the December 2006
final rule (71 FR 77266, December 26,
2006) to all facilities subject to the
security requirements.
• EPA proposes to amend the
requirements at §§ 112.8(c)(6) and
112.12(c)(6) to provide flexibility in
complying with bulk storage container
integrity testing requirements.
Specifically, EPA is proposing to modify
the current provision to allow an owner
or operator to consult and rely on
industry standards 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. This proposed action
would extend the streamlined bulk
storage container inspection
requirement that EPA provided to
qualified facilities in the December 2006
final rule (71 FR 77266, December 26,
2006) to all facilities subject to the
integrity testing provision.
• EPA proposes to differentiate the
integrity testing requirements at
§ 112.12(c)(6) for an owner or operator
of a facility that handles certain types of
animal fats and vegetable oils.
Specifically, EPA proposes to provide
the PE or an owner/operator certifying
an SPCC Plan with the flexibility to
determine the scope of integrity testing
that is appropriate for containers that
store animal fats or vegetable oil and
that meet other criteria.
• EPA proposes several amendments
to tailor the requirements for oil
production facilities to address a
number of concerns that have been
raised by representatives of this sector.
Specifically, EPA is proposing to:
Modify the definition of production
facility, consistent with the proposed
amendments to the definition of facility;
extend the timeframe by which a new
oil production facility must prepare and
implement an SPCC Plan; exempt flowthrough process vessels at oil
production facilities from the sized
secondary containment requirements
while maintaining general secondary
containment requirements and requiring
additional oil spill prevention measures;
exempt flowlines and intra-facility
gathering lines at oil production
facilities from all secondary
containment requirements, while
establishing more specific requirements
for a flowline/intra-facility gathering
line maintenance program and
contingency planning; and clarify the
definition of ‘‘permanently closed’’ as it
applies to an oil production facility.
EPA also describes approaches that
would establish alternative criteria for
an oil production facility to be eligible
to self-certify an SPCC Plan as a
qualified facility, and approaches to
address produced water storage
containers at oil production facilities.
• EPA proposes to exempt completely
buried oil storage tanks at nuclear
power generation facilities that are
subject to design criteria under Nuclear
Regulatory Commission regulations.
In this notice, EPA is also clarifying
a number of issues of concern to the
regulated community, including: the
consideration of man-made structures in
determining how to comply with SPCC
rule requirements; and the applicability
of the rule to wind turbines that are
used to produce electricity. EPA also
proposes technical corrections to
§§ 112.3 and 112.12.
II. Entities Potentially Affected by This
Proposed Rule
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Industry sector
NAICS code
Oil Production ..................................................................................................................................................................
Farms ...............................................................................................................................................................................
Electric Utility Plants ........................................................................................................................................................
Petroleum Refining and Related Industries .....................................................................................................................
Chemical Manufacturing ..................................................................................................................................................
Food Manufacturing .........................................................................................................................................................
Manufacturing Facilities Using and Storing Animal Fats and Vegetable Oils ................................................................
Metal Manufacturing ........................................................................................................................................................
Other Manufacturing ........................................................................................................................................................
Real Estate Rental and Leasing ......................................................................................................................................
Retail Trade .....................................................................................................................................................................
Contract Construction ......................................................................................................................................................
Wholesale Trade ..............................................................................................................................................................
Other Commercial ............................................................................................................................................................
Transportation ..................................................................................................................................................................
Arts Entertainment & Recreation .....................................................................................................................................
Other Services (Except Public Administration) ...............................................................................................................
Petroleum Bulk Stations and Terminals ..........................................................................................................................
Education .........................................................................................................................................................................
Hospitals & Other Health Care ........................................................................................................................................
Accommodation and Food Services ................................................................................................................................
Fuel Oil Dealers ...............................................................................................................................................................
Gasoline stations .............................................................................................................................................................
Information Finance and Insurance .................................................................................................................................
Mining ..............................................................................................................................................................................
Warehousing and Storage ...............................................................................................................................................
Religious Organizations ...................................................................................................................................................
Military Installations .........................................................................................................................................................
Pipelines ..........................................................................................................................................................................
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211111
111, 112
2211
324
325
311, 312
311, 325
331, 332
31–33
531–533
441–446, 448, 451–454
23
42
492, 541, 551, 561–562
481–488
711–713
811–813
4247
61
621, 622
721, 722
45431
4471
51, 52
212
493
813110
928110
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Industry sector
NAICS code
Government .....................................................................................................................................................................
The list of potentially affected entities
in the above table may not be
exhaustive. The Agency’s goal is to
provide a guide for readers to consider
regarding 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 to navigable waters and
adjoining shorelines 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 was 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 nontransportation-related facilities. An
MOU between EPA, the U.S.
Department of the Interior (DOI), and
DOT (59 FR 34102, July 1, 1994) redelegated the responsibility to regulate
certain offshore facilities from DOI to
EPA.
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IV. Background
The SPCC rule was originally
promulgated on December 11, 1973 (38
FR 34164). 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). The 2002 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
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community filed legal challenges to
certain aspects of the rule. All but one
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.
As a result, EPA proposed
amendments to the SPCC rule in
December 2005 and finalized them in
December 2006 to address a number of
issues, including those pertaining to
certain ‘‘qualified’’ facilities, qualified
oil-filled operational equipment, motive
power containers, mobile refuelers,
provisions inapplicable to animal fats
and vegetable oils, and the compliance
date for farms. See the final rule which
published in the Federal Register at 71
FR 77266 (December 26, 2006) for a
more detailed discussion of these
amendments.
Also, in December 2005, EPA released
the SPCC Guidance for Regional
Inspectors. EPA intends to issue
revisions to this guidance document to
incorporate changes consistent with the
December 2006 amendments to the
SPCC rule (71 FR 77266, December 26,
2006). This guidance document is
intended to assist regional inspectors in
reviewing the 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
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 the owner
or operator of a facility that may be
subject to the SPCC rule and to the
general public on the Agency’s Web site
at https://www.epa.gov/emergencies.
This guidance is a living document and
will be revised, as necessary, to reflect
any relevant future regulatory
amendments, including any final rule
based on this proposed action.
In addition, EPA has amended the
dates for compliance with the July 2002
amendments to the SPCC rule by
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 § 112.2.
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92
extending the dates for preparing or
amending, and implementing revised
SPCC Plans in 40 CFR 112.3(a), (b), and
(c), most recently by final rule
published May 16, 2007 (72 FR 27443).
EPA took the most recent action to
provide facilities time to fully
understand the amendments to the
SPCC rule finalized in December 2006
and to allow potentially affected owners
and operators an opportunity to make
any changes to their facilities and to
their SPCC Plans, as well as to provide
time for the Agency to take final action
on this proposal. Additionally, EPA
intends to provide the regulated
community time to review and
understand any revised material
presented in the SPCC Guidance for
Regional Inspectors. Please see the
Federal Register notice (72 FR 27443,
May 16, 2007) for further discussion of
the compliance date extensions.
The December 2006 final rule (71 FR
77266, December 26, 2006) addressed
only certain areas of the SPCC
requirements and specific issues and
concerns raised by the regulated
community. As highlighted in the EPA
Regulatory Agenda and the 2005 Office
of Management and Budget report on
‘‘Regulatory Reform of the U.S.
Manufacturing Sector,’’ EPA is
proposing amendments in this notice to
address other areas where further
changes may be appropriate.
V. This Action
A. Hot-mix Asphalt
Hot-mix asphalt (HMA) is a blend of
asphalt cement (AC) and aggregate
material, such as stone, sand, or gravel,
which is formed into final paving
products for use on roads and parking
lots. All types of asphalt, including
HMA, are petroleum oil products. As a
result, a facility that stores and handles
HMA may currently be regulated under
the SPCC rule, if the applicability
criteria are met (e.g., storage capacity
thresholds and potential for a discharge
into navigable waters or adjoining
shorelines). As such, SPCC
requirements, including secondary
containment, apply to HMA containers.
However, EPA never intended that
HMA be included as part of a facility’s
SPCC Plan, particularly facilities which
may be subject to the SPCC
requirements solely because of the
presence of HMA. Taken to the extreme,
it could be argued that roads, parking
lots, or other asphalt paving projects
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would be part of a facility’s SPCC Plan.
That was not and is not the Agency’s
intent.
In addition, because this material is
unlikely to flow as a result of the
entrained aggregate, there are few
circumstances in which a discharge of
HMA would reach navigable waters or
adjoining shorelines. As a result, EPA is
proposing to revise the rule to eliminate
the requirement for an owner or
operator of a facility otherwise subject
to the SPCC rule to include a HMA
container in the facility’s SPCC Plan or
aggregate storage capacity calculations.
1. Proposed Exemption for Hot-Mix
Asphalt
This proposed rule amendment would
exempt HMA from SPCC rule
applicability by adding a new paragraph
(8) under the general applicability
section, § 112.1(d). Furthermore, EPA
proposes to modify § 112.1(d)(2) so that
the capacity of storage containers solely
containing HMA would not be counted
toward the facility oil storage capacity
calculation. The Regional Administrator
would continue to have the option
under § 112.1(f), however, to require an
owner or operator of a facility, including
one solely handling HMA, to prepare or
amend and implement an SPCC Plan or
any applicable part, to include HMA
containers if he determines that it is
necessary in order to prevent a
discharge of oil into navigable waters or
adjoining shorelines.
For those substances that are not
eligible for the proposed exemption, the
SPCC rule provides the facility owner or
operator with significant flexibility to
select prevention and control measures
that are appropriate and cost effective
for the facility and type of product being
stored. For example, the secondary
containment requirements of the SPCC
rule may be satisfied if the secondary
containment system, including walls
and floor, are capable of containing the
oil and are constructed so that any
discharge from a primary containment
system will not escape secondary
containment before cleanup occurs
(§ 112.7(c)) and diked areas are
sufficiently impervious to contain the
oil (§ 112.8(c)(2)). Therefore, the flow
properties of asphalt cement (AC), for
example, (as for any oil) may be
considered in designing appropriate
means of containment. If, once cooled,
the oil remains in place, an effective
means of secondary containment may
involve surrounding the bulk storage
container with an earthen berm that will
contain the oil until it can solidify. As
stated in the SPCC Guidance for
Regional Inspectors (version 1.0,
November 28, 2005), ‘‘The suitability of
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earthen material for secondary
containment systems may depend on
the properties of both the product stored
and the soil. For example, compacted
local soil may be suitable to contain a
viscous product, such as liquid AC, but
may not be suitable to contain
gasoline.’’ If an owner or operator
chooses to use an earthen berm as a
method of secondary containment, the
facility owner or operator should
consider, among other factors, the effect
of weather, vehicle and worker
movement, access, and safety, in
accordance with good engineering
practice.
Furthermore, a facility owner or
operator does not necessarily need to
construct a berm around an asphalt
cement container to satisfy the
secondary containment requirements;
he may opt to use a storm water
retention pond or other similar structure
or existing natural terrain features that
would serve to divert, remotely
impound, and prevent the discharge to
navigable waters or adjoining
shorelines. EPA notes that oil
discharged into secondary containment
needs to be removed promptly so that
the containment system retains its
appropriate capacity.
Finally, the Agency would note that
the SPCC rule only applies to facilities
that, due to their location, can
reasonably be expected to discharge oil
to navigable waters or adjoining
shorelines. In determining whether
there is a reasonable expectation of
discharge, an owner or operator of a
facility may consider the nature and
flow properties of the oils handled at
the facility. Therefore, the owner or
operator of a facility that stores or
handles only those oils that are solid at
ambient temperatures may conclude
that the facility is not subject to the
SPCC rule. However, if a facility owner
or operator determines that there is a
reasonable expectation to discharge oil
to navigable waters or adjoining
shorelines for a single oil container, all
oil containers at the facility are subject
to the rule’s requirements.
Although this proposed amendment
would provide an exemption from the
SPCC requirements for containers of
HMA, HMA manufacturers and other
facilities that use, store, distribute, or
otherwise handle HMA may still be
subject to the SPCC requirements due to
the storage capacity of other types of
oils (e.g., No. 2 fuel oil and heat transfer
oils) at the facility.
The Agency seeks comments on the
proposed exemption for HMA. Any
alternative approach presented must
include an appropriate rationale and
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supporting data in order for the Agency
to be able to consider it for final action.
2. Alternative Options Considered
a. No Action
EPA considered taking no regulatory
action regarding this issue. Under this
option, a facility owner or operator
would continue to be required to
consider HMA in calculating the
facility’s total oil storage capacity, and
comply with all SPCC requirements
related to storage or transfer of HMA.
The owner or operator would continue
to benefit from the flexibility in the
SPCC rule to provide secondary
containment measures that are
appropriate and cost effective for the
facility and the asphalt it stores. EPA
believes that it is unnecessary for an
owner or operator of a facility that
constructs roads, parking lots, or
sidewalks to develop an SPCC Plan,
solely for the routine end use of HMA
as part of these operations. Moreover, as
HMA is unlikely to flow as a result of
the entrained aggregate, the Agency
believes there are few circumstances in
which a discharge of HMA would reach
navigable waters or adjoining
shorelines. Therefore, EPA chose not to
propose this option.
b. Exemption for Asphalt Cement
EPA considered exempting both HMA
and AC from the requirements of the
SPCC rule, but chose not to propose
such an option. In documents submitted
to EPA, the asphalt industry argues that
AC poses a low risk to navigable waters
and adjoining shorelines, claiming that
it does not flow if spilled on the ground.
The industry further argues that asphalt
facilities are either already covered
under other environmentally protective
regulations or are granted a specific
exemption from other regulations due
the unique nature of the product, and
that the cost of complying with the
SPCC regulation is disproportionate to
the risk posed.
Because of the operational conditions
under which AC is used and stored, AC
does pose a risk of being discharged into
navigable waters and adjoining
shorelines. (See EPA’s report, Asphalt
Under the Spill Prevention, Control, and
Countermeasure Regulation, August 29,
2007, in the docket for this proposal.)
Although AC is semi-solid or solid at
ambient temperature and pressure, it is
generally stored at elevated
temperatures. Hot AC is liquid—similar
to other semi-solid oils, such as paraffin
wax and heavy bunker fuels—and
therefore is capable of flowing. All of
these oils are regulated under the SPCC
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rule to prevent discharges to navigable
waters and adjoining shorelines.
EPA believes that the threat that AC,
as well as other semi-solid oils, pose to
navigable waters and adjoining
shorelines can be effectively addressed
by implementing the procedures and
measures required under the SPCC
regulation. As discussed previously, the
current SPCC regulation provides
flexibility to an asphalt facility owner
and operator to account for site- and
product-specific characteristics in
implementing measures to prevent oil
discharges in a cost-effective manner.
The Agency welcomes comments on
these or other alternatives that could
serve to address HMA, 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.
B. Farms
The owner or operator of a farm, by
virtue of storing or using oil, is
potentially subject to the SPCC
requirements. The December 2006
amendments to the SPCC rule (71 FR
77266, December 26, 2006) defined a
farm as ‘‘* * * 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.’’ In providing the option for an
owner or operator of a facility that stores
10,000 gallons of oil or less and meets
other qualifying criteria to self-certify
his SPCC Plan in lieu of review and
certification by a Professional Engineer,
the December 2006 amendments offered
relief to an estimated 95 percent of all
SPCC-regulated farms. The 2006
amendments also exempted mobile
refuelers, which include fuel nurse
tanks on farms, from the sized
secondary containment requirements for
bulk storage containers (see more
detailed discussion regarding nurse
tanks below). Finally, the 2006
amendments extended the date by
which farms must amend their existing
SPCC Plans to come into compliance
with the July 2002 rule changes until
the Agency publishes a final rule in the
Federal Register establishing a new
compliance date. This proposal does not
affect this extended compliance date for
farms. The Agency will propose a new
compliance date for farms in the
Federal Register at a later date.
While the December 2006
amendments provided streamlined
requirements for most of the farms that
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are subject to the SPCC requirements,
EPA believes further amendments to the
SPCC rule are appropriate considering
the unique characteristics of farm
facilities, including their geographic
scale, configuration, land ownership
and lease structure, and on-farm
activities. Specifically, EPA recognizes
that a farm: May be privately owned and
may contain the residence of the owner
or operator; has a configuration that
varies across the country, from farm to
farm and season to season; contains
low-volume oil storage that is often
dispersed across different land parcels
separated by roads and natural barriers;
has multiple fueling sites; is located in
a remote area; stores oil on-site for onfarm use and not for further distribution
in commerce; uses oil seasonally in
different quantities; and leases a
significant amount of land to or from
secondary parties. For these reasons,
EPA is proposing additional
amendments to the SPCC rule that
further benefit farms.
As discussed in Section G of this
preamble, EPA is proposing an
additional option for a subset of
qualified facilities (‘‘Tier I’’) that have a
maximum individual oil storage
container capacity of 5,000 gallons, by
allowing these facilities to complete a
simplified self-certified SPCC Plan
template in lieu of a full SPCC Plan.
This option would be available to any
facility that meets the Tier I
qualification criteria, including a farm.
EPA expects that at least 128,000 farms
(or more than 84% of the farms
regulated by the SPCC rule) may be
eligible for this proposed option.
EPA is also proposing to clarify the
definition of ‘‘facility’’ in the SPCC rule,
as discussed in Section D of this
preamble. The proposed definition
would clarify the existing flexibility for
a facility owner or operator, particularly
for a farmer, to define oil storage areas
located on either contiguous or noncontiguous parcels of land (e.g., satellite
storage areas) as separate facilities for
the purpose of determining SPCC
applicability and preparing/
implementing an SPCC Plan.
Under this proposal (see Section C),
EPA would exempt heating oil
containers at single-family residences.
EPA understands that farms often
include, within the geographical
confines of the facility, the residence of
the owner or operator, and so the
Agency believes this proposed
amendment also will be of benefit to
farms.
This proposal (see Section I) also
addresses streamlining of the security
requirements under § 112.7(g) to allow
more flexibility in determining how best
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to secure and control access to the oil
handling, processing and storage areas;
secure master flow and drain valves;
prevent unauthorized access to starter
controls on oil pumps; secure out-ofservice and loading/unloading
connections of oil pipelines; and
address the appropriateness of security
lighting to both prevent acts of
vandalism and assist in the discovery of
oil discharges. This amendment will
particularly benefit the owner or
operator of a farm, because it allows for
consideration of site-specific factors in
determining how best to design security
for the facility to prevent vandalism and
detect spills from oil-handling areas. An
owner or operator of a farm may also
benefit from the currently proposed
amendments related to loading/
unloading racks (Section F of this
preamble) and integrity testing (Section
J).
The Agency believes that both the
amendments finalized in 2006 and those
being proposed in this notice provide
significant flexibility to the agricultural
sector. In this action, the Agency also is
proposing further amendments to the
SPCC rule to address concerns specific
to the agricultural community regarding
pesticide application equipment and
related mix containers used at farms.
The proposed amendments was
informed by information collected by
EPA through site visits to farms and
numerous consultations with the U.S.
Department of Agriculture (USDA).
Farm site visits helped EPA further
understand oil storage characteristics at
a variety of farm operation types and
sizes. The site visits included dairy
farms, an orchard, an agribusiness
supply company, and two rice farms.
1. Exemption for Pesticide Application
Equipment and Related Mix Containers
EPA is proposing to amend the SPCC
rule by adding a new paragraph (10)
under the general applicability section,
§ 112.1(d) to exempt pesticide
application equipment and related mix
containers used at farms from the SPCC
requirements. EPA also proposes to
modify § 112.1(d)(2) so that the capacity
of these pesticide application
equipment and related mix containers
(i.e., containers used to mix pesticides
with oil immediately prior to
application) would not be counted
toward the facility oil storage capacity
calculation. This equipment includes
ground boom applicators, airblast
sprayers, and specialty aircraft that are
used to apply measured quantities of
pesticides to crops and/or soil. The
pesticide formulation may include
petroleum-or vegetable-based oils in
concentrated formulations or may
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contain crop oil or adjuvant oil in the
mix formulations added just prior to
application, thereby potentially
subjecting certain pesticide containers
to the SPCC requirements, such as those
for bulk storage containers under
§§ 112.8(c) and 112.12(c). Containers
storing oil prior to blending it with the
pesticide, and containers used to store
any pesticides after they have been
mixed with oil, are considered bulk
storage containers and are regulated as
such under the SPCC rule.
EPA regulates pesticides under the
Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), which
establishes requirements for the
registration and labeling of pesticides.
Sections 19(e) and (f) of FIFRA grant
EPA broad authority to establish
standards and procedures to assure the
safe use, reuse, storage, and disposal of
pesticide containers. Under this
authority, EPA established standards,
including design and labeling
requirements for pesticide containers
and bulk pesticide containment. These
standards were promulgated on August
16, 2006 for certain facilities that use,
reuse, or store pesticides in containers
with capacities of 500 gallons or greater
(Standards for Pesticide Containers and
Containment, 40 CFR parts 156 and 165;
see 71 FR 47330, August 16, 2006).
Facilities subject to these standards
include pesticide registrants,
agricultural retailers, and commercial
pesticide applicators; however, farms
were exempted from these standards. In
evaluating the risk posed by pesticide
containers and application equipment
when promulgating the Standards for
Pesticide Containment Structures in 40
CFR part 165, Subpart E, EPA noted that
on-farm bulk storage of pesticides
remains rare as opposed to on-farm bulk
storage of oil, such as off-road diesel,
on-road diesel and gasoline fuels.
Additionally, EPA found that there was
insufficient evidence of contamination
occurring as a result of these containers
or equipment to warrant their regulation
under the pesticide containercontainment rule. However, EPA
reserved the option of reexamining the
need for Federal regulation of on-farm
pesticide bulk storage in the future if it
became apparent that the application or
use of pesticides was having significant
detrimental impacts. Similarly, EPA
does not believe that the regulation of
pesticide application equipment and
related mix containers used at a farm is
appropriate under the SPCC rule.
EPA believes that, on a farm, the
storage and application of pesticide
mixtures that may contain oil just prior
to application can be addressed through
the use of best management practices
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(BMPs) that minimize the potential for
discharges to navigable waters and
adjoining shorelines. For example, a
number of states have ‘‘Farm*A*Syst’’
programs (partnerships between
government agencies and private
business that foster pollution prevention
on farms) that detail on-farm pesticide
BMPs such as: (1) Adhere to pesticide
label instructions and prepare only the
necessary amount needed for immediate
use; (2) prepare the pesticide mix
immediately before application; (3) the
equipment spray tank should be half
full with water prior to mixing in the
pesticide formulation; and (4) pesticides
should be mixed and loaded on a
concrete pad (Improving Storage and
Handling of Pesticides, Farm-a-Syst
North Carolina, April 1997. Found at
https://www.soil.ncsu.edu/assist/
pesticides/. This document is also
available in the docket for this rule
proposal).
EPA requests comments on the
proposed exemption of pesticide
application equipment and related mix
containers from SPCC applicability. 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. Applicability of Mobile Refueler
Requirements to Farm Nurse Tanks
In the December 2006 amendments to
the SPCC rule (71 FR 77266, December
26, 2006), EPA exempted mobile
refuelers from the sized secondary
containment requirements applicable to
bulk storage containers. In the amended
regulation, EPA defined a mobile
refueler as ‘‘a bulk storage container
onboard a vehicle or towed, that is
designed or used solely to store and
transport fuel for transfer into or from
an aircraft, motor vehicle, locomotive,
vessel, ground service equipment, or
other oil storage container.’’ (§ 112.2). In
this action, EPA seeks to clarify that the
definition of mobile refueler includes a
nurse tank, which is a mobile vessel
used at farms to store and transport fuel
for transfers to or from farm equipment,
such as tractors and combines, and to
other bulk storage containers, such as
containers used to provide fuel to
wellhead/relift pumps at rice farms. A
nurse tank is often mounted on a trailer
for transport around the farm, and EPA
believes that this function is consistent
with that of a mobile refueler. A nurse
tank, like other types of mobile
refuelers, is exempt from the sized
secondary containment requirements,
but would need to meet the general
secondary containment requirements at
§ 112.7(c).
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EPA does not believe that additional
regulatory action is warranted to clarify
that a nurse tank at a farm can be
considered a mobile refueler. EPA
welcomes comments on this approach.
3. Alternative Options Considered
In developing the amendments
proposed in this notice, EPA considered
the following alternatives for
differentiating the SPCC requirements
for farms:
a. No Action
With the promulgation of the final
amendments to the SPCC rule on
December 26, 2006, EPA estimated that
approximately 145,000 of the 152,000
farms subject to the SPCC rule (95
percent of regulated farms) identified in
the Regulatory Impact Analysis may be
eligible for the ‘‘qualified facility’’ or
self-certification option. Additionally,
EPA is proposing an alternative
compliance option for a subset of
qualified facilities by adding a new tier,
identified as Tier I qualified facilities,
that would provide even more flexibility
to farms.
EPA believes that considerable
flexibility was provided in the
December 2006 amendments, as well as
other amendments being proposed in
this notice to address the definition of
facility, the security and integrity testing
requirements, residential heating oil
containers, and further streamlining of
the requirements for qualified facilities.
Nevertheless, EPA has concluded based
on comments from agricultural
stakeholders, farm-related site visits,
and the August 16, 2006 final action
concerning pesticide containers (71 FR
47330), that additional amendments to
the SPCC rule related to farms are
necessary. Therefore, EPA chose not to
propose this ‘‘no action’’ option.
b. Exempt Farms Below a Certain
Storage Capacity Threshold
EPA considered exempting farms that
stored oil below a certain storage
capacity threshold from the SPCC
requirements, but determined that
sufficient data to support such an
exemption exclusive to farms do not
currently exist. Storage tanks found at
farms are similar in function and design
as those found at other types of
facilities, and therefore have a similar
potential for a discharge. Thus, an effort
to substantiate an exemption for a
subset of affected farms below a certain
threshold would be difficult. As a result,
EPA chose not to propose this option.
The Agency welcomes comments on
this or other alternatives that could
serve to address the needs of the
agricultural sector, while at the same
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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.
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c. Alternative Qualified Facility
Eligibility Criteria for Farms
Under § 112.6, a ‘‘facility’’ that has an
aggregate above ground storage capacity
of 10,000 gallons or less and that has not
had a single discharge exceeding 1,000
U.S. gallons or two discharges each
exceeding 42 U.S. gallons within any
twelve month period in the three years
prior is eligible for the ‘‘qualified
facility’’ Plan requirements (i.e. a selfcertified Plan in lieu of a PE certified
Plan). The current criteria for ‘‘qualified
facilities,’’ found at § 112.3(g), treat
farms like all other facilities. However,
there may be alternative criteria unique
to farms that would be appropriate for
identifying qualified facilities. EPA
requests comment on (1) whether a
change in the criteria is appropriate for
farms; and (2) whether a higher
threshold is appropriate for farms. Any
alternative approach presented must
include an appropriate rationale in
order for the Agency to be able to
consider it for final action.
C. Residential Heating Oil Containers
EPA understands that many regulated
facilities, including farms, may include
within the geographical confines of the
facility the residence of the owner or
operator. EPA did not intend to regulate
residential uses of oil (i.e., those at noncommercial buildings) under the SPCC
rule. For example, in 1973, EPA set the
minimum facility aggregate storage
capacity threshold for SPCC
applicability (1,320 gallons) by
considering common sizes of residential
heating oil containers. The Agency
stated in the preamble to the 1973 final
SPCC rule (38 FR 34164, December 11,
1973) that containers of 660 gallons are
the normal domestic code size for
nonburied heating oil containers, and
that buildings may have two such
containers. Thus, the presence of a
heating oil container at a residence was
generally not intended, by itself, to
trigger SPCC applicability since
residences generally do not have
significant quantities of other types of
oil. However, at the time the rule was
originally promulgated, the Agency did
not consider residential heating oil
containers that may be co-located with
businesses. As a result, EPA recognizes
that owners and operators may be
counting these residential containers in
determining the applicability of the
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SPCC rule to their facility, and
including these containers in their SPCC
Plans. Therefore, EPA proposes to
amend the rule to exempt single-family
residential heating oil containers.
This exemption would apply to
aboveground as well as completely
buried heating oil tanks at single-family
residences. Heating oil tanks used for
on-site consumptive use of oil are
specifically exempted from the 40 CFR
part 280 requirements, which apply to
underground storage tanks (USTs). The
SPCC rule does not apply to ‘‘any
completely buried storage tank * * *
that is subject to all of the technical
requirements of part 280 of this chapter
or a State program approved under part
281 of this chapter * * * ’’
(§ 112.1(d)(4)). Because USTs used for
storing heating oil for consumptive use
on the premises where stored are
exempted from part 280, completely
buried tanks used for residential heating
would currently need to be included in
the storage capacity of an SPCCregulated facility, and would be subject
to applicable SPCC requirements.
1. Exemption for Residential Heating Oil
Containers
EPA is proposing to specifically
exempt from SPCC applicability
containers that are used to store oil for
the sole purpose of heating single-family
residences (including residences at a
farm) by adding a new paragraph (9)
under the general applicability section,
§ 112.1(d). EPA also proposes to modify
§ 112.1(d)(2) so that the capacity of
single-family residential heating oil
containers would not be counted toward
facility oil storage.
The current proposal would remove
from SPCC applicability containers
(both aboveground and completely
buried) located at single-family
residences that are used solely to store
heating oil used to heat the residence.
Under the proposed amendments, the
owner or operator would not count any
residential heating oil container as part
of the facility’s aggregate storage
capacity for the purpose of determining
SPCC applicability, and no SPCC
requirements would apply to the
exempted containers. The SPCC
requirements would continue to apply,
however, to containers for oil used to
heat other non-residential buildings
within a facility, because the exemption
covers only residential heating oil
containers.
This exemption is not limited to
facilities with only one single-family
home; EPA recognizes that there may be
multiple single-family homes within
one facility. For example, a farm that
has multiple single-family homes within
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58385
its boundaries would not need to
consider the residential heating oil
tanks at any of those homes for purposes
of SPCC applicability. Groups of singlefamily homes within a military base
would similarly be exempted.
EPA requests comment on this
proposed exemption for single-family
residential heating oil containers, and
whether there is a better way to
characterize containers used to store oil
for heating buildings with a residential,
rather than commercial, use, including
whether there are any unique situations
in which a residential heating oil tank
would be subject to the SPCC rule
because the aboveground oil storage
capacity is greater than 1,320 U.S.
gallons. Any alternative approach
presented must include an appropriate
rationale in order for the Agency to be
able to consider it for final action.
2. Alternative Option Considered:
Exemption for Residential Heating Oil
Containers Only at Farms
EPA initially considered providing an
exemption only for residential heating
oil containers located at farms, because
farms commonly include, within the
geographical confines of the facility, the
residence of the farmer. Under this
option, only heating oil containers
associated with residences on farms
would benefit from an exemption from
the SPCC rule. However, EPA
understands that a facility associated
with another industry sector, such as a
military base or university, or a small
business run out of the owner’s home,
may also contain a residential heating
oil container. The Agency determined
that there was no rationale to support
not expanding the exemption to all
residential heating oil containers.
Therefore, the Agency chose not to
propose this option.
EPA requests comment on this option,
and whether an exemption for
residential heating oil containers should
be limited to any specific sector. Any
alternative approach presented must
include an appropriate rationale in
order for the Agency to be able to
consider it for final action.
D. Definition of Facility
EPA first defined both ‘‘facility’’ and
‘‘production facility’’ at § 112.2 in the
July 2002 amendments to the SPCC rule
(67 FR 47042, July 17, 2002). ‘‘Facility’’
is defined as: ‘‘any mobile or fixed,
onshore or offshore building, structure,
installation, equipment, pipe, or
pipeline (other than a vessel or a public
vessel) used in oil well drilling
operations, oil production, oil refining,
oil storage, oil gathering, oil processing,
oil transfer, oil distribution, and waste
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treatment, or in which oil is used, as
described in Appendix A of this part.
The boundaries of a facility depend on
several site-specific factors, including,
but not limited to, the ownership or
operation of buildings, structures, and
equipment on the same site and the
types of activity at the site.’’
‘‘Production facility’’ is defined as ‘‘all
structures (including but not limited to
wells, platforms, or storage facilities),
piping (including but not limited to
flowlines or gathering lines), or
equipment (including but not limited to
workover equipment, separation
equipment, or auxiliary nontransportation-related equipment) used
in the production, extraction, recovery,
lifting, stabilization, separation or
treating of oil, or associated storage or
measurement, and located in a single
geographical oil or gas field operated by
a single operator.’’
Since the July 2002 amendments were
published, members of the regulated
community have asked EPA which of
these definitions governs the term
‘‘facility’’ as it is used in the
applicability determination of the
Facility Response Plan requirements
under § 112.20(f)(1) when applied to an
oil production facility. In May 2004,
EPA issued a Federal Register notice
clarifying this issue (69 FR 29728, May
20, 2004). Specifically, section
112.20(f)(1) describes the applicability
of the Facility Response Plan (FRP) rule
by setting the criteria for determining
whether a ‘‘facility could, because of its
location, reasonably be expected to
cause substantial harm to the
environment * * *’’ [emphasis added].
Members of the regulated community
were concerned that the language in the
definition of production facility
(‘‘located in a single geographical oil or
gas field’’) would require aggregation of
oil production structures and equipment
in such a way that would trigger the
applicability of the FRP rule. However,
as stated in the May 2004 Federal
Register notice (69 FR 29728), because
§ 112.20(f)(1) consistently uses the term
‘‘facility,’’ not ‘‘production facility,’’ it is
the definition of ‘‘facility’’ in § 112.2
that governs who is subject to
§ 112.20(f)(1), regardless of the specific
type of facility. Thus, consistent with
the May 2004 notice, the definition of
‘‘facility’’ governs the meaning of
facility as it is used in § 112.20(f)(1), and
accordingly, EPA is now proposing to
amend the definition of facility to add
language clarifying this point.
Industry sectors, including farms,
military bases and other large
government facilities (e.g., national
parks), airports, and universities also
have raised concerns over how to
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aggregate or separate containers,
buildings, structures, installations,
equipment, and piping for the purpose
of SPCC applicability. Regulated
community members have expressed
concern that non-contiguous oilhandling areas with similar purposes or
ownership are required to be aggregated
together as one ‘‘facility’’ to calculate
total oil storage and determine SPCC
applicability. A farmer, for example,
often has multiple fuel storage sites on
land under his management, which may
include owned and leased tracts. A
USDA study shows that among farmers
surveyed, satellite fuel storage sites
were an average distance of 4.1 miles
from the main site (U.S. Department of
Agriculture, ‘‘Fuel/Oil Storage and
Delivery for Farmers and Cooperatives.’’
March 2005).
EPA believes that the existing
definition of ‘‘facility’’ provides
considerable flexibility, and that the
extent of a facility depends on sitespecific circumstances. The SPCC
Guidance for Regional Inspectors
(version 1.0, November 28, 2005)
describes factors that may be considered
relevant in delineating the boundaries of
a facility for SPCC purposes. Those
factors may include, but are not limited
to: ownership, management, or
operation of the containers, buildings,
structures, equipment, installations,
pipes, or pipelines on the site; similarity
in functions, operational characteristics,
and types of activities occurring at the
site; adjacency; or shared drainage
pathways. Consistent with this
approach, EPA is proposing to amend
the definition of facility to clarify that
contiguous or non-contiguous buildings,
properties, parcels, leases, structures,
installations, pipes, or pipelines may be
considered separate facilities.
For further clarity, EPA is also
proposing to amend the definition of
‘‘production facility,’’ as discussed in
Section L of this notice.
1. Proposed Revisions to the Definition
of Facility
EPA is proposing to amend the
definition of ‘‘facility,’’ as found in
§ 112.2, in three ways: To clarify that
this definition alone governs
applicability of 40 CFR part 112; to
clarify that contiguous or noncontiguous buildings, properties,
parcels, leases, structures, installations,
pipes, or pipelines may be considered
separate facilities; and to add the
qualifier ‘‘oil’’ before the term ‘‘waste
treatment.’’
To address concerns over whether the
definition of ‘‘facility’’ or the definition
of ‘‘production facility’’ controls the
term ‘‘facility’’ as it is used in
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§ 112.20(f)(1) when applied to an oil
production facility, EPA is proposing to
add the following sentence to the end of
the definition of ‘‘facility’’: ‘‘Only this
definition governs whether a facility is
subject to this part.’’ This language is
consistent with the clarification printed
in a May 2004 Federal Register notice
(69 FR 29728). The definition of
‘‘production facility’’ is used to
determine which specific provisions of
the rule may apply at a particular
facility (e.g., § 112.9), in addition to the
administrative and general rule
requirements.
The Agency seeks comments on
whether the proposed revision of the
definition of ‘‘facility’’ to clarify that
this definition governs applicability of
part 112 is appropriate. Any suggestions
for alternative language to amend the
definition must include an appropriate
rationale in order for the Agency to be
able to consider it for final action.
To address concerns over how oil
containers and equipment can be
separated or aggregated for the purposes
of determining facility boundaries and
applicability of the SPCC requirements,
EPA proposes to insert the following
sentence into the definition of facility:
‘‘Contiguous or non-contiguous
buildings, properties, parcels, leases,
structures, installations, pipes, or
pipelines under the ownership or
operation of the same person may be
considered separate facilities.’’ EPA also
proposes to add the terms ‘‘property,’’
‘‘parcel,’’ and ‘‘lease’’ to the list of terms
mentioned in the first sentence of the
definition. EPA believes that adding
these terms further distinguishes the
attributes that can be considered in
determining facility boundaries. These
terms are intended to be those that are
familiar to a regulated community
member, such as a farmer or oil
production facility owner, and are not
meant to be exhaustive. EPA notes that
an owner or operator may not determine
his facility boundary in such a manner
as to simply avoid applicability of the
SPCC rule.
The Agency seeks comments on
whether the proposed revision to the
definition of ‘‘facility’’ to clarify that
contiguous or non-contiguous buildings,
properties, parcels, leases, structures,
installations, pipes, or pipelines may be
considered separate facilities is
appropriate. Any suggestions for
alternative language to amend the
definition must include an appropriate
rationale in order for the Agency to be
able to consider it for final action.
Finally, EPA is proposing to amend
the first sentence of the definition of
facility to add the qualifier ‘‘oil’’ before
the term ‘‘waste treatment.’’ With this
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amendment, EPA is clarifying that the
term ‘‘waste treatment’’ refers to oil
waste treatment and not to treatment of
any other type of waste that may be
generated. The Agency seeks comments
on whether this proposed modification
is appropriate.
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2. Determining the Components of a
Facility: Examples of Aggregation or
Separation
The list of factors for determining the
boundaries of a facility in the definition
of facility are not exclusive, but are
merely examples. The SPCC Guidance
for Regional Inspectors (version 1.0,
November 28, 2005) elaborates on what
other factors may be considered. As
noted above, those factors may include,
but are not limited to: ownership,
management, or operation of the
containers, buildings, structures,
equipment, installations, pipes, or
pipelines on the site; similarity in
functions, operational characteristics,
and types of activities occurring at the
site; adjacency; or shared drainage
pathways.
EPA provides the following example
scenarios of how a facility owner or
operator may determine what is
considered a ‘‘facility’’ for the purposes
of an SPCC Plan. Each of these scenarios
is purely hypothetical and is not
intended to provide a policy
interpretation for any specific existing
facility.
a. Separation of Tracts at a Farm
A farmer has one central fueling
location and ten separate (either
contiguous or non-contiguous) tracts of
land (inclusive of owned and leased
tracts) where various types of crops are
grown. The central fueling location has
several oil containers, with an aggregate
storage capacity of 5,000 gallons of
diesel fuel, gasoline, and hydraulic/
lubrication oils. Each tract has one
1,000-gallon aboveground container of
diesel fuel, used for fueling only the
equipment operated on the tract. The
tracts are located such that the
containers are each several miles from
each other. The tracts each produce
various types of crops, and thus the
equipment is operated seasonally
according to crop type and irrigation
needs.
The farmer determines that, given the
distance between containers, and the
clear distinction between the operations
that they support, each tract and the
central fueling location can be
considered a separate facility for the
purposes of calculating oil storage
capacity and determining the
applicability of the SPCC rule. The fact
that the tracts may be contiguous would
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be only one factor in the facility
determination, and may allow the
designation of the separate contiguous
tracts as separate facilities, given the
great distance and operational
differences. In this example, each tract
does not individually meet the
aboveground storage capacity threshold
for applicability of the SPCC rule (1,320
gallons). Therefore, no SPCC Plan is
required for these containers. However,
the central fueling location exceeds the
SPCC rule aboveground storage capacity
threshold. Assuming the farm is located
such that a discharge of oil could
reasonably pose a threat to navigable
waters or adjoining shorelines, the
farmer must prepare and implement an
SPCC Plan for the central fueling area.
To provide general protection and
prevention measures against an oil
discharge, the farmer has the option to
include the oil containers on the
separate tracts in his Plan. Under
Section 311(b)(3) of the Clean Water
Act, the farmer would still be liable for
any harmful quantities of oil discharged
from the containers on the separate
tracts into navigable waters or adjoining
shorelines, even if an SPCC Plan is not
required.
b. Separation of Parcels at an Oil
Production Facility
An oil production facility operator
leases the right to extract oil from three
parcels of land separated by large
distances within one oil production
field. The parcels can be contiguous or
non-contiguous. Each of the parcels is
subject to a distinct lease agreement,
consistent with all applicable state and
local oil and gas laws and regulations.
Each parcel contains a tank battery and
a single or several wellheads. The
operator determines that, given their
geographic separation and individual
lease agreements, each parcel can be
considered a separate facility. Each tank
battery stores a total aboveground
capacity of oil greater than 1,320
gallons, so the operator prepares and
implements a separate SPCC Plan for
each tank battery and its associated
wellheads, flowlines, and associated
equipment, as individual facilities. Any
gathering lines that transport oil from
these individual facilities into a
centralized collection area involve the
transportation of oil between facilities
(‘‘inter-facility’’) and are therefore not
within EPA jurisdiction. These ‘‘interfacility’’ gathering lines do not need to
be included in the SPCC Plans.
Because the definition of facility is
flexible, the operator could alternatively
choose to consider all three parcels as
one facility, based on his common
ownership or operation of all of them.
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Under this approach, the operator
would only need to prepare one SPCC
Plan that covers the components of all
parcels. Any gathering lines connecting
the tank batteries of each parcel are then
considered ‘‘intra-facility’’ gathering
lines and must be included in the SPCC
Plan (see section L.2 of this preamble).
It is also important to note that if an
owner/operator aggregates oil storage so
as to develop one SPCC Plan, he must
then determine the facility boundaries
the same way for the purposes of
applicability of the FRP rule
requirements.
Additionally, a production facility
may consist of parcels that are smaller
or larger than an individual lease.
c. Aggregation of Equipment at an Oil
Production Facility
An oil production facility owner
operates one wellhead. Oil is treated in
an 800-gallon capacity heater-treater to
separate the oil from produced water;
the treated oil is then stored in several
stock tanks until it is sold and
transported off-site. The heater-treater
separation equipment is located several
feet away from the stock tanks, which
hold both the oil and produced water.
These two areas may be physically
separate and are protected by separate
secondary containment berms, but the
heater-treater is an integral component
of an oil production facility, connected
by piping, and under the control of the
same operator. The separation
equipment, such as a heater-treater, is a
component of a larger process that
would be incomplete without the ability
to separate oil and produced water.
Thus, all of these components should be
aggregated together to comprise the oil
production facility. In this
circumstance, EPA does not believe the
heater-treater should be considered a
separate facility.
As another related example, an oil
production facility owner operates one
wellhead connected to the tank battery
by a mile-long flowline. Despite the
length of the flowline, the facility
operator may not have a reasonable
basis for separating the wellhead,
flowline, and tank battery as distinct
facilities with individual SPCC Plans.
Similar to the heater-treater, the
wellhead and tank battery are
considered integral components of the
larger process, and an oil production
facility would be incomplete without
including these two components. The
flowline, whether several feet or several
miles in length, is a necessary
connection between the wellhead and
tank battery, and all of these
components must be included in one
SPCC Plan.
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entire building is heated with one 500gallon heating oil container. In
considering whether he is subject to the
SPCC rule, this business owner
concluded that the heating oil container
is exempt from the rule, because it is
associated with his home, and the
function of heating his home is
necessary regardless of the presence of
his business operations. The total
storage capacity of the remaining
containers does not meet the
aboveground storage capacity threshold
for applicability of the SPCC rule (1,320
gallons) and so the owner does not need
to comply with the rule requirements.
d. Separation of Areas at a Military Base
A military base is spread out over 10
square miles. Within the base, there are
several areas where oil containers are
located: A tank farm associated with an
aircraft fueling area, back-up fuel oil for
a small power generation plant, and a
mess hall with several drums of cooking
oil. Because different groups service,
manage, or maintain the various tank
farms and oil storage areas, these
operators have agreed to calculate the
aggregate storage capacity of each of
their operations separately to determine
their SPCC rule applicability. The
operations vary across these oil
container locations, each with unique or
specific characteristics. Thus, the
operators have decided that oil spill
prevention practices would be served
best by preparing and implementing
multiple SPCC Plans. If the military
determines that it would be more
efficient to prepare one SPCC Plan for
the entire base, this would also be
appropriate.
The same principles apply at other
large facilities, such as a university or
airport. While a facility owner or
operator has some discretion in
describing the parameters of his facility,
he may not describe the boundaries of
a facility unreasonably to avoid
regulation. If an owner/operator
aggregates oil storage so as to develop
one SPCC Plan, he must then determine
the facility boundaries the same way for
the purposes of FRP rule applicability.
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An SPCC Plan must include all of the
components that together comprise a
complete facility. There may be no
reasonable basis to determine that either
of the facilities in these examples could
be divided into separate, smaller
facilities. While a facility owner or
operator has some discretion in
describing the parameters of his facility,
he may not describe the boundaries of
a facility unreasonably in an attempt to
avoid regulation. EPA also notes that if
an owner/operator aggregates oil storage
so as to develop one SPCC Plan, he must
then determine the facility boundaries
the same way for the purposes of
applicability of the FRP rule
requirements.
In developing the amendments
proposed in this notice, EPA considered
the following alternatives for addressing
the definition of facility:
e. Separation of Functions at a Dualpurpose Facility
The owner of a truck maintenance
company operates his business from a
site that also includes his single-family
residence. The business office is located
in his residence. In an adjacent garage,
he has one 500-gallon gasoline
container, one 250-gallon waste oil
container, and five 55-gallon drums of
various automotive lubricants. The
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3. Alternative Options Considered
a. No Action
EPA considered taking no regulatory
action regarding this issue. However,
given the significant number of
questions and concerns that have been
raised by the regulated community, EPA
believes that addressing the definition
of facility in some manner is necessary.
Therefore, EPA chose not to propose
this ‘‘no action’’ option.
b. Address Only Through Guidance
EPA considered providing guidance
to address the regulated community’s
concern over the definition of facility
and which definition governs the term
‘‘facility’’ as it is used in § 112.20(f)(1)
when applied to an oil production
facility. EPA has provided clarity
already on the definition of facility in
the SPCC Guidance for Regional
Inspectors (version 1.0, November 28,
2005) and through a Federal Register
Notice (69 FR 29728, May 25, 2004).
Despite these efforts, the regulated
community continues to express
concern. EPA believes that a formal rule
amendment will provide more clarity.
Therefore, EPA is not moving forward
with the option to address this rule
solely through guidance. EPA does
intend, however, to revise the SPCC
Guidance for Regional Inspectors to be
consistent with any rule amendment(s)
finalized.
The Agency welcomes comments on
this or other alternatives that could
serve to address the needs of the
regulated community, while at the same
time maintaining appropriate levels of
environmental protection. Any
alternative approaches presented must
include an appropriate rationale in
order for the Agency to be able to
consider them for final action.
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E. Facility Diagram
Section 112.7(a)(3) of the SPCC rule
requires that a facility owner or operator
include in his SPCC Plan a facility
diagram that identifies the location and
contents of oil containers, connecting
piping, and transfer stations. The
diagram helps to ensure safe and
efficient response actions, effective spill
prevention and emergency planning,
and proper implementation of the Plan
by facility personnel. It also assists the
EPA inspector in reviewing the facility’s
SPCC Plan.
The rule requires that the facility
diagram include the location and
contents of each container, completely
buried tanks (even if exempted from the
SPCC requirements), transfer areas (i.e.,
stations), and connecting pipes. In
addition to the requirement for a facility
description and diagram, § 112.7(a)(3)
lists additional items to be addressed in
an SPCC Plan, including the type of oil
in each container and its capacity;
discharge prevention measures;
discharge or drainage controls;
countermeasures for discharge
discovery, response, and cleanup;
methods of disposal of recovered
materials; and specific contact
information. The SPCC Guidance for
Regional Inspectors (version 1.0,
November 28, 2005) discusses the
requirements for facility diagrams in
more detail.
The facility diagram must include all
containers (including oil-filled
equipment) that store 55 gallons or more
of oil and must include information
indicating the contents of these
containers (§ 112.7(a)(3)). The minimum
container size addressed by the SPCC
rule is 55 gallons. Any containers with
an oil storage capacity of less than 55
gallons do not need to be included in
the SPCC Plan.
Regulated community members have
raised the concern that documenting the
contents of all oil storage containers
with a capacity of 55 gallons or more on
a facility diagram would be impractical
due to seasonal and market changes.
EPA acknowledges these concerns, and
proposes to add flexibility to this
requirement.
1. Proposed Revision to the Facility
Diagram Requirement
EPA proposes to amend § 112.7(a)(3)
to clarify that the facility diagram must
include all fixed (i.e., not mobile or
portable) containers. For any mobile or
portable containers located in a certain
area of the facility, a facility owner or
operator must mark that area on the
diagram where such containers are
stored. He may mark the number of
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containers, contents and capacity of
each container either on the facility
diagram, or provide a separate
description in the SPCC Plan. If the total
number of mobile or portable containers
changes on a frequent basis, the owner
or operator can indicate an estimate in
the Plan of the number of containers,
the anticipated contents and capacities
of the mobile or portable containers
maintained at the facility.
Those oil storage containers that are
located in a fixed position (and do not
move around the facility) must be
represented on the facility diagram, as
currently required. In situations where
diagrams become complicated due to
the presence of multiple oil storage
containers or complex piping/transfer
areas at the facility, it may be difficult
to indicate the contents and capacity of
the containers on the diagram itself. In
order to simplify the diagram, the owner
or operator may choose to include that
information separately in the SPCC Plan
in an accompanying table or key.
The proposed revision to the rule
language would simplify the process for
developing a facility diagram by
allowing for a general description of the
location and contents of mobile or
portable oil storage containers (e.g.,
drums and totes) rather than
representing each container
individually. Under this proposal, the
owner or operator could identify an area
on the facility diagram (e.g., a drum
storage area) and include a separate
description of the total number of
containers, capacities, and contents in
the Plan or reference facility inventories
that can be updated by facility
personnel. As currently required in
§ 112.7(a)(3)(i), an owner or operator is
required to list all of the containers in
the facility in the SPCC Plan. Under the
current proposal, EPA would modify
§ 112.7(a)(3)(i) to allow the owner or
operator to provide an estimate of the
potential number of mobile or portable
containers, types of oil, and anticipated
capacities in the Plan. This clarification
may be particularly useful when the
number of containers change frequently
at the facility. Thus, the Plan should
include a reasonable estimate of the
number of containers expected to be
stored in the area and the capacity of the
containers. This estimate can be used to
determine the applicability of the rule
thresholds and provide a general
description of the mobile/portable
containers in the Plan.
Mobile or portable containers should
be marked on the facility diagram in
their out-of-service or designated storage
area or where they are most frequently
located, such as a warehouse drum
storage area. The facility owner/operator
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or certifying PE may determine how best
to represent mobile/portable containers
on the facility diagram, such as by
including a descriptive table or
indicating primary storage areas. A
descriptive table or key would
complement the facility diagram and the
SPCC Plan by providing further
information on the location and
contents of mobile and portable
containers.
A mobile or portable oil storage
container is still subject to the sized
secondary containment requirements of
the SPCC rule. Sections 112.8(c)(11) and
112.12(c)(11) require that a mobile or
portable oil storage container (other
than a mobile refueler) be positioned or
located to prevent a discharge as
described in § 112.1(b). The mobile or
portable container must have 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. This area can be
identified on the facility diagram.
A facility diagram prepared for a state
or federal plan or for other purposes
(construction permits, facility
modifications, or other pollution
prevention requirements) may be used
in an SPCC Plan if it meets the
requirements of the SPCC rule.
Additionally, changes to the facility
diagram are considered administrative
in nature and do not require PE
certification.
The Agency seeks comments on this
proposed option or any other approach
to revising to the facility diagram
requirement at § 112.7(a)(3) to address
how mobile/portable containers should
be marked on a facility diagram. Any
suggestions for alternative approaches
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for a
final action.
2. Indicating Complicated Areas of
Piping or Oil-Filled Equipment on a
Facility Diagram
A facility diagram must also include
all transfer stations and connecting
pipes (§ 112.7(a)(3)). Associated piping
and oil-filled manufacturing equipment
present at an SPCC-regulated facility
may be difficult to clearly present on a
facility diagram, due to their relative
location, complexity, or design. EPA
requests comment on whether a rule
revision is appropriate to provide
further clarification on how complicated
areas of piping or oil-filled equipment
may be indicated on the facility
diagram. As stated in the SPCC
Guidance for Regional Inspectors
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58389
(version 1.0, November 28, 2005), EPA
allows flexibility in the way the facility
diagram is drawn—an owner or operator
may represent such systems in a less
detailed manner on the facility diagram,
as long as more detailed diagrams of the
systems are maintained at the facility
and referenced on the diagram. As
described in the SPCC guidance
document, the scale and level of detail
shown on a facility diagram may vary
according to the needs and complexity
of the facility. For example, simplified
schematic representations of piping
combined with a description in the Plan
may be sufficient. Similar to the
approach described above for mobile/
portable equipment, a facility owner or
operator may indicate in the diagram an
area where complicated oil-filled
equipment is located and provide a
table in the Plan describing the type(s)
of equipment and oil storage capacities.
Any suggestions for alternative
approaches must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
F. Loading/Unloading Racks
Tank car and tank truck loading/
unloading racks are subject to specific
requirements in § 112.7(h), including
sized secondary containment
requirements. Although the term ‘‘rack’’
is referred to in the title of the
provision, the rule text refers to
‘‘loading/unloading area.’’ In response
to concerns expressed by the regulated
community over how broadly this
provision applies (whether to all areas
where oil is loaded or unloaded, or only
to areas with a designated loading or
unloading rack), the Agency in May
2004 issued a Federal Register notice
clarifying that the provision only
applies at areas of a regulated facility
where a loading or unloading rack is
located (69 FR 29728, May 25, 2004). If
a facility does not have a loading or
unloading ‘‘rack,’’ § 112.7(h) does not
apply. To provide further clarification,
in the SPCC Guidance for Regional
Inspectors (version 1.0, November 28,
2005), EPA provided a set of
characteristics that describe the type of
equipment typically associated with a
loading or unloading rack. To provide
additional clarity and certainty to the
regulated community, EPA is now
proposing a definition for the term
‘‘loading/unloading rack,’’ which would
govern whether a facility is subject to
§ 112.7(h). Under this proposal, the
requirements described at § 112.7(h)
would only apply to areas of a regulated
facility where a loading/unloading rack,
as would be defined in § 112.2, is
located.
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A loading/unloading rack can be
located at any type of facility; however,
the loading and unloading areas
associated with oil production tank
batteries and farms generally do not
have the equipment meeting the
proposed definition of loading/
unloading rack. Therefore, EPA is
proposing a specific exclusion for oil
production facilities and farms from the
requirements at § 112.7(h).
1. Proposed Loading/Unloading Rack
Definition
The proposed definition for ‘‘loading/
unloading rack’’ is based on the set of
characteristics that generally describes
loading/unloading racks, as presented in
the SPCC Guidance for Regional
Inspectors (version 1.0, November 28,
2005). In developing this description,
EPA considered existing definitions of
the term ‘‘loading rack’’ or related terms,
as found in industry, Federal, state, or
international references. Based on this
review, EPA is proposing to use the
definition (with certain changes)
developed by the American Petroleum
Institute (API).2 Specifically, we
removed language on frequency of use,
various components, and the limitation
to the types of facilities at which a rack
could be located. EPA modified this
definition in order to accommodate
racks found among the broader universe
of facilities subject to the SPCC rule. For
this proposal, the guidelines presented
in the guidance document were
modified to reflect additional research
on the equipment typically associated
with racks and to remove several
ambiguous terms and phrases (See
EPA’s Analysis of Loading and
Unloading Rack Requirement (40 CFR
part 112), August 31, 2007).
EPA is proposing the following
definition for ‘‘loading/unloading rack’’
under § 112.2: ‘‘Loading/unloading rack
means a structure necessary for loading
or unloading a tank truck or tank car,
which is located at a facility subject to
the requirements of this part. A loading/
unloading rack includes a platform,
gangway, or loading/unloading arm; and
any combination of the following:
piping assemblages, valves, pumps,
shut-off devices, overfill sensors, or
personnel safety devices.’’ The Agency
believes this proposed amendment will
provide clarity as to the applicability of
the § 112.7(h) requirement by providing
a specific definition for a loading/
unloading rack.
In developing this proposed
definition, EPA considered whether to
2 American Petroleum Institute, October 18, 2002.
Letter to David Lopez, Director, EPA Oil Program
Center.
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differentiate between ‘‘loading’’ and
‘‘unloading’’ racks. Generally, loading
involves oil transfer from a bulk storage
container into the tank car/truck,
whereas unloading involves oil transfer
from the tank car/truck into a bulk
storage container. Although racks are
more commonly used for loading
activities, there are instances in which
unloading of oil also occurs at a rack,
and, in some cases, using the same
equipment. The similarity of equipment
and activities suggests that EPA should
not differentiate between loading and
unloading racks nor eliminate the term
‘‘unloading rack’’ altogether. This
approach is consistent with
correspondence received from the
regulated community on this issue. For
example, in an October 2003 letter to
EPA, the American Petroleum Institute
(API) suggested a definition for rack that
includes both loading and unloading
activities (see the docket for this
proposed rulemaking for the complete
letter).
EPA understands that a loading/
unloading rack is typically designed to
meet the needs of an individual facility,
and thus a single definition that
captures all potential variations of the
components presents a challenge.
However, discussions with
manufacturers of loading/unloading
racks suggest that there is some
commonality among the basic structural
components of a typical ‘‘rack.’’ Thus,
each of the specific components listed
in the proposed definition were
included because they are common
characteristics of loading or unloading
racks.
Loading arms are an essential
component of both top and bottom
loading. By including the generic term
‘‘loading/unloading arms,’’ EPA intends
the proposed definition to be applicable
to all loading approaches, including top,
side, and bottom loading. The National
Institute of Standards and Technology
(NIST) (Loading-Rack Meters
Presentations, Chapter 2: Introduction
to Loading Rack Metering Systems,
Revised August 2000) indicates that
loading racks are designed to fill
receiving tanks either from the top, side
or bottom. Although top loading is
common, bottom loading is increasingly
used to load/unload tank cars and
trucks.
Platforms offer structural bases to a
loading rack and are typical of both top
and bottom loading. Platforms are often
found in conjunction with additional
components (e.g., gangways), whereas
bottom-loading operations that do not
require access to the top of a tank are
sufficient with only a platform
component.
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Gangways are primarily found on
loading racks that accommodate top
loading operations. However, it is not
uncommon for bottom loading
operations to include gangways to
access the top of the rack structure or
receiving container during loading
operations for the purposes of sampling,
testing overfill or other safety
equipment, or for pressure venting
operations.
Piping assemblages, valves, pumps,
shut-off devices, overfill sensors, and
personnel safety devices are examples of
typical accessories of a loading/
unloading rack, but may not be part of
the rack structure itself.
The Agency seeks comment on the
proposed definition of ‘‘loading/
unloading rack’’ or if there are any other
definitions for ‘‘loading/unloading rack’’
that would be more suitable.
Comments providing a description of
a ‘‘loading/unloading arm’’ may also
provide useful information for EPA to
consider in determining a final action.
Any alternative definition presented
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
2. Requirements for Loading/Unloading
Racks
Although the title of § 112.7(h) refers
to ‘‘loading/unloading rack,’’ the text of
the requirement refers to ‘‘loading/
unloading areas.’’ Therefore, to provide
additional clarity, EPA proposes to
change all references from loading/
unloading ‘‘area’’ to loading/unloading
‘‘rack.’’ For example, § 112.7(h)(1)
would be modified as follows: ‘‘Where
loading/unloading rack drainage does
not flow into a catchment basin or
treatment facility designed to handle
discharges, use a quick drainage system
for tank car or tank truck loading/
unloading racks. You must design any
containment system to hold at least the
maximum capacity of any single
compartment of a tank car or tank truck
loaded or unloaded at the facility.’’
Section 112.7(h)(2) would be similarly
modified and includes a technical
correction of the word ‘‘break’’ to
‘‘brake’’ to correct a typographical error.
The modification to change the word
‘‘area’’ to ‘‘rack’’ in § 112.7(h) is
consistent with EPA’s notice in the
Federal Register in May 2004, which
noted that the application of § 112.7(h)
only applies to facilities with loading
and unloading ‘‘racks’’ (69 FR 29728,
May 25, 2004). EPA also clarified, in a
letter to the Petroleum Marketers
Association of America, that loading
and unloading activities that take place
beyond the rack area are not subject to
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the requirements of § 112.7(h), but are
subject, where applicable, to the general
secondary containment requirements of
§ 112.7(c) (Letter to Daniel Gilligan,
President, Petroleum Marketers
Association of America, from Marianne
Lamont Horinko, Assistant
Administrator, Office of Solid Waste
and Emergency Response, EPA, May 25,
2004).
In the preamble to the July 2002
amendments to the SPCC rule, EPA
stated that § 112.7(h) ‘‘applies to
containers which are aboveground
(including partially buried tanks,
bunkered tanks, or vaulted tanks) or
completely buried (except those
exempted by this rule)’’ (67 FR 47110,
July 17, 2002). This means that
§ 112.7(h) does not apply to a loading/
unloading rack associated with a
container that is exempted from the
rule, such as an underground storage
tank (UST) that is subject to all of the
technical requirements of 40 CFR part
280 or a State program approved under
part 281. EPA is reconsidering this
position, because a transfer to or from
such a container at an SPCC-regulated
facility is a potential source of a
discharge of oil into navigable waters or
adjoining shorelines. Additionally,
since a loading/unloading rack
associated with the UST is not typically
part of the UST system, it is not subject
to all of the technical requirements of 40
CFR part 280 or 281, and is therefore
regulated under SPCC in the same
manner as any other transfer equipment
or transfer activity located at an
otherwise regulated SPCC facility.
In the preamble to the December 2006
amendments, EPA noted that although
the amendment provided an exemption
for motive power containers, the oil
transfer activities to or from motive
power containers occurring within an
SPCC-regulated facility continue to be
regulated (71 FR 77283, December 26,
2006). Consistent with the preamble to
the December 2006 amendments, the
Agency is clarifying that at an SPCCregulated facility, § 112.7(h) (including
the sized secondary containment
provision) applies to transfers at any
loading/unloading rack associated with
any type of container, including one
that is exempted from the rule, as long
as the loading/unloading rack meets the
definition proposed in this notice. A
transfer not associated with a loading or
unloading rack is subject to the general
secondary containment provision at
§ 112.7(c). The Agency believes that no
rule change is needed to clarify this
point, because a rule amendment to
exempt a loading/unloading rack
associated with a UST was never
proposed or finalized.
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The Agency seeks comments on the
proposed modifications to the provision
at § 112.7(h), and how EPA regulates the
transfers to or from completely buried
tanks subject to all of the technical
requirements under 40 CFR part 280 or
part 281, or if there are any other
modifications 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.
3. Exclusions
EPA is proposing to exclude onshore
oil production facilities and farms from
the loading/unloading rack
requirements at § 112.7(h). The
provision currently excludes all offshore
facilities. EPA understands that there
are extremely few, if any, loading/
unloading racks at oil production
facilities. Similarly, EPA understands
that farm oil and fuel dispensing
equipment is generally not associated
with loading/unloading racks. Oil
transfer areas, such as loading/
unloading areas, at farms and oil
production facilities that are subject to
the SPCC rule remain subject to the
general secondary containment
requirements of § 112.7(c).
EPA understands that there may be
other facilities or industry sectors that
are involved in the transfer of oil, but
do not have a structure that meets the
definition of ‘‘loading/unloading rack’’
as proposed in this notice. EPA is
proposing to exclude onshore oil
production facilities and farms from
§ 112.7(h), because the Agency is
specifically aware that these types of
transfer equipment are not typically
associated with these types of facilities.
EPA does not want to create any
confusion for owners/operators
associated with oil production facilities
and farms, and for the purpose of
clarity, is exempting them. At other
facilities that do not have a loading/
unloading rack, the provisions at
§ 112.7(h) similarly do not apply. As
EPA stated in the SPCC Guidance for
Regional Inspectors (version 1.0,
November 28, 2005), ‘‘Areas where oil is
transferred but no loading or unloading
rack is present are subject to § 112.7(c),
and thus appropriate containment and/
or diversionary structures are required.
EPA does not require specifically sized
containment for transfer areas; however,
containment size must be based on good
engineering practice.’’
The Agency seeks comment on
whether the proposed exclusion for
onshore oil production facilities and
farms from the loading/unloading rack
requirements is necessary, or whether
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the proposed definition of the term
‘‘loading/unloading rack’’ would
provide sufficient clarity as to the
applicability of § 112.7(h) at oil
production facilities and farms. Any
suggestions for alternative approaches
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for a
final action.
4. Alternative Option Considered: No
Action
EPA considered not providing any
amendments to the SPCC rule related to
loading/unloading racks. Under this
approach, EPA would not provide a
regulatory definition for loading/
unloading rack or an exclusion for farms
and oil production facilities, but would
instead continue to follow the
interpretation of loading/unloading rack
as stated in the SPCC Guidance for
Regional Inspectors and the May 2004
Federal Register notice. EPA chose not
to move forward with this ‘‘no action’’
option because it would not address the
ambiguity of the loading/unloading rack
requirement as it currently stands.
The Agency seeks comment on
whether there are any other alternative
options that should be reviewed further
by EPA prior to issuing a final action.
Any suggestions for alternative options
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for a
final action.
G. Tier I Qualified Facilities
In December 2005 (70 FR 73524,
December 12, 2005), EPA proposed to
allow the owner or operator of a
qualified facility to self-certify his SPCC
Plan (this proposal was finalized in
December 2006 at 71 FR 77266). In the
preamble to this 2005 proposal, EPA
discussed an alternative option that was
developed in response to comments
EPA received following publication of a
Notice of Data Availability (NODA) for
facilities that handle oil below a certain
threshold amount (69 FR 56182,
September 20, 2004) and was based on
an analysis submitted by the Small
Business Administration (SBA) Office of
Advocacy. This ‘‘multi-tiered approach’’
was based on the total storage capacity
of a facility, as follows:
• Tier I would include facilities that
have between 1,321 and 5,000 gallons of
total oil 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
having between 5,001 and 10,000
gallons of total oil storage capacity.
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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
with total oil storage capacities greater
than 10,000 gallons. These facilities
would be required to have a written
SPCC Plan certified by a PE.
As described in its December 2006
final rule (71 FR 77266, December 26,
2006), EPA did not adopt this suggested
multi-tiered structure approach because
the Agency believes that a facility
cannot effectively implement an oil spill
prevention program, or any other
program (business or otherwise),
without documentation of that
program’s action items, such as in a
written Plan. However, the Agency did
finalize at that time requirements for
one ‘‘tier’’ of qualified facilities to
prepare a self-certified SPCC Plan. The
Agency understands the concerns of
small businesses, particularly of
facilities with a smaller oil storage
capacity and likely more limited
resources, of the potential effort needed
to develop a full Plan. Thus, the Agency
is now exploring the possibility of
further streamlining the SPCC
requirements for certain qualified
facilities that meet additional criteria.
EPA proposes to amend the SPCC rule
to provide an additional option for an
owner or operator of a qualified facility
with a maximum individual oil storage
container capacity of 5,000 U.S. gallons
to complete and implement a
streamlined, self-certified SPCC Plan
template (proposed as Appendix G to 40
CFR part 112), in order to comply with
the requirements of the SPCC rule. A
qualified facility is one that meets the
qualifying criteria described in the
December 2006 amendments to the
SPCC rule (71 FR 77266, December 26,
2006): a facility that has an aggregate
aboveground oil storage capacity of
10,000 U.S. gallons or less; and has had
no single discharge as described in
§ 112.1(b) exceeding 1,000 U.S. gallons
or no two discharges as described in
§ 112.1(b) each exceeding 42 U.S.
gallons within any twelve-month period
in the three years prior to the SPCC Plan
self-certification date, or since becoming
subject to 40 CFR part 112 if the facility
has been in operation for less than three
years (this criterion does not include
discharges as described in § 112.1(b)
that are the result of natural disasters,
acts of war, or terrorism). For a more
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complete discussion on these qualifying
criteria, see the preamble to the
December 2006 SPCC rulemaking at 71
FR 77266.
For clarity, EPA is now proposing the
term ‘‘Tier II qualified facility’’ to
describe those qualified facilities as
defined by and subject to the
requirements promulgated in the
December 2006 SPCC rulemaking at 71
FR 77266 and to propose the term ‘‘Tier
I qualified facility’’ for a new subset of
these qualified facilities. EPA is
proposing that a Tier I qualified facility,
in addition to meeting the eligibility
criteria for a Tier II qualified facility,
also have no individual oil storage
containers with a capacity greater than
5,000 U.S. gallons in volume, as
described below.
1. Eligibility Criteria
As a subset of ‘‘qualified facilities,’’
Tier I qualified facilities must meet all
of the eligibility criteria finalized by
EPA in December 2006 (71 FR 77266),
including reportable discharge history.
In the current action, EPA is proposing
an additional criterion for Tier I
eligibility: a maximum individual oil
storage container capacity of 5,000 U.S.
gallons.
EPA has developed the proposed Tier
I category based on an operational
characteristic, rather than a lower total
facility storage capacity threshold (as
suggested by SBA), in order to link any
streamlined requirements with a
reduced potential for oil discharge. EPA
proposes to set the maximum individual
container capacity threshold at 5,000
U.S. gallons because this volume is
consistent with industry consensus
standards that call for varying levels of
inspection stringency based on
container size and configuration. For
example, the Steel Tank Institute’s
SP001, Standard for the Inspection of
Aboveground Storage Tanks, allows for
periodic visual inspection alone, with
no requirement for the inspector to be
professionally certified, for containers of
5,000 U.S. gallons or less that are
equipped with a spill control measure
and a continuous release detection
method. Furthermore, a facility with
smaller storage containers often has less
complicated operations, is typically an
end-user of oil (does not distribute the
oil further), is involved in few oil
transfers, and may have predominantly
mobile or portable containers with a few
low-capacity fixed oil storage
containers. Smaller containers have a
smaller potential maximum discharge
size, and there may be little or no piping
associated with these small containers.
Determining the storage capacity for
each oil storage container is
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straightforward, so it should be
relatively simple for a qualified facility
owner or operator to determine whether
the facility meets this criterion. An EPA
inspector will be able to easily verify the
storage capacity for each container, and
therefore confirm eligibility for Tier I
status as a qualified facility.
This approach is similar to SBA’s
suggested Tier I eligibility criterion of a
5,000-gallon aggregate facility storage
capacity threshold. However, by
maintaining the higher facility capacity
threshold that applies for all qualified
facilities (10,000 U.S. gallons) and
limiting the size of individual oil
storage containers, EPA proposes an
option from which a greater number of
facilities, including those with a
fluctuating oil storage capacity below
10,000 U.S. gallons, may benefit.
To determine eligibility as either a
Tier I or Tier II qualified facility, only
the aboveground oil storage capacity is
considered. However, a completely
buried oil storage tank located at a
qualified facility is also regulated unless
it is subject to all of the technical
requirements of 40 CFR part 280 or a
State program approved under part 281.
That is, if a facility is subject to the
SPCC rule, then both aboveground and
completely buried oil storage containers
located at the facility are subject to the
rule, unless specifically exempted from
applicability under § 112.1(d).
The Agency seeks comments on
whether setting the criteria for Tier I
qualified facilities as a maximum
individual oil container capacity of
5,000 U.S. gallons appropriately
addresses the concerns of facilities with
relatively smaller volumes of oil, while
maintaining the environmental
protection intended by the regulation.
Any suggestions for alternative criteria,
including alternate container volume
thresholds, must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
2. Provisions for Tier I Qualified
Facilities
In lieu of preparing a full SPCC Plan
that is PE- or self-certified, EPA
proposes that an owner or operator of a
Tier I qualified facility would have the
option to complete the SPCC Plan
template proposed as Appendix G of 40
CFR part 112. The Plan template is
designed to be a simple SPCC Plan that
includes only the requirements that
should apply to this lowest tier of
regulated facilities. This proposed rule
streamlines requirements for Tier I
qualified facilities by eliminating and/or
modifying several SPCC requirements
(e.g., facility diagram (§ 112.7(a)(3)) and
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certain provisions that generally do not
apply to facilities that store or handle
smaller volumes of oil, such as
requirements for transfers taking place
at loading racks (§ 112.7(h)).
The list of applicable rule provisions
for Tier I qualified facilities is included
as § 112.6(a)(3) of this proposal. For an
owner or operator of a Tier I qualified
facility completing the Plan template
included in Appendix G of this part, the
following existing requirements under
§ 112.7 and in subparts B and C
continue to apply: facility description
(§ 112.7(a)(3)(i), 112.7(a)(3)(iv),
112.7(a)(3)(vi), 112.7(a)(4), and
112.7(a)(5)); general secondary
containment (§ 112.7(c)); inspections,
tests and records (§ 112.7(e)); personnel,
training, and discharge prevention
procedures (§ 112.7(f)); security
(§ 112.7(g)); qualified oil-filled
operational equipment (§ 112.7(k));
facility drainage (§§ 112.8(b)(1),
112.8(b)(2), 112.12(b)(1), and
112.12(b)(2)); bulk storage containers
(§§ 112.8(c)(1), 112.8(c)(3), 112.8(c)(4),
112.8(c)(5), 112.8(c)(6), 112.8(c)(10),
112.12(c)(1), 112.12(c)(3), 112.12(c)(4),
112.12(c)(5), 112.12(c)(6), and
112.12(c)(10)); piping inspections
(§§ 112.8(d)(4) and 112.12(d)(4)); oil
production facility
requirements(§ 112.9(b), 112.9(c),
112.9(d)(1), 112.9(d)(3), and
112.9(d)(4)); and requirements for
onshore oil drilling and workover
facilities (§ 112.10(b), 112.10(c) and
112.10(d)). This list of requirements
reflects a set of currently existing
requirements that apply to facilities
subject to the SPCC rule; EPA found no
rationale to remove or modify these
requirements for Tier I qualified
facilities. Additionally, as described
below, EPA is proposing a set of revised,
or streamlined, requirements applicable
to Tier I qualified facilities in lieu of
specific existing requirements.
a. Streamlined Provisions for Tier I
Qualified Facilities
EPA is proposing a set of revised
requirements applicable to Tier I
qualified facilities in lieu of the specific
existing requirements.
In lieu of the full failure analysis
requirements in § 112.7(b), EPA
proposes that an owner or operator of a
Tier I facility examine areas where there
is a reasonable possibility for equipment
failure (such as where equipment is
loaded or unloaded; where tank
overflow, rupture, or leakage is possible;
or at the location of any other
equipment known to be a source of
discharge) and include in the Plan the
total quantity of oil that could be
discharged and a prediction of the
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direction of flow. This proposed
amendment removes the requirement
for an owner or operator of a Tier I
facility to predict the rate of flow that
could result from an equipment failure.
This modified requirement is proposed
as § 112.6(a)(3)(i). EPA believes this is
appropriate because Tier I facilities will
have only containers less than 5,000
gallons and, additionally, usually have
low pressure pumps. In order to
simplify completion of the SPCC Plan
template, EPA is removing the
requirement for an owner/operator to
calculate the rate of flow that could
result from an equipment failure.
Currently, secondary containment
requirements for mobile/portable
containers and all other bulk storage
container requirements are provided in
separate provisions: §§ 112.8(c)(2) and
(c)(11) and 112.12(c)(2) and (c)(11). In
lieu of these separate requirements, EPA
proposes to (1) combine mobile/portable
container requirements with the other
bulk storage container requirements,
and (2) eliminate the requirement for
containment to be ‘‘sufficiently
impervious.’’ This modified
requirement is proposed as
§ 112.6(a)(3)(ii). Combining these
requirements streamlines two similar
provisions and simplifies requirements
for Tier I qualified facilities. Because
EPA expects a Tier I qualified facility to
be a small, simple operation, with oil
storage containers that are inside
buildings, inside pre-engineered
secondary containment, or doublewalled, the requirement for containment
to be specifically designed as
‘‘sufficiently impervious’’ may be
unnecessary. Furthermore, the
requirement for secondary containment
to be capable of containing oil and
constructed so that any discharge will
not escape the containment system
before cleanup occurs (§ 112.7(c)) still
applies, and is similar in nature to the
‘‘sufficiently impervious’’ requirement.
For the purposes of simplicity, EPA
would rely on the requirement in
§ 112.7(c) to adequately address Tier I
qualified facilities.
In lieu of §§ 112.8(c)(8) and
112.12(c)(8), the overfill prevention
requirements, EPA proposes to require
that an owner or operator of a Tier I
qualified facility ensure each container
is provided with a system or
documented procedure to prevent
overfills of containers, and that
containers are regularly tested to ensure
proper operation or efficacy. This
modification provides more flexibility
by allowing the use of alternative
methods to prevent container overfills,
rather than requiring an owner or
operator to meet a prescribed set of
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overfill prevention procedures. This
modified requirement is proposed as
§ 112.6(a)(3)(iii). EPA believes this
proposed flexibility is warranted,
because overfills can be prevented on
smaller containers if tanks are manually
gauged and the transfer is constantly
attended. In order to comply with this
requirement, a Tier I qualified facility
owner or operator simply needs to
provide a relatively brief description of
the overfill prevention procedures in the
SPCC Plan. The description needs to
provide only sufficient detail that would
allow an EPA inspector to understand
how the owner/operator prevents
overfills of oil storage containers and
how liquid level sensing devices are
tested.
Elsewhere in this notice, EPA is
proposing to extend the streamlined
security and integrity testing
requirements that were provided for
qualified facilities in the December 2006
SPCC rule amendment (71 FR 77266) to
all facilities. Under this proposed
approach, both Tier I and Tier II
qualified facilities would be subject to
the revised security (§ 112.7(g)) and
integrity testing (§§ 112.8(c)(6) and
112.12(c)(6)) provisions.
b. Provisions Not Applicable to Tier I
Qualified Facilities
The following requirements are not
included in the SPCC Plan template
because, for an end-use facility with a
smaller oil storage capacity and a simple
configuration, these requirements are
inapplicable or unnecessary: facility
diagram (§ 112.7(a)(3)); facility
description (§ 112.7(a)(3)(ii),
112.7(a)(3)(iii)) and 112.7(a)(3)(v));
loading/unloading rack (§ 112.7(h));
brittle fracture evaluation (§ 112.7(i));
facility drainage (§§ 112.8(b)(3),
112.8(b)(4), 112.8(b)(5), 112.12(b)(3),
112.12(b)(4), and 112.12(b)(5));
monitoring internal heating coils
(§§ 112.8(c)(7) and 112.12(c)(7)), effluent
treatment facilities (§§ 112.8(c)(9) and
112.12(c)(9)); and facility transfer
operations (§§ 112.8(d)(1), 112.8(d)(2),
112.8(d)(3), 112.8(d)(5), 112.9(d)(2),
112.12(d)(1), 112.12(d)(2), 112.12(d)(3),
and 112.12(d)(5)).
Section 112.7(a)(3) Facility diagram.
A qualified facility with no individual
container greater than 5,000 U.S. gallons
in capacity is typically small and
generally simple in configuration. A
facility diagram is not needed to
understand the facility layout and locate
areas of potential discharge at such
facilities.
Section 112.7(a)(3)(ii) Discuss
discharge prevention measures
including routine handling of products
(loading, unloading and facility
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transfers). In order to simplify
completion of the SPCC Plan template,
EPA proposes to remove the
administrative provisions that require
discussion of oil handling at the facility.
Smaller oil storage capacity facilities
tend to have fewer oil transfers, which
are generally conducted by an off-site
oil distributor. Although the owner/
operator should be familiar with the
routine oil-handling activities and train
employees on established procedures
for oil handling, EPA does not believe
it is necessary to include a description
of these procedures in the SPCC Plan
template.
Section 112.7(a)(3)(iii) Discuss
discharge or drainage controls (e.g.,
secondary containment) and
procedures. In order to simplify
completion of the SPCC Plan template,
we have removed the requirement to
describe the facility drainage and
secondary containment. Instead, Section
2 of the Plan template includes a table
for the owner or operator to identify oil
storage containers and the method of
secondary containment provided for
each container. EPA believes this is
appropriate, considering the smaller
volumes of oil stored or handled at
these facilities.
Section 112.7(a)(3)(v) Discuss
methods of disposal of recovered
materials. In order to simplify
completion of the SPCC Plan template,
we have removed the requirement to
discuss disposal methods for recovered
materials. However, the owner/operator
is still obligated to meet all local, state
and Federal regulatory requirements for
the proper disposal of oil contaminated
materials following an oil discharge.
Section 112.7(h) Facility tank car
and tank truck loading/unloading rack.
Elsewhere in this notice, EPA is
proposing a definition for the term
‘‘loading/unloading rack.’’ Given the
Tier I qualified facility eligibility
criteria, a Tier I qualified facility would
be unlikely to have a loading/unloading
rack, as proposed to be defined in
§ 112.2, because a Tier I qualified
facility would not typically be involved
with oil distribution. Therefore,
eliminating this requirement is
appropriate.
Section 112.7(i) Brittle fracture
evaluation. This requirement applies to
field-constructed, aboveground
containers. Field-constructed containers
tend to be greater than 5,000 U.S.
gallons in capacity; under this proposal,
a Tier I qualified facility would not have
any containers greater than 5,000 U.S.
gallons in capacity. Therefore,
eliminating this requirement is
appropriate.
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Sections 112.8(b)(3)–(b)(5) and
112.12(b)(3)–(b)(5) Facility drainage
requirements. A facility with a
maximum individual container storage
capacity of 5,000 U.S. gallons is
unlikely to have complicated drainage
systems. The purpose of drainage
requirements listed in these provisions
is to provide further specification for
when drainage systems are used as
secondary containment methods, and
for how drainage from diked
containment areas should be
accomplished. In a smaller facility with
less complicated operations, this
additional specification is not
necessary.
Sections 112.8(c)(7) and 112.12(c)(7)
Requirements for monitoring internal
heating coils. A facility with smaller oil
storage containers is unlikely to have oil
storage containers with heating coils
due to the type of operations conducted
and the kind of oil commonly used at
such a facility. Therefore, eliminating
this requirement is appropriate.
Sections 112.8(c)(9) and 112.12(c)(9)
Effluent treatment facility inspections. A
facility with smaller oil storage
containers generally does not maintain
an effluent treatment system. Therefore,
eliminating this requirement is
appropriate.
Section 112.8(d)(1) and 112.12(d)(1)
Corrosion protection for buried piping.
A facility with smaller oil storage
containers generally does not maintain
extensive or complicated buried piping
systems. Therefore, eliminating this
requirement is appropriate.
Sections 112.8(d)(2) and 112.12(d)(2),
and 112.8(d)(3) and 112.12(d)(3)
Capping or blank-flanging terminal
connections and design of pipe
supports. A facility with smaller oil
storage containers generally does not
maintain extensive or complicated
piping systems, and piping is generally
limited in length and adjacent to
buildings or associated equipment.
Therefore, eliminating this requirement
is appropriate.
Section 112.8(d)(5) and 112.12(d)(5)
Warn vehicles of aboveground piping. A
facility with smaller oil storage
containers generally does not maintain
extensive or complicated piping systems
that may be impacted by vehicles
entering or leaving the facility.
Furthermore, piping is generally limited
in length and adjacent to buildings or
associated equipment. Therefore,
eliminating this requirement is
appropriate.
Section 112.9(d)(2) Inspect saltwater
disposal facilities. EPA does not expect
there to be any saltwater disposal
equipment generally associated with an
oil production facility that meets the
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criteria for a Tier I qualified facility as
described in this notice. Therefore,
eliminating this requirement is
appropriate.
EPA believes no further
differentiation is warranted for onshore
oil production facilities in § 112.9 and
onshore oil drilling and workover
facilities in § 112.10. An onshore oil
production facility that qualifies as a
Tier I qualified facility will generally
have the same type of equipment as an
oil production facility with larger oil
storage capacity (i.e., a wellhead with a
pumpjack, flowlines, oil separation
equipment and oil storage and produced
water containers) and therefore, no
further differentiation is warranted. An
onshore drilling or workover facility has
three additional requirements under
§ 112.10. The facility must: position or
locate mobile drilling or workover
equipment so as to prevent a discharge
as described in § 112.1(b); provide
catchment basins or diversion structures
to intercept and contain discharges of
fuel, crude oil, or oily drilling fluids;
and install a blowout prevention (BOP)
assembly and well control system that is
effective to control wellhead pressure.
The presence of smaller oil storage
containers does not support
differentiation of these requirements,
however, an onshore oil production,
drilling or workover facility that is
eligible as a Tier I qualified facility will
benefit from the differentiated
requirements under § 112.7.
EPA also believes that no further
differentiation is warranted for offshore
drilling, production, and workover
facilities subject to § 112.11. Due to the
nature of operations associated with
these types of facilities, they are not
likely to meet the criterion of a
maximum individual container capacity
of 5,000 U.S. gallons.
The Agency notes that under the
existing SPCC requirements, the
Regional Administrator (RA), after
reviewing a facility’s Plan, has the
authority under § 112.4 to require an
owner or operator of a facility to amend
the SPCC Plan if the RA finds that an
amendment is necessary to prevent and
contain discharges from the facility.
Such an amendment may include
requiring PE certification in accordance
with § 112.3(d). Under this proposal,
this provision would also apply to Tier
I qualified facilities. An RA could, if
warranted, require a Tier I qualified
facility to prepare a full (i.e., not using
the template) SPCC Plan with PE
certification.
The Agency also notes that use of the
Plan template approach would be
optional. Under this proposed rule, an
owner or operator of a Tier I qualified
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facility could choose to prepare and
implement either a full PE-certified
SPCC Plan or a self-certified SPCC Plan
according to all of the requirements of
§ 112.6(b) in order to comply with the
requirements under 40 CFR part 112. In
other words, if a Tier I qualified facility
owner/operator chooses not to use the
Plan template in Appendix G, he would
then be required to comply with the
Tier II qualified facility requirements in
§ 112.6(b). Any owner or operator of a
qualified facility may also choose to
prepare a full PE-certified Plan instead
of a self-certified one.
The Agency believes that proposing a
simpler, less costly compliance option
for these smaller, less complex facilities
will improve overall compliance with
the SPCC regulation resulting in
enhanced environmental protection.
EPA seeks comments on whether the
proposed streamlined set of rule
provisions for Tier I qualified facilities
addresses the concerns of owners and
operators of facilities with relatively
smaller volumes of oil and simpler
configurations, while maintaining the
environmental protection intended by
the regulation. Any suggestions for
alternative approaches and whether
additional provisions should be
included or excluded from the template
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
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3. SPCC Plan Template
The proposed SPCC Plan template for
Tier I qualified facilities is found at
Appendix G in this proposed rule. To
facilitate the development of SPCC
Plans at Tier I qualified facilities, EPA
would also make the Plan template
available on its Web site, https://
www.epa.gov/emergencies. Once
completed and certified by the owner or
operator, the Plan template would serve
as the SPCC Plan for the facility. As for
any facility subject to the SPCC rule, the
owner or operator must maintain a
written copy of the Plan—which in this
case would be the completed and
certified SPCC Plan template—at the
facility or at the nearest field office if
the facility is attended less than four
hours per day (§ 112.3(e)).
a. SPCC Plan Template Format
The proposed template in Appendix
G consists of a simple form, where the
facility owner/operator can confirm that
that the facility meets the rule
requirements by marking the
appropriate checkboxes. In other
sections, the owner or operator would
enter the relevant information in a
summary table, or describe the
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equipment or procedures implemented
at the facility to meet the requirements.
Specifically, detailed descriptions
would be provided for: (1) The
inspection/testing program used for all
aboveground storage containers and
piping; (2) security measures (except for
oil production facilities); (3) immediate
actions to be taken in the event of a
reportable discharge (i.e., a discharge to
navigable waters or adjoining
shorelines); (4) procedures for
preventing overfills from each oil
storage container; and (5) the flowline/
intra-facility gathering line maintenance
program (for oil production facilities).
The proposed template also includes
attachments with various tables that the
owner or operator may use to record
compliance activities, such as periodic
Plan reviews, equipment inspections,
personnel training, and discharge
notifications. Records of inspections
and tests kept under usual and
customary business practices also
would suffice. An owner or operator
may insert additional pages to his Plan
to provide more detailed descriptions of
equipment or procedures than allowed
in the space provided in the template,
and provide the appropriate reference in
the relevant template field.
At a minimum, an owner or operator
would be required to fill out all
applicable portions of the Plan template.
EPA would expect an owner or operator
to complete all fields in the general
portion of the template (Sections I and
II, and III.1 through III.8), and the
specific portion of the template that
applies to their facility type (A, B, or C
of Section III).
The first part of the proposed Plan
template contains summary information
about the facility. Section I contains the
self-certification statement that must be
signed by the owner or operator. By
signing this statement, the facility
owner or operator preparing the Plan
would commit to implementing the
measures described in the Plan. In
Section II, the owner or operator
acknowledges the requirements to
review and amend the Plan, and Plan
reviews and amendments can be
recorded in Attachment 2 to the Plan
template. Section III consists of the
requirements that apply to all facility
types and include, in order: (1) Oil
Storage Containers; (2) Secondary
Containment and Oil Spill Control; (3)
Inspections, Testing, Recordkeeping,
and Personnel Training; (4) Security
(excluding oil production facilities); (5)
Emergency Procedures and
Notifications; (6) Contact List; (7) NRC
Notification Procedure; and (8) SPCC
Spill Reporting Requirements.
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The owner or operator must also
complete one of the Sections labeled A
through C, according to the type of
facility, as follows: Section A in the case
of an onshore facility (excluding
production) such as a farm; Section B in
the case of an onshore oil production
facility; and Section C in the case of an
onshore oil drilling and workover
facility. The Agency did not include
requirements for offshore oil drilling,
production or workover facilities in the
template because EPA is not aware of
any offshore drilling, production or
workover facility that would meet the
Tier I qualification criteria.
EPA believes that this simplified
approach to developing an SPCC Plan
for Tier I qualified facilities is
responsive to the concerns expressed by
small businesses and the SBA Office of
Advocacy, and is consistent with the
characteristics of these facilities having
a limited number of oil storage
containers, smaller overall oil storage
capacities, simple configurations, fewer
oil transfers, and often have no further
distribution of oil.
The Agency seeks comments on
whether the proposed SPCC Plan
template in Appendix G for Tier I
qualified facilities addresses the
concerns of owners and operators of
facilities with relatively smaller
volumes of oil, while maintaining the
environmental protection intended by
the regulation. The Agency also seeks
comments on the clarity and ease-of-use
of the Plan template.
b. Environmental Equivalence and
Impracticability Determinations
Use of the Appendix G template
would be limited to those facilities that
do not use environmentally equivalent
measures under § 112.7(a)(2) and that do
not determine secondary containment to
be impracticable as per § 112.7(d). An
owner or operator of a Tier I qualified
facility who wants to use such
deviations may choose to prepare and
implement a self-certified Plan in
accordance with the Tier II qualified
facility requirements in § 112.6(b) and
can then have a licensed PE review and
certify those portions of the SPCC Plan
that provide for alternate measures to be
implemented at the facility. However,
these facilities would not be able to use
the template in Appendix G to comply
with the SPCC rule because Tier II
facilities have additional SPCC
requirements that are not included in
the Plan template. Tier I qualified
facilities may also choose to prepare and
implement a PE-certified Plan in
accordance with the full set of
applicable requirements in § 112.7 and
subparts B and C of the rule.
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4. Self-Certification and Plan
Amendments
The elements of the Tier I selfcertification requirement currently
being proposed are similar in scope to
those required for an owner or operator
of a qualified facility who chooses to
self-certify a Plan (as promulgated in
December 2006, 71 FR 77266). An
owner or operator of a Tier I qualified
facility who chooses to complete an
Appendix G template Plan would be
required to certify that: (1) He is familiar
with the applicable requirements of the
SPCC rule; (2) he has visited and
examined the facility; (3) the Plan has
been prepared in accordance with
accepted and sound industry practices
and standards; (4) procedures for
required inspections and testing have
been established in accordance with
industry inspection and testing
standards and recommended practices;
(5) the Plan is being fully implemented;
(6) the facility meets the qualification
criteria set forth under § 112.3(g)(1); (7)
the Plan does not utilize the
environmental equivalence or
impracticability provisions under
§ 112.7(a)(2) and 112.7(d); and (8) 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 template also includes a section
that acknowledges the owner/operators’
obligation to report oil discharges;
review and amend the SPCC Plan;
prepare an oil spill contingency plan
and provide a written commitment of
resources for qualified oil-filled
operational equipment (in lieu of
secondary containment) or for flowlines
and intra-facility gathering lines at oil
production facilities; implement the
Plan; and certify that the information in
the Plan is true.
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).
Consistent with the current requirement
for qualified facilities, the owner or
operator of a Tier I qualified facility
would be allowed to self-certify any of
these technical amendments to the Plan
under § 112.6(a)(2), and document this
certification in the Plan template.
If the owner or operator of a Tier I
qualified facility makes changes to the
facility such that the maximum
individual oil storage container capacity
is greater than 5,000 U.S. gallons, the
facility no longer qualifies as a Tier I
facility and is not eligible to implement
the self-certified SPCC Plan template.
The facility owner or operator must
determine whether the facility still
meets the eligibility criteria for a Tier II
qualified facility (i.e., total aboveground
storage capacity remains below 10,000
gallons). If the facility meets the Tier II
qualified facility criteria, the owner/
operator would be required to, within
six months following the change in the
facility, prepare and implement a Plan
in accordance with the proposed
§ 112.6(b) or prepare and implement a
Plan in accordance with the general
Plan requirements in § 112.7, and the
applicable requirements in subparts B
and C, including having the Plan
certified by a PE, as required under
§ 112.3(d). If, on the other hand, the
facility is no longer a qualified facility,
the owner/operator would be required
to, within six months following the
change in the facility, prepare and
implement a Plan in accordance with
the general Plan requirements in
§ 112.7, and applicable requirements in
subparts B and C.
The Agency seeks comments on the
appropriateness of these selfcertification elements and Plan
amendment requirements, and on
whether there are other requirements
that should be included. Any
suggestions for differentiation for the
template must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for a final action.
5. Tier II Qualified Facility
Requirements
EPA proposes to designate qualified
facilities that do not meet the additional
criterion for Tier I qualified facilities
(i.e., no individual oil storage container
with a capacity greater than 5,000 U.S.
gallons) as Tier II qualified facilities.
Although EPA is proposing changes to
the organization of the regulatory text in
§ 112.6 in order to accommodate the
tiered approach, the requirements for
Tier II qualified facilities remain the
same as they were finalized in
December 2006 (71 FR 77266). Tier II
qualified facilities may choose to
comply with the requirements in
proposed § 112.6(b) by completing and
implementing a self-certified SPCC
Plan, in lieu of having a PE-certified
Plan. The self-certified SPCC Plan must
comply with all of the applicable
requirements of section § 112.7 and
subparts B and C of the rule. The
following table illustrates the tiers,
criteria and options for qualified
facilities and all others as described in
this notice:
Qualified facilities
All other facilities
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Tier I
Tier II
If the facility has 10,000 gallons or less in aggregate aboveground oil storage capacity;
and
If the facility has not had (1) a single discharge
of oil to navigable waters exceeding 1,000
U.S. gallons, or (2) two discharges of oil to
navigable waters 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 the
SPCC rule if facility has been in operation for
less than three years; and
If the facility has no individual oil containers
greater than 5,000 gallons;
If the facility has 10,000 gallons or less in aggregate aboveground oil storage capacity;
and
If the facility has not had (1) a single discharge of oil to navigable waters exceeding
1,000 U.S. gallons, or (2) two discharges of
oil to navigable waters 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 the SPCC rule if facility has been
in operation for less than three years;
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If the facility has greater than 10,000 gallons
in aggregate aboveground oil storage capacity, or
If the facility has had (1) a single discharge of
oil to navigable waters exceeding 1,000
U.S. gallons, or (2) two discharges of oil to
navigable waters 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
the SPCC rule if facility has been in operation for less than three years; or
If the owner/operator is eligible for qualified
facility status, but decides not to take the
option;
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Qualified facilities
All other facilities
Tier I
Tier II
Then: The facility may complete and self-certify
an SPCC Plan template (proposed as Appendix G to 40 CFR part 112) in lieu of a full
SPCC Plan reviewed and certified by a Professional Engineer (PE)
Then: The facility may prepare a self-certified
SPCC Plan in accordance with all of the
applicable requirements of § 112.7 and subparts B and C of the rule, instead of one reviewed and certified by a Professional Engineer (PE)
It is important to note that Tier II
qualified facilities would not be able to
use the Appendix G template because it
does not include all of the SPCC
requirements that may apply for these
facilities.
EPA is also proposing to remove the
streamlined security and integrity
testing requirements for qualified
facilities. Under this proposal, the
flexibility already available for qualified
facilities would be extended to all
facilities, so these requirements would
be redundant.
6. Alternative Options Considered
In developing the amendments
proposed in this notice, EPA considered
the following alternatives for
streamlining requirements for a subset
of qualified facilities:
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a. Exemption From SPCC Regulation
Under this option, EPA would exempt
a certain subset of qualified facilities
from the SPCC requirements altogether,
based on a lower facility storage
capacity threshold (e.g., 5,000 U.S.
gallons). The exemption of Tier I
qualified facilities from the SPCC
regulation would significantly reduce
the number of facilities subject to the
SPCC requirements. This regulatory
alternative would also simplify the
applicability of the rule for qualified
facilities. However, there is no rationale
or basis for exempting Tier I qualified
facilities completely from the SPCC
rule. Furthermore, there are no data to
support setting a facility capacity
threshold lower than the current 10,000gallon capacity threshold for qualified
facilities.
b. Tier I Eligibility Criteria Based on
Total Facility Storage Capacity
Under this option, EPA would
determine the eligibility for Tier I
qualified facilities by establishing a
lower facility storage capacity threshold,
such as 5,000 U.S. gallons. This action
mirrors SBA’s approach in its multitiered structure proposal (submitted as a
public comment in response to the 2005
SPCC notice of proposed rulemaking,
OPA–2005–0001–0120). One advantage
of this option is its simplicity, since a
facility owner or operator—once he
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determines that the facility is
‘‘qualified’’ according to the criteria
promulgated in December 2006—would
need only to consider the aggregate
storage capacity to determine if the Tier
I option is available.
However, there are no data to support
setting a total facility capacity threshold
for a subset of qualified facilities to
establish a lower tier of differentiated
requirements. Furthermore, no strong
rationale exists to support some areas
for differentiation in the template, based
on a 5,000-gallon total facility storage
capacity threshold alone. EPA’s
preferred option ties the container
capacity threshold to existing
differentiation in the STI SP001
standard for container inspections.
Additionally, a lower tier at the 5,000gallon threshold capacity may
complicate applicability of the relief for
facilities with fluctuating oil storage
capacity.
The Agency seeks comments on these
alternative options. Any suggestions for
additional alternatives must include an
appropriate rationale and supporting
data in order for the Agency to be able
to consider it for final action.
H. General Secondary Containment
At a facility subject to the SPCC rule,
all areas with the potential for a
discharge as described in § 112.1(b) are
subject to the general secondary
containment provision, § 112.7(c). These
areas may have loading/unloading areas
(also referred to as transfer areas),
piping, and/or mobile refuelers, and
may include other areas of a facility
where oil is present. The general
secondary containment requirement
requires that these areas be designed
with appropriate containment and/or
diversionary structures to prevent a
discharge of oil in quantities that may
be harmful (i.e., as described in 40 CFR
part 110 into or upon navigable waters
of the United States or adjoining
shorelines; see § 112.1(b)). EPA clarified
in the SPCC Guidance for Regional
Inspectors (version 1.0, November 28,
2005) that ‘‘appropriate containment’’
should be designed to address the most
likely discharge from the primary
containment system, such that the
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Then: The facility must prepare a PE-certified
SPCC Plan in accordance with all of the
applicable requirements of § 112.7 and subparts B and C.
discharge will not escape containment
before cleanup occurs. With this
proposed revision, EPA seeks to provide
clarity consistent with the explanation
found in the guidance document
regarding the method, design, and
capacity of secondary containment as
required under § 112.7(c).
Furthermore, § 112.7(c)(1) and (2) list
several example methods for providing
secondary containment. These methods
are examples only; other containment
methods may be used, consistent with
good engineering practice. To provide
clarity for the regulated community,
EPA is proposing to expand the list of
examples of secondary containment
methods for onshore facilities. By
expanding this list of examples, EPA
intends to include some additional
prevention systems commonly used at
facilities.
1. Proposed Revisions to the General
Secondary Containment Requirement
a. Containment Method, Design, and
Capacity
EPA proposes to clarify the general
secondary containment requirement at
§ 112.7(c) by adding the text ‘‘In
determining the method, design, and
capacity for secondary containment, you
need only to address the typical failure
mode, and the most likely quantity of
oil that would be discharged. Secondary
containment may be either active or
passive in design.’’
In the SPCC rule, the general
secondary containment provision is
complemented by various specific
secondary containment requirements
(e.g., §§ 112.7(h)(1), 112.8(c)(2),
112.8(c)(11), 112.9(c)(2), 112.12(c)(2),
112.12(c)(11)) which address the
potential for oil discharges from specific
parts of a facility where oil is stored or
handled, such as at a bulk storage
container or a loading/unloading rack.
These specific secondary containment
requirements address the design, sizing
and freeboard capacity to account for a
major container failure. In contrast, the
general secondary containment
provision is intended to address the
most likely oil discharge from any part
of a facility. Therefore, in determining
how to provide appropriate general
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secondary containment, a facility owner
or operator would consider the typical
failure mode and most likely quantity of
oil that would be discharged. Based on
these site-specific conditions, the owner
or operator can determine what capacity
of secondary containment is needed,
and design the containment method
accordingly. The most likely quantity of
oil discharged is not often expected to
be the maximum capacity of the
container.
For example, at a regulated transfer
area where a truck loads fuel into an oil
tank, the owner or operator may
determine that the reasonably expected
source and cause of a discharge would
be a ruptured hose connection, and that
a shutoff valve is present and accessible
to the attendant. To determine the most
likely quantity of oil that would be
discharged, the oil’s rate of flow and the
amount of time it would take for the
attendant to close the valve need to be
considered, in accordance with good
engineering practice. Depending on the
likely quantity of oil that would be
discharged, the owner/operator may
determine that the appropriate method
of secondary containment is a passive
containment measure, such as curbing
around the area, or, if the likely quantity
of oil is reasonably handled by spill kits,
then such an active method of
containment may be used.
Under this proposal, EPA would
further amend § 112.7(c) to make it clear
that the requirement allows for the use
of both active and passive secondary
containment measures to prevent a
discharge to navigable waters or
adjoining shorelines. Active
containment measures are those that
require deployment or other specific
action by the 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
to prevent an oil discharge from
reaching navigable waters or adjoining
shorelines. Active measures are also
referred to as spill countermeasures. In
contrast, passive measures are
installations that do not require
deployment or action by the operator.
The SPCC Guidance for Regional
Inspectors (Version 1.0, November 28,
2005) provides several examples of the
use of active measures at an SPCCregulated facility. 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
attended activities, such as those
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occurring during transfers, an active
measure (e.g., sock, mat, or 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 general secondary containment
approach implemented at a facility need
not be ‘‘one size fits all.’’ Different
approaches may be taken for the same
activity at a given facility, depending on
the material and location. For example,
the SPCC Plan may specify that drain
covers and sorbent material be predeployed prior to transfers of low
viscosity oils in certain areas of a
facility located in close proximity to
navigable waters/adjoining shorelines or
drainage structures. For other areas and/
or other products (e.g., highly viscous
oils), the Plan may specify that
sufficient spill response capability is
available for use in the event of a
discharge, so long as personnel and
equipment are available at the facility
and these measures can be effectively
implemented in a timely manner to
prevent oil from reaching navigable
waters and adjoining shorelines.
Whatever method is used, the owner
or operator must document in the SPCC
Plan the rationale for each containment
method (i.e., how the use of the measure
is appropriate to the situation). The
SPCC Plan must also describe the
procedures to be used to deploy any
active measures and explain the
methods for discharge discovery that
will be used to determine when
deployment of the active measure is
appropriate (§ 112.7(a)(3)(iii)).
EPA requests comments on the
appropriateness of the proposed
language for the general secondary
containment provision to provide clarity
regarding the method, design, and
capacity of secondary containment as
required under § 112.7(c), consistent
with current Agency guidance. Any
suggestions for alternative approaches
must include an appropriate rationale in
order for the Agency to be able to
consider it for final action.
b. List of Secondary Containment
Methods for Onshore Facilities
EPA also proposes to amend the
general secondary containment
provision at § 112.7(c)(1) to include the
following additional example
prevention systems for onshore
facilities: Drip pans, sumps, and
collection systems. Drip pans are
typically used to isolate and contain
small drips or leaks until the source of
the leak is repaired. They are commonly
used with product dispensing
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containers (such as drums), uncoupling
of hoses during bulk transfer operations,
and for pumps, valves, and fittings.
Sumps and collection systems generally
involve a permanent pit or reservoir and
the troughs/trenches connected to it that
collect oil.
By expanding the list of example
secondary containment methods found
in § 112.7(c)(1), EPA intends to increase
the clarity and better represent current
prevention practices. EPA emphasizes
that the list of prevention systems are
examples only; other containment
methods may be used, consistent with
good engineering practice.
EPA requests comments on the
appropriateness of amending the general
secondary containment provision to
expand the list of example secondary
containment methods found in
§ 112.7(c)(1). Any suggestions for
alternative approaches must include an
appropriate rationale in order for the
Agency to be able to consider it for final
action.
2. Alternative Option Considered: No
Action
EPA considered taking no regulatory
action regarding this issue. The current
regulatory language currently allows for
the facility owner/operator to design
secondary containment based on a
typical failure mode and likely quantity
discharged. However, EPA believes that
modifying the general secondary
containment language at § 112.7(c) is
appropriate to more clearly illustrate the
flexibility already contained in the rule,
as described in the guidance document.
3. General Secondary Containment for
Non-Transportation-Related Tank
Trucks
In the December 2006 amendments to
the SPCC rule (71 FR 77266, December
26, 2006), EPA exempted mobile
refuelers from the sized secondary
containment requirements applicable to
bulk storage containers. In the amended
regulation, EPA defined a mobile
refueler as ‘‘a bulk storage container
onboard a vehicle or towed, that is
designed or used solely to store and
transport fuel for transfer into or from
an aircraft, motor vehicle, locomotive,
vessel, ground service equipment, or
other oil storage container.’’ (See
§ 112.2). EPA recognizes that nontransportation-related tanker trucks may
operate similarly to mobile refuelers,
though not specifically transferring fuel.
Therefore, they may have the same
difficulty in complying with the sized
secondary containment requirements.
EPA requests comment on whether the
regulatory relief provided to mobile
refuelers in 2006 (i.e., an exemption
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from the sized secondary containment
requirements) should be extended to
non-transportation-related tank trucks at
a facility subject to the SPCC rule. Such
tank trucks include those used to store
for short periods of time and transport
fuel, crude oil, condensate, nonpetroleum, or other oils for transfer to or
from bulk storage containers, e.g., a
truck used to refill oil-filled equipment
at an electrical substation or a pump
truck at an oil production facility.
Under this approach, the general
secondary containment requirements at
§ 112.7(c) would still apply. This
approach is also consistent with the
general secondary containment
requirements that are already applicable
at the SPCC facility that the tank truck
is visiting, and would simplify
compliance for the facility. However,
this exemption to sized secondary
containment would not apply to a
vehicle used primarily for the bulk
storage of oil in a stationary location, in
place of a fixed oil storage container.
I. Security
In December 2005 (70 FR 73524,
December 12, 2005), EPA proposed to
allow the owner and operator of a
qualified facility to comply with a set of
streamlined facility security
requirements (finalized in December
2006 at 71 FR 77266). In the preamble
to that proposal, EPA recognized that
there is no one single approach to
ensure proper facility security. For
example, the security requirements for
fencing and lighting may not always be
appropriate for sites such as a national,
state, or local park subject to the SPCC
requirements, where the site layout may
be too extensive to fence, and where the
lighting of a solitary container would
invite, rather than deter, would-be
intruders. EPA has received comments
from the regulated community
suggesting that the security
requirements should be revised for all
regulated facilities, for reasons
consistent with those for a qualified
facility. EPA agrees that, even for a
facility that is not a qualified facility, it
may not be appropriate to provide
fencing around the entire perimeter, and
that lighting requirements in remote
areas may attract, rather than deter,
vandals. Additionally, many oil storage
sites at farms, parks, and similarly
isolated facilities have no electricity,
which makes compliance with the
lighting requirement difficult. In other
cases, oil storage sites, such as those at
farms, may be located where an owner
or operator is present around the clock.
Furthermore, due to the increased focus
on security requirements by the
Department of Homeland Security
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(DHS) and other regulatory agencies to
which a facility subject to the SPCC rule
may also be subject, EPA believes that
it is important to provide flexibility in
complying with the security
requirements to allow an owner/
operator of a facility to customize a
security program. By revising the
facility security requirements to make
them more performance-based, EPA
expects to improve compliance rates,
thereby enhancing environmental
protection.
1. Proposed Revisions to the Security
Requirements
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 requirement. Therefore,
EPA is proposing to modify the security
requirements at § 112.7(g) to make them
consistent with the streamlined,
performance-based requirements
currently found at § 112.6(c)(3)(ii) for
qualified facilities. Because the
proposed revised requirements at
§ 112.7(g) would apply to all facilities
(excluding oil production facilities),
EPA proposes to remove § 112.6(c)(3), as
it would be redundant.
This proposal would allow an owner
or operator to describe in his SPCC Plan
how he will:
• Secure and control access to all oil
handling, processing and storage areas;
• Secure master flow and drain
valves;
• Prevent unauthorized access to
starter controls on oil pumps;
• Secure out-of-service and loading/
unloading connections of oil pipelines;
and
• Address the appropriateness of
security lighting to both prevent acts of
vandalism and assist in the discovery of
oil discharges.
A facility owner and operator would
be required to document in his SPCC
Plan how these security measures are
implemented.
These proposed requirements would
replace the more prescriptive fencing
and other requirements, currently found
in § 112.7(g)(1) through (5), and would
allow the facility owner/operator to
determine how best to secure and
control access to areas where a
discharge to navigable waters or
adjoining shorelines may originate.
With this proposed rule revision, EPA
would also allow the facility owner/
operator to determine how lighting can
be used to deter intruders and to assist
in the discovery of oil discharges, or
whether there is a more appropriate,
site-specific method. EPA believes that
this proposed amendment would likely
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eliminate the need for PE-certified
environmentally equivalent alternatives
to the specified security requirements,
because the proposed provision would
already provide the flexibility for the
owner/operator to provide whatever
measures are most appropriate for the
facility, as long as they accomplish the
stated security goal.
EPA requests comments on the
appropriateness of extending the
streamlined security requirements
already available to qualified facilities
to all facilities regulated by the SPCC
rule. Any suggestions for alternative
approaches must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
2. Alternative Option Considered: No
Action
EPA considered taking no regulatory
action regarding this issue. A facility
owner or operator could continue to use
alternate measures in lieu of the more
prescriptive requirements currently
found at § 112.7(g), with a PE-certified
explanation of how the alternate
measures are environmentally
equivalent. However, EPA believes that
modifying the security requirements at
§ 112.7(g) to make them consistent with
the streamlined, performance-based
requirements currently provided for
qualified facilities is appropriate.
Therefore, EPA chose not to propose
this ‘‘no action’’ option.
J. Integrity Testing
In December 2006, EPA promulgated
an amendment (71 FR 77266, December
26, 2006) allowing the owner or
operator of a qualified facility to comply
with streamlined integrity testing
requirements. This amendment allowed
the owner or operator of a qualified
facility to consult and rely on industry
standards to determine appropriate
qualifications for inspectors/testing
personnel and the appropriate integrity
testing method for a particular container
based on size, configuration, and design,
without the need for a PE-certified
explanation for this environmentally
equivalent deviation from the existing
rule requirements at § 112.8(c)(6) or
§ 112.12(c)(6). In the preamble to the
proposal for this amendment (70 FR
73524, December 12, 2005), EPA
recognized that a facility owner or
operator could rely on the appropriate
use of industry standards for integrity
testing requirements, and that in certain
site-specific circumstances, visual
inspection may be appropriate and
sufficient for compliance with the
integrity testing requirement. EPA has
received comments from the regulated
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community suggesting that the integrity
testing requirements promulgated for
qualified facilities should be extended
to all regulated facilities, for reasons
consistent with those for a qualified
facility.
EPA believes that owners or operators
of all types of facilities subject to either
§ 112.8(c)(6) or § 112.12(c)(6) would
select particular testing methods to
comply with these requirements based
on industry inspection standards such
as the Steel Tank Institute (STI) SP001
(Standard for Inspection of
Aboveground Storage Tanks) and
American Petroleum Institute (API)
Standard 653 (Tank Inspection, Repair,
Alteration, and Reconstruction). For
containers that meet certain
characteristics, industry standards may
not require both visual inspection and
another system of non-destructive shell
testing, as is currently required in
§§ 112.8(c)(6) and 112.12(c)(6).
For example, a facility may store oil
in a mobile or portable container, such
as a 55-gallon drum. Under the current
requirements at §§ 112.8(c)(6) and
112.12(c)(6), drums are required to be
visually inspected and are also subject
to a non-destructive testing method on
a regular schedule. Alternatively, a
Professional Engineer may determine an
environmentally equivalent measure, in
accordance with § 112.7(a)(2). However,
STI’s SP001 standard specifies that the
minimum inspection requirement for
portable containers, such as drums, is
visual inspection by the owner/operator
unless no secondary containment is
provided. Therefore, under this
proposal to revise the integrity testing
requirement, for portable containers
provided with secondary containment,
periodic visual inspection only by the
owner/operator can be sufficient under
§§ 112.8(c)(6) and 112.12(c)(6). For
portable containers without secondary
containment, the owner/operator must
follow the requisite DOT leak testing
and recertification requirements as
outlined in 49 CFR 173.28 (reuse,
reconditioning and remanufacturing of
packaging), 49 CFR 178.803 (testing and
certification of intermediate bulk
containers (IBCs)), and 49 CFR 180.605
(or equivalent for portable container
testing and recertification). Currently,
an owner/operator of a non-qualified
facility would need a PE to review and
certify sections of his SPCC Plan
demonstrating that such inspection
procedures, which are based on
provisions in the STI SP001 standard,
are environmentally equivalent to
§ 112.8(c)(6) or § 112.12(c)(6), even if the
owner or operator chooses to adopt
inspection requirements directly from
the industry standard.
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Rather than require a PE-certified
explanation of environmental
equivalence every time a facility owner
or operator chooses to base their
integrity testing program on an industry
standard instead of the more stringent
requirements in § 112.8(c)(6) or
§ 112.12(c)(6), EPA is proposing to
amend §§ 112.8(c)(6) and 112.12(c)(6) to
replace these provisions with the more
flexible language already provided for
qualified facilities at § 112.6(c)(4)(ii).
1. Proposed Amendments to Integrity
Testing Requirements
EPA proposes to replace the current
regulatory requirements at §§ 112.8(c)(6)
and 112.12(c)(6) with the regulatory
requirements currently found at
§ 112.6(c)(4)(ii). EPA believes that any
SPCC facility owner or operator subject
to § 112.8(c)(6) or § 112.12(c)(6) should
be allowed the increased flexibility
offered by the inspection requirements
at § 112.6(c)(4)(ii) (and corresponding
reduction in burden associated with
developing environmental equivalence
determinations), particularly for
portable containers. Because the
proposed revised requirements at
§§ 112.8(c)(6) and 112.12(c)(6) would
apply to all facilities (excluding oil
production facilities), EPA is proposing
to remove § 112.6(c)(4), as it would be
redundant.
This proposal requires a facility
owner or operator to:
• Test/inspect each aboveground
container for integrity on a regular
schedule and whenever material repairs
are made.
• Determine, in accordance with
industry standards, the appropriate
qualifications of personnel performing
tests and inspections, the frequency and
type of testing and inspections, which
take into account container size,
configuration, and design.
These provisions allow an owner/
operator to adopt inspection
requirements outlined in industry
standards without the need for
environmental equivalence
determinations to be certified by a PE.
The revised provision would continue
to require an owner/operator to keep
comparison records (records of
inspections and tests kept under usual
and customary business practices will
suffice) and to inspect the container’s
supports and foundations. The owner or
operator would also be required to
conduct frequent inspection of the
outside of the container for signs of
deterioration, discharges, or
accumulation of oil inside diked areas.
It is important to note that, under this
proposal, a facility owner or operator
may still deviate from the proposed rule
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provision, or from an industry standard,
if the alternate measure is equivalent to
the environmental protections provided
by the rule requirement (as provided in
§ 112.7(a)(2)). In this case, a PE would
need to certify the reason for the
deviation and that the alternate
measures are environmentally
equivalent.
EPA requests comments on the
appropriateness of extending the
streamlined integrity testing
requirements already available to
qualified facilities to all facilities subject
to § 112.8(c)(6) or § 112.12(c)(6). Any
suggestions for alternative approaches
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
2. Alternative Option Considered: No
Action
EPA considered taking no action to
modify the requirements at
§§ 112.8(c)(6) and 112.12(c)(6).
However, the Agency believes that all
SPCC facility owners and operators
subject to § 112.8(c)(6) or § 112.12(c)(6)
should be allowed the increased
flexibility offered by the inspection
requirements currently provided for
qualified facilities, particularly for the
inspection of portable containers and
small shop-built tanks. Therefore, EPA
chose not to propose this ‘‘no action’’
option.
K. Animal Fats and Vegetable Oils
Stakeholders have commented that
animal fats and vegetable oils (AFVOs)
merit differentiated requirements under
the SPCC regulation. In particular, the
regulated community points to
differences between the toxicity and
biodegradation profiles of AFVOs and
those of petroleum oils. Because of these
claims, and in response to the Edible Oil
Regulatory Reform Act (EORRA), the
Agency has on several occasions
formally requested information and
supporting scientific data that would
inform such a determination.
The Agency provided a detailed
review of AFVO toxicity and
environmental effects as part of the
denial of a petition requesting to amend
the Facility Response Plan (FRP) rule
(62 FR 54508, October 20, 1997). EPA
has reviewed the data available at that
time, as well as more recent data that
the Agency has gathered (See Technical
Background Document for Animal Fats
and Vegetable Oils Regulated under the
Spill Prevention, Control, and
Countermeasure (SPCC) Regulation (40
CFR part 112) (September 12, 2007) in
the docket for today’s proposed
rulemaking). Based on this review, EPA
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has determined that not all AFVOs are
non-toxic. Additionally, there are other
non-AFVO oils which have toxicity
profiles that are similar to some AFVOs.
Therefore, the Agency continues to
believe that it is not appropriate to
differentiate between AFVOs and other
oils based on toxicity.
In addition, in 1999, EPA issued an
Advanced Notice of Proposed
Rulemaking (ANPRM) regarding
differentiation of the requirements for
AFVOs from petroleum and other oils
subject to the SPCC regulation (64 FR
17227, April 8, 1999). In the 2002
amendments to the SPCC rule, EPA
provided new subparts to facilitate
differentiation between categories of oil
listed in EORRA (67 FR 47042, July 17,
2002). In December 2005, the Agency
again requested comments and scientific
evidence to support differentiation for
AFVOs as part of a broader proposal to
amend the SPCC requirements (70 FR
73524, December 12, 2005). In
December 2006, the Agency
promulgated amendments to the SPCC
regulation, which included removing
requirements that were not applicable
for facilities that stored AFVO (71 FR
77266, December 26, 2006).
The Agency has again examined the
data submitted in response to the
aforementioned actions (Technical
Background Document for Animal Fats
and Vegetable Oils Regulated under the
Spill Prevention, Control, and
Countermeasure (SPCC) Regulation (40
CFR part 112), September 12, 2007).
This data was submitted to support the
claim that AFVOs biodegrade more
readily than petroleum oils and
therefore merit differentiated
requirements under the SPCC rule.
Although this data indicates that the
AFVOs tested degraded to a greater
extent than the petroleum oils tested,
other data published in the scientific
literature suggests that other nonAFVOs (e.g., some petroleum and
synthetic oils) degraded equally to some
AFVOs. EPA also notes that the
biodegradation data submitted has been
generated from laboratory tests, and
therefore are only representative of the
conditions set forth in the test,
representing a relatively limited
comparison of some vegetable oils with
some petroleum oils. Additionally,
other data published in the scientific
and technical literature suggests that not
all AFVOs are as readily biodegradable
as some have claimed. These findings
are consistent with the findings from
other organizations that have used
biodegradation tests to evaluate oils.
That is, the laboratory tests suggest that
there are petroleum and/or other oils
that biodegrade similarly to AFVOs. As
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a result, EPA is unable to establish a
‘‘bright line’’ between AFVOs and all
other oils based on biodegradability,
and thus believes it is not appropriate
to differentiate between them based on
this criterion. For more information, see
Technical Background Document for
Animal Fats and Vegetable Oils
Regulated under the Spill Prevention,
Control, and Countermeasure (SPCC)
Regulation (40 CFR part 112),
(September 12, 2007), in the docket for
this proposed rulemaking.
EPA is now considering whether there
would be an alternative approach to
differentiation that is not based on the
oil’s toxicity and its inherent physical/
chemical properties, but rather based on
the way these oils are stored and
handled at a facility. EPA has focused
specifically on the integrity testing
requirements for bulk storage of AFVOs
to address concerns raised by the
regulated community. Therefore, the
Agency is considering a compliance
alternative for differentiated integritytesting requirements for certain bulk
storage containers that store AFVOs and
that meet specific design and
operational criteria.
Specifically, EPA is proposing to
modify § 112.12(c)(6) to provide the PE
or the owner or operator certifying an
SPCC Plan the flexibility to determine
the scope of integrity testing that is
appropriate for certain AFVO bulk
storage containers. This flexibility
would apply to those bulk storage
containers that are subject to the
applicable sections of the Food and
Drug Administration (FDA) regulation
21 CFR part 110, Current Good
Manufacturing Practice in
Manufacturing, Packing or Holding
Human Food, and that meet the
following additional criteria: (1) Are
elevated; (2) made from austenitic
stainless steel; have (3) no external
insulation; and (4) are shop-built. That
is, an owner or operator would be
allowed to use industry standards for
visual inspection of these containers, in
lieu of the current integrity testing
requirements (i.e., visual inspection and
some other testing technique) or the
proposed revisions to the integrity
testing requirements as outlined under
Section J in this proposal without
having to make an environmental
equivalence determination, including
stating the reasons for nonconformance
with the current integrity testing
requirements, in accordance with
§ 112.7(a)(2). The owner or operator
would be required to document
procedures for inspections and testing
in the SPCC Plan, including those for
AFVO bulk storage containers that are
eligible for the differentiated
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requirements in this proposal. EPA
believes that AFVO bulk storage
containers which meet the above criteria
already have environmentally
equivalent measures in place for
integrity testing and thus, do not need
to state reasons for nonconformance
with the current integrity testing
requirements (i.e., visual inspection and
some other testing technique).
Therefore, we are proposing this
alternative option for integrity testing
and no environmental equivalence
determination in accordance with
§ 112.7(a)(2) is necessary. This
alternative would typically apply at
food processing facilities that are subject
to 21 CFR part 110 and store animal fats
or vegetable oil that are intended for
human consumption. The regulations at
21 CFR part 110 have specific
requirements for the design,
construction, and use of AFVO
equipment. The Agency believes that
the proposed criteria ensure that the
AFVO containers are less prone to
internal and external corrosion and that
the design elements make visual
inspection effective.
1. Differentiation Criteria
Properly designed and implemented
integrity testing programs include
practices and procedures to identify
potential alterations to a bulk storage
container’s shell, bottom plate,
foundation, and/or attached ancillary
equipment, all of which may
compromise a container’s integrity. EPA
generally believes it is important that
the Plan include the scope of an
integrity-testing program with
consideration of established industry
standards. Factors to consider when
industry standards do not exist include,
but are not limited to, the likelihood of
the deterioration of the container
foundation, stress-induced fractures in
the shell wall or bottom plate, and
internal and external corrosion. These
are the factors the Agency considered in
setting the proposed criteria. The FDA
requirements for design and
maintenance in addition to the criteria
outlined in this proposal would be
environmentally equivalent to the
current integrity testing requirements
under § 112.12(c)(6).
a. Containers Subject to FDA
Regulations—21 CFR Part 110
When developing an integrity-testing
program for AFVO bulk storage
containers, FDA rule requirements may
serve, in whole or in part, as alternative
measures that provide equivalent
environmental protection to an industry
standard. Applicable requirements
within 21 CFR part 110, when taken
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together with the additional criteria in
this proposal, can serve as equivalent
alternative measures that include the
main elements of an integrity-testing
program under the SPCC regulation. The
minimal elements for this type of
integrity-testing program can be
separated into three main structural
integrity areas: (1) Container
foundations, (2) container support
structures, and (3) the container itself.
FDA requirements in each of these areas
serve to support this proposed rule for
AFVO.
i. Container Foundations. FDA
requires that facilities be constructed in
such a manner that the floor, walls, and
ceilings be adequately cleaned and kept
clean and in good repair (21 CFR
110.20(b)(4)). Bulk storage containers
that sit atop floors that fall under this
requirement are expected to be
maintained and kept in good repair.
Substances that accumulate on the floor
can present an unsanitary condition,
which may lead to food contamination.
In addition, cracks in the floor under
and/or around the foundation of a bulk
storage container can accumulate food
particles, organic matter, pests, and
other potentially unsanitary substances
that also could lead to food
contamination. EPA believes that the
procedures and practices, such as
frequent monitoring of the floor around
a bulk storage container, that are
implemented in order to address this
requirement serve not only to comply
with the FDA requirements, but also
address the elements associated with
the structural integrity of the container’s
foundation.
ii. Container Support Structures. FDA
requires all plant equipment, including
the container’s structural supports, to be
designed of such material and
workmanship as to be adequately
cleanable, and for it to be properly
maintained (21 CFR 110.40(a)). Periodic
maintenance of the structural support(s)
of a bulk storage container is also an oil
spill preventive measure, especially
inside a facility where mobile
equipment (e.g. forklifts) can strike and
damage the container and/or its
structural supports.
iii. Container Itself. When considering
the potential for corrosion, EPA
considered the FDA requirements for
food contact surfaces (e.g., internal
surface of a food oil bulk storage
container) and non-food contact
surfaces (e.g., external surface of a bulk
storage container). In most cases, FDA
requirements address only food contact
surfaces. For the purpose of oil spill
prevention, the potential for corrosion
of the external surface of bulk storage
container is equally important.
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Internal Corrosion. FDA requires the
design, construction, and use of
equipment to preclude the adulteration
of food with, among other potential
contaminants, metal fragments (21 CFR
110.40(a)). FDA further requires that
food contact surfaces shall be corrosionresistant when in contact with food.
While it is possible that corrosion of the
interior surface of a bulk storage
container can occur, it is also likely that
any metal that dislodges from the
interior surface is captured by a means
that prevents metal inclusion. EPA
believes that an owner or operator of a
facility that monitors AFVOs for metal
fragments as the oil exits the bulk
storage container, either by sampling the
oil itself for metal or by monitoring the
inclusion prevention device for metal
fragment accumulation, is a reasonable
alternative approach to an internal
inspection for corrosion. This, in
conjunction with the design and
applicable regulatory requirements are
likely to prevent the corrosion of the
internal contact surface in food grade
AFVO bulk storage containers.
External Corrosion. For some bulk
storage container configurations,
external corrosion can be the primary
concern with respect to their integrity.
Significant corrosion to the exterior
surface can occur from exposure to
moisture and in some cases, may be
enhanced if insulation is present.
Significant corrosion can also occur
from overfills of oil and/or any
associated substance(s) that have
accumulated on the exterior surface, as
well as from cleaning and sanitizing
agents.
FDA requires equipment that is in the
manufacturing or food-handling area
and that does not come into contact
with food must be constructed to be
kept in a clean condition (21 CFR
110.40(c)). Exterior surface of bulk
storage containers that are located in the
manufacturing or food-handling area
and that are subject to this requirement,
are expected to be maintained to a
higher standard than other bulk storage
containers, which are not subject to a
similar requirement. Since plant
equipment used in the manufacturing or
food-handling area must be designed to
be kept clean and withstand the
corrosive effects of cleaning agents, it is
generally constructed of austenitic
stainless steel.
EPA requests comments on the
appropriateness of using the FDA
requirements under 21 CFR part 110 as
a criterion for the proposed alternative
approach for integrity testing. Any
suggestions must include an appropriate
rationale in order for the Agency to be
able to consider it for final action.
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b. Elevated Bulk Storage Containers
FDA recommends, but does not
require, that all plant equipment be
installed and maintained to facilitate its
cleaning, including all adjacent spaces.
According to 21 CFR 110.40(a), ‘‘all
equipment should be so installed and
maintained as to facilitate cleaning of
the equipment and of all adjacent
spaces.’’ In practice, an owner or
operator of a facility implementing this
recommended practice is likely to have
a bulk storage container that is elevated
off the floor, based upon discussion
with AFVO container manufacturers
and owners or operators of AFVO
facilities. Food equipment is generally
designed to stand on legs, which
elevates the plant equipment off the
floor so that the space between the plant
equipment and the floor can be cleaned.
For the purposes of oil spill prevention,
elevated bulk storage containers allow
visual inspections for oil discharges all
around the container.
An elevated bulk storage container
also facilitates complete drainage
because the oil can be withdrawn from
the lowest point in the container, so that
foreign substances or materials do not
accumulate and contaminate the food
oil. For the purposes of oil spill
prevention, self-draining containers
operating using gravity flow allows
complete drainage and prevents
substances other than oil (e.g., water)
from accumulating at the bottom of the
container, thus minimizing corrosion.
EPA believes that the self-drainage
design, in conjunction with the
applicable regulatory requirements, is
likely to prevent the corrosion of the
internal contact surface in food grade
AFVO bulk storage containers.
EPA requests comments on this
criterion for the proposed alternative
approach for integrity testing for AFVO
bulk storage containers. Any suggestions
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
c. Containers Made From Austenitic
Stainless Steel
AFVOs are not required explicitly to
be stored in austenitic stainless steel
bulk storage containers under 21 CFR
part 110. For example, a carbon steel
container with an internal liner may
suffice for the corrosion resistant
requirements under FDA because in this
case the lining is the food contact
surface that is corrosion resistant.
Although this meets the regulatory
requirements for food contact surfaces,
it also may be an indication that the oil
in the bulk storage container is
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incompatible with an unlined bulk
storage container of the same material.
In addition, EPA believes that nonhomogenous container systems (e.g.,
containers with external insulation,
external coating, mild-carbon steel shell,
internal liner) are more complex than
homogenous container systems (e.g.,
containers constructed solely of
austenitic stainless steel) and may
require additional inspection measures
to ensure the integrity of the container.
Furthermore, austenitic stainless steel
containers are often used because
cleaning agents and acidic detergents
used to clean food and non-food contact
surfaces can be corrosive if used on
incompatible surfaces. Therefore, EPA
proposes to limit this alternative
approach for integrity testing to AFVO
bulk storage containers made of
austenitic stainless steel.
It is important to note that this
limitation is only for an owner or
operator that chooses to take advantage
of the alternative compliance option. A
facility Plan may still be certified with
an environmental equivalence
determination, in accordance with
§ 112.7(a)(2) of the SPCC rule, for other
types of bulk storage containers that are
similarly corrosion resistant.
EPA requests comments on this
criterion for the proposed alternative
approach for integrity testing for AFVO
bulk storage containers. Any suggestions
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
d. Containers With No External
Insulation
EPA proposes to limit this proposed
alternative option to containers with no
external insulation. The Agency
believes that inspections based on
frequent monitoring of the exterior
surface of a bulk storage container for
corrosion and/or other mechanisms that
can threaten a container’s integrity is a
minimum criterion for an alternative
measure that provides equivalent
environmental protection. External
insulation covering the outside of a bulk
storage container acts as a physical
barrier to effective visual examination of
the exterior surface. If not properly
sealed, insulating materials covering the
exterior surface of a bulk storage
container and/or any associated
equipment and piping can become
damp. Insulation that retains moisture
and that is adjacent to a container’s
exterior surface can cause significant
corrosion, which may threaten the
integrity of the container.
EPA is unaware of any sanitation
provision or regulatory requirements
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that require an inspection between the
insulation and the exterior surface of a
bulk storage container. Furthermore, we
do not know of any established industry
methods or procedures, or industry
standards specific to AFVOs, to evaluate
the exterior surface of a bulk storage
container that is covered by insulation.
Therefore, EPA believes only containers
with no external insulation should be
included in this proposed alternative
option for integrity testing.
EPA requests comments on this
criterion for the proposed alternative
approach for integrity testing for AFVO
bulk storage containers. Any suggestions
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for a
final action. Additionally, we seek input
on any applicable standards, sanitary
provisions, or other regulatory
requirements that apply to the
construction, design and/or inspection
of AFVO bulk storage containers.
e. Shop-Fabricated Containers
EPA has stated that visual inspection
might suffice for elevated shop-built
bulk storage containers because these
containers can be inspected on all sides
(67 FR 47120, July 17, 2002). In the
SPCC Guidance for Regional Inspectors
document, EPA went on to say that
‘‘* * * visual inspection provides
equivalent environmental protection
when accompanied by certain
additional actions to ensure that the
containers are not in contact with the
soil. These actions include elevating the
container in a manner that decreases
corrosion potential and makes all sides
of the container, including the bottom,
visible during inspection.’’ Shopfabricated bulk storage containers, as
opposed to field-erected, may best fit
these conditions.
EPA proposes to limit this proposed
alternative option to shop-fabricated
containers (i.e., shop-built). Shopfabricated containers are those
containers that are shop-assembled in
one piece before transport to the
installation site which limits the
maximum capacity of the container so
that they can be transported over the
road by truck. Shop-fabricated
containers generally have lower volume
capacities, smaller tank diameters, and
a fewer number of welds than fielderected containers and are typically
comprised of a single type of material
with a single wall thickness.
Alternatively, field-erected (i.e., fieldconstructed) containers can store much
larger volumes of oil because individual
pieces of the container can be
transported to and assembled at the
installation site, leading to much larger
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container capacities. Because of their
greater size and complexity, fielderected containers have more stringent
engineering requirements than shopfabricated containers which would need
to be considered in developing an
appropriate inspection program. For
example, field-erected containers may
have variable shell-wall thicknesses,
and/or be comprised of different
materials to account for variations in the
stresses caused by hydrostatic pressure.
These field-erected containers generally
have a significantly greater number of
welds as compared to a shop-fabricated
container because they are fabricated
on-site from individual pieces. The
stress on the container walls and joints
is greater as the diameter and/or height
of the container increases. Finally, a
brittle fracture evaluation of a fielderected container may be necessary if
the thickness of the shell wall is above
a certain value and the container
undergoes a repair, alteration,
reconstruction, or a change in service
that might affect the risk of a discharge
or failure. The complexity associated
with the construction of field-erected
containers is considered in designing
the scope and frequency of an integrity
testing program.
This proposal, therefore, is limited to
shop-fabricated containers because they
are simpler in design and construction
(e.g., typically subject to less stress,
have fewer welds, and are less likely to
be subject to brittle fracture failure) than
field-erected containers. The Steel Tank
Institute’s (STI) SP001, Standard for the
Inspection for Aboveground Storage
Tanks, establishes the scope and
frequency for visual inspections of
shop-fabricated containers. This
proposed rule is consistent with past
regulatory guidance and current
industry best practices for this
particular class of bulk storage
containers and thus, the Agency is
proposing to require that the alternative
option be limited to shop-fabricated
containers.
EPA requests comments on this
criterion for the proposed alternative
approach for integrity testing for AFVO
bulk storage containers. Any suggestions
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for a
final action.
2. Required Recordkeeping
The SPCC regulations require
inspections and tests be conducted in
accordance with the written procedures
that the owner or operator or the
certifying PE develop for the facility be
kept with the SPCC Plan in accordance
with the recordkeeping provisions of
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§ 112.7(e). We believe that visual
inspection that is part of periodic
maintenance of bulk storage container’s
support and foundation must be
documented. Records of inspections and
tests kept under usual and customary
business practices will suffice. To
develop an appropriate inspection,
evaluation, and testing program for an
SPCC-regulated facility, the PE should
refer to the appropriate requirements
under 21 CFR part 110.
For these reasons, EPA believes that
streamlined integrity-testing
requirements for certain AVFO
containers are warranted. This proposal
does not relieve an owner or operator
from complying with any other bulk
storage container requirement in
§ 112.12(c). The Agency requests
comments on the proposed approach
and criteria. Any suggestions for
alternative approaches must include a
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
L. Oil Production Facilities
Since its original promulgation in
1973, the SPCC rule has included
differentiated requirements for oil
production facilities (§ 112.9), as
compared to other types of facilities
(§§ 112.8, 112.10, 112.11., and 112.12).
Based on issues brought forth by the
regulated community and by other
federal agencies (e.g., DOE), EPA is
considering several ways that SPCC
requirements can be further
streamlined, tailored, or clarified for oil
production facilities.
As discussed in Section F above, EPA
is proposing to exclude oil production
facilities from the loading/unloading
rack requirements at § 112.7(h) because
oil production facilities typically do not
have the equipment meeting the
proposed definition for a loading/
unloading rack. Such oil production
facilities may also benefit from the
proposed revisions to the definition of
‘‘facility,’’ as described in Section D
above, which may allow greater
flexibility in determining the extent of
a facility. Consistent with the revisions
to the definition of ‘‘facility,’’ EPA is
also proposing revisions to the
definition of ‘‘production facility’’ to
clarify that the production facility
definition does not govern the
applicability of 40 CFR part 112, but
rather establishes which specific
provisions of the rule may apply at a
particular facility.
Additional specific modifications
being proposed in this notice, as
discussed below, include: Extending the
timeframe by which a new oil
production facility must prepare and
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implement an SPCC Plan; exempting
flow-through process vessels at oil
production facilities from the sized
secondary containment requirements
while maintaining general secondary
containment requirements and requiring
additional oil spill prevention measures;
establishing more prescriptive
requirements for contingency planning
and a flowline/intra-facility gathering
line maintenance program, while
exempting flowlines and intra-facility
gathering lines at oil production
facilities from secondary containment
requirements; and clarifying the
definition of ‘‘permanently closed’’ as it
applies to an oil production facility.
EPA also describes approaches for
alternative criteria for an oil production
facility to be eligible to self-certify an
SPCC Plan as a qualified facility, and
approaches to address produced water
storage containers at an oil production
facility.
1. Definition of Production Facility
As described in section D above, EPA
is proposing to modify the definition of
‘‘facility’’ to clarify that contiguous or
non-contiguous buildings, properties,
parcels, leases, structures, installations,
pipes, or pipelines may be considered
separate facilities, and to specify that
the ‘‘facility’’ definition governs the
applicability of 40 CFR part 112. These
proposed revisions would allow an
owner or operator to separate or
aggregate containers to determine the
facility boundaries, based on such
factors as ownership or operation of the
buildings, structures, containers, the
activities being conducted, property
boundaries, and other relevant
considerations. To provide clarity
consistent with these proposed
revisions, EPA is also proposing certain
revisions to the definition of
‘‘production facility.’’
a. Proposed Revisions to the Definition
of Production Facility
EPA is proposing to amend the
definition of ‘‘production facility,’’ as
found in § 112.2, in two ways. First,
consistent with the proposed revision to
the definition of ‘‘facility,’’ EPA seeks to
clarify that while only the definition of
‘‘facility’’ governs the overall
applicability of 40 CFR part 112, the
definition of ‘‘production facility’’ is
used to determine which of the typespecific sections of the rule may apply
at a particular facility, in addition to the
general rule sections. For example, if an
onshore facility meets the definition of
‘‘production facility,’’ then the owner or
operator is subject to the provisions of
§ 112.9, or potentially to the provisions
of § 112.10 if the facility is involved in
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drilling or workover activities, in
addition to §§ 112.1 through 112.7.
Second, consistent with the proposed
revisions to the definition of ‘‘facility’’
that emphasize the flexibility in how a
facility owner or operator can determine
the boundaries of a facility, EPA is
proposing to modify the definition of
‘‘production facility’’ to clarify the
flexibility allowed in determining the
extent of the facility. The current
definition includes the phrase ‘‘and
located in a single geographical oil or
gas field operated by a single operator.’’
EPA proposes to modify the phrase to
clarify that a production facility ‘‘may
be located in a single geographical oil or
gas field operated by a single operator.’’
Because the definition of facility is
flexible, EPA recognizes that a
production facility need not be located
in a single geographical field operated
by a single operator. Like other
facilities, a production facility’s
boundaries may be determined based on
site-specific factors such as ownership,
management, or operation of the
containers, buildings, structures,
equipment, installations, pipes, or
pipelines on the site; similarity in
functions, operational characteristics,
and types of activities occurring at the
site; adjacency; or shared drainage
pathways.
The Agency seeks comments on
whether the proposed revision to the
definition of ‘‘production facility’’ is
appropriate. Specifically, EPA seeks
comment on whether the phrase ‘‘and
located in a single geographical oil or
gas field operated by a single operator’’
should be deleted from the definition to
provide greater clarity. Any suggestions
for alternative language to amend the
definition must include an appropriate
rationale in order for the Agency to be
able to consider it for final action.
b. Clarifications Related to Drilling and
Workover Facilities
Under the SPCC rule, the term
‘‘production facility’’ can encompass
drilling and workover activities, as well
as production operations. However,
different provisions of the rule apply to
these different activities. Therefore, EPA
seeks to clarify the requirements
applicable to the various phases of
activities at a production facility:
drilling, production, and workover.
Both drilling and workover activities
tend to be temporary in nature and are
performed using mobile rigs and
associated equipment. The owner or
operator is required to develop an SPCC
Plan under § 112.3(c) because a drilling
or workover facility is considered a
mobile facility. He is subject to the
administrative and general requirements
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of the SPCC rule (§§ 112.1 through
112.7), as well as the specific
requirements in § 112.10 (for onshore
facilities) or § 112.11 (for offshore
facilities). EPA notes that under the
requirements of §§ 112.10 and 112.11, a
regulated oil storage container
associated with a drilling or workover
facility is subject to the general
secondary containment requirement
(§ 112.7(c)); however, no sized
secondary containment requirements
exist.
Drilling activities involve the initial
establishment of an oil well: drilling the
hole, inserting and cementing the
casing, and completing the well to start
the flow of oil to the surface. As noted
above, a drilling facility must prepare
and implement an SPCC Plan and is
subject to the specific requirements in
§ 112.10 (for onshore facilities) or
§ 112.11 (for offshore facilities).
Once the oil is flowing, the drilling rig
is removed from the site and production
equipment, such as a pump or valve
assembly, is set up to extract or control
the flow of oil from the well. At this
point, drilling activities have ceased and
production has begun; the facility is
considered a production facility. The
processes performed at a typical oil
production facility include extraction,
separation and treatment, storage, and
transfer. The owner or operator of a
production facility is subject to the
administrative and general requirements
of the SPCC rule (§§ 112.1 through
112.7) as well as the specific
requirements in § 112.9 (for onshore
facilities) or § 112.11 (for offshore
facilities).
During the life of an oil well,
maintenance or remedial work may be
necessary to improve productivity. A
specialized workover rig, equipment,
and associated containers are brought
onsite to perform the maintenance or
remedial activities. Workover operations
are distinct from the normal production
operations, and as such are not subject
to the requirements of § 112.9, but are
subject to the applicable requirements
in § 112.10 (for onshore facilities) or
§ 112.11 (for offshore facilities). Because
workover activities are a distinct
operation and may be conducted by a
separate owner or operator, a workover
operation may be considered a separate,
mobile facility, and described in a
different SPCC Plan, separate from the
production facility. EPA notes that
although production activities may
temporarily cease during workover, if
the production equipment and
containers (such as those found in a
tank battery) remain operable then the
production facility owner/operator must
maintain his own SPCC Plan during
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workover activities. To clarify that
drilling and workover activities are not
subject to the provisions at § 112.9, EPA
proposes to amend the title of § 112.9 to
read ‘‘Spill Prevention, Control, and
Countermeasure Plan requirements for
onshore oil production facilities
(excluding drilling and workover
facilities).’’ EPA also proposes to amend
the introductory sentence of the section
accordingly.
The Agency seeks comments on
whether the proposed revisions to the
title and introductory sentence of
§ 112.9 adequately clarify that the
section does not apply to drilling and
workover facilities. Any suggestions for
alternative approaches must include an
appropriate rationale in order for the
Agency to be able to consider it for final
action.
2. SPCC Plan Preparation and
Implementation
EPA proposes to amend § 112.3(b) to
extend the timeframe by which an oil
production facility that becomes
operational after July 1, 2009 must
prepare and implement an SPCC Plan.
Under the current rule, any facility that
becomes operational after July 1, 2009 (a
‘‘new facility’’) must prepare an SPCC
Plan before beginning operations.
Unlike other facilities subject to the
SPCC rule, however, an oil production
facility has unique characteristics
during the start-up period of its
operations, which lead to variability in
the amount and type of oil handled.
EPA recognizes that, based on the often
variable conditions of the oil reservoir,
for some oil fields, the type and
proportion of products may be uncertain
until after the processes of extraction
have begun. Additionally, the amount of
pressure in the reservoir and the
changes introduced by drilling the well
hole could lead to variable initial
flowrates that may take time to stabilize.
While a new oil production facility on
an older oil field may have predictable
flowrates and proportion of product, the
Agency notes the importance of
providing this proposed relief for newer
oil fields. The variables associated with
the start of operations could lead to
significant changes in necessary storage
capacity and facility design. Such
changes would necessitate that an
owner/operator of a new oil production
facility continually amend his Plan until
operations stabilize, and have a licensed
PE certify (or owner or operator of a
qualified facility self-certify) any
technical amendment. To alleviate this
burden, EPA proposes to extend the
time by which a new oil production
facility must prepare and implement an
SPCC Plan.
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58405
a. Proposed Timeframe for Plan
Preparation and Implementation
The proposed amendment would
allow a new oil production facility that
becomes operational after July 1, 2009
six months after the start of operations
to prepare and implement a Plan. The
‘‘start of operations’’ for an oil
production facility is indicated by the
start of well fluid pumping, transfer via
flowlines, separation, treatment or
storage of crude oil. EPA proposes to
exclude oil production facilities from
the current requirements at
§ 112.3(b)(1), and to add a new
paragraph at § 112.3(b)(3) to provide the
requirement for an owner or operator of
a new oil production facility to prepare
and implement an SPCC Plan six
months after the start of operations.
The timeframe by which EPA is
proposing to extend SPCC Plan
preparation and implementation was
chosen based on EPA’s professional
judgment, because such oil production
facilities are likely to stabilize within
six months after the start of operations.
The proposed amendment is extended
to oil production facilities only due to
the circumstances specific to an oil
production facility—their unique
characteristics of variable and uncertain
initial flowrates.
Delaying SPCC Plan preparation and
implementation for a period of time
after operations begin is somewhat
consistent with the requirements
originally promulgated in 1973 (38 FR
34164, December 11, 1973). At the time
the rule was originally promulgated,
EPA required preparation of an SPCC
Plan six months after the start of
operations and implementation of the
Plan no later than one year after the start
of operations. This requirement was
amended in 2002 (67 FR 47042, July 17,
2002) to require new facilities (those
that become operational after the
effective date of the rule) to prepare and
implement an SPCC Plan before
beginning operations. EPA made this
change because new facilities generally
should already be aware of the need for
an SPCC Plan. That is, new facilities
subject to the SPCC rule are able to take
SPCC requirements into consideration
and undertake the necessary
construction, purchase equipment, or
develop procedures before the start of
operations. However, this amendment
in 2002 did not take into consideration
the unique nature of oil production
facilities.
Unlike the requirements originally
promulgated in 1973, the proposed
amendment combines the date for Plan
preparation and implementation,
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allowing six months total time to both
prepare and implement an SPCC Plan.
EPA notes that it is reasonable and
usually less expensive to implement
certain oil spill prevention measures,
such as secondary containment around
containers, at the time of the container
installation. Therefore, EPA recognizes
that even during the interim period
before required Plan preparation and
implementation, an oil production
facility may already have certain
environmentally protective measures in
place. Under Section 311(b)(3) of the
Clean Water Act, the oil production
facility owner or operator would still be
liable for any harmful quantities of oil
discharged from the facility into
navigable waters or adjoining
shorelines, even before the requirement
to prepare and implement an SPCC Plan
comes into effect. Furthermore, the
Regional Administrator would continue
to have the authority under § 112.1(f) to
require an owner or operator of an oil
production facility to prepare and
implement an SPCC Plan or any
applicable part at any point during the
six months after start of operations, if a
determination is made that it is
necessary to prevent a discharge of oil
into navigable waters or adjoining
shorelines. In addition, a facility owner/
operator can request an extension of
time to come into compliance in
accordance with § 112.3(f) if
circumstances are beyond his control,
e.g., there are no qualified personnel
available or construction or equipment
delivery delays.
The proposed rule amendment would
apply only to a new oil production
facility. The proposed amendment
would not apply to a drilling or
workover facility. Drilling and workover
facilities are subject to the requirement
at § 112.3(c) for mobile facilities and
may implement a general Plan.
Therefore, during the initial drilling of
the well, there are measures required for
spill prevention and response for any oil
discharges.
EPA requests comments on whether
an amendment to the Plan preparation
and implementation date is appropriate
for new oil production facilities, and
whether new facilities in other industry
sectors have similar variability during
the start-up period of operations and
would therefore benefit from a similar
compliance date extension. Any
suggestions must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
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b. Alternative Option Considered: One
Year for Oil Production Facilities To
Prepare and Implement a Plan
EPA considered an alternate option to
address the variability in start-up
operations at a new oil production
facility, wherein an owner/operator
would be allowed one year for SPCC
Plan preparation and implementation
after the start of operations. A variation
of this alternative is to allow six months
after the start of operations for SPCC
Plan preparation, and another six
months (for a total of one year after the
start of operations) for Plan
implementation. EPA recognizes that
providing one year is consistent with
the original promulgation of the rule in
1973. However, in proposing this
amendment, EPA intends to provide
this relief given the unique
characteristics of a new oil production
facility. Given that an oil production
facility is likely to stabilize operations
within six months from start-up, one
year for Plan preparation and
implementation does not seem
necessary. The date for SPCC Plan
preparation and implementation was
selected given the timeframe for
stabilization of operations at a new oil
production facility. Additionally, a
facility owner/operator can request an
extension of time to come into
compliance in accordance with
§ 112.3(f) if circumstances are beyond
his control, e.g., no qualified personnel
available or construction or equipment
delivery delays. Therefore EPA chose
not to propose this option.
The Agency welcomes comments on
this alternative or other alternatives
regarding the variability during the
start-up period of operations at a new
oil production facility. Any suggestions
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
3. Flowlines and Intra-Facility
Gathering Lines
EPA proposes to exempt flowlines
and intra-facility gathering lines from
the secondary containment
requirements under the SPCC rule. In
lieu of a secondary containment
requirement, EPA proposes to require a
contingency plan and written
commitment of manpower, equipment,
and materials for flowlines and intrafacility gathering lines at an oil
production facility, and to prescribe
specific requirements for a flowline and
intra-facility gathering line maintenance
program.
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a. Examples of Flowlines and Gathering
Lines
For the purposes of the SPCC rule,
flowlines are considered to be the
piping that transfers oil and well fluids
from the wellhead to the tank battery
where separation and treatment
equipment are typically found. A
flowline may also connect a tank battery
to an injection well. Flowlines are
relatively small diameter steel or
fiberglass piping (generally less than
four inches). Depending on the size of
the oil field, flowlines may run for
hundreds of feet to a tank battery.
The term ‘‘gathering lines’’ is a
general term referring to the piping or
pipelines that transfer the crude oil
product between tank batteries, within
or between facilities. Gathering lines
often emanate from an oil production
facility’s lease automatic custody
transfer (LACT) unit, which transfers oil
to other facilities involved in gathering,
refining or pipeline transportation
operations. EPA recognizes that
gathering lines are often outside of the
Agency’s jurisdiction because they
‘‘transport’’ oil outside of an oil
production facility. Based on a 1971
Memorandum of Understanding (MOU)
with the Department of Transportation
(DOT) (see Appendix A to 40 CFR part
112), EPA has jurisdiction only over
non-transportation-related facilities,
which includes pipelines that transport
oil within a facility. Any pipeline,
including a gathering line, that
transports oil between facilities or from
a facility to a vessel, is considered
transportation-related and is therefore
outside the jurisdiction of EPA and not
subject to the SPCC rule. However, the
definition of ‘‘facility’’ as it applies to
the SPCC rule is flexible. As discussed
in Section D of this preamble, an owner/
operator can choose to determine the
facility’s boundaries based on a number
of site-specific factors. A typical oil
production facility includes a wellhead,
a tank battery (including, but not
limited to, separation equipment, stock
oil containers and produced water
containers), and the flowlines that
transfer the oil and well fluids from the
wellhead to the tank battery. Depending
upon how an owner/operator defines
his facility, an oil production facility
may also include gathering lines. For
example, if multiple tank batteries are
included as part of the same facility for
purposes of developing one SPCC Plan,
then any gathering lines that connect
the tank batteries, or flow to a central
collection or gathering area or
centralized tank battery within the
facility boundaries, must also be
included in the SPCC Plan. EPA
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considers any gathering lines within the
boundaries of a facility to be ‘‘intrafacility gathering lines’’ and within
EPA’s jurisdiction for the purposes of
SPCC rule applicability.
EPA notes that the definition of
‘‘production facility’’ has included both
the terms ‘‘flowlines’’ and ‘‘gathering
lines’’ since it was promulgated in July
2002 (67 FR 47042), and that EPA is
simply clarifying, not modifying, the
applicability to these types of pipelines
found within a facility (‘‘intra-facility’’).
Given the common understanding of
the terms ‘‘flowline’’ and ‘‘gathering
line’’ within the oil production sector,
EPA does not believe that it is necessary
to propose definitions for these terms
under § 112.2. However, EPA requests
comments as to whether regulatory
definitions for ‘‘flowline’’ and ‘‘intrafacility gathering line’’ are necessary,
and if so, suggestions for an appropriate
definition. Any suggestions must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider it for final action.
b. Requirements in Lieu of Secondary
Containment
The SPCC rule requires secondary
containment for all areas of a facility
where there is a potential for discharge
as described in § 112.1(b). This
requirement, found at § 112.7(c), applies
to flowlines and intra-facility gathering
lines. However, EPA recognizes that
providing secondary containment for
these pipelines can be difficult and
expensive for an owner/operator
because these lines are often several
miles long, buried, and can extend far
from the main facility. Flowlines and
intra-facility gathering lines often are
placed across land that is not owned by
the owner/operator of the oil production
facility (e.g., agricultural land), and
providing secondary containment for
these lines can be difficult, intrusive, or
disruptive to the property owner. When
flowlines and intra-facility gathering
lines are located in farm fields,
providing a secondary containment
structure may result in soil erosion and
negative impacts to the land. Buried
flowlines present additional difficulty,
because their exact location may be
uncertain, especially at an oil
production facility that has changed
ownership since the original installation
of the flowlines.
The Agency is responding to the
concerns described above by proposing
tailored relief in an effort to improve
compliance and enhance environmental
protection. EPA believes that secondary
containment is, in most cases,
impracticable for flowlines and intrafacility gathering lines. Therefore, EPA
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is proposing an amendment to § 112.7(c)
that would remove secondary
containment requirements for flowlines
and intra-facility gathering lines at an
oil production facility, and instead
require implementation of an oil spill
contingency plan in accordance with 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, without having to
make an impracticability determination
for each piece of piping. This new
requirement would be found in
proposed revisions to § 112.9(d)(3). 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 Section
311(b)(3) of the Clean Water Act, 33
U.S.C. 1321(b)(3).
In the preamble to the 2002
amendments (67 FR 47042, July 17,
2002), EPA discusses how any facility
owner/operator who makes a
determination of impracticability and
has submitted a Facility Response Plan
(FRP) under § 112.20 has satisfied the
contingency planning requirement,
because an FRP is more comprehensive
than a contingency plan under 40 CFR
part 109. Similarly, the Agency believes
that the owner or operator of an oil
production facility who has prepared an
FRP would satisfy the contingency
planning requirement for flowlines and
gathering lines. If such a facility owner/
operator has already developed an FRP
to comply with § 112.20, then he or she
would not need to also develop a
contingency plan in accordance with 40
CFR part 109. However, the facility
owner or operator would still be
required to comply with the revised
flowline/intra-facility gathering line
maintenance program requirements
proposed in this notice.
Finally, EPA acknowledges that given
the characteristics of certain intrafacility gathering lines, these pipelines
may be regulated under requirements of
both EPA and DOT. Because DOT
requirements for pipelines may be
similar in purpose and scope, EPA
recognizes that compliance with DOT
requirements (e.g., 49 CFR part 194) for
these gathering lines may be considered
to satisfy the contingency planning
requirement.
EPA requests comments on whether
exempting flowlines and intra-facility
gathering lines from the secondary
containment requirement is appropriate,
and whether the provision for a
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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 is an
adequate alternative measure. Any
suggestions must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
c. Flowline and Intra-Facility Gathering
Line Maintenance Program
EPA recognizes that a contingency
plan provides environmental protection
in response to a discharge, but in order
to implement such a plan, a discharge
detection mechanism is necessary.
Furthermore, EPA believes that with the
elimination of the requirement for
secondary containment, it is important
to provide more prescriptive
requirements for discharge prevention
to ensure the integrity of the primary
containment of the pipe. EPA believes
that a strong program of flowline or
intra-facility gathering line maintenance
will provide additional preventative
measures for these pipelines and
increase discharge detection ability.
The current SPCC requirement to
have a program of flowline
maintenance, found at § 112.9(d)(3), is
general in nature and offers the facility
owner/operator a great deal of discretion
in determining how best to prevent
discharges from each flowline. The
regulated community has expressed its
desire for guidance on how to develop
such a program. At this time, EPA is not
aware of any industry standard for
flowline maintenance. In the SPCC
Guidance for Regional Inspectors
(version 1.0, November 28, 2005), EPA
provides a description of the elements
that a comprehensive piping
maintenance program should include,
based on practices recommended by
industry groups.
As stated in the SPCC Guidance for
Regional Inspectors, a flowline
maintenance program aims to manage
the oil production operations in a
manner that reduces the potential for a
discharge. Common causes of such
discharges include mechanical damage
(e.g., impact, rupture) and corrosion. A
maintenance program usually combines
careful configuration, inspection, and
ongoing maintenance of flowlines and
associated equipment to prevent and
mitigate a potential discharge.
EPA is now proposing to move the
requirement for a flowline maintenance
program to § 112.9(d)(4), add specificity
to the provision, and to clarify that the
requirement applies to intra-facility
gathering lines, as well as flowlines at
an oil production facility. Intra-facility
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gathering lines pose the same potential
for discharge as flowlines; EPA never
intended to regulate the two types of
piping differently.
EPA proposes § 112.9(d)(4) to require
a performance-based program of
flowline/intra-facility gathering line
maintenance that addresses the facility
owner/operator’s procedures, and is
documented in the SPCC Plan, to:
• Ensure that flowlines and intrafacility gathering lines and associated
valves and equipment are compatible
with the type of production fluids and
their potential corrosivity, volume, and
pressure, and other conditions expected
in the operational environment. This
preventative measure is intended to
help preserve the integrity of the lines
and reduce the potential effects of
corrosion or other factors that may lead
to a discharge.
• Visually inspect and/or test
flowlines and intra-facility gathering
lines and associated appurtenances on
a periodic and regular schedule for
leaks, oil discharges, corrosion, or other
conditions that could lead to a
discharge as described in § 112.1(b). The
frequency and type of testing must
allow for the implementation of a
contingency plan as described under 40
CFR part 109. This measure is intended
to ensure that any discharges, potential
problems or conditions related to the
flowline/intra-facility gathering line that
could lead to a discharge will be
promptly discovered; the Agency
believes that an oil spill contingency
plan cannot be effective unless the
discharge is discovered in a timely
manner so that the oil discharge
response operations described in the
contingency plan may be implemented.
The proposed inspection requirements
are consistent with the requirements for
aboveground valves, piping, and
appurtenances at non-production
facilities under § 112.8(d)(4), which
include regular inspection and
assessment of the general condition of
associated appurtenances such as flange
joints, expansion joints, valve glands
and bodies, catch pans, pipeline
supports, valve locks, and metal
supports. The Agency notes that due to
changes in flowrates and corrosivity of
production fluids over time in an oil
field, the frequency of inspection may
need to change over the lifetime of the
well in order to prevent discharges. For
buried piping, a facility owner or
operator would develop an inspection
program to identify evidence of leaks at
the surface or other conditions that
which may lead to a discharge to
navigable waters or adjoining
shorelines.
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• Take corrective action or make
repairs to any flowlines and intrafacility gathering lines and associated
appurtenances as indicated by regularly
scheduled visual inspections, tests, or
evidence of a discharge. EPA intends for
this proposed requirement to be
implemented in conjunction with the
proposed requirement for periodic
inspection and testing; the results of the
inspection or test would inform the
owner/operator of any corrections or
repairs that need to be made. Corrective
action is necessary in order to prevent
a discharge from occurring, as well as in
response to a discharge. This measure is
intended to prevent discharges as
described in § 112.1(b) by ensuring that
flowlines and intra-facility gathering
lines are well maintained.
• Promptly remove any
accumulations of oil discharges
associated with flowlines, intra-facility
gathering lines, and associated
appurtenances. EPA recognizes the
importance of removing oil
accumulations to prevent a discharge as
described in § 112.1(b). Section
311(j)(1)(C) of the CWA provides EPA
with the authority to establish
procedures, methods, and equipment
and other requirements to prevent
discharges of oil from onshore and
offshore facilities. EPA considers the
removal of oil-contaminated soil as a
method to prevent oil from becoming a
discharge as described in § 112.1(b).
Disposal of oil must be in accordance
with applicable Federal, State, and local
requirements; under § 112.7(a)(3)(v), a
facility owner or operator is required to
describe the methods of disposal of
recovered materials in accordance with
applicable legal requirements. For the
purposes of this provision, removal of
recoverable oil may be combined with
physical, chemical, and/or biological
treatment methods to address any
residual oil. These treatment methods
must be consistent with other Federal,
state or local requirements as
applicable, and must be properly
managed to prevent a discharge as
described in § 112.1(b).
Consistent with the current flowline
maintenance program requirements, the
proposed amendments to the
maintenance program requirements
would be subject to the environmental
equivalence provision found at
§ 112.7(a)(2). That is, the facility owner/
operator may deviate from the
requirements if an environmentally
equivalent alternate measure is
implemented instead. EPA recognizes
that other Federal or State requirements
may be environmentally equivalent to
certain SPCC requirements, including
the proposed flowline and intra-facility
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gathering line maintenance program
requirement. An environmental
equivalence determination is subject to
review and certification by a PE. A Tier
I qualified facility, as described in this
proposal, would not be able to use
environmentally equivalent measures
and therefore would need to comply
with the flowline/intra-facility gathering
line maintenance program requirements
as outlined above.
While no industry standard for a
flowline or intra-facility gathering line
maintenance program currently exists,
EPA acknowledges that in the future, an
industry standard may be established. If
such an industry standard is developed,
the certifying PE would be able consider
whether compliance with that standard
is environmentally equivalent to the
requirements of the proposed
§ 112.9(d)(4). Additionally, for a facility
owner/operator that has installed, or
chooses to install, secondary
containment systems for flowlines or
intra-facility gathering lines, such
measures are likely to be considered
environmentally equivalent to one or
more of the proposed maintenance
program requirements.
Additionally, EPA acknowledges that
given the characteristics of certain intrafacility gathering lines, these pipelines
may be regulated under requirements of
both EPA and DOT. Because DOT
requirements for pipelines may be
similar in purpose and scope, EPA
recognizes that compliance with DOT
requirements (e.g., 49 CFR part 195) for
these gathering lines may be considered
by the certifying PE to be
environmentally equivalent alternatives
to certain SPCC requirements associated
with oil production facility piping.
Similarly, EPA recognizes that state
requirements governing flowlines and
gathering lines may be environmentally
equivalent to certain SPCC requirements
applicable to flowlines and gathering
lines. In accordance with the
Memorandum of Understanding
between the Interstate Oil and Gas
Compact Commission and the U.S.
Environmental Protection Agency,
signed in 2002, and renewed in 2005
and 2007, the Agency intends to
continue regulatory cooperation among
the states and EPA that promotes
protection of the environment in a costeffective manner, and minimizes
duplication.
EPA requests comments on whether
the proposed requirements for a
flowline/intra-facility gathering line
maintenance program are appropriate,
and whether the proposed requirements
conflict with state regulatory
requirements. Any suggestions must
include an appropriate rationale and
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d. Alternative Options Considered
EPA considered other options to
address the impracticability of
secondary containment for flowlines
and intra-facility gathering lines. EPA
considered allowing a contingency plan
and strengthened maintenance program
requirements as an optional alternative
to secondary containment. That is, the
secondary containment requirement
would remain as a compliance option.
This would provide additional
flexibility. EPA concluded, however,
that since secondary containment for
flowlines/intra-facility gathering lines
is, in most cases, impracticable and few
oil production facilities are likely to use
this measure, providing an optional
alternative could potentially increase
confusion regarding the requirements
for these lines. EPA recognizes that
given the long lengths and placement of
flowlines and intra-facility gathering
lines, and the cost of secondary
containment for these lines, facilities are
more likely to choose a contingency
plan with inspection requirements.
The Agency also considered taking no
action for flowlines and intra-facility
gathering lines, because the owner or
operator of an oil production facility
already has the ability to determine that
secondary containment is impracticable
under § 112.7(d). However, EPA
recognizes that in most cases secondary
containment is impracticable for this
type of equipment.
For these reasons, the Agency decided
to propose an alternative for secondary
containment for flowlines and intrafacility gathering lines. The Agency
welcomes comments on these or other
alternatives. Any suggestions must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider it for final action.
4. Flow-Through Process Vessels
Separation and treating installations
at an oil production facility typically
include equipment whose primary
purpose is to separate the well fluid into
its marketable or waste fractions (e.g.,
oil, gas, wastewater, and solids), and to
treat the crude oil as needed for further
storage and shipping. Under the current
SPCC requirements, separation and
treatment equipment are required to
have sized secondary containment for
the entire capacity of the largest single
container and sufficient freeboard to
contain precipitation (§ 112.9(c)(2)).
EPA recognizes that similar flowthrough process equipment (i.e., oilfilled manufacturing equipment, such as
reaction vessels, fermentors, high
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pressure vessels, mixing tanks, dryers,
heat exchangers, and distillation
columns) at a non-production facility is
not subject to the more stringent sized
secondary containment and inspection
requirements required for bulk storage
containers; only the general secondary
containment requirements at § 112.7(c)
apply (71 FR 77276, December 26,
2006). In addition, EPA acknowledges
concern among the regulated
community regarding the requirement to
provide sized secondary containment
around heater-treaters, due to a
potential fire-hazard if spilled oil
collects around the equipment. As a
result, EPA is proposing to exempt flowthrough process vessels at an oil
production facility from the sized
secondary containment requirements.
However, EPA recognizes that process
equipment at a non-production facility,
such as at a manufacturing facility, is
typically attended during hours of
operation. Therefore, there is a greater
potential to immediately discover and
correct a discharge at a non-production
facility than at an oil production
facility, which is generally unattended.
For this reason, EPA is also proposing
to require the inspection of flowthrough process vessel components;
prompt removal of any oil
accumulations, and corrective action
should a discharge occur.
a. Examples of Flow-Through Process
Vessels
Flow-through process vessels, such as
horizontal or vertical separation vessels
(e.g., heater-treater, free-water knockout,
gun-barrel, etc.), have the primary
purpose of separating the oil from other
fractions (water and/or gas) and sending
the fluid streams to the appropriate
container. It is the intended use of this
equipment that differentiates flowthrough process vessels from bulk
storage containers and end-use storage
containers, such as produced water
containers. Produced water containers
store well fluids (which may also
contain various amounts of oil) after
they have been separated and/or treated,
prior to disposal or reinjection. Under
this proposal, produced water
containers are not considered flowthrough process vessels; they continue
to be considered bulk storage containers
if oil is present.
b. Exemption From Sized Secondary
Containment Requirements for FlowThrough Process Vessels
EPA proposes to amend the
requirements in § 112.9(c)(2) as follows:
‘‘Construct all tank battery, separation,
and treating facility installations, except
for flow-through process vessels so that
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you provide a secondary means of
containment for the entire capacity of
the largest single container and
sufficient freeboard to contain
precipitation.’’ This proposed
amendment removes the requirement to
provide such sized containment for
flow-through process vessels without
making an impracticability
determination. The general secondary
containment requirement of § 112.7(c)
would still apply to flow-through
process vessels; they must be provided
with secondary containment so that any
discharge does not escape the
containment system before cleanup
occurs.
Many oil production facilities
currently provide secondary
containment berms around the entire
tank battery, which includes separators
and other treatment installations,
including flow-through process vessels,
along with oil stock tanks and other
bulk storage containers. Such a facility
design is appropriate and EPA
encourages oil production facility
owners and operators to continue this
practice to provide the maximum
environmental protection. However,
under this proposal, it would no longer
be necessary to locate flow-through
process vessels within a secondary
containment system sized for the entire
capacity of the largest single container
and sufficient freeboard to contain
precipitation.
The Agency requests comments on
the proposal to exempt flow-through
process vessels from the sized
secondary containment requirements.
Any suggestions must include an
appropriate rationale and supporting
data in order for the Agency to be able
to consider it for final action.
c. Additional Requirements for FlowThrough Process Vessels
Because oil production facilities are
typically unattended during the hours of
operation, EPA is also proposing to add
a provision at § 112.9(c)(5)(i) through
(iii) to provide additional requirements
for flow-through process vessels. These
additional requirements would include
periodic inspection and/or testing,
corrective action, and prompt removal
of any oil accumulations.
The proposed amendment to require
periodic inspection and/or testing of the
flow-through process vessels and
associated appurtenances on a regular
schedule for leaks, corrosion, or other
conditions that could lead to a discharge
as described in § 112.1(b) is intended to
increase the likelihood that a discharge
will be prevented or detected promptly,
especially for components such as
dump valves, that typically cause spills.
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The proposed inspection and/or testing
requirements for flow-through process
vessels are consistent with the
inspection requirements for bulk storage
containers under § 112.9(c)(3). EPA
recognizes that because oil production
facilities are typically unattended and
remote and have a constant flow of oil
and well fluids, sized secondary
containment measures provide
environmental protection for any
potential discharge. Because EPA is
proposing that this equipment be
subject to the general secondary
containment requirement (§ 112.7(c))
instead of sized secondary containment,
EPA seeks to ensure that any leak, or
potential for a leak, is detected promptly
enough to prevent a discharge of the
entire contents of the separation or
treating equipment.
EPA is also proposing to require the
owner/operator of an oil production
facility to correct or repair the flowthrough process vessels and any
associated components as indicated by
regularly scheduled inspections or tests.
EPA intends for this proposed
requirement to be implemented in
conjunction with the proposed
requirement for periodic inspection and
testing; the results of the inspection or
test would inform the owner/operator of
any corrections or repairs that need to
be made. Corrective action is necessary
in order to prevent a discharge from
occurring, as well as in response to a
discharge. This measure is intended to
prevent discharges as described in
§ 112.1(b) by ensuring that separation
and treatment equipment are well
maintained.
EPA also proposes to require prompt
removal upon discovery of any spills,
discharges, or accumulations of oil
associated with the flow-through
process vessels. EPA considers the
removal of oil-contaminated soil as a
method to prevent oil from becoming a
discharge as described in § 112.1(b).
Disposal of oil must be in accordance
with applicable Federal, state, and local
requirements; under § 112.7(a)(3)(v), a
facility owner or operator is required to
describe the methods of disposal of
recovered materials in accordance with
applicable legal requirements. For the
purposes of this provision, removal of
recoverable oil may be combined with
physical, chemical, and/or biological
treatment methods to address any
residual oil. These treatment methods
must be consistent with other Federal,
state or local requirements as
applicable, and must be properly
managed to prevent a discharge as
described in § 112.1(b).
The Agency requests comments on
these proposed additional requirements
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(inspections, corrective action, and
prompt removal of oil discharges) for
flow-through process vessels. EPA also
requests comments on whether this
approach, a general secondary
containment requirement and additional
requirements for flow-through process
vessels should be an optional
compliance alternative, in lieu of sized
secondary containment. Under an
optional approach, a facility owner or
operator could choose whether to
provide sized secondary containment
for flow-through process vessels, or to
provide general containment and
comply with the additional
requirements. (A facility owner or
operator who already provides sized
secondary containment for his flowthrough process vessels would not be
required to comply with the additional
requirements, as long as he maintains
the sized secondary containment.) Any
suggestions must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
d. Secondary Containment
Requirements for Flow-Through Process
Vessels if Facility Experiences
Reportable Discharge
EPA also is proposing a provision at
§ 112.9(c)(5)(iv) stating that if an oil
production facility has discharged more
than 1,000 U.S. gallons of oil in a single
discharge as described in § 112.1(b), or
discharged more than 42 U.S. gallons of
oil in each of two discharges as
described in § 112.1(b), occurring within
any twelve month period, from a flowthrough process vessel, then the facility
owner or operator must provide sized
secondary containment for all flowthrough process vessels at the facility
within six months from the discovery of
the spill(s). 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 navigable waters or adjoining
shorelines, or in connection with
specified activities in waters and not the
total amount of oil spilled. Discharges as
described in § 112.1(b) that are the
result of natural disasters, acts of war,
or terrorism would not be considered
toward this requirement.
The discharge criterion proposed in
this notice is similar to the provision in
§ 112.4(a) for discharges that must be
reported to the EPA Regional
Administrator (RA). Under § 112.4, a
facility owner or operator must report
certain information to EPA whenever
the facility experiences a discharge
reportable under § 112.4.
The Agency requests comment on the
proposed requirement for providing
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sized secondary containment for flowthrough process vessels following a
reportable discharge as described above.
EPA also requests comments on whether
a facility owner or operator who
experiences such a discharge and
subsequently provides sized secondary
containment for separation and treating
facility equipment at the facility should
continue to be required to comply with
the additional requirements described
above (proposed as § 112.9(c)(5)(i)
through (iii)). Any suggestions must
include an appropriate rationale and
supporting data in order for the Agency
to be able to consider it for final action.
e. Alternative Option Considered
EPA considered another option to
address secondary containment for
flow-through process vessels. Under this
option, EPA would allow a 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, without the need
to develop a written impracticability
determination as an optional alternative
to all secondary containment
requirements for flow-through process
vessels. This option would be available
for eligible flow-through process
vessels: those that have had no
discharges of oil reportable to EPA
under § 112.4 in the past three years. In
addition, this option would require a
facility owner or operator to conduct
periodic integrity testing of the process
vessels and periodic integrity and leak
testing of the associated valves and
piping.
EPA recognizes that this alternative to
secondary containment would provide
flexibility. However, EPA also
recognizes that a typical oil production
facility is remote and/or unattended,
and therefore secondary containment is
a preferable measure to prevent a
discharge to navigable waters or
adjoining shorelines in the event of an
oil spill than a contingency plan. Some
form of general secondary containment
is practicable for this type of equipment.
Therefore, EPA chose not to propose
this option.
The Agency welcomes comments on
this alternative or other alternatives to
address separation and treatment
equipment, while maintaining
environmental protection. Any
suggestions must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider it
for final action.
5. Small Oil Production Facilities
In this proposed rule, EPA has
included a number of amendments to
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the SPCC requirements that are
designed to reduce the burden on oil
production facilities, while maintaining
protection of the environment.
Specifically, EPA is proposing to amend
the definition of ‘‘facility’’ to clarify the
flexibility associated with defining a
facility’s boundaries; exclude oil
production facilities from the loading/
unloading rack requirements at
§ 112.7(h); extend the timeframe by
which a new oil production facility
must prepare and implement an SPCC
Plan; exempt flowlines and intra-facility
gathering lines at oil production
facilities from all secondary
containment requirements, while
establishing requirements for a flowline/
intra-facility gathering line maintenance
program and contingency planning;
exempt flow-through process vessels at
oil production facilities from the sized
secondary containment requirements,
while maintaining general secondary
containment requirements and requiring
additional oil spill prevention measures;
clarify the applicability of the rule to
containers at a natural gas facility; and
clarify the definition of ‘‘permanently
closed’’ as it applies to an oil
production facility. In addition, the
Agency is taking comment on a number
of approaches regarding the
management of produced waters at oil
production facilities.
The regulated community has
expressed particular concern regarding
the regulation of small oil production
facilities under the SPCC rule,
suggesting that the cost of complying
with the SPCC requirements is
disproportionate to the risk these small
facilities pose to the environment.
While EPA is sensitive to these
concerns, the Agency believes that spills
from small oil production facilities have
and can continue to pose a threat of an
oil discharge to navigable waters and
adjoining shorelines, and that smaller
oil production facilities should remain
subject to the SPCC rule.
In evaluating the appropriate
application of the SPCC rules to these
facilities, the Agency is guided by
Executive Order 13211, which directs
federal agencies to evaluate and respond
to effects that governmental regulatory
action can have on the supply of energy
(Executive Order 13211 of May 18,
2001, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use,’’ (66 FR 28355,
May 22, 2001)).3 Accordingly, the
Agency believes it is appropriate to
3 The overall effect of the proposed rule is to
decrease the regulatory burden on facility owners
or operators subject to its provisions. Accordingly,
the proposed rule is not a ‘‘significant energy
action’’ as defined in this Executive Order.
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consider the impacts of existing
regulations on the energy sector and to
identify regulatory alternatives that
reduce those impacts when
implementing the statutory
authorization of Section 311(j)(1)(C) of
the Clean Water Act at oil production
facilities.
While assessing opportunities for
tailoring and streamlining the SPCC
requirements, EPA considered whether
there are alternative regulatory
approaches to Section 311(j)(1)(C) for
small oil production facilities that
would further reduce the compliance
burden associated with the current rule
requirements, while still maintaining
protection of human health and the
environment. In particular, EPA
considered regulatory alternatives for oil
production facilities that have wells that
produce 10 barrels or less of crude oil
per day and are known as ‘‘stripper
wells.’’ 4
The owner or operator of an oil
production facility generally provides
adequate container capacity at his
facility to ensure sound and continuous
operations, and so that a container will
not overfill if there is a delay in the
removal of oil from the tanks. This
practice would meet the SPCC rule
provisions at § 112.9(c)(4) to prevent
overfills from the containers. However,
this practice may prevent some small oil
production facilities from being eligible
for the burden reduction available to
qualified facilities because they would
likely have greater than 10,000 gallons
in aggregate aboveground oil storage
capacity. Therefore, the Agency is
requesting comment on an approach
described below that identifies specific
criteria for an oil production facility that
produces oil from a limited number of
stripper wells to be considered a
qualified facility, notwithstanding the
tank storage capacity at the facility. The
approach has been shaped by the
specific characteristics of this category
of facilities and, as such, could result in
the application of SPCC requirements in
a manner better suited to these facilities.
In addition, the Agency is also
requesting comment on some additional
options for reducing the burden on
small oil production facilities that have
been suggested by the Department of
Energy (DOE). Following consideration
of public comments received in
response to this notice, one or more of
these approaches may be finalized as
4 EPA established differentiated requirements for
‘‘stripper wells’’ under the Clean Water Act and
codified it in 1979. See 40 CFR 435.60. See also
Interstate Oil and Gas Compact Commission, 2006:
‘‘Marginal Wells: Fuels for Economic Growth’’, p.
4 (defining ‘‘stripper wells’’ as wells that produce
10 barrels of oil per day or less).
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58411
the applicable SPCC requirements for
these facilities. Commenters may
provide input on variations to these
approaches for consideration by the
Agency.
a. Alternative Qualified Facility
Eligibility Criteria for Oil Production
Facilities
This approach is intended as an
alternative for oil production facilities
to be considered qualified facilities
because they do not meet the current
qualified facility requirements under 40
CFR 112.3(g). Under this alternative, an
oil production facility would be eligible
as a qualified facility if it meets the
following criteria: (1) The oil production
facility must have no more than four
wells associated with a single tank
battery; (2) all four of the wells must be
stripper wells each producing 10 barrels
or less of crude oil per day—that is, a
tank battery at an oil production facility
could not include any non-stripper
wells under this option; (3) the facility
must have no injection wells; and (4)
the facility must not have had a single
discharge exceeding 1,000 U.S. gallons
or two discharges each exceeding 42
U.S. gallons within any twelve month
period in the three years prior to Plan
certification. Discharges as described in
§ 112.1(b) that are the result of natural
disasters, acts of war, or terrorism will
not disqualify a facility owner or
operator from the alternative option
described above. The owner or operator
of an oil production facility could avail
himself of the streamlined requirements
for a ‘‘qualified facility’’ at § 112.6, if the
facility meets all four of the proposed
criteria, notwithstanding the total
aboveground oil storage capacity at the
facility. That is, a qualified facility
owner/operator would have the option
to prepare a self-certified SPCC Plan in
lieu of a Plan certified by a PE. An oil
production facility owner or operator
exercising this option may be required
to make available production or
shipping records to support his
eligibility. Records may be kept under
usual and customary business practices,
and must be kept for a period of three
years, in accordance with § 112.7(e).
EPA based this potential qualified
production facility approach on input
from the oil production sector regarding
concerns for the burden of preparation
of a PE-certified Plan for small oil
producers. As stated above, EPA notes
that this option would be available to
those oil production facilities with up to
four stripper wells per tank battery; each
well producing 10 barrels or less of
crude oil per day; and no injection wells
or other wells associated with secondary
or tertiary recovery techniques. EPA is
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considering a maximum of four wells
per tank battery in identifying a
‘‘qualified oil production facility’’ based
on discussions with EPA regional
personnel and the Texas Railroad
Commission who suggest that this
number of wells is fairly typical of oil
production facilities.5 EPA, therefore,
believes that the maximum of four
stripper wells per tank battery
adequately captures the smaller
operators targeted by the selfcertification option. EPA believes that
these facilities are less complex than
other oil production facilities based on
the limited number of wells per tank
battery operating at a low flow rate.
As discussed in the preamble to the
December 2006 rule amendments, in
which EPA finalized the qualified
facility approach, the basis for the
exemption from the requirement for a
PE certification is that facilities with
smaller oil volumes tend to be less
complex (71 FR 77270, December 26,
2006). The Agency believes that a
facility meeting the potential criteria for
a ‘‘qualified oil production facility’’ as
described above (i.e., no more than four
stripper wells to one tank battery, no
injection wells, and meets the current
spill history criterion for qualified
facilities) would be less complex than
other oil production facilities for the
following reasons. At oil production
facilities with no more than four wells
per tank battery, the flowlines and the
stripper well(s) are commonly colocated within the immediate area of the
tank battery therefore reducing the
length of flowlines. Additionally, it is
likely that an oil production facility that
meets the proposed qualification criteria
would have fewer valves, less piping,
smaller separation equipment, and
fewer locations where transfers and
discharges could occur because there
are fewer wells associated with one tank
battery.
The underground injection process
adds complexity to the design of an oil
production facility; consequently, EPA
has included a ‘‘no injection wells’’
criterion for an oil production facility to
qualify for this alternative option. The
injection well process adds complexity
because the flowlines from a produced
water container to the injection
wellhead adds valves, pumps and
piping to the facility. In addition, the
5 EPA assumed an average of four wells per tank
battery at a facility to estimate the number of oil
production facilities that are subject to the SPCC
requirements (see Regulatory Impact Analysis for
the Proposed Amendments to the Oil Pollution
Prevention Regulations). DOE also conducted an
analysis of the impact of the SPCC rule on the oil
production sector and assumed an average of three
stripper wells per oil production facility.
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produced water tanks associated with
injection may have high level
indicators, floats and actuators/switches
that further add complexity. At small
production facilities, these systems may
not be automated due to cost. The
design of the production facility is
based on the ability to inject the
produced water; generally no extra
storage capacity is available to contain
fluids if there is a failure or system
upset. This leads to a greater likelihood
of a discharge. Finally, the water in the
produced oil/water mixture is usually
corrosive, especially if it is saline,
leading to a greater potential for
discharge from injection equipment as a
result of this corrosion which would be
present at more complex facilities.
This alternative set of criteria for
identifying a qualified oil production
facility would only be available to oil
production facilities, and not oil drilling
or workover facilities. Due to the nature
of its operations, a drilling facility has
not yet established an oil production
flow rate, and thus a well at such a
facility cannot be determined to meet
the definition of a ‘‘stripper well.’’
However, the owner/operator of an oil
drilling and/or workover facility
considers the capacity of oil that is
maintained for his operations to
determine applicability of the SPCC rule
and therefore may still be eligible for
qualified facility status based on the
current criteria in § 112.3(g), i.e., the
10,000-gallon total facility oil storage
capacity threshold and discharge history
criteria.
It should also be noted that under the
current regulations, the owner or
operator of an oil production facility can
make a determination that sized
secondary containment is impracticable.
The owner or operator of an oil
production facility that meets the
proposed criteria for a Tier II qualified
facility (as described elsewhere in this
proposed rulemaking) would still be
able to determine that secondary
containment is impracticable and
implement the alternative measures
under § 112.7(d) (i.e., develop a
contingency plan and a written
commitment of resources and conduct
integrity testing of the bulk storage
container and associated piping) if a PE
certifies that the secondary containment
is impracticable, under the ‘‘hybrid’’
approach in which a PE certifies a
portion of the SPCC Plan.
EPA is requesting comment on this
approach, including the specific criteria
identified and whether changes to these
criteria would properly assess the
complexity of such small oil production
facilities. This proposed action may
provide a reduction in regulatory
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burden to those oil production facilities
with no more than four stripper
extraction wells per tank battery that
nonetheless is likely to exceed the
current qualified facility threshold
criterion of 10,000 gallons. For example,
the difference in compliance costs
between an oil production facility that
prepares an SPCC Plan requiring PEcertification and one that can be selfcertified is about $950.
EPA is also requesting comment on
whether a small oil production facility
may be further eligible for the Tier I
qualified facility status, as described
elsewhere in today’s preamble, if the
facility meets the criterion proposed in
the rulemaking for a Tier I qualified
facility—i.e., the facility has no oil
storage containers with an individual
storage capacity greater than 5,000
gallons, notwithstanding the total
aboveground oil storage capacity at the
facility. That is, at a Tier I oil
production qualified facility, the owner
or operator could avail himself of the
streamlined Tier I Qualified Facility
SPCC Plan template, as found in the
proposed Appendix G to the SPCC rule.
An owner or operator of an oil
production facility qualifying for and
opting to use the Tier I Qualified
Facility SPCC Plan template would not
be able to make an impracticability
determination for secondary
containment requirements. Instead, the
owner or operator may choose the Tier
II approach and develop a ‘‘hybrid’’
Plan in which the P.E. certifies the
portion of the Plan pertaining to
impracticability of secondary
containment.
Finally, the Agency specifically
solicits comment on the number of oil
production facilities that would be able
to take advantage of this approach.
b. Alternative Approaches for
Addressing Small Oil Production
Facilities as Suggested by the
Department of Energy (DOE)
The Department of Energy (DOE)
requested that the Agency seek input on
several approaches that DOE believes
may be more suited to address the
concerns of small oil production
facilities. One approach would have
different eligibility criteria to enable the
owner or operator of a small oil
production facility to be considered a
‘‘qualified facility’’ under § 112.6, and
allow for the development of a selfcertified SPCC Plan, or a ‘‘Tier I
Qualified Facility,’’ and allow the use of
a streamlined SPCC Plan template,
similar to that found in the proposed
Appendix G to the SPCC rule. Under the
existing qualified facilities criteria at
§ 112.3(g), a facility that has an
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aggregate aboveground storage capacity
of 10,000 gallons or less and has not had
a single discharge exceeding 1,000 U.S.
gallons or two discharges each
exceeding 42 U.S. gallons within any
twelve-month period in the three years
prior is eligible for the qualified facility
Plan requirements at § 112.6 (i.e., a selfcertified Plan in lieu of a PE certified
Plan). DOE suggests that because of the
unique characteristics of small oil
production facility operations, such
facilities may merit the establishment of
small oil production facility-specific
eligibility criteria, including a different
aggregate oil storage capacity threshold 6
or stripper well definition 7 for
identifying qualified facilities. In light
of this request, EPA seeks comment on
whether there are unique circumstances
at small or marginally economic oil
production facilities and the alternative
criteria based on these circumstances for
the possible establishment of a
‘‘qualified facility’’ provision specific to
small oil production facilities that
would serve to increase SPCC
compliance and reduce the likelihood of
a harmful oil discharge. Any alternative
approaches submitted must include an
appropriate rationale in order for the
Agency to be able to consider it for final
action.
The other approach DOE requested
that EPA take comment on is to outright
exempt existing stripper oil and natural
gas wells from all SPCC requirements,
except those applicable to crude oil and
condensate tanks (e.g., tanks which
store gas condensate (which is an oil) at
oil and gas production facilities). The
eligibility criteria for the exemption
would include those facilities that meet
the Internal Revenue Service (IRS) Tax
Code definition of stripper well
property at 26 U.S.C. 613A, which
defines a stripper well property, with
respect to any calendar year, as any
property producing 15 barrel
equivalents or less per day, where this
rate is calculated by dividing:
(i) The average daily production of
domestic crude oil and domestic natural
gas from producing wells on such
property for such calendar year, by
(ii) The number of such wells.
DOE, states and industry have raised
concerns that the SPCC regulation has
the potential to result in the premature
abandonment of stripper wells. They
argue that stripper wells are marginally
6 The Oklahoma Independent Petroleum
Association and the Independent Petroleum
Association of America suggest an aggregate oil
capacity threshold of 50,000 gallons.
7 DOE suggests that a stripper well be defined
using the Internal Revenue Service (IRS) tax code
definition of 15 barrels or less of oil per day
equivalence (see 26 U.S.C. 613A).
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economic and can be particularly
burdened by increased regulatory
compliance and other operating costs.
These wells are often operated by small
independent producers in mature oil
and gas producing regions, have low oil
productivity and low oil volumes, and
thus could be viewed as presenting a
low oil spill risk. According to DOE,
stripper wells are vital to sustaining
production from conventional oil and
natural gas resources in the United
States. More than 321 million barrels of
oil and 1.7 trillion cubic feet of natural
gas were produced from stripper wells
in 2005, representing 17 percent of
domestic oil production and 9 percent
of domestic natural gas production
respectively. The Interstate Oil and Gas
Compact Commission has estimated that
if oil production from stripper wells
active in 2005 did not exist, imports
would have to increase 6.7 percent to
make up for this shortage.8
Eligibility criteria for relief would not
be limited to the presence of injection
wells or the use of secondary and
tertiary recovery techniques which are
common in more mature oil and gas
producing regions. DOE has commented
that such criteria have no direct
relationship to the spill risk posed by
marginal well facilities and may serve as
a disincentive to enhanced oil and gas
recovery and well maintenance.
Production and injection operations for
disposal or enhanced recovery may be
regulated under existing Federal and
State regulatory programs, e.g., under
Clean Water Act NPDES, Safe Drinking
Water Act underground injection
control, and state production or
environmental permits to reduce or
manage pollutants that could be
introduced into the environment. For
NPDES and underground injection
control, these regulatory programs are
intended to address the discharge of
known pollutants that are to be
introduced to navigable waters (in the
case of NPDES) or to underground
sources of drinking water (in the case of
UIC). In contrast to these measures,
SPCC is designed to prevent the nonroutine accidental discharge of oil that
might be held in an oil container at a
facility. DOE has suggested that these
regulations may accomplish certain
SPCC objectives in a different manner,
such as prohibiting pollution or
unlawful discharges rather than
requiring an SPCC Plan. Therefore, the
Agency specifically solicits comment on
the extent that these regulatory
programs, particularly state production
8 See Interstate Oil and Gas Compact
Commission, 2006: ‘‘Marginal Wells: Fuels for
Economic Growth.’’
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58413
or environmental permits, address the
objectives of the SPCC rules, and if so,
how they are achieved. Finally, EPA
would note that under this approach,
new facilities and existing non-marginal
facilities would not be exempted from
the SPCC regulation, but once their
production declines below the marginal
level as defined above, these wells
would be excluded from continuing or
periodic SPCC requirements under this
approach.
EPA requests comments on the scope
of a stripper well exemption, including
the eligibility criteria, and whether such
an exemption can reduce the regulatory
burden on marginally economic
properties while protecting the
environment. Any alternative
approaches must include an appropriate
rationale and supporting data in order
for the Agency to be able to consider
these for a final action.
6. Produced Water Storage Containers
At an oil or natural gas production
facility, ‘‘produced water’’ is the oil and
water mixture resulting from the
separation of marketable crude oil from
the fluid extracted from the geological
formation. Produced water chemical
and physical characteristics vary
considerably depending on the geologic
formation, usually being commingled
with oil and gas at the wellhead, and
changing in composition as the oil or
natural gas fraction is separated and
sent to market. The management of
produced water may typically entail the
use of separation and treatment process
vessels, tanks both near the point of
separation and at the point of its
disposal or reuse (e.g., in an injection
well for disposal or enhanced oil
recovery, discharge to a stream, or
agricultural water resource), and
flowlines and gathering lines.
In the current SPCC rule, the term
‘‘bulk storage container’’ is defined as
‘‘any container used to store oil.’’ EPA
considers a produced water container
that also contains oil to be a bulk storage
container, and therefore subject to
applicable provisions under § 112.9(c).
Produced water containers are typically
located within a tank battery at a
production facility where they are used
to store well fluids after separation and
prior to subsequent use (e.g., reinjection or re-use), further treatment, or
disposal. Because the separation process
is not completely effective, under
normal operating conditions, a layer of
oil may be present above the produced
water in the container. The amount of
oil by volume observed in produced
water storage containers varies, but
based on EPA’s assessment, is generally
estimated to range from less than one to
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up to ten percent, and can be greater.
This estimate is based on a review of
National Response Center (NRC) spill
reports, observations from EPA
inspectors, and comments made by
industry representatives and the
accompanying document
‘‘Consideration for the Regulation of
Onshore Oil Exploration and Production
Facilities Under the Spill Prevention,
Control, and Countermeasures
Regulation’’ (May 30, 2007), in the
docket for today’s rulemaking. The
Department of Energy (DOE) and the
industry believe that the oil layer may
be much less.
Many production sites operate in
geographically remote areas and are
typically unattended. At these
production sites, fluids extracted from
the well flow through the production
and separation equipment and into
various storage containers provided at
the facility. The produced water storage
containers are usually the last
containers in the separation process
stream where fluids accumulate;
consequently, produced water
containers are a potential source of
discharge due to overfill when there is
an upset in operations (e.g., such as
separator failure) or when an operator is
delayed in making a scheduled visit to
the facility to empty the produced water
containers. In an overfill situation, the
oil floating at the surface of the water
may be first to be discharged, followed
by water which could serve to transport
the oil for longer distances. Oil
discharges to navigable waters or
adjoining shorelines from an oil/water
mixture in a produced water container
may cause harm. Such mixtures are
regulated as oil under the SPCC rule.
The regulated community has
expressed concern regarding the
regulation of produced water containers
under the SPCC rule, suggesting that the
cost of complying with the SPCC
requirements is disproportionate to the
risk these containers pose to the
environment. For this reason, EPA is
considering whether there are regulatory
options for produced water containers
that can protect the environment at
lesser cost than the current rule
requirements along with the
amendments proposed in this action.
The Agency is requesting comments on
three options, as described below.
EPA requests comment on the
characteristics of produced water
containers at production facilities that
may uniquely distinguish these
containers from containers used at other
types of facilities that hold oil mixtures.
EPA also requests comment on whether
the approaches outlined below
appropriately address industry
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concerns, while protecting the
environment. In particular, EPA
requests comment on an approach that
would require general secondary
containment combined with additional
requirements in lieu of sized secondary
containment. A second approach,
advanced by DOE, would require
inspection, maintenance, and periodic
oil skimming of produced water storage
containers in lieu of both sized and
general secondary containment.
Finally, comment is requested on
whether a third approach, advanced by
DOE, that exempts produced water
treatment facilities altogether would be
appropriate. In connection with this
approach, the regulated community and
DOE have suggested that produced
water containers should be exempt from
all SPCC requirements, arguing that
these containers have only incidental
amounts of oil and a low risk of
discharge. Published data used to
establish national effluent limitations
for coastal oil and gas production
facilities show that the oil content of
produced water in tanks after initial
separation is low, e.g., averaging 50
parts per million, with a maximum of
200 parts per million in samples taken.9
Data EPA received in the past suggest
that produced water containers may
hold up to 10% of free-phase oil floating
on the surface of the produced water.
EPA is asking that commenters provide
additional data on the amount of oil
commonly observed in produced water
containers. EPA is primarily interested
in data on the amount of free-phase oil
present in produced water containers,
for example as a layer of oil floating at
the surface of the produced water, rather
than oil present in solution, suspension
or emulsion within the produced water
mixture. EPA also requests comment,
and supporting data, on the efficiency of
oil and water separation and treatment
at onshore production facilities, how the
efficiency of oil-water separators
changes over time as equipment ages
and production of oil from the
formation evolves, the efficiency of oil
skimming on oil volume, and the
frequency and consequences of
equipment failure. Finally, EPA requests
data on oil spills, the source, and the
cause of such oil spills from these
produced water containers.
Any suggestions on alternative
approaches must include an appropriate
rationale and information and data in
order for the Agency to be able to
consider it for final action.
9 SAIC, 1993, draft ‘‘Coastal Oil and Gas
Production Sampling Summary Report’’ April 30,
and SAIC 1994, ‘‘Statistical Analysis of Effluent
from Coastal Oil and Gas Extraction Facilities’’
September 30.
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a. General Secondary Containment,
Inspection, Integrity Testing &
Maintenance of Produced Water Bulk
Storage Containers
One approach on which EPA requests
comment would allow an owner/
operator of a production facility to
comply with the general secondary
containment requirements along with
additional measures for existing
produced water containers as an option
in lieu of the current regulatory
requirement for sized secondary
containment for these containers. That
is, a production facility owner/operator
would provide general secondary
containment and comply with
additional measures for existing
produced water containers, or the
owner/operator could choose to comply
with the current sized secondary
containment requirements for produced
water containers and not be subject to
the new additional set of measures.
Under this approach, an owner/operator
that chooses to carry out additional
measures in addition to the general
secondary containment requirement for
existing produced water containers (see
§ 112.7(c)) would be exempted from the
sized secondary containment
requirement at § 112.9(c)(2). The general
secondary containment requirements
(§ 112.7(c)) apply to all parts of a facility
that could be involved in a discharge. If
an owner or operator has already
provided sized secondary containment
for the facility produced water bulk
storage container, the owner or operator
may choose not to select this new
option. EPA expects many operators
may be in this situation, as a recent DOE
report stated that over two-thirds of
produced water tanks ‘‘were assumed to
be already contained within existing
SPCC Plans and have secondary
containment.’’ 10
This approach would be limited to
existing produced water containers
because this approach is intended to
balance the cost of retrofitting existing
containers with EPA’s belief that sized
secondary containment is the most
effective method to prevent oil
discharges from these containers.
Existing produced water containers
would be those at oil production
facilities in operation on the effective
date of the final rule addressing this
approach. Newly constructed oil
10 See ‘‘Assessment of the Potential Costs and
Energy Impacts of Spill Prevention, Control, and
Countermeasure Requirements for U.S. Oil and
Natural Gas Production’’ prepared for U.S. DOE
Office of Fossil Energy by Advance Resources
International, Inc., August 17, 2006 (Revised).
Available at https://www.fossil.energy.gov/programs/
oilgas/publications/environment_otherpubs/
SPCC_Impact_Exploration_and_Production_8.pdf.
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production facilities and newly
installed produced water containers at
existing facilities would not be eligible
to use these alternative measures in lieu
of sized secondary containment because
it is EPA’s best professional judgment
that because construction crews and
equipment are already present at a
facility during the installation of new
produced water containers, the
incremental cost for adding/installing
sized secondary containment for these
containers would not be significant.
In addition, if a facility experiences a
discharge reportable to EPA under
§ 112.4, then sized and general
secondary containment would be
required for all produced water
containers at the facility within six
months from the discovery of the
spill(s).11 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 navigable waters or adjoining
shorelines, or in connection with
specified activities in waters and not the
total amount of oil spilled. Discharges as
described in § 112.1(b) that are the
result of natural disasters, acts of war,
or terrorism will not disqualify a facility
owner or operator from the alternative
measures described above.
To maintain environmental protection
under this approach, the following
additional measures for produced water
containers would be required:
• Periodic inspections on a regular
schedule of equipment and
appurtenances that typically cause
spills from produced water containers
(e.g. piping, valves, pumps and the
container itself). A requirement for
periodic inspection of the produced
water containers and associated
appurtenances on a regular schedule for
leaks, corrosion, or other conditions that
could lead to a discharge as described
in § 112.1(b) would increase the
likelihood that a discharge will be
prevented or detected promptly,
especially for appurtenances that
typically cause spills. Inspection of
produced water containers and
appurtenances would be consistent with
the inspection requirements for bulk
storage containers under § 112.9(c)(3).
Facilities would outline, in writing,
procedures for routine inspection and
keep records of these inspections in
accordance with § 112.7(e).
• Conduct a condition examination 12
and integrity testing of produced water
11 See the similar discussion in Section V.L.4 of
this proposal pertaining to flow-through process
vessels.
12 ‘‘Condition examination’’ is defined in API
Recommended Practice 12R1 as a review of history
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containers on a regular schedule and
after completing material repairs. In lieu
of the protection offered by sized
secondary containment, this approach
would require a formal integrity
inspection/condition examination of the
produced water bulk storage
container(s) on a regular schedule. The
frequency, inspector qualifications and
the scope of the inspections, integrity
testing, and condition examinations
must be in accordance with good
engineering practice and documented in
the SPCC Plan. For condition
examinations and integrity testing, the
industry recommended practices for
tanks in production service provide the
scope and frequency of examinations
necessary to ensure the suitability of
tanks for continued service, based on
the type of tank, fluid stored, and
service conditions. For an example of
such practices, a facility owner or
operator may refer to American
Petroleum Institute, Recommended
Practice 12R1, fifth edition, August
1997. These practices include the
routine visual operational examination
of produced water bulk storage
containers by facility personnel
according to written procedures, and
external and/or internal condition
examination of these same containers
according to a schedule and following
an operational alert, malfunction, or
other condition noted during the routine
operational examination. The external
condition examination 13 would cover
the tank exterior, and check for leaks,
shell distortion, and evidence of
corrosion; it would also look at the
condition of the foundation, pad,
drainage, coatings, appurtenances and
connections. The internal condition
examination would check for leaks,
shell distortion, cracks, condition of any
internal coating, and evidence and
severity of internal corrosion. The
external and internal condition
examinations would be complemented
by integrity testing (e.g., using nondestructive evaluation methods, such as
ultrasonic thickness measurements of
the shell) used to assess the suitability
of the container for continued
production service, as appropriate for
the type of container. Facilities would
outline in writing procedures for routine
visual examination, external condition
and physical observation of a tank and its adjacent
equipment by a competent person.
13 API Recommended Practice 12R1 provides
guidelines on developing the scope of a program for
condition examination and integrity testing for
tanks at production facilities. While the RP does not
include mandatory requirements, this approach
would include a mandatory requirement to conduct
a condition examination and integrity testing for
produced water containers.
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58415
examination, internal condition
examination, and integrity testing and
keep records of the examinations and
testing in accordance with § 112.7(e).
• Prompt removal of any oil
discharges from produced water
containers and appurtenances. This
approach also would require prompt
removal upon discovery of any spills,
discharges, or accumulations of oil
associated with the produced water
containers. EPA considers the removal
of oil-contaminated soil as a method to
prevent oil from becoming a discharge
as described in § 112.1(b). Disposal of
oil must be in accordance with
applicable Federal, State, and local
requirements; under § 112.7(a)(3)(v), a
facility owner or operator is required to
describe the methods of disposal of
recovered materials in accordance with
applicable legal requirements. For the
purposes of this provision, removal of
recoverable oil may be combined with
physical, chemical, and/or biological
treatment methods to address any
residual oil. These treatment methods
must be consistent with other Federal,
state or local requirements as
applicable, and must be properly
managed to prevent a discharge as
described in § 112.1(b).
• Corrective action to repair or
replace any container, or associated
equipment and appurtenances in order
to prevent a discharge from occurring,
as well as in response to a discharge.
Finally, this approach would require the
owner/operator of an oil production
facility to take corrective action to repair
any produced water container, and
associated equipment and
appurtenances as indicated by regularly
scheduled inspections or tests. This
requirement could be implemented in
conjunction with the requirement for
periodic inspection and testing; the
results of the inspection or test would
inform the owner/operator of any
corrections or repairs that need to be
made. Corrective action is necessary in
order to prevent a discharge from
occurring, as well as in response to a
discharge. This measure would prevent
discharges as described in § 112.1(b) by
ensuring that produced water containers
are well maintained.
In evaluating this potential regulatory
approach, the Agency examined oil
production operations as they relate to
the storage, treatment, and handling of
these oil/water mixtures. EPA
conducted a study of the exploration
and production sector (see
Considerations for the Regulation of
Onshore Oil Exploration and Production
Facilities Under the Spill Prevention,
Control, and Countermeasure
Regulation (May 30, 2007), in the docket
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for this rulemaking). In this study, EPA
reviewed the spills reported to the
National Response Center (NRC) during
calendar years 2000 through 2005. The
NRC spill reports specifically attribute
3% of the spill incidents from oil
production facilities to produced water
containers. Some of the spill incidents
attributed to unspecified tank batteries
(4%) or unspecified tanks (6%) may also
involve produced water containers.
Based on these reports, 5% of the
volume of oil spills from oil production
facilities is attributed specifically to
produced water containers, 6% is
attributed to unspecified tank batteries,
and 20% is attributed to unspecified
tanks. The NRC reports also attribute
3% of the spill incidents to water
disposal, which is 16% of the total
volume of oil and oil mixtures
discharged from oil production
facilities. The NRC data does not show
the ratio of oil and water in spills.
Incidents associated with water disposal
may involve produced water containers,
although the review found that water
disposal piping frequently suffers from
corrosion damage and accidental
impacts and incidents associated with
water disposal may also be associated
with the water disposal piping. Based
on the information reported to the NRC,
the most common causes of oil spill
incidents from oil production facilities
were equipment failure (18%), corrosion
(20%), and leaks, holes and ruptures
(20%). Twenty-four percent of the spill
reports have unspecified causes.
Many onshore production facilities
already locate produced water
containers within the same containment
structure as other oil containers, and
size this containment structure to the
capacity of the largest oil container plus
freeboard for precipitation. Therefore,
those oil production facilities that
include sufficient containment already
meet the existing sized secondary
containment requirement and would not
need to comply with these additional
measures. A review of spill incident
reports from the NRC and selected state
data sources shows that containment
structures are an effective means of
containing oil spills within the facility
and preventing discharges to navigable
waters and adjoining shorelines.
EPA requests comment on whether
this approach, an exemption from the
sized secondary containment
requirement, with additional measures
for produced water containers
(including integrity testing and
condition examinations), appropriately
addresses industry concerns, while
preserving environmental protection.
Additionally, EPA requests comment on
whether there are other measures that
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should be considered in developing this
alternative approach in lieu of the sized
secondary containment requirements.
Finally, as EPA previously indicated,
the Agency also requests comment on
the characteristics of produced water
containers at production facilities that
may uniquely distinguish these
containers from containers used at other
types of facilities to hold oil mixtures.
b. Inspection and Maintenance of
Produced Water Storage Containers
DOE has requested that EPA take
comment on a second approach which
would allow an owner/operator of a
production facility to comply with
additional measures for produced water
storage containers in lieu of both sized
and general secondary containment
requirements. That is, a production
facility owner/operator would be able to
comply with these specific tailored
measures for produced water containers,
or the owner/operator could choose to
comply with the current sized
secondary containment requirements for
produced water containers and not be
subject to an additional set of measures.
Under this approach, an owner/operator
that chose to comply with these tailored
requirements would be exempted from
the sized secondary containment
requirement at § 112.9(c)(2) and the
general secondary containment
requirements at § 112.7(c).
However, if a facility experiences a
discharge reportable to EPA under
§ 112.4, then sized and general
secondary containment would be
required for all produced water
containers at the facility within six
months from the discovery of the
spill(s).14 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 navigable waters or adjoining
shorelines, or in connection with
specified activities in waters and not the
total amount of oil spilled. Discharges as
described in § 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 these
tailored requirements in lieu of sized
and general secondary containment.
This approach is based on input DOE
received from the production sector that
suggested that an inspection and
maintenance approach may be more
appropriate for these containers.
Additionally, DOE believes that the
volume of oil in the storage container
can be significantly reduced further
14 See the similar discussion in Section V.L.4 of
this proposal pertaining to flow-through process
vessels.
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after separation by periodic skimming of
the oil layer that may reside in the top
of the container.
To maintain environmental protection
under this approach, the following
additional measures for produced water
containers would be required:
• Visually inspect on a regular
schedule the equipment and
appurtenances which typically cause
spills from produced water containers
(e.g., piping, valves, pumps, and the
container itself) to assess the suitability
of the equipment for continued service,
as appropriate for the type of fluids.
Facility owners and operators must
outline in writing procedures for routine
visual inspection and keep records of
these inspections in accordance with
§ 112.7(e).
• Implement a program to
periodically skim the fluids in the
produced water container as necessary
to prevent an oil layer that would
increase the potential for a discharge of
oil as described in § 112.1(b). The
skimming program must be appropriate
for the fluids stored, the rate of
production, the container size, and the
facility configuration.
• Promptly remove any oil discharges
from produced water containers and
appurtenances. This approach would
require prompt removal upon discovery
of any spills, discharges, or
accumulations of oil associated with
produced water containers that are
subject to these tailored requirements.
As noted previously, EPA considers the
removal of oil-contaminated soil as a
method to prevent oil from becoming a
discharge as described in § 112.1(b).
Disposal of oil must be in accordance
with applicable Federal, State, and local
requirements; under § 112.7(a)(3)(v), a
facility owner or operator is required to
describe the methods of disposal of
recovered materials in accordance with
applicable legal requirements. For the
purposes of this provision, removal of
recoverable oil may be combined with
physical, chemical, and/or biological
treatment methods to address any
residual oil. These treatment methods
must be consistent with other Federal,
State, or local requirements as
applicable, and must be properly
managed to prevent a discharge as
described in § 112.1(b).
• Corrective action to repair or
replace any produced water container,
or associated equipment and
appurtenances in order to prevent an oil
discharge from occurring, as well as in
response to a discharge. This approach
would require the owner or operator of
an oil production facility to take
corrective action to repair any produced
water container and associated
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equipment or appurtenances as
indicated by regularly scheduled
inspections. This requirement could be
implemented in conjunction with the
requirement for periodic inspection; the
results of the inspection would inform
the owner or operator of any corrections
or repairs that need to be made.
Corrective action is necessary in order
to prevent a discharge from occurring,
as well as in response to a discharge.
This measure is intended to prevent
discharges as described in § 112.1(b) by
ensuring that produced water
equipment is well maintained.
The requirement for periodic
inspection of produced water
equipment on a regular schedule is
intended to increase the likelihood that
a discharge as described in § 112.1(b)
will be prevented or detected promptly.
The inspection requirements for
produced water equipment would be
consistent with the inspection
requirements for oil containers at oil
production tank batteries under
§ 112.9(c)(3). The requirement for
periodic skimming of the container
should reduce the impact of a spill by
limiting the amount of oil held in a
produced water storage container.
The Agency seeks comments on this
approach, including comment on the
proper methodology, procedures,
industry standards/practices, equipment
and frequency for an oil ‘‘skimming
program.’’ Any suggestions on
alternative approaches or language must
include an appropriate rationale in
order for the Agency to be able to
consider it for final action.
c. Exemption for Produced Water
Treatment
Due to several factors including the
growing interest in produced water for
beneficial uses, and the understanding
that the increased use of produced water
for beneficial uses will reduce the
potential for oil spills, DOE also
requested that EPA consider alternatives
to current SPCC requirements for
produced water at oil and natural gas
operations. In the July 2002 (67 FR
47139; July 17, 2002) amendments to
the SPCC rule under § 112.1(d)(6), EPA
exempted wastewater treatment
facilities or parts thereof from the SPCC
rule. In the amended regulation, EPA
defined wastewater treatment as not
including oil production, recovery, or
recycling of oil, and clarified that
treatment of produced water was not
considered wastewater treatment.
Since the 2002 amendments were
issued, industry, states, and DOE have
commented on the low incremental
environmental benefit of regulating
produced water under the SPCC
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regulation. Concern has also been
expressed by the regulated community
regarding the perceived inequity of the
SPCC regulation relative to oil
production wastewater treatment,
because the wastewater treatment
facilities of publicly owned treatment
works and other industries were
exempted from the SPCC rule in 2002.
Therefore, DOE has requested that EPA
request comment on an exemption from
the SPCC rule for produced water
altogether, similar to that previously
provided to wastewater treatment
systems.
Produced water treatment facilities or
parts thereof may be subject to the
National Pollutant Discharge
Elimination System (NPDES), Safe
Drinking Water Act (SDWA),
Underground Injection Control (UIC), or
State permitting requirements that limit
the level of pollutants in produced
water that could be introduced into the
environment. For example, under 40
CFR 122.41(e), NPDES permits require
permittees to properly operate and
maintain all facilities and systems of
treatment or control. 40 CFR 122.41(d)
requires the NPDES permit holder to
take all reasonable steps to minimize or
prevent any discharge in violation of a
permit that has a reasonable likelihood
of adversely affecting health or the
environment. Underground sources of
drinking water are protected under 40
CFR 144.12, whereby any underground
injection, except into wells authorized
by rule or authorized by permit issued
under the UIC program, is prohibited.
These measures are intended to address
the discharge of known pollutants
contained in water that is to be
introduced to water bodies (in the case
of NPDES) or to groundwater (in the
case of UIC). In contrast to these
measures, SPCC is designed to prevent
the non-routine accidental discharge of
oil that might be held in an oil container
at a facility.
Produced water treatment facilities or
parts thereof are often regulated under
state laws and regulations applicable to
oil and natural gas production which
address operations and pollution
prevention. Oil and natural gas
operations, including produced water
treatment facilities on Federal lands
managed by the Department of the
Interior Bureau of Land Management are
subject to environmental review, lease
stipulations, and operational guidelines
that include best management practices
for reducing environmental impacts.15
15 For example, see Argonne National Laboratory,
2007, ‘‘Produced Water Management Information
System’’ at https://web.evs.anl.gov/pwmis/ and U.S.
Department of the Interior, 2007, Bureau of Land
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58417
The characteristics of produced water
in the United States vary widely,
ranging from produced water that is
potable to produced water that can be
discharged, injected underground or
used as a beneficial water resource
following varying levels of treatment to
remove oil, salt, or other chemical
constituents. Similarly, factors such as
high energy prices, advances in water
treatment technology, and changing
perspectives on the value of produced
water for beneficial uses including
agriculture irrigation, livestock
watering, recreation, aquifer recharge,
and enhanced oil recovery are factors
that may encourage the industry to
separate oil and natural gas fluids from
produced water and to manage the
produced water in a manner that will
reduce oil spills. The docket of this
proposed rule contains several
documents relating to produced water
provided to EPA by DOE.16
Therefore, as requested by DOE, EPA
seeks comment on an exemption for
produced water treatment facilities or
parts thereof from the SPCC regulation.
At oil or natural gas drilling,
production, recovery, or recycling
facilities, produced water treatment
facilities or parts thereof that would be
exempted from SPCC regulation include
the storage, treatment, or beneficial use
of produced water in containers, pits,
ponds, piping, flowlines, and injection
or discharge systems including pumps
and other appurtenances necessary for
the operation of these systems.
Specifically, this approach would
amend § 112.1(d)(iii)(6) pertaining to the
general applicability of the SPCC rule,
to read, ‘‘Any facility or part thereof
used exclusively for waste water
treatment and not used to satisfy any
requirement of this part. This would
include produced water treatment in oil
or natural gas production, recovery, or
recycling.’’
Produced water managed prior to the
initial separation of co-mingled oil or
natural gas fluids that are produced
Management Best Management Practices for Fluid
Minerals Web site at https://www.blm.gov/wo/st/en/
prog/energy/oil_and_gas/
best_management_practices.html.
16 Relevant documents include:
Interstate Oil and Gas Compact Commission and
ALL Consulting, 2006, ‘‘A Guide to Practical
Management of Produced Water from Onshore Oil
and Gas Operations in the United States.’’ Available
at https://www.iogcc.state.ok.us.
Veil, J.A., M.G. Puder, D. Elcock, and R.J.
Redweik, Jr., 2004, ‘‘A White Paper Describing
Produced Water from Production of Crude Oil,
Natural Gas, and Coal Bed Methane,’’ prepared by
Argonne National Laboratory for the U.S.
Department of Energy, National Energy Technology
Laboratory, January. Available at: https://
www.ead.anl.gov/pub/dsp_detail.cfm?PubID=1715.
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from the wellhead would not be
exempted from the SPCC regulation.
Whether a produced water treatment
facility or part thereof is used
exclusively for wastewater treatment
(i.e., not storage or other use of oil) or
used to satisfy a requirement of part 112
will often be a facility-specific
determination based on the activity
associated with the facility or part
thereof. Only the portion of the facility
(including produced water treatment
associated with production, recovery, or
recycling of oil or natural gas) used
exclusively for produced water
treatment and not used to meet any part
112 requirement would be exempt from
part 112 under this approach. Examples
of produced water treatment facilities or
parts thereof used to meet a part 112
requirement which would not be part of
this exemption include an oil/water
separator.
It should also be noted that under this
approach, a discharge of produced water
containing oil to navigable waters or
adjoining shorelines in a ‘‘harmful
quantity’’ (40 CFR part 110) is still
prohibited. Thus, to avoid such
discharges, EPA would expect owners
or operators to comply with the
applicable permitting requirements
under Federal or State statutes,
including best management practices
and operations and maintenance
provisions contained therein. EPA
would require that if a facility
experiences a discharge reportable to
EPA under § 112.4, then the facility
would no longer be exempt and sized
and general secondary containment
would be required for all produced
water containers at the facility within
six months from the discovery of the
spill(s).
The Agency seeks comments on
whether exempting produced water
treatment facilities from the SPCC
regulation is appropriate. In particular,
EPA requests comment on the rationale
for this approach, i.e., the assumption
that the oil content of equipment
handling produced water (e.g., tanks,
piping, and related appurtenances) after
initial separation is low. Any
suggestions on alternative approaches or
language must include an appropriate
rationale in order for the Agency to be
able to consider it for final action.
7. Clarification of the Definition of
Permanently Closed Containers
The SPCC rule exempts from
applicability and from capacity
threshold determinations any oil storage
container that is permanently closed.
EPA seeks to clarify concerns expressed
by the regulated community over the
requirements for permanently closing a
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container, as described in the definition
of ‘‘permanently closed’’ at § 112.2.
According to the definition, for a
container to be permanently closed, all
liquid and sludge must be removed from
the container and connecting lines, all
connecting lines and piping must be
disconnected from the container and
blanked off, all valves (except
ventilation valves) must be closed and
locked, and conspicuous signs must be
posted on each container stating that it
is a permanently closed container and
noting the date of closure. Once
permanently closed, a container is no
longer required to be counted toward
the total facility storage capacity, nor is
it subject to the other requirements
under the SPCC rule.
Variable economic conditions and
production rates at an oil production
facility may cause certain containers to
be unused for long periods of time.
Regulated community members have
indicated that permanent closure of
such containers is undesirable because
the requirements for closing a container
makes it costly and difficult to return a
container to use if production rates
surge or if economic conditions become
more favorable.
Members of the regulated community
have suggested that EPA provide an
option to ‘‘temporarily’’ close a
container, to exempt it from SPCC
applicability, but allow it to be returned
to service if needed. Specifically,
‘‘temporary closure’’ would have less
stringent requirements than permanent
closure, and would be intended for
situations where containers would only
be closed for short periods of time. The
significant difference in closure
requirements between EPA’s current
‘‘permanent’’ requirements and the
suggested ‘‘temporary’’ requirements
appears to be the removal of liquid and
sludge from the container and
connecting lines. EPA believes that
allowing liquid and sludge to remain in
the container, without the benefit of the
SPCC rule protections, such as
containment and inspection, creates the
potential for a discharge. Therefore, EPA
does not believe that it is appropriate to
exempt containers without requiring
that all liquid and sludge be removed.
EPA reiterates the statement that the
Agency made in the preamble to the
July 2002 amendment to the SPCC rule:
‘‘If a tank is not permanently closed, it
is still available for storage and the
possibility of a discharge as described in
§ 112.1(b), remains. Nor does a short
time period of storage eliminate the
possibility of such a discharge.
Therefore, a prevention plan is
necessary. A tank closed for a temporary
period of time may contain oil mixed
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with sludge or residues of product,
which could be discharged. Discharges
from these facilities could cause severe
environmental damage during such
temporary storage and are therefore
subject to the rule.’’ (67 FR 47059)
EPA notes, however, that the
definition of permanently closed does
not require a container to be removed
from a facility; permanently closed
containers may be brought back into use
as needed for variations in production
rates and economic conditions. (A
facility owner or operator should review
state and local requirements, which may
require removal of a container when it
is taken out service.)
Furthermore, EPA wants to clarify
that permanent closure requirements
under the SPCC rule are separate and
distinct from the closure requirements
in regulations promulgated under
Subtitle C of the Resource Conservation
and Recovery Act (RCRA), i.e., the
Standards For Owners and Operators of
Hazardous Waste Treatment, Storage,
And Disposal Facilities at 40 CFR part
264 and Interim Status Standards for
Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal
Facilities at 40 CFR part 265. These
regulations describe the requirements
for operators of facilities that use tank
systems for storing or treating hazardous
waste, as well as requirements for tank
closure and post-closure care
(§§ 264.197 and 265.197). However,
these requirements generally do not
apply to an oil production facility.
According to the applicability provision
in § 264.1(b), ‘‘the standards in this part
apply to owners and operators of all
facilities which treat, store, or dispose of
hazardous waste, except as specifically
provided otherwise in this part or part
261 of this chapter’’ (emphasis added).
Part 261 states that ‘‘Drilling fluids,
produced waters, and other wastes
associated with the exploration,
development, or production of crude
oil, natural gas or geothermal energy’’
are not hazardous waste (§ 261.4(b)(5)).
Therefore, an oil production facility
does not have to undergo the expense of
permanent closure under part 264 or
part 265 of RCRA, because these
wastes—that is, drilling fluids,
produced waters, and other wastes
associated with the exploration,
development, or production of crude oil
are not subject to these regulations. In
addition, the owner or operator of the
oil production facility could transport
such wastes to a non-hazardous waste
disposal or treatment facility, as
opposed to a permitted Subtitle C
hazardous waste facility. (The reasons
why regulation under Subtitle C of
RCRA for wastes associated with oil
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production was determined to be
unwarranted are described in the
Federal Register notice ‘‘Regulatory
Determination for Oil and Gas and
Geothermal Exploration, Development,
and Production Wastes’’ (July 6, 1988;
53 FR 25446).)
Given the clarifications provided
here, EPA does not believe that further
regulatory action is needed to address
this issue. Nevertheless, EPA welcomes
comments on whether further
clarification regarding the definition of
permanently closed is necessary. Any
suggestions for alternative approaches
must include an appropriate rationale
and supporting data in order for the
Agency to be able to consider it for final
action.
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8. Oil and Natural Gas Pipeline
Facilities
In developing this proposed
rulemaking, questions have been raised
concerning the jurisdictional lines
between EPA and the Department of
Transportation (DOT) in relation to oil
and gas pipeline systems and associated
equipment. Our objective, in keeping
with the Executive Order 12777 and
earlier executive orders, as well as the
1971 DOT and EPA Memorandum of
Understanding (MOU), is to differentiate
between ‘‘transportation’’ and ‘‘nontransportation’’ facilities in a manner
that provides clear and definitive
standards, while eliminating regulatory
gaps, and overlapping regulation and
oversight. To these ends, EPA and DOT
have committed to revise or augment
their 1971 MOU to more clearly define
the jurisdictional scope over oil and gasrelated infrastructure by delineating the
specific equipment and appurtenances
that are part of the pipeline system
subject to DOT jurisdiction. In the case
of a natural gas pipeline, EPA and DOT
will evaluate the appropriate
jurisdictional divide for equipment such
as compressor stations, lubricating
systems and tanks. EPA and DOT have
committed to diligently pursue
resolution of this issue and, early next
year, to make available for public
comment the document memorializing
the culmination of this effort. EPA,
intends to give notice of completion of
this process in connection with
publication of the final version of this
rule by incorporating by reference or
otherwise a provision outlining the
agencies’ relative jurisdiction in this
area.
M. Man-Made Structures
The SPCC rule is applicable to a
facility that, due to its location, could
reasonably be expected to have a
discharge of oil as described in
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§ 112.1(b). As described in a 1976
amendment to the rule (41 FR 34164,
December 11, 1976), this determination
must be based solely upon
consideration of the geographical
aspects of the facility, and excludes
consideration of manmade features such
as dikes, equipment, or other structures
that may serve to restrain, hinder,
contain, or otherwise prevent a
discharge as described in § 112.1(b). As
EPA noted in the 1976 rule preamble,
‘‘manmade features, such as drainage
control structures and dikes, are not to
be used in concluding there is no
reasonable expectation that a discharge
will reach navigable waters. If there is
a reasonable expectation that a
discharge from the facility would reach
navigable waters but for or in the
absence of such containment or other
structures, the facility is subject to the
requirements of this part.’’ (41 FR
34164, December 11, 1976). This policy
has been an important foundation for
the applicability of the SPCC rule for
over 30 years.
Although the issue was addressed in
1976, members of the regulated
community continue to raise questions
regarding the use of man-made
structures. In the preamble to the 2002
SPCC rule revisions, EPA responded to
comments by explaining that, ‘‘To allow
consideration of manmade structures
(such as dikes, equipment, or other
structures) to relieve a facility from
being subject to the rule would defeat its
preventive purpose. Because manmade
structures may fail, thus putting the
environment at risk in the event of a
discharge, there is an unacceptable risk
in using such structures to justify
relieving a facility from the burden of
preparing a prevention plan.’’ (67 FR
47062, July 17, 2002). However,
members of the regulated community
continue to suggest that man-made
features, such as basements or
containment structures, should be taken
into consideration when determining
whether the SPCC requirements apply.
EPA continues to uphold this
applicability criterion, but seeks to
clarify that certain man-made features,
such as building walls, basement
structures, and drainage systems may be
taken into consideration in determining
how to comply with the SPCC
requirements.
1. Secondary Containment
If an oil storage container at a
regulated facility is located inside a
building, the PE or facility owner/
operator certifying the SPCC Plan may
take into consideration the ability of the
building walls and/or drainage systems
to serve as secondary containment for
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the container. The SPCC regulation is
performance-based and provides
flexibility to the facility owner or
operator in terms of the design and
implementation of the secondary
containment system that will provide
adequate protection. Secondary
containment may be achieved by use of
dikes, berms, or other barriers,
engineered drainage structures, or other
active or passive containment methods.
The regulation provides general design
criteria for secondary containment of
bulk storage containers by requiring
simply that the containment be of a size
sufficient to contain the capacity of the
largest container, with freeboard for
precipitation, as appropriate. EPA does
not require the use of specific sizing
criteria to account for precipitation (e.g.,
110 percent of capacity); instead it
allows the facility owner or operator, or
the PE certifying the Plan, to consider
location specific conditions, including
the possibility that a bulk storage
container is located indoors where
precipitation does not occur. The SPCC
rule also requires that the containment
structure provided around bulk storage
containers be sufficiently impervious to
oil. Therefore, the containment structure
must not be equipped with open floor
drains unless the drainage system has
been purposefully equipped to treat any
discharge, for example by use of an
adequately sized oil-water separator
(any indoor drainage system that leads
directly to a sewer authority, Publicly
Owned Treatment Works (POTW), or a
waterbody may serve as a conduit for a
discharge to navigable waters).
Additionally, any doorways, windows,
or other openings thatwould permit a
discharge to flow out of the building
must also be taken into consideration.
To the extent that an existing building
structure meets the SPCC performance
criteria for secondary containment, the
owner/operator can consider such a
building as an appropriate containment
structure. In cases where the building
walls may be used for secondary
containment, it should be noted, that
the calculation of the capacity of the
secondary containment structure would
need to consider the displacement by
other containers, equipment, and items
sharing the containment structure.
Where applicable, containers may be
subject to the National Fire Protection’s
Flammable and Combustible Liquids
Code (NFPA 30) in addition to the SPCC
requirements. In these situations, the
building may serve as both general and
sized secondary containment. For
containers located in buildings, NFPA
30 prescribes specific requirements to
control fire hazards involving
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flammable or combustible liquids,
particularly in the areas of design,
construction, ventilation, and ultimately
facility drainage. More specifically,
NFPA 30 requires curbs, scuppers,
drains or similar features to prevent the
flow of liquids in emergencies to
adjacent buildings, including provisions
to handle water from fire protection
systems. In the area of facility drainage,
NFPA 30 requires that a facility be
designed and operated to prevent the
discharge of liquids to public
waterways, public sewers, or adjoining
property. Thus, if a facility is designed,
constructed and maintained to
applicable fire codes, such as NFPA 30,
the building may serve as secondary
containment under the SPCC rule.
Given the clarifications provided
here, EPA does not believe that further
regulatory action is needed to address
this issue. EPA welcomes comments on
whether further clarification regarding
the use of building structures to meet
the SPCC secondary containment
requirements is necessary.
2. Integrity Testing
The SPCC rule requires that bulk
storage containers be made of
compatible materials and are
appropriate for the conditions of
storage, such as pressure and
temperature (§§ 112.8(c)(1) and
112.12(c)(1)), and are tested for integrity
on a regular schedule (§§ 112.8(c)(6),
and 112.12(c)(6)). If, at a regulated
facility, indoor conditions are such that
they reduce external corrosion and
potential for discharges, these operating
conditions may be considered in the
development of a site-specific
inspection program. Tank inspection
standards, such as the American
Petroleum Institute’s (API) Standard 653
and the Steel Tank Institute’s (STI)
SP001, detail the appropriate inspection
scope and frequency depending on
container type and configuration.
However, in developing a regulated
facility’s inspection program, it should
be recognized that although indoor oil
storage containers are generally shielded
from precipitation, precipitation is only
one of the many factors that promote
corrosion. Even indoors, high humidity
acidic dust settling on the container
surface or some other factor may
promote external corrosion.
Furthermore, indoor containers may be
comparatively more susceptible to
accidental impacts from mobile
equipment (e.g., forklifts) given the
more restricted space. Indoor containers
also remain subject to internal corrosion
that can lead to pitting and leaking.
The SBA requested that EPA consider
whether there should be differentiated
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integrity testing requirements for
containers located indoors. With respect
to integrity testing of aboveground
storage tanks located indoors, applicable
industry inspection standards, such as
API 653 and STI SP001 do not
specifically differentiate inspection
requirements for indoor versus outdoor
containers. However, SP001, for
example, does differentiate based on
container size and configuration, and,
for tanks with storage capacities up to
5,000 gallons provided with sized
secondary containment and a release
prevention barrier (such as a liner,
concrete pad, or an elevated tank in
secondary containment), the standard
requires visual inspection and
recordkeeping by the owner/operator
per the SP001 schedule. For tanks
greater than 5,000 gallons in the same
configuration, SP001 requires visual
inspection by the owner/operator
coupled with a formal external
inspection by a certified inspector on a
20-year cycle versus a more stringent
inspection scope and schedule for tanks
located outdoors in earthen secondary
containment. Therefore, the Agency
believes that the industry standards
already provide flexibility to the owner/
operator of the facility based on tank
size and configuration. Additionally, the
owner/operator in conjunction with the
certifying PE has the flexibility under
the SPCC regulation to develop an
alternate container inspection program.
Given the clarifications provided
here, EPA does not believe that further
regulatory action is needed to address
this issue. Nevertheless, EPA welcomes
comments on whether further
clarification regarding requirements for
integrity testing of containers located
indoors, or a regulatory amendment is
necessary.
N. Underground Emergency Diesel
Generator Tanks at Nuclear Power
Stations
Under the U.S. Nuclear Regulatory
Commission (NRC) regulations, a
nuclear power generation facility must
meet certain design criteria to ensure
that the plant will be operated in a
manner protective of the public’s health
and safety (10 CFR part 50, Appendix
A). The NRC design criteria cover the
design, fabrication, installation, testing
and operation of structures, systems,
and components important to safety.
Nuclear power stations are required to
provide redundant on-site electric
power system and an off-site power
system to allow functioning of
structures, systems, and components
important to safety. These on-site power
systems typically consist of dieselpowered emergency or standby
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generators, which may include day fuel
tanks, either integral to the generator or
immediately adjacent to the unit.
Additional reserve capacity may also be
provided by aboveground and/or
underground storage tanks (USTs) to
meet the NRC requirement to provide a
seven-day supply of fuel oil on-site.
Each utility develops its particular
systems and procedures for ensuring
their operability and integrity; these
elements become part of the safety
program that is reviewed and approved
by NRC in granting an operating license
for the utility.
EPA currently exempts from the SPCC
requirements any completely buried
storage tank that is subject to all of the
technical requirements for USTs under
40 CFR part 280 or a state program
approved under part 281. However, as
discussed in the preamble to the final
rule for parts 280 and 281 (53 FR 37082,
September 23, 1988), the Agency chose
to defer the requirements of Subparts B,
C, D, E, and G for these tanks pending
completion of a review of the NRC
regulations (10 CFR part 50, Appendix
A) governing these tanks to determine
whether further regulation under the
UST regulations is necessary to protect
human health and the environment or
whether such regulation would be
inconsistent with the NRC regulations.
Thus, UST tanks that are part of an
emergency generator system at a nuclear
power generation facility regulated by
the NRC are still subject to some of the
UST regulations. For example, deferred
tanks must still comply with the release
response and corrective action
requirements under Subpart F
(§§ 280.60 through 280.67).
Consequently, because these tanks are
not subject to all of the UST
requirements, they are currently subject
to the SPCC requirements.
Nuclear power plant stakeholders
have provided comments to the Agency
questioning whether dual regulation of
these USTs under relevant NRC
requirements and SPCC requirements is
appropriate or necessary. The industry
has also indicated that to comply with
SPCC requirements, the unit would
need to be shut down to properly
address secondary containment and
integrity testing and inspection
requirements; to do so otherwise would
violate stringent NRC operating safety
requirements. A shutdown to address
SPCC requirements is costly and
jeopardizes public power supply needs.
To further analyze the potential overlap
and concerns relative to the SPCC
requirements in light of NRC
requirements, EPA conducted a site visit
to a nearby nuclear power station and
consulted NRC.
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EPA compared the NRC regulations
and guidelines with the relevant SPCC
requirements. Under 10 CFR Part 50,
Appendices A and B, nuclear power
generation facility operators must
identify the relevant codes and
standards, develop and implement a
quality assurance program, and
maintain appropriate records of the
design, fabrication, erection, and testing
throughout the life of the nuclear unit.
The quality assurance program required
per Appendix B must be documented by
written policies, procedures or
instructions and implemented as
documented. To assist nuclear power
unit licensees in complying with the
license requirements, the NRC has
developed a number of guidance
documents, including documents
pertaining to the operation of standby
diesel generators. Specifically, NRC
Regulatory Guide 1.137, ‘‘Fuel-Oil
Systems for Standby Diesel Generators’’
details the requirements for inspection
and testing of fuel oil systems, corrosion
protection, and the periodic cleaning of
fuel supply tanks. These measures are
similar to the measures required under
the SPCC regulation for completely
buried tanks, which include corrosion
protection of buried tanks (§ 112.8(c)(4))
and of buried piping (§ 112.8(d)(1)), and
inspection and testing of buried piping
(§ 112.8(d)(4)). According to NRC, this
guideline represents one acceptable
method to meet the NRC requirements
for these standby systems. If a licensee
chooses an alternative approach then
equivalency must be demonstrated
through an engineering review by the
NRC as part of the licensing process.
In conducting the site visit to a nearby
nuclear power station, EPA observed
that the standby generators had both
aboveground and underground storage
tanks on-site to meet the requisite fuel
demands. The USTs were installed in
1973 and consist of single-walled steel
tanks equipped with automatic tank
gauging and are subjected to
nondestructive evaluation (ultrasonic
thickness testing) every 10 years.
Associated piping is tested every 10
years. EPA then reviewed the relevant
SPCC requirements associated with
USTs that meet the definition of
completely buried tanks in § 112.2 of
the SPCC rule and conducted a
comparative analysis as detailed below.
• All containers: § 112.8(c)(2): Sized
secondary containment requirements.
• Buried Tanks: § 112.8(c)(4):
Protection and leak testing of buried
metallic tanks.
• All Containers: § 112.8(c)(8):
Engineering of each container to prevent
overfills.
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• Buried Piping: § 112.8(d):
Protection and leak testing of buried
piping.
Since the USTs are single-walled steel
tanks, the tanks may not meet the
secondary containment requirements at
§ 112.8(c)(2); however, an argument
could be made that secondary
containment is impracticable under
§ 112.7(d). Since these USTs remain
subject to Subpart F of Part 280 (Release
Response and Corrective Action for UST
Systems Containing Petroleum or
Hazardous Substances), the
requirements of § 112.7(d)(1) and
112.7(d)(2) may be met. Additionally,
since the tanks were installed prior to
January 10, 1974, the completely buried
tanks are not subject to the cathodic
protection requirements at § 112.8(c)(4).
However, since the tanks are subjected
to a non-destructive evaluation on a 10year cycle, the leak testing requirement
under § 112.8(c)(4) would be met.
Completely buried tanks are also subject
to the engineering requirement at
§ 112.8(c)(8) to prevent overfills. The
observed tanks were equipped with
automatic tank gauging. Buried piping
associated with the completely buried
tanks is subjected to pressure testing on
a 10-year cycle; however, since the
piping was installed prior to 2002, the
buried piping is not subject to the
coating, wrapping and cathodic
protection requirements at § 112.8(d)(1).
The case summarized above
illustrates the similarities between UST
safety measures implemented under the
NRC regulations and SPCC requirements
applicable to completely buried tanks.
EPA believes that nuclear power plants
have unique characteristics that
differentiate them from other types of
regulated facilities. Thus, EPA
understands that certain actions
necessary to comply with the SPCC rule
could be impracticable at NRC facilities
because they may compromise the
availability of the emergency diesel
generation tank and consequently affect
the reliability of the nuclear power
supply and result in the shut down of
a nuclear power plant. EPA believes that
the NRC operating safety requirements
best address the specific and unique
operational challenges represented by
completely buried tanks at nuclear
power plants. EPA is, therefore,
proposing to exempt completely buried
oil storage tanks at NRC-regulated
facilities that are subject to the safety
requirements under the NRC
regulations. The exemptions would
apply only to completely buried tanks
as defined in § 112.2 of the SPCC
regulation. Similar to completely buried
tanks subject to all the technical
requirements of 40 CFR part 280 or a
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State program approved under 40 CFR
part 281, completely buried tanks at
NRC-regulated facilities would not be
counted as part of the aggregate
aboveground storage capacity of the
facility, but the tanks would need to be
marked on the facility diagram as
provided in § 112.7(a)(3) if the facility is
otherwise subject to the SPCC rule.
EPA seeks comments on the proposed
exemption of completely buried oil
storage tanks at NRC facilities. 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.
O. Wind Turbines
The Agency was requested to address
the applicability of the rule to wind
turbines used to produce electricity. In
consultation with DOE, EPA’s research
shows that the larger 1.5-mega watt
(MW) turbines have gearbox capacities
typically ranging between 55 and 65
gallons. Additionally, other wind
turbine components, such as the gear
reducers within the turbine for yaw and
pitch control may contain up to 10
gallons of lubricating oil. Based on these
capacities, wind turbine farms at
locations where there is a reasonable
expectation of a discharge to navigable
waters or adjoining shorelines could
meet the 1,320-gallon aggregate
aboveground oil storage capacity
applicability threshold for the SPCC
rule and would be required to prepare
a Plan. The Agency believes that these
wind turbines meet the definition of oilfilled operational equipment
promulgated in the December 2006
SPCC rule amendments (71 FR 77266,
December 26, 2006) and thus can take
advantage of the alternative compliance
option provided for this type of
equipment.
The amendments to the SPCC rule
promulgated in December 2006 allow
owners and operators of facilities with
eligible oil-filled operational equipment
the option to prepare 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).
If an owner or operator takes this
option, he or she is also 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.
The Agency defined ‘‘oil-filled
operational equipment’’ as ‘‘equipment
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that 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 solely to enable
the operation of the device.’’ (71 FR
77290)
These examples the Agency included
in definition of oil-filled operational
equipment were intended to provide
additional clarity and not to exclude
other such equipment. Based on their
characteristics, the Agency considers
wind turbines to meet the definition of
oil-filled operational equipment. Wind
farm facilities can take advantage of the
oil spill contingency plan compliance
option as an alternative to secondary
containment requirements.
In addition, in examining the design
of a wind turbine, a PE (or owner/
operator of a qualified facility) may
determine that it inherently provides
sufficient secondary containment for its
oil reservoirs. The nacelle, or structure
that contains the key components of the
turbine, including the gearbox and the
electrical generator, may be determined
to serve as sufficient secondary
containment in the event of an oil
discharge. Thus, the PE or owner/
operator of a qualified facility may
certify a wind turbine as being in
compliance with the § 112.7(c)
requirements for secondary
containment. As such, the alternative
measures described in § 112.7(k) (i.e., an
oil spill contingency plan, the
commitment of resources and
manpower, and an inspection or
monitoring program) would not be
necessary.
It is important to note that a wind
farm that meets the criteria for qualified
facility status has additional compliance
alternatives, and flexibility is available,
the most significant being the option for
self-certification of his SPCC Plan. EPA
seeks comments on whether this
discussion provides adequate clarity on
the applicability of the SPCC rule to
wind turbines, or whether further
clarification is needed.
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P. Technical Corrections
EPA proposes a technical correction
to the introductory paragraph of § 112.3,
to move the phrase ‘‘in writing’’ after
‘‘must prepare’’ and then insert the
phrase ‘‘and implement’’ after the
phrase ‘‘in writing’’, in order to provide
an explicit requirement for a facility
owner to both prepare and implement
an SPCC Plan. This paragraph describes
the requirement for an owner or
operator of an onshore or offshore
facility subject to the rule to prepare an
SPCC Plan, in writing, and in
accordance with § 112.7 and any other
applicable section of the rule. Adding
the term ‘‘and implement’’ to this
paragraph would be consistent with the
subsequent subsections, which provide
compliance dates to both prepare or
amend, and implement, an SPCC Plan
for various categories of facility owners
and operators. In describing the
requirement to prepare a Plan in the
introductory paragraph of § 112.3, the
Agency inadvertently excluded the
explicit requirement to also implement
that Plan. Clearly, a facility owner or
operator must implement his SPCC Plan
in order for it to be effective in
preventing discharges of oil to navigable
waters and adjoining shorelines. In
order to provide clarity, EPA will
explicitly include the word
‘‘implement’’ in § 112.3 as a technical
correction, and seeks comment on this
clarification.
EPA also proposes a technical
correction to the introductory paragraph
of § 112.12, to delete the phrase
‘‘(excluding a production facility.)’’ In
the December 2006 amendments to the
SPCC rule (71 FR 77266, December 26,
2006), EPA amended Subpart C of part
112 by removing several sections
because they were not appropriate for
animal fats and vegetable oils. At that
time, as a point of clarification, EPA
also removed the phrase ‘‘for onshore
facilities (excluding production
facilities)’’ from the title of § 112.12,
because, having removed the
inapplicable production facility
requirements from Subpart C, it was no
longer necessary to differentiate onshore
oil production facilities from other
facilities in § 112.12. However, EPA
inadvertently neglected to remove the
corresponding phrase from the
introductory paragraph of the section.
EPA currently seeks to correct this
inadvertent omission. EPA seeks
comments on this proposed technical
correction.
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VII. Statutory and Executive Order
Reviews
A. Executive Order 12866—Regulatory
Planning and Review
Under section 3(f)(1) of Executive
Order (EO) 12866 (58 FR 51735, October
4, 1993), this action is an ‘‘economically
significant regulatory action’’ because it
is likely to have an annual effect on the
economy of $100 million or more.
Accordingly, EPA submitted this action
to the Office of Management and Budget
(OMB) for review under EO 12866 and
any changes made in response to OMB
recommendations have been
documented in the docket for this
action. In addition, EPA prepared an
analysis of the potential costs and
benefits associated with this action.
This analysis is contained in the
regulatory impact analysis (RIA)
entitled, ‘‘Regulatory Impact Analysis
for the Proposed Amendments to the Oil
Pollution Prevention Regulations (40
CFR Part 112)’’ (September 2007). A
copy of the analysis is available in the
docket for this action and the analysis
is briefly summarized here. EPA
requests comments from the public on
the costs and benefits of any of the
proposed regulatory alternatives and
preferred options discussed in this
proposed rulemaking action.
For the economic impact analysis of
these proposed amendments to the
SPCC rule, EPA used the SPCC rule
requirements at 40 CFR part 112, as
amended in 2002 (67 FR 47042, July 17,
2002) as the baseline to estimate the
potential cost savings to regulated
facilities from these proposed
amendments. The cost savings are not
adjusted for the estimated, potential cost
savings for the final 2006 rule
amendments and may overestimate the
cost savings for these proposed
amendments, particularly for proposed
Tier 1 qualified facilities, proposed
revisions to the integrity testing
requirement, and the proposed
amendments to delay SPCC Plan
preparation and implementation for oil
production facilities. The regulatory
impact analysis developed in support of
this proposal compares the compliance
costs for owners and operators of
facilities affected by the proposed
amendments to the costs owners and
operators would face under the 2002
SPCC rule amendments. The proposed
regulatory amendments have twelve
major components: (1) Exempt hot-mix
asphalt; (2) exempt pesticide
application equipment and related mix
containers used at farms; (3) exempt
heating oil containers at single-family
residences; (4) amend the definition of
‘‘facility’’ to clarify the flexibility
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associated with defining a facility’s
boundaries; (5) amend the facility
diagram requirement to provide
additional flexibility for all facilities; (6)
define ‘‘loading/unloading rack’’ to
clarify the equipment subject to the
provisions for facility tank car and tank
truck loading/unloading racks; (7)
provide streamlined requirements for a
subset of qualified facilities; (8) amend
the general secondary containment
provision to provide more clarity; (9)
amend the security requirements for all
facilities; (10) amend the integrity
testing requirements to allow a greater
amount of flexibility in the use of
industry standards at all facilities; (11)
amend the integrity testing requirements
for containers that store animal fats or
vegetable oils and meet certain criteria;
(12) streamline a number of
requirements at oil production facilities;
and (13) exempt completely buried oil
storage tanks at nuclear power
generation facilities. EPA is also
providing clarification in the preamble
to this proposed rule on three additional
issues identified by the regulated
community: (1) the consideration of
man-made structures in determining
how to comply with the SPCC rule
requirements; (2) the applicability of the
rule to underground emergency diesel
generator tanks at nuclear power
stations, and (3) the applicability of the
rule to wind turbines for electricity
generation.
For each of these components, EPA
estimated potential cost savings to
regulated facilities that may result from
reductions in compliance costs. The
main steps used to estimate the
compliance cost impacts of the SPCC
proposed rule are as follows:
• Develop the baseline universe of
SPCC-regulated facilities;
• Estimate the number of facilities
affected by the proposed rule
amendments;
• Estimate changes in unit
compliance cost for each regulated
facility affected by the proposed rule;
• Estimate total compliance cost
savings to owners and operators of
potentially affected facilities; and
• Annualize compliance cost savings
over a ten-year period, 2008 through
2017, and discount the estimates using
3 and 7 percent discount rates.
Based on these steps, EPA estimated
the annualized compliance cost savings
to potentially affected facilities
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associated with each of the major
components of the proposed rule, and
presents the results of the economic
analysis in Exhibit 1. EPA uses four key
assumptions in its regulatory impact
analysis. First, the Agency assumes that
cost minimization behavior applies to
all owners and operators of facilities
that qualify for reduced regulatory
requirements, whereby all those affected
would seek burden relief. Second, EPA
assumed, consistent with EPA’s
guidelines for conducting economic
analyses, that all existing owners and
operators of facilities are in full
compliance with the July 2002
amendments to the SPCC rule (67 FR
47042). Third, EPA assumes that owners
and operators of existing SPCCregulated facilities would forgo
compliance activities offered as
alternatives to activities that required
one-time initial investments because
they would have already incurred a onetime cost. For example, EPA assumes
that an owner or operator of an existing
facility who would qualify for reduced
security requirements under the
proposed rule that allows facility
owners/operators to tailor their security
measures to the facility’s specific
characteristics and location, would have
already provided the security measures
as per the 2002 rule amendments or
demonstrated environmental
equivalence for tailored security
measures. Thus, owners and operators
of existing facilities would not take
advantage of the provided alternative.
Fourth, EPA assumes that compliance is
nationally consistent although
variability in state regulations and the
distribution of affected facilities is
recognized.
Exhibit 1 presents the estimated cost
savings for each rule component and for
the proposed rule amendments in total.
For several proposed rule amendments,
such as the security requirements and
facilities handling AFVO, EPA did not
have numeric data on the number of
affected facilities within a general
industry sector; thus, it developed three
scenarios to evaluate a range of cost
savings.17 The exhibit below presents
17 For example, to develop a range for the number
of affected AFVO facilities, EPA contacted industry
experts who determined that 40 percent to 90
percent of containers at AFVO facilities are made
of stainless steel and almost all containers have
bottom drainage. Therefore, based on professional
judgment, the Agency considered three scenarios:
40% (low), 65% (medium) and 90% (high) of all
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the estimated cost savings for the
proposed options for this proposed rule.
The total potential cost savings are
calculated taking into account the midpoint values of the estimated ranges of
statistical distributions for unit costs.
These estimates are not necessarily
additive, given that they do not account
for interactions among the various
components of the proposed rule.18
The oil production sector and farms
would benefit from multiple
components of the proposed rule. Farms
would benefit from the proposed
requirements for Tier I qualified
facilities, amendments to the definition
of ‘‘facility’’, amendments to the
security, integrity testing, facility
diagram requirements, amendments to
the definition of ‘‘loading/unloading
rack’’, and the exemption for singlefamily residential heating oil containers,
in addition to the exemption of
pesticide application equipment. The
total cost savings to farm owners and
operators from these amendments are
estimated at $263 million on an
annualized basis.
The oil production sector would
benefit from proposed revisions to the
facility diagram requirements, and
amendments to the definition of
‘‘loading/unloading rack’’, and some
would benefit from the new
requirements for Tier I qualified
facilities, in addition to amendments
specific to the oil production sector
such as the six-month delay in
preparation and implementation of
SPCC Plans and the exemption of flowthrough separation and treating
equipment from sized secondary
containment requirements. The total
savings to owners and operators of oil
production facilities from all of the
proposed amendments that affect this
sector are estimated at $83 million on an
annualized basis.
AFVO facilities would have food oil tanks that are
eligible.
18 Certain industry sectors are affected by
multiple rule components. For example, farms
would benefit from the new requirements for Tier
I qualified facilities, amendments to the definition
of ‘‘facility’’, amendments to the security, integrity
testing, facility diagram requirements, amendments
to the definition of ‘‘loading/unloading rack’’, and
the exemption for single-family residential heating
oil containers, in addition to the exemption of
pesticide application equipment. As a result, taking
advantage of one new requirement might preclude
a facility from benefiting from other proposed
requirements.
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EXHIBIT 1.—ESTIMATED COMPLIANCE COST SAVINGS FOR THE PROPOSED REGULATORY AMENDMENTS
Annualized cost
savings ($2006,
in millions,
7% discount rate)
Rule component/scenario
Hot-Mix Asphalt:
Exempt HMA containers ...................................................................................................................................................
Farms:
Exempt pesticide application equipment; clarification on nurse tanks being mobile refuelers .......................................
Residential Heating Oil Containers:
Exempt single-family residential heating oil containers ...................................................................................................
Definition of Facility:
Revise the definition of ‘‘facility’’ ......................................................................................................................................
Facility Diagram:
Revise facility diagram requirement .................................................................................................................................
Loading/Unloading Racks:
Define ‘‘loading/unloading rack’’ .......................................................................................................................................
Tier I Qualified Facilities:
Provide streamlined requirements for Tier I qualified facilities ........................................................................................
General Secondary Containment:
Amend the general secondary containment provision to provide more clarity ................................................................
Security Requirements:
Revise security requirements 1 .........................................................................................................................................
Integrity Testing:
Amend the integrity testing requirements to allow a greater amount of flexibility in the use of industry standards at
all facilities.
Animal Fats and Vegetable Oil:
Amend integrity testing requirements for containers that store animal fats or vegetable oil and that meet certain criteria 2.
Oil Production Facilities:
Six month delay for Plan preparation and implementation ..............................................................................................
Exempt flowlines and gathering lines from secondary containment ................................................................................
Flow-through separation and treatment equipment .........................................................................................................
Man-Made Structures:
Consider manmade structures in determining SPCC rule applicability ...........................................................................
Nuclear Power Stations:
Exempt completely buried oil storage tanks at nuclear power generation facilities. .......................................................
Wind turbines:
Clarify applicability of the rule to wind turbines used to produce electricity ....................................................................
Total ...........................................................................................................................................................................
$7
$4
$2
$251
$1
$48
$24
No cost impact.
$7
$9
$2
$25
No net cost impact.
$8
No cost impact.
Less than $1.
No cost impact.
$387
1 Mid-point
estimate (17% of oil production facilities, 50% of AFVO facilities, and 8% of farms affected). Cost savings might be higher or lower
using different assumptions.
2 Mid-point estimate (65% of facilities affected). Cost savings might be lower using different assumptions.
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B. Paperwork Reduction Act
The information collection
requirements for this proposed rule
have been submitted for approval to
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 0328.14.
EPA does not collect the information
required by the 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 owner or
operator helps prevent oil discharges
and mitigate the environmental damage
caused by such discharges. Therefore,
the primary user of the data is the
facility personnel. While EPA may, from
time to time, request information under
these regulations, such requests are not
routine.
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Although facility personnel are the
primary data user, EPA also uses the
data in certain situations. EPA reviews
SPCC Plans: (1) When it requests a
facility owner or operator to submit
required information in the event of
certain discharges of oil or to evaluate
an extension request; and (2) as part of
the 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 Clean Water Act
as implemented by 40 CFR part 112.
EPA estimates that in the absence of
this proposed rulemaking,
approximately 592,000 existing facilities
would be subject to the SPCC rule in
2008 and have SPCC Plans. In addition,
EPA estimates that approximately
18,100 new facilities would become
subject to the SPCC requirements during
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that year, resulting in a total of about
610,000 regulated facilities in 2008.19
Under this proposed action, the
storage capacity of containers solely
containing hot-mix asphalt would be
exempt from the SPCC rule; the
proposal would also exempt all heating
oil containers for single-family
residences; pesticide application
equipment and related mix containers
used at farms would no longer be
regulated; the definition of ‘‘facility’’
would be amended to clarify that
contiguous or non-contiguous buildings,
properties, parcels, leases, structures,
installations, pipes, or pipelines may be
considered separate facilities, and to
specify that the ‘‘facility’’ definition
governs the applicability of 40 CFR part
112; EPA would amend the facility
19 To estimate the number of SPCC-regulated
facilities in 2008, EPA used the estimated number
of facilities for 2005 (571,000) and applied annual,
industry-specific growth rates that resulted in about
610,000 facilities.
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diagram requirement to provide
additional flexibility for all facilities;
EPA would provide a definition for the
term ‘‘loading/unloading rack,’’ which
would determine whether a facility is
subject to the provisions at § 112.7(h), as
well as specifically exclude onshore oil
production facilities and farms from the
requirements of § 112.7(h); a subset of
qualified facilities (Tier I) would be
allowed to complete and implement an
SPCC Plan template (proposed as
Appendix G to 40 CFR part 112) in
order to comply with the SPCC rule
requirements; the security requirements
at § 112.7(g) would be modified to allow
an owner or operator to tailor his
security measures to the facility’s
specific characteristics and location; the
current integrity testing requirements at
§§ 112.8(c)(6) and 112.12(c)(6) would be
replaced with the requirements
provided for qualified facilities, as
promulgated in December 2006; the PE
or an owner/operator certifying an SPCC
Plan would have the flexibility to
determine the scope of integrity testing
that is appropriate for containers that
store animal fats or vegetable oil that is
intended for human consumption and
that meet other criteria; lastly, this
proposed rulemaking would streamline
the requirements for oil production
facilities by modifying the definition of
production facility to be consistent with
the proposed amendments to the
definition of facility, extending the
timeframe by which a new oil
production facility must prepare and
implement an SPCC Plan, exempting
flow-through process vessels at oil
production facilities from the sized
secondary containment requirements,
while maintaining general secondary
containment requirements and requiring
additional oil spill prevention measures,
establishing more specific requirements
for contingency planning and a
flowline/intra-facility gathering line
maintenance program, while exempting
such flowlines and intra-facility
gathering lines at oil production
facilities from the secondary
containment requirements, clarifying
the applicability of the SPCC rule to oil
containers at a natural gas facility,
clarifying the SPCC provisions to which
a natural gas facility may be subject, and
clarifying the definition of
‘‘permanently closed’’ as it applies to an
oil production facility.
Under this proposed action, an
estimated 610,000 regulated facilities
would be subject to the SPCC
information collection requirements of
this rule in 2008.20 The Agency
estimates that as a result of the proposed
amendments to tailor, clarify, and
streamline certain SPCC requirements,
the reporting and recordkeeping burden
would decrease by approximately 1.4
million hours. The proposed
amendments would reduce capital and
O&M costs by approximately $43
million on an annualized basis.
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.
20 To estimate the number of SPCC-regulated
facilities in 2008, EPA used the estimated number
of facilities for 2005 (571,000) and applied annual
industry-specific growth rates.
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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 this proposed rule on small entities,
a small entity is defined as: (1) A small
business as defined in the U.S. Small
Business Administration (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 oil
production facilities, which constitute a
large percentage of the facilities affected
by this proposed rule, generally defines
small businesses as having less than
$0.5 million to $27.5 million per year in
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58425
sales receipts, depending on the
industry, or 500 or fewer 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 this 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 would 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.
Under this proposal, the following
issues will be addressed: exempt hotmix asphalt from SPCC requirements;
exempt specific oil storage equipment
on farms from the SPCC rule
requirements; exempt heating oil
containers at single-family residences;
clarify how containers, fixed and
mobile, are identified on the facility
diagram; modify the definition of
‘‘facility’’ to clarify that contiguous or
non-contiguous buildings, properties,
parcels, leases, structures, installations,
pipes, or pipelines may be considered
separate facilities and that the definition
of ‘‘facility’’ governs the applicability to
the SPCC rule; define ‘‘loading/
unloading rack’’ to clarify whether a
facility is subject to the SPCC rule
requirements of § 112.7(h); streamline
the requirements for a subset of
qualified facilities (Tier I qualified
facilities); amend the facility security
requirements at § 112.7(g) to allow an
owner or operator to tailor security
measures to his facility’s specific
characteristics and location; replace the
current integrity testing requirements at
§§ 112.8(c)(6) and 112.12(c)(6) with the
current regulatory requirement for a
qualified facility; provide the PE or an
owner/operator certifying an SPCC Plan
with the flexibility for integrity testing
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for bulk storage containers that store
animal fats or vegetable oil and that
meet other criteria; and initiate several
amendments to streamline the
requirements for oil production facility
to address concerns raised by the
production sector, respectively.
Overall, EPA estimates that this
proposed action would reduce annual
compliance costs by approximately
$387 million for owners and operators
of affected facilities. Total costs were
annualized over a 10-year period using
a 7 percent discount rate. EPA derived
these savings by estimating the number
of facilities affected by each proposed
amendment; identifying the specific
behavioral changes that may occur (e.g.,
choosing to prepare an SPCC Plan
template instead of a full SPCC Plan);
estimating the unit costs of compliance
measures under the baseline and
proposed scenarios; and applying the
change in unit costs to the projected
number of affected facilities.
EPA has therefore concluded that this
proposed rule would relieve regulatory
burden for small entities and therefore,
certify that this proposed 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 costeffective, 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 cost-effective, or least
burdensome alternative if the
Administrator publishes with the rule
an explanation why that alternative was
not adopted.
Before EPA establishes any regulatory
requirements that may significantly or
uniquely affect small governments,
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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. This proposed action
would reduce compliance costs on
owners and operators of affected
facilities by approximately $387 million
annually, although EPA acknowledges
this total estimate is derived from
analyses of individual major
components of the proposed rule that
are not necessarily additive, given that
they do not account for interactions
among the various components. Thus,
this proposed rule is not subject to the
requirements of sections 202 and 205 of
the UMRA.
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 for facility owners and
operators, 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
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
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section 311(o), States may impose
additional requirements, including more
stringent requirements, relating to the
prevention of oil discharges to navigable
waters and adjoining shorelines. EPA
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
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This proposed rule does
not have tribal implications, as specified
in Executive Order 13175. This
proposed rule would not significantly or
uniquely affect communities of Indian
trial governments. Thus, Executive
Order 13175 does not apply to this
proposed rule.
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 it does
not establish an environmental standard
intended to mitigate health or safety
risks.
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H. Executive Order 13211—Actions
That Significantly Affect Energy Supply,
Distribution, or Use
requirements, Secondary containment,
Security, Tanks, Unloading racks, Water
pollution control, Water resources.
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.
The overall effect of the proposed rule
is to decrease the regulatory burden on
facility owners or operators subject to its
provisions.
Dated: October 1, 2007.
Stephen L. Johnson,
Administrator.
I. National Technology Transfer and
Advancement Act
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.
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.
The owner or operator of a facility
subject to the SPCC rule has the
flexibility to consider applicable
industry standards in the development
of an SPCC Plan, in accordance with
good engineering practice. However,
this proposed rulemaking does not
involve technical standards, as it does
not set or incorporate by reference any
one specific technical standard.
Therefore, the NTTAA does not apply.
EPA welcomes comments on this aspect
of the proposed rulemaking and,
specifically, invites the public to
identify potentially applicable voluntary
consensus standards and to explain why
such standards should be used in this
regulation.
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List of Subjects in 40 CFR Part 112
Environmental protection, Animal
fats and vegetable oils, Hot-mix Asphalt,
Farms, Flammable and combustible
materials, Integrity testing, Loading
racks, Materials handling and storage,
Natural gas, Oil pollution, Oil and gas
exploration and production, Oil spill
response, Penalties, Petroleum,
Reporting and recordkeeping
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For the reasons stated in the
preamble, title 40, chapter I, part 112 of
the Code of Federal Regulations is
proposed to be amended as follows:
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
continues to read as follows:
Subpart A—[Amended]
2. Amend § 112.1 as follows:
a. By revising paragraphs (d)(2)(i) and
(d)(2)(ii).
b. By revising paragraph (d)(4).
c. By adding paragraphs (d)(8)
through (d)(10).
§ 112.1
General applicability.
*
*
*
*
*
(d) * * *
(2) * * *
(i) The completely buried storage
capacity of the facility is 42,000 gallons
or less of oil. For purposes of this
exemption, the completely buried
storage capacity of a facility excludes
the capacity of a completely buried
tank, as defined in § 112.2, and
connected underground piping,
underground ancillary equipment, and
containment systems, that is currently
subject to all of the technical
requirements of part 280 of this chapter
or all of the technical requirements of a
State program approved under part 281
of this chapter, or which, in the case of
a nuclear power generation facility,
meets the Nuclear Regulatory
Commission design criteria at 10 CFR
part 50, Appendices A and B. The
completely buried storage capacity of a
facility also excludes the capacity of a
container that is ‘‘permanently closed,’’
as defined in § 112.2.
(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’’ and the capacity
of a ‘‘motive power container’’ as
defined in § 112.2; the capacity of hotmix asphalt or any hot-mix asphalt
container; the capacity of a container for
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heating oil used solely at a single-family
residence; and the capacity of pesticide
application equipment and related mix
containers used at farms.
*
*
*
*
*
(4) Any completely buried storage
tank, as defined in § 112.2, and
connected underground piping,
underground ancillary equipment, and
containment systems, at any facility,
that is subject to all of the technical
requirements of part 280 of this chapter
or a State program approved under part
281 of this chapter or which, in the case
of a nuclear power generation facility,
meets the Nuclear Regulatory
Commission design criteria at 10 CFR
part 50, Appendices A and B, except
that such a tank must be marked on the
facility diagram as provided in
§ 112.7(a)(3), if the facility is otherwise
subject to this part.
*
*
*
*
*
(8) Hot-mix asphalt, or any hot-mix
asphalt container.
(9) Any container for heating oil used
solely at a single-family residence.
(10) Any pesticide application
equipment or related mix containers
used at farms.
*
*
*
*
*
3. Amend § 112.2 by revising the
definitions for ‘‘Facility’’, ‘‘Production
facility’’, and adding a definition for
‘‘Loading/unloading rack’’ in
alphabetical order to read as follows:
§ 112.2
Definitions.
*
*
*
*
*
Facility means any mobile or fixed,
onshore or offshore building, property,
parcel, lease, structure, installation,
equipment, pipe, or pipeline (other than
a vessel or a public vessel) used in oil
well drilling operations, oil production,
oil refining, oil storage, oil gathering, oil
processing, oil transfer, oil distribution,
and oil waste treatment, or in which oil
is used, as described in Appendix A to
this part. The boundaries of a facility
depend on several site-specific factors,
including but not limited to, the
ownership or operation of buildings,
structures, and equipment on the same
site and types of activity at the site.
Contiguous or non-contiguous
buildings, properties, parcels, leases,
structures, installations, pipes, or
pipelines under the ownership or
operation of the same person may be
considered separate facilities. Only this
definition governs whether a facility is
subject to this part.
*
*
*
*
*
Loading/unloading rack means a
structure necessary for loading or
unloading a tank truck or tank car,
which is located at a facility subject to
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the requirements of this part. A loading/
unloading rack includes a platform,
gangway, or loading/unloading arm; and
any combination of the following:
piping assemblages, valves, pumps,
shut-off devices, overfill sensors, or
personnel safety devices.
*
*
*
*
*
Production facility means all
structures (including but not limited to
wells, platforms, or storage facilities),
piping (including but not limited to
flowlines or gathering lines), or
equipment (including but not limited to
workover equipment, separation
equipment, or auxiliary nontransportation-related equipment) used
in the production, extraction, recovery,
lifting, stabilization, separation or
treating of oil, or associated storage or
measurement, and may be located in a
single geographical oil or gas field
operated by a single operator. This
definition governs whether a facility is
subject to a specific section of this part.
*
*
*
*
*
4. Amend § 112.3 as follows:
a. By revising the introductory text.
b. By revising paragraph (b)(1).
c. By adding paragraph (b)(3).
d. Revising paragraph (g).
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§ 112.3 Requirement to prepare and
implement a Spill Prevention, Control, and
Countermeasure Plan.
The owner of operator of an onshore
or offshore facility subject to this section
must prepare in writing and implement
a Spill Prevention Control and
Countermeasure Plan (hereafter ‘‘SPCC
Plan’’ or ‘‘Plan),’’ in accordance with
§ 112.7 and any other applicable section
of this part.
*
*
*
*
*
(b)(1) If you are the owner or operator
of an onshore or offshore facility
(excluding oil production facilities) that
becomes operational after July 1, 2009,
and could reasonably be expected to
have a discharge as described in
§ 112.1(b), you must prepare and
implement a Plan before you begin
operations.
*
*
*
*
*
(3) If you are the owner or operator of
an oil production facility that becomes
operational after July 1, 2009, and could
reasonably be expected to have a
discharge as described in § 112.1(b), you
must prepare and implement a Plan
within six months after you begin
operations.
*
*
*
*
*
(g) Qualified Facilities. The owner or
operator of a qualified facility as defined
in this subparagraph may self certify his
or her facility’s Plan, as provided in
§ 112.6. A qualified facility is one that
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meets the following Tier I or Tier II
qualified facility criteria:
(1) A Tier I qualified facility meets all
of the qualification criteria in paragraph
(g)(2) of this section and has no
individual oil storage container with a
capacity greater than 5,000 U.S. gallons.
(2) A Tier II qualified facility is one
that:
(i) Has an aggregate aboveground oil
storage capacity of 10,000 U.S. gallons
or less; and
(ii) Has had no single discharge as
described in § 112.1(b) exceeding 1,000
U.S. gallons or no two discharges as
described in § 112.1(b) each exceeding
42 U.S. gallons within any twelve
month period in the three years prior to
the SPCC Plan self-certification date, or
since becoming subject to this part if the
facility has been in operation for less
than three years (other than discharges
as described in § 112.1(b) that are the
result of natural disasters, acts of war,
or terrorism).
5. Revise § 112.6 to read as follows:
§ 112.6 Qualified Facilities Plan
Requirements.
Qualified facilities meeting the Tier I
applicability criteria in § 112.3(g)(1) are
subject to either all of the requirements
in paragraph (a) of this section or all of
the requirements in paragraph (b) of this
section. Facilities meeting the Tier II
applicability criteria in § 112.3(g)(2) are
subject to the requirements in paragraph
(b) of this section.
(a) Tier I Qualified Facilities—(1)
Preparation and Self-Certification of the
Plan. If you are an owner or operator of
a facility that meets the Tier I qualified
facility criteria in § 112.3(g)(1), you may
choose to prepare an SPCC Plan that
meets the requirements of paragraph
(a)(3) of this section to serve as the Plan
for your facility, instead of preparing a
Plan meeting requirements of paragraph
(b) of this section or the general Plan
requirements in § 112.7 and applicable
requirements in subparts B and C of this
part, including having the Plan certified
by a Professional Engineer as required
under § 112.3(d). The template in
Appendix G to this part has been
developed to meet the requirements of
40 CFR part 112 and must be used as the
SPCC Plan. To complete the template in
Appendix G, you must certify that:
(i) You are familiar with the
applicable requirements of 40 CFR part
112;
(ii) You have visited and examined
the facility;
(iii) You prepared the Plan in
accordance with accepted and sound
industry practices and standards;
(iv) Procedures for required
inspections and testing have been
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established in accordance with industry
inspection and testing standards or
recommended practices;
(v) You will fully implement the Plan;
(vi) The facility meets the
qualification criteria in § 112.3(g)(1);
(vii) The Plan does not deviate from
any requirement of this part as allowed
by 112.7(a)(2) and 112.7(d); and
(viii) The Plan and individual(s)
responsible for implementing this Plan
have the approval of management, and
the facility owner or operator has
committed the necessary resources to
fully implement this Plan.
(2) Technical Amendments. You must
certify any technical amendments to
your Plan in accordance with paragraph
(a)(1) of this section when there is a
change in the facility design,
construction, operation, or maintenance
that affects its potential for a discharge
as described in § 112.1(b). If the facility
change results in the facility no longer
meeting the Tier I qualifying criteria in
§ 112.3(g)(1) because an individual oil
storage container capacity exceeds 5,000
U.S. gallons or the facility capacity
exceeds 10,000 gallons in aggregate
aboveground storage capacity, within
six months following preparation of the
amendment, you must either:
(i) Prepare and implement a Plan in
accordance with § 112.6(b) if you meet
the Tier II qualified facility criteria in
§ 112.3(g)(2), or
(ii) Prepare and implement a Plan in
accordance with the general Plan
requirements in § 112.7, and applicable
requirements in subparts B and C of this
part, including having the Plan certified
by a Professional Engineer as required
under § 112.3(d).
(3) Plan Template and Applicable
Requirements. The following
requirements under § 112.7 and in
subparts B and C of this part apply to
qualified Tier I facilities choosing the
self-certification Tier I option:
§§ 112.7(a)(3)(i), 112.7(a)(3)(iv),
112.7(a)(3)(vi), 112.7(a)(4), 112.7(a)(5),
112.7(c), 112.7(e), 112.7(f), 112.7(g),
112.7(k), 112.8(b)(1), 112.8(b)(2),
112.8(c)(1), 112.8(c)(3), 112.8(c)(4),
112.8(c)(5), 112.8(c)(6), 112.8(c)(10),
112.8(d)(4), 112.9(b), 112.9(c),
112.9(d)(1), 112.9(d)(3), 112.9(d)(4),
112.10(b), 112.10(c), 112.10(d),
112.12(b)(1), 112.12(b)(2), 112.12(c)(1),
112.12(c)(3), 112.12 (c)(4), 112.12(c)(5),
112.12(c)(6), 112.12(c)(10), and
112.12(d)(4). Additionally, you must
meet the following requirements:
(i) Failure analysis, in lieu of the
requirements in § 112.7(b). Where
experience indicates a reasonable
potential for equipment failure (such as
loading or unloading equipment, tank
overflow, rupture, or leakage, or any
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other equipment known to be a source
of discharge), include in your Plan a
prediction of the direction and total
quantity of oil which could be
discharged from the facility as a result
of each type of major equipment failure.
(ii) Bulk storage container secondary
containment, in lieu of the requirements
in §§ 112.8(c)(2) and (c)(11) and
112.12(c)(2) and (c)(11). Construct all
bulk storage container installations,
including mobile or portable oil storage
containers, so that you provide a
secondary means of containment for the
entire capacity of the largest single
container plus additional capacity to
contain precipitation. 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 catchment basin or
holding pond. Position or locate mobile
or portable oil storage containers to
prevent a discharge as described in
§ 112.1(b).
(iii) Overfill prevention, in lieu of the
requirements in §§ 112.8(c)(8) and
112.12(c)(8). Ensure that each container
is provided with a system or
documented procedure to prevent
overfills of the container, describe the
system or procedure in the SPCC Plan
and regularly test to ensure proper
operation or efficacy.
(b) Tier II Qualified Facilities—(1)
Preparation and Self-Certification of
Plan. If you are the owner or operator
of a facility that meets the Tier II
qualified facility criteria in § 112.3(g)(2),
you may choose to self-certify your
Plan. You must certify in the Plan that:
(i) You are familiar with the
requirements of this part;
(ii) You 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) You will fully implement the Plan;
(vi) The facility meets the
qualification criteria set forth under
§ 112.3(g)(2);
(vii) The Plan does not deviate from
any requirement of this part as allowed
by § 112.7(a)(2) and 112.7(d), except as
provided in paragraph (b)(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 owner or operator has
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committed the necessary resources to
fully implement the Plan.
(2) Technical Amendments. If you
self-certify your Plan pursuant to (b)(1)
of this section, you must certify any
technical amendments to your Plan in
accordance with paragraph (b)(1) of this
section when there is a change in the
facility design, construction, operation,
or maintenance that affects its potential
for a discharge as described in
§ 112.1(b), except:
(i) If a Professional Engineer certified
a portion of your Plan in accordance
with paragraph (b)(4) of this section,
and the technical amendment affects
this portion of the Plan, you must have
the amended provisions of your Plan
certified by a Professional Engineer in
accordance with paragraph (b)(4)(ii) of
this section.
(ii) If the change is such that the
facility no longer meets the Tier II
qualifying criteria in § 112.3(g)(2)
because it exceeds 10,000 gallons in
aggregate aboveground storage capacity
you must, within six months following
the change, prepare and implement a
Plan in accordance with the general
Plan requirements in § 112.7 and the
applicable requirements in subparts B
and C of this part, including having the
Plan certified by a Professional Engineer
as required under § 112.3(d).
(3) Applicable Requirements. Except
as provided in this subparagraph, your
self-certified SPCC Plan must comply
with § 112.7 and the applicable
requirements in subparts B and C of this
part:
(i) Environmental Equivalence. Your
Plan may not include alternate methods
which provide environmental
equivalence pursuant to § 112.7(a)(2),
unless each alternate method has been
reviewed and certified in writing by a
Professional Engineer, as provided in
paragraph (b)(4) of this section.
(ii) Impracticability. Your Plan may
not include any determinations that
secondary containment is impracticable
and provisions in lieu of secondary
containment pursuant to § 112.7(d),
unless each such determination and
alternate measure has been reviewed
and certified in writing by a
Professional Engineer, as provided in
paragraph (b)(4) of this section.
(4) Professional Engineer Certification
of Portions of a Qualified Facility’s Selfcertified Plan. As described in
paragraph (b)(3) of this section, the
facility owner or operator may not selfcertify alternative measures allowed
under § 112.7(a)(2) or (d), that are
included in the facility’s Plan. Such
measures must be reviewed and
certified, in writing, by a licensed
Professional Engineer as follows:
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(i) For each alternative measure
allowed under § 112.7(a)(2), the Plan
must be accompanied by a written
statement by a Professional Engineer
that states the reason for
nonconformance and describes the
alternative method and how it provides
equivalent environmental protection in
accordance with § 112.7(a)(2). For each
determination of impracticability of
secondary containment pursuant to
§ 112.7(d), the Plan must clearly explain
why secondary containment measures
are not practicable at this facility and
provide the alternative measures
required in § 112.7(d) in lieu of
secondary containment.
(ii) By certifying each measure
allowed under § 112.7(a)(2) and (d), the
Professional Engineer attests:
(A) That he is familiar with the
requirements of this part;
(B) That he or his agent has visited
and examined the facility; and
(C) That the alternative method of
environmental equivalence in
accordance with § 112.7(a)(2) or the
determination of impracticability and
alternative measures in accordance with
§ 112.7(d) is consistent with good
engineering practice, including
consideration of applicable industry
standards, and with the requirements of
this part.
(iii) The review and certification by
the Professional Engineer under this
paragraph is limited to the alternative
method which achieves equivalent
environmental protection pursuant to
§ 112.7(a)(2) or to the impracticability
determination and measures in lieu of
secondary containment pursuant to
§ 112.7(d).
6. Amend § 112.7 as follows:
a. By revising paragraphs (a)(3)
introductory text and (a)(3)(i).
b. By revising paragraphs (c)
introductory text and (c)(1).
c. Revising paragraph (g).
d. Revising paragraphs (h)
introductory text, (h)(1) and (h)(2).
§ 112.7 General requirements for Spill
Prevention, Control, and Countermeasure
Plans.
*
*
*
*
*
(a) * * *
(3) Describe in your Plan the physical
layout of the facility and include a
facility diagram, which must mark the
location and contents of each fixed oil
storage container and the storage area
where mobile or portable containers are
located. The facility diagram must
include completely buried tanks that are
otherwise exempted from the
requirements of this part under
§ 112.1(d)(4). The facility diagram must
also include all transfer stations and
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connecting pipes. You must also
address in your Plan:
(i) The type of oil in each fixed
container and its storage capacity. For
mobile or portable containers, either
provide the type of oil and storage
capacity for each container or provide
an estimate of the potential number of
mobile or portable containers, the types
of oil, and anticipated storage
capacities;
*
*
*
*
*
(c) Provide appropriate containment
and/or diversionary structures or
equipment to prevent a discharge as
described in § 112.1(b), except for
flowlines and intra-facility gathering
lines at an oil production facility, and
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, will not escape
the containment system before cleanup
occurs. In determining the method,
design, and capacity for secondary
containment, you need only to address
the typical failure mode, and the most
likely quantity of oil that would be
discharged. Secondary containment may
be either active or passive in design. At
a minimum, you must use one of the
following prevention systems or its
equivalent:
(1) For onshore facilities:
(i) Dikes, berms, or retaining walls
sufficiently impervious to contain oil;
(ii) Curbing or drip pans;
(iii) Sumps and collection systems;
(iv) Culverting, gutters, or other
drainage systems;
(v) Weirs, booms, or other barriers;
(vi) Spill diversion ponds;
(vii) Retention ponds; or
(viii) Sorbent materials.
*
*
*
*
*
(g) Security (excluding oil production
facilities). Describe in your Plan how
you secure and control access to the oil
handling, processing and storage areas;
secure master flow and drain valves;
prevent unauthorized access to starter
controls on oil pumps; secure out-ofservice and loading/unloading
connections of oil pipelines; address the
appropriateness of security lighting to
both prevent acts of vandalism and
assist in the discovery of oil discharges.
(h) Facility tank car and tank truck
loading/unloading rack (excluding
offshore facilities, farms, and oil
production facilities). (1) Where
loading/unloading rack drainage does
not flow into a catchment basin or
treatment facility designed to handle
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discharges, use a quick drainage system
for tank car or tank truck loading/
unloading racks. You must design any
containment system to hold at least the
maximum capacity of any single
compartment of a tank car or tank truck
loaded or unloaded at the facility.
(2) Provide an interlocked warning
light or physical barrier system, warning
signs, wheel chocks or vehicle brake
interlock system in the area adjacent to
a loading/unloading rack, to prevent
vehicles from departing before complete
disconnection of flexible or fixed oil
transfer lines.
*
*
*
*
*
Subpart B—[Amended]
7. Amend § 112.8 by revising
paragraph (c)(6) to read as follows:
§ 112.8 Spill Prevention, Control, and
Countermeasure Plan requirements for
onshore facilities (excluding oil production
facilities).
*
*
*
*
*
(c) * * *
(6) Test or inspect each aboveground
container for integrity on a regular
schedule and whenever you make
material repairs. You must determine, in
accordance with industry standards, the
appropriate qualifications for personnel
performing tests and inspections, the
frequency and type of testing and
inspections, which take into account
container size, configuration, and design
(e.g., containers that are: 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 (c)(6).
*
*
*
*
*
8. Amend § 112.9 as follows:
a. By revising the section heading.
b. By revising the introductory text.
c. By revising paragraphs (c)(2) and
(c)(3).
d. By adding paragraph (c)(5).
e. By revising paragraph (d)(3).
f. By adding paragraph (d)(4).
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§ 112.9 Spill Prevention, Control, and
Countermeasure Plan Requirements for
onshore oil production facilities (excluding
drilling and workover facilities).
If you are the owner or operator of an
onshore oil production facility
(excluding a drilling or workover
facility), you must:
*
*
*
*
*
(c) * * *
(2) Construct all tank battery,
separation, and treating facility
installations, except for flow-through
process vessels, 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 safely confine drainage
from undiked areas in a catchment basin
or holding pond.
(3) Except for flow-through process
vessels, periodically and upon a regular
schedule visually inspect each container
of oil for deterioration and maintenance
needs, including the foundation and
support of each container that is on or
above the surface of the ground.
*
*
*
*
*
(5) Flow-through process vessels. (i) In
lieu of the requirements in paragraph
(c)(3) of this section, periodically and on
a regular schedule visually inspect and/
or test flow-through process vessels and
associated components (e.g., dump
valves) for leaks, corrosion, or other
conditions that could lead to a discharge
as described in § 112.1(b).
(ii) Take corrective action or make
repairs to flow-through process vessels
and any associated components as
indicated by regularly scheduled visual
inspections, tests, or evidence of an oil
discharge.
(iii) Promptly remove any
accumulations of oil discharges
associated with flow-through process
vessels.
(iv) If your facility discharges more
than 1,000 U.S. gallons of oil in a single
discharge as described in § 112.1(b), or
discharges more than 42 U.S. gallons of
oil in each of two discharges as
described in § 112.1(b) within any
twelve month period, from flow-through
process vessels (excluding discharges
that are the result of natural disasters,
acts of war, or terrorism) then you must,
within six months from the time the
facility becomes subject to this
paragraph, provide flow-through
process vessels with a secondary means
of containment for the entire capacity of
the largest single container and
sufficient freeboard to contain
precipitation.
(d) * * *
(3) For flowlines and intra-facility
gathering lines, unless you have
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submitted a response plan under
§ 112.20, provide in your Plan the
following:
(i) An oil spill contingency plan
following the provisions of part 109 of
this chapter.
(ii) A written commitment of
manpower, equipment, and materials
required to expeditiously control and
remove any quantity of oil discharged
that might be harmful.
(4) Prepare and implement a written
program of flowline/intra-facility
gathering line maintenance. The
maintenance program must address
your procedures to:
(i) Ensure that flowlines and intrafacility gathering lines and associated
valves and equipment must be
compatible with the type of production
fluids, their potential corrosivity,
volume, and pressure, and other
conditions expected in the operational
environment.
(ii) Visually inspect and/or test
flowlines and intra-facility gathering
lines and associated appurtenances on a
periodic and regular schedule for leaks,
oil discharges, corrosion, or other
conditions that could lead to a discharge
as described in § 112.1(b). The
frequency and type of testing must
allow for the implementation of a
contingency plan as described under
part 109 of this chapter.
(iii) Take corrective action or make
repairs to any flowlines and intrafacility gathering lines and associated
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appurtenances as indicated by regularly
scheduled visual inspections, tests, or
evidence of a discharge.
(iv) Promptly remove any
accumulations of oil discharges
associated with flowlines, intra-facility
gathering lines, and associated
appurtenances.
Subpart C—[Amended]
9. Amend § 112.12 by revising the
introductory text and paragraph (c)(6) to
read as follows:
§ 112.12 Spill Prevention, Control, and
Countermeasure Plan Requirements.
If you are the owner or operator of an
onshore facility, you must:
*
*
*
*
*
(c) * * *
(6) Bulk storage container inspections.
(i) Except for containers that meet the
criteria provided in paragraph (c)(6)(ii)
of this section, test or inspect each
aboveground container for integrity on a
regular schedule and whenever you
make material repairs. You must
determine, in accordance with industry
standards, the appropriate qualifications
for personnel performing tests and
inspections, the frequency and type of
testing and inspections, which take into
account container size, configuration,
and design (e.g., containers that are:
shop-built, field-erected, skid-mounted,
elevated, equipped with a liner, doublewalled, or partially buried). Examples of
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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.
(ii) For bulk storage containers that
are subject to 21 CFR part 110, are
elevated, constructed of austenitic
stainless steel, have no external
insulation, and are shop-fabricated,
conduct formal visual inspection on a
regular schedule. In addition, you must
frequently inspect the outside of the
container for signs of deterioration,
discharges, or accumulation of oil inside
diked areas. You must determine and
document in the Plan the appropriate
qualifications for personnel performing
tests and inspections. Records of
inspections and tests kept under usual
and customary business practices satisfy
the recordkeeping requirements of this
paragraph (c)(6).
*
*
*
*
*
10. Add Appendix G to part 112 to
read as follows:
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[FR Doc. E7–19701 Filed 10–12–07; 8:45 am]
BILLING CODE 6560–50–C
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Agencies
[Federal Register Volume 72, Number 198 (Monday, October 15, 2007)]
[Proposed Rules]
[Pages 58378-58445]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-19701]
[[Page 58377]]
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Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 112
Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Requirements--Amendments; Proposed Rule
Federal Register / Vol. 72, No. 198 / Monday, October 15, 2007 /
Proposed Rules
[[Page 58378]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2007-0584; FRL-8479-7]
RIN 2050-AG16
Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure Rule Requirements--Amendments
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to amend the Spill Prevention, Control, and Countermeasure
(SPCC) rule in order to provide increased clarity, to tailor
requirements to particular industry sectors, and to streamline certain
requirements for a facility owner or operator subject to the rule.
Specifically, EPA is proposing to: Exempt hot-mix asphalt; exempt
pesticide application equipment and related mix containers used at
farms; exempt heating oil containers at single-family residences; amend
the facility diagram requirement to provide additional flexibility for
all facilities; amend the definition of ``facility'' to clarify the
flexibility associated with describing a facility's boundaries; define
``loading/unloading rack'' to clarify the equipment subject to the
provisions for facility tank car and tank truck loading/unloading
racks; provide streamlined requirements for a subset of qualified
facilities; amend the general secondary containment requirement to
provide more clarity; amend the security requirements for all
facilities; amend the integrity testing requirements to allow a greater
amount of flexibility in the use of industry standards at all
facilities; amend the integrity testing requirements for containers
that store animal fat or vegetable oil and meet certain criteria;
streamline a number of requirements for oil production facilities; and
exempt completely buried oil storage tanks at nuclear power generation
facilities. These changes tailor requirements to particular industries
for easier and increased compliance, resulting in greater protection of
human health and the environment. EPA is also providing clarification
in the preamble to this proposed rule on additional issues raised by
the regulated community.
DATES: Comments must be received on or before December 14, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2007-0584, by one of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments.
Mail: EPA Docket, Environmental Protection Agency, Mail
code: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC. 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-
2007-0584. 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 or e-mail.
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 send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your 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. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm.
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 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 3334, 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 for the Public
Reading Room is (202) 566-1744, and the telephone number for the EPA
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: The contents of this preamble are:
I. General Information
II. Entities Potentially Affected by This Proposed Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
A. Hot-Mix Asphalt
1. Proposed Exemption for Hot-Mix Asphalt
2. Alternative Options Considered
B. Farms
1. Exemption for Pesticide Application Equipment and Related Mix
Containers
2. Applicability of Mobile Refueler Requirements to Farm Nurse
Tanks
3. Alternative Options Considered
C. Residential Heating Oil Containers
1. Exemption for Residential Heating Oil Containers
2. Alternative Option Considered: Exemption for Residential
Heating Oil Containers Only at Farms
D. Definition of Facility
1. Proposed Revisions to the Definition of Facility
2. Determining the Components of a Facility: Examples of
Aggregation or Separation
3. Alternative Options Considered
E. Facility Diagram
1. Proposed Revision to the Facility Diagram Requirement
2. Indicating Complicated Areas of Piping or Oil-Filled
Equipment on a Facility Diagram
F. Loading/Unloading Racks
1. Proposed Loading/Unloading Rack Definition
[[Page 58379]]
2. Requirements for Loading/Unloading Racks
3. Exclusions
4. Alternative Option Considered: No Action
G. Tier I Qualified Facilities
1. Eligibility Criteria
2. Provisions for Tier I Qualified Facilities
3. SPCC Plan Template
4. Self-Certification and Plan Amendments
5. Tier II Qualified Facility Requirements
6. Alternative Options Considered: No Action
H. General Secondary Containment
1. Proposed Revisions to the General Secondary Containment
Requirement
2. Alternative Option Considered: No Action
3. General Secondary Containment for Non-Transportation-Related
Tank Trucks
I. Security
1. Proposed Revisions to the Security Requirements
2. Alternative Option Considered: No Action
J. Integrity Testing
1. Proposed Amendments to Integrity Testing Requirements
2. Alternative Option Considered: No Action
K. Animal Fats and Vegetable Oils
1. Differentiation Criteria
2. Required Recordkeeping
L. Oil Production Facilities
1. Definition of Production Facility
2. SPCC Plan Preparation and Implementation
3. Flowlines and Intra-facility Gathering Lines
4. Flow-Through Process Vessels
5. Small Oil Production Facilities
6. Produced Water Storage Containers
7. Clarification of the Definition of Permanently Closed
Containers
8. Oil and Natural Gas Pipeline Facilities
M. Man-Made Structures
1. Secondary Containment
2. Integrity Testing
N. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations
O. Wind Turbines
P. Technical Corrections
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
The Environmental Protection Agency (EPA or the Agency) is
proposing several amendments to the Spill Prevention, Control, and
Countermeasure (SPCC) rule to address a number of issues that have been
raised by the regulated community. These proposed amendments are
intended to increase clarity, tailor, and streamline certain
requirements for a facility owner or operator who is required to
prepare an SPCC Plan. Specifically:
EPA proposes to exempt hot-mix asphalt (HMA) from the SPCC
requirements. EPA believes it is unnecessary to apply the SPCC
requirements to HMA. EPA would continue to regulate asphalt cement,
asphalt emulsions, and cutbacks, which are not hot-mix asphalt, but is
describing in this notice the flexibility contained in the SPCC rule
regarding these materials.
EPA proposes certain tailored requirements benefiting
farms. Specifically, EPA proposes to exempt pesticide application
equipment and related mix containers used at farms, that may currently
be subject to the SPCC rule when crop oil or adjuvant oil are added to
formulations. In addition, EPA seeks to clarify that the amendment
related to mobile refuelers, as promulgated in the December 2006 rule
amendments (71 FR 77266, December 26, 2006), can be used by farmers to
address oil spill prevention requirements for fuel nurse tanks.
EPA proposes to exempt residential heating oil containers,
i.e., those used solely at single-family residences, from the SPCC
requirements. This exemption would apply to aboveground containers, as
well as completely buried heating oil tanks at single-family
residences, including those located at farms.
EPA proposes to modify the definition of ``facility'' to
clarify that contiguous or non-contiguous buildings, properties,
parcels, leases, structures, installations, pipes, or pipelines may be
considered separate facilities, and to specify that the ``facility''
definition governs the applicability of 40 CFR part 112. These proposed
revisions would allow an owner or operator to separate or aggregate
containers to determine the facility boundaries, based on such factors
as ownership or operation of the buildings, structures, containers, and
equipment on the site, the activities being conducted, property
boundaries, and other relevant considerations.
EPA proposes to revise the facility diagram requirement at
Sec. 112.7(a)(3) to clarify how containers, fixed and mobile, are
identified on the facility diagram. Where facility diagrams become
complicated due to the presence of multiple fixed oil storage
containers or complex piping/transfer areas at a facility, the owner or
operator would be able to include that information separately in the
SPCC Plan in an accompanying table or key. For any mobile or portable
containers located in a certain area of the facility, an owner or
operator would be able to mark that area on the diagram where such
containers are stored. If the total number of mobile or portable
containers changes on a frequent basis, the owner or operator would be
able to indicate the potential range in number of containers and the
anticipated contents and capacities of the mobile or portable
containers maintained at the facility in the Plan.
EPA proposes to define the term ``loading/unloading rack''
and specify that this definition would govern the applicability of the
provision at Sec. 112.7(h), Facility tank car and tank truck loading/
unloading rack. This amendment would provide clarity to the regulated
community over whether this provision applies to a facility.
Furthermore, EPA is proposing to specifically exclude oil production
facilities and farms from the requirements at Sec. 112.7(h), because
loading/unloading racks are not typically found at these facilities
(loading/unloading activities at these facilities will remain subject
to the general secondary containment requirements of Sec. 112.7(c)).
EPA also proposes editorial revisions to the provision at Sec.
112.7(h) for clarity.
EPA proposes to streamline and tailor the SPCC
requirements for a subset of qualified facilities. Qualified facilities
were addressed in a recent amendment to the SPCC rule (71 FR 77266,
December 26, 2006). The owner or operator of such a facility was
provided an option to self-certify his SPCC Plan and comply with other
streamlined requirements. This proposed rule further defines a subset
of qualified facilities (``Tier I qualified facilities'') as those that
meet the current qualified facilities eligibility criteria and that
have no oil storage containers with an individual storage capacity
greater than 5,000 gallons. A Tier I qualified facility would have the
option to complete a self-certified SPCC Plan template (proposed as
Appendix G to 40 CFR part 112) in lieu of a full SPCC Plan. By
completing the SPCC Plan template, an owner or operator of a Tier I
qualified facility would certify that the facility complies with a set
of streamlined SPCC rule requirements. All other qualified facilities
will be designated ``Tier II qualified facilities''.
EPA proposes to amend the general secondary containment
requirement at Sec. 112.7(c) to make clear that the scope of secondary
containment takes into
[[Page 58380]]
consideration the typical failure mode, and most likely quantity of oil
that would be discharged, consistent with current Agency guidance. This
proposed amendment would also provide additional examples of prevention
systems for onshore facilities found at Sec. 112.7(c)(1).
EPA proposes to amend the facility security requirements
at Sec. 112.7(g) to allow an owner or operator to tailor his security
measures to the facility's specific characteristics and location. A
facility owner or operator would be required to describe in the SPCC
Plan how he secures and 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; and
addresses the appropriateness of security lighting to both prevent acts
of vandalism and assist in the discovery of oil discharges. This
proposed action would extend the streamlined security requirements that
EPA provided to a qualified facility in the December 2006 final rule
(71 FR 77266, December 26, 2006) to all facilities subject to the
security requirements.
EPA proposes to amend the requirements at Sec. Sec.
112.8(c)(6) and 112.12(c)(6) to provide flexibility in complying with
bulk storage container integrity testing requirements. Specifically,
EPA is proposing to modify the current provision to allow an owner or
operator to consult and rely on industry standards 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. This proposed action would extend the
streamlined bulk storage container inspection requirement that EPA
provided to qualified facilities in the December 2006 final rule (71 FR
77266, December 26, 2006) to all facilities subject to the integrity
testing provision.
EPA proposes to differentiate the integrity testing
requirements at Sec. 112.12(c)(6) for an owner or operator of a
facility that handles certain types of animal fats and vegetable oils.
Specifically, EPA proposes to provide the PE or an owner/operator
certifying an SPCC Plan with the flexibility to determine the scope of
integrity testing that is appropriate for containers that store animal
fats or vegetable oil and that meet other criteria.
EPA proposes several amendments to tailor the requirements
for oil production facilities to address a number of concerns that have
been raised by representatives of this sector. Specifically, EPA is
proposing to: Modify the definition of production facility, consistent
with the proposed amendments to the definition of facility; extend the
timeframe by which a new oil production facility must prepare and
implement an SPCC Plan; exempt flow-through process vessels at oil
production facilities from the sized secondary containment requirements
while maintaining general secondary containment requirements and
requiring additional oil spill prevention measures; exempt flowlines
and intra-facility gathering lines at oil production facilities from
all secondary containment requirements, while establishing more
specific requirements for a flowline/intra-facility gathering line
maintenance program and contingency planning; and clarify the
definition of ``permanently closed'' as it applies to an oil production
facility. EPA also describes approaches that would establish
alternative criteria for an oil production facility to be eligible to
self-certify an SPCC Plan as a qualified facility, and approaches to
address produced water storage containers at oil production facilities.
EPA proposes to exempt completely buried oil storage tanks
at nuclear power generation facilities that are subject to design
criteria under Nuclear Regulatory Commission regulations.
In this notice, EPA is also clarifying a number of issues of
concern to the regulated community, including: the consideration of
man-made structures in determining how to comply with SPCC rule
requirements; and the applicability of the rule to wind turbines that
are used to produce electricity. EPA also proposes technical
corrections to Sec. Sec. 112.3 and 112.12.
II. Entities Potentially Affected by This Proposed Rule
------------------------------------------------------------------------
Industry sector NAICS code
------------------------------------------------------------------------
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..............
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
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
[[Page 58381]]
Government................................... 92
------------------------------------------------------------------------
The list of potentially affected entities in the above table may
not be exhaustive. The Agency's goal is to provide a guide for readers
to consider regarding 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 to navigable waters and adjoining shorelines
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 was 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. An
MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59
FR 34102, July 1, 1994) re-delegated the responsibility to regulate
certain offshore facilities from DOI to EPA.
IV. Background
The SPCC rule was originally promulgated on December 11, 1973 (38
FR 34164). 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). The 2002 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. All but one 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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As a result, EPA proposed amendments to the SPCC rule in December
2005 and finalized them in December 2006 to address a number of issues,
including those pertaining to certain ``qualified'' facilities,
qualified oil-filled operational equipment, motive power containers,
mobile refuelers, provisions inapplicable to animal fats and vegetable
oils, and the compliance date for farms. See the final rule which
published in the Federal Register at 71 FR 77266 (December 26, 2006)
for a more detailed discussion of these amendments.
Also, in December 2005, EPA released the SPCC Guidance for Regional
Inspectors. EPA intends to issue revisions to this guidance document to
incorporate changes consistent with the December 2006 amendments to the
SPCC rule (71 FR 77266, December 26, 2006). This guidance document is
intended to assist regional inspectors in reviewing the 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 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 the owner or
operator of a facility that may be subject to the SPCC rule and to the
general public on the Agency's Web site at https://www.epa.gov/
emergencies. This guidance is a living document and will be revised, as
necessary, to reflect any relevant future regulatory amendments,
including any final rule based on this proposed action.
In addition, EPA has amended the dates for compliance with the July
2002 amendments to the SPCC rule by extending the dates for preparing
or amending, and implementing revised SPCC Plans in 40 CFR 112.3(a),
(b), and (c), most recently by final rule published May 16, 2007 (72 FR
27443). EPA took the most recent action to provide facilities time to
fully understand the amendments to the SPCC rule finalized in December
2006 and to allow potentially affected owners and operators an
opportunity to make any changes to their facilities and to their SPCC
Plans, as well as to provide time for the Agency to take final action
on this proposal. Additionally, EPA intends to provide the regulated
community time to review and understand any revised material presented
in the SPCC Guidance for Regional Inspectors. Please see the Federal
Register notice (72 FR 27443, May 16, 2007) for further discussion of
the compliance date extensions.
The December 2006 final rule (71 FR 77266, December 26, 2006)
addressed only certain areas of the SPCC requirements and specific
issues and concerns raised by the regulated community. As highlighted
in the EPA Regulatory Agenda and the 2005 Office of Management and
Budget report on ``Regulatory Reform of the U.S. Manufacturing
Sector,'' EPA is proposing amendments in this notice to address other
areas where further changes may be appropriate.
V. This Action
A. Hot-mix Asphalt
Hot-mix asphalt (HMA) is a blend of asphalt cement (AC) and
aggregate material, such as stone, sand, or gravel, which is formed
into final paving products for use on roads and parking lots. All types
of asphalt, including HMA, are petroleum oil products. As a result, a
facility that stores and handles HMA may currently be regulated under
the SPCC rule, if the applicability criteria are met (e.g., storage
capacity thresholds and potential for a discharge into navigable waters
or adjoining shorelines). As such, SPCC requirements, including
secondary containment, apply to HMA containers. However, EPA never
intended that HMA be included as part of a facility's SPCC Plan,
particularly facilities which may be subject to the SPCC requirements
solely because of the presence of HMA. Taken to the extreme, it could
be argued that roads, parking lots, or other asphalt paving projects
[[Page 58382]]
would be part of a facility's SPCC Plan. That was not and is not the
Agency's intent.
In addition, because this material is unlikely to flow as a result
of the entrained aggregate, there are few circumstances in which a
discharge of HMA would reach navigable waters or adjoining shorelines.
As a result, EPA is proposing to revise the rule to eliminate the
requirement for an owner or operator of a facility otherwise subject to
the SPCC rule to include a HMA container in the facility's SPCC Plan or
aggregate storage capacity calculations.
1. Proposed Exemption for Hot-Mix Asphalt
This proposed rule amendment would exempt HMA from SPCC rule
applicability by adding a new paragraph (8) under the general
applicability section, Sec. 112.1(d). Furthermore, EPA proposes to
modify Sec. 112.1(d)(2) so that the capacity of storage containers
solely containing HMA would not be counted toward the facility oil
storage capacity calculation. The Regional Administrator would continue
to have the option under Sec. 112.1(f), however, to require an owner
or operator of a facility, including one solely handling HMA, to
prepare or amend and implement an SPCC Plan or any applicable part, to
include HMA containers if he determines that it is necessary in order
to prevent a discharge of oil into navigable waters or adjoining
shorelines.
For those substances that are not eligible for the proposed
exemption, the SPCC rule provides the facility owner or operator with
significant flexibility to select prevention and control measures that
are appropriate and cost effective for the facility and type of product
being stored. For example, the secondary containment requirements of
the SPCC rule may be satisfied if the secondary containment system,
including walls and floor, are capable of containing the oil and are
constructed so that any discharge from a primary containment system
will not escape secondary containment before cleanup occurs (Sec.
112.7(c)) and diked areas are sufficiently impervious to contain the
oil (Sec. 112.8(c)(2)). Therefore, the flow properties of asphalt
cement (AC), for example, (as for any oil) may be considered in
designing appropriate means of containment. If, once cooled, the oil
remains in place, an effective means of secondary containment may
involve surrounding the bulk storage container with an earthen berm
that will contain the oil until it can solidify. As stated in the SPCC
Guidance for Regional Inspectors (version 1.0, November 28, 2005),
``The suitability of earthen material for secondary containment systems
may depend on the properties of both the product stored and the soil.
For example, compacted local soil may be suitable to contain a viscous
product, such as liquid AC, but may not be suitable to contain
gasoline.'' If an owner or operator chooses to use an earthen berm as a
method of secondary containment, the facility owner or operator should
consider, among other factors, the effect of weather, vehicle and
worker movement, access, and safety, in accordance with good
engineering practice.
Furthermore, a facility owner or operator does not necessarily need
to construct a berm around an asphalt cement container to satisfy the
secondary containment requirements; he may opt to use a storm water
retention pond or other similar structure or existing natural terrain
features that would serve to divert, remotely impound, and prevent the
discharge to navigable waters or adjoining shorelines. EPA notes that
oil discharged into secondary containment needs to be removed promptly
so that the containment system retains its appropriate capacity.
Finally, the Agency would note that the SPCC rule only applies to
facilities that, due to their location, can reasonably be expected to
discharge oil to navigable waters or adjoining shorelines. In
determining whether there is a reasonable expectation of discharge, an
owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. Therefore, the owner or
operator of a facility that stores or handles only those oils that are
solid at ambient temperatures may conclude that the facility is not
subject to the SPCC rule. However, if a facility owner or operator
determines that there is a reasonable expectation to discharge oil to
navigable waters or adjoining shorelines for a single oil container,
all oil containers at the facility are subject to the rule's
requirements.
Although this proposed amendment would provide an exemption from
the SPCC requirements for containers of HMA, HMA manufacturers and
other facilities that use, store, distribute, or otherwise handle HMA
may still be subject to the SPCC requirements due to the storage
capacity of other types of oils (e.g., No. 2 fuel oil and heat transfer
oils) at the facility.
The Agency seeks comments on the proposed exemption for HMA. 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. Alternative Options Considered
a. No Action
EPA considered taking no regulatory action regarding this issue.
Under this option, a facility owner or operator would continue to be
required to consider HMA in calculating the facility's total oil
storage capacity, and comply with all SPCC requirements related to
storage or transfer of HMA. The owner or operator would continue to
benefit from the flexibility in the SPCC rule to provide secondary
containment measures that are appropriate and cost effective for the
facility and the asphalt it stores. EPA believes that it is unnecessary
for an owner or operator of a facility that constructs roads, parking
lots, or sidewalks to develop an SPCC Plan, solely for the routine end
use of HMA as part of these operations. Moreover, as HMA is unlikely to
flow as a result of the entrained aggregate, the Agency believes there
are few circumstances in which a discharge of HMA would reach navigable
waters or adjoining shorelines. Therefore, EPA chose not to propose
this option.
b. Exemption for Asphalt Cement
EPA considered exempting both HMA and AC from the requirements of
the SPCC rule, but chose not to propose such an option. In documents
submitted to EPA, the asphalt industry argues that AC poses a low risk
to navigable waters and adjoining shorelines, claiming that it does not
flow if spilled on the ground. The industry further argues that asphalt
facilities are either already covered under other environmentally
protective regulations or are granted a specific exemption from other
regulations due the unique nature of the product, and that the cost of
complying with the SPCC regulation is disproportionate to the risk
posed.
Because of the operational conditions under which AC is used and
stored, AC does pose a risk of being discharged into navigable waters
and adjoining shorelines. (See EPA's report, Asphalt Under the Spill
Prevention, Control, and Countermeasure Regulation, August 29, 2007, in
the docket for this proposal.) Although AC is semi-solid or solid at
ambient temperature and pressure, it is generally stored at elevated
temperatures. Hot AC is liquid--similar to other semi-solid oils, such
as paraffin wax and heavy bunker fuels--and therefore is capable of
flowing. All of these oils are regulated under the SPCC
[[Page 58383]]
rule to prevent discharges to navigable waters and adjoining
shorelines.
EPA believes that the threat that AC, as well as other semi-solid
oils, pose to navigable waters and adjoining shorelines can be
effectively addressed by implementing the procedures and measures
required under the SPCC regulation. As discussed previously, the
current SPCC regulation provides flexibility to an asphalt facility
owner and operator to account for site- and product-specific
characteristics in implementing measures to prevent oil discharges in a
cost-effective manner.
The Agency welcomes comments on these or other alternatives that
could serve to address HMA, 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.
B. Farms
The owner or operator of a farm, by virtue of storing or using oil,
is potentially subject to the SPCC requirements. The December 2006
amendments to the SPCC rule (71 FR 77266, December 26, 2006) defined a
farm as ``* * * 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.'' In providing the option for an
owner or operator of a facility that stores 10,000 gallons of oil or
less and meets other qualifying criteria to self-certify his SPCC Plan
in lieu of review and certification by a Professional Engineer, the
December 2006 amendments offered relief to an estimated 95 percent of
all SPCC-regulated farms. The 2006 amendments also exempted mobile
refuelers, which include fuel nurse tanks on farms, from the sized
secondary containment requirements for bulk storage containers (see
more detailed discussion regarding nurse tanks below). Finally, the
2006 amendments extended the date by which farms must amend their
existing SPCC Plans to come into compliance with the July 2002 rule
changes until the Agency publishes a final rule in the Federal Register
establishing a new compliance date. This proposal does not affect this
extended compliance date for farms. The Agency will propose a new
compliance date for farms in the Federal Register at a later date.
While the December 2006 amendments provided streamlined
requirements for most of the farms that are subject to the SPCC
requirements, EPA believes further amendments to the SPCC rule are
appropriate considering the unique characteristics of farm facilities,
including their geographic scale, configuration, land ownership and
lease structure, and on-farm activities. Specifically, EPA recognizes
that a farm: May be privately owned and may contain the residence of
the owner or operator; has a configuration that varies across the
country, from farm to farm and season to season; contains low-volume
oil storage that is often dispersed across different land parcels
separated by roads and natural barriers; has multiple fueling sites; is
located in a remote area; stores oil on-site for on-farm use and not
for further distribution in commerce; uses oil seasonally in different
quantities; and leases a significant amount of land to or from
secondary parties. For these reasons, EPA is proposing additional
amendments to the SPCC rule that further benefit farms.
As discussed in Section G of this preamble, EPA is proposing an
additional option for a subset of qualified facilities (``Tier I'')
that have a maximum individual oil storage container capacity of 5,000
gallons, by allowing these facilities to complete a simplified self-
certified SPCC Plan template in lieu of a full SPCC Plan. This option
would be available to any facility that meets the Tier I qualification
criteria, including a farm. EPA expects that at least 128,000 farms (or
more than 84% of the farms regulated by the SPCC rule) may be eligible
for this proposed option.
EPA is also proposing to clarify the definition of ``facility'' in
the SPCC rule, as discussed in Section D of this preamble. The proposed
definition would clarify the existing flexibility for a facility owner
or operator, particularly for a farmer, to define oil storage areas
located on either contiguous or non-contiguous parcels of land (e.g.,
satellite storage areas) as separate facilities for the purpose of
determining SPCC applicability and preparing/implementing an SPCC Plan.
Under this proposal (see Section C), EPA would exempt heating oil
containers at single-family residences. EPA understands that farms
often include, within the geographical confines of the facility, the
residence of the owner or operator, and so the Agency believes this
proposed amendment also will be of benefit to farms.
This proposal (see Section I) also addresses streamlining of the
security requirements under Sec. 112.7(g) to allow more flexibility in
determining how best to secure and control access to the oil handling,
processing and storage areas; secure master flow and drain valves;
prevent unauthorized access to starter controls on oil pumps; secure
out-of-service and loading/unloading connections of oil pipelines; and
address the appropriateness of security lighting to both prevent acts
of vandalism and assist in the discovery of oil discharges. This
amendment will particularly benefit the owner or operator of a farm,
because it allows for consideration of site-specific factors in
determining how best to design security for the facility to prevent
vandalism and detect spills from oil-handling areas. An owner or
operator of a farm may also benefit from the currently proposed
amendments related to loading/unloading racks (Section F of this
preamble) and integrity testing (Section J).
The Agency believes that both the amendments finalized in 2006 and
those being proposed in this notice provide significant flexibility to
the agricultural sector. In this action, the Agency also is proposing
further amendments to the SPCC rule to address concerns specific to the
agricultural community regarding pesticide application equipment and
related mix containers used at farms. The proposed amendments was
informed by information collected by EPA through site visits to farms
and numerous consultations with the U.S. Department of Agriculture
(USDA). Farm site visits helped EPA further understand oil storage
characteristics at a variety of farm operation types and sizes. The
site visits included dairy farms, an orchard, an agribusiness supply
company, and two rice farms.
1. Exemption for Pesticide Application Equipment and Related Mix
Containers
EPA is proposing to amend the SPCC rule by adding a new paragraph
(10) under the general applicability section, Sec. 112.1(d) to exempt
pesticide application equipment and related mix containers used at
farms from the SPCC requirements. EPA also proposes to modify Sec.
112.1(d)(2) so that the capacity of these pesticide application
equipment and related mix containers (i.e., containers used to mix
pesticides with oil immediately prior to application) would not be
counted toward the facility oil storage capacity calculation. This
equipment includes ground boom applicators, airblast sprayers, and
specialty aircraft that are used to apply measured quantities of
pesticides to crops and/or soil. The pesticide formulation may include
petroleum-or vegetable-based oils in concentrated formulations or may
[[Page 58384]]
contain crop oil or adjuvant oil in the mix formulations added just
prior to application, thereby potentially subjecting certain pesticide
containers to the SPCC requirements, such as those for bulk storage
containers under Sec. Sec. 112.8(c) and 112.12(c). Containers storing
oil prior to blending it with the pesticide, and containers used to
store any pesticides after they have been mixed with oil, are
considered bulk storage containers and are regulated as such under the
SPCC rule.
EPA regulates pesticides under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA), which establishes requirements for the
registration and labeling of pesticides. Sections 19(e) and (f) of
FIFRA grant EPA broad authority to establish standards and procedures
to assure the safe use, reuse, storage, and disposal of pesticide
containers. Under this authority, EPA established standards, including
design and labeling requirements for pesticide containers and bulk
pesticide containment. These standards were promulgated on August 16,
2006 for certain facilities that use, reuse, or store pesticides in
containers with capacities of 500 gallons or greater (Standards for
Pesticide Containers and Containment, 40 CFR parts 156 and 165; see 71
FR 47330, August 16, 2006). Facilities subject to these standards
include pesticide registrants, agricultural retailers, and commercial
pesticide applicators; however, farms were exempted from these
standards. In evaluating the risk posed by pesticide containers and
application equipment when promulgating the Standards for Pesticide
Containment Structures in 40 CFR part 165, Subpart E, EPA noted that
on-farm bulk storage of pesticides remains rare as opposed to on-farm
bulk storage of oil, such as off-road diesel, on-road diesel and
gasoline fuels. Additionally, EPA found that there was insufficient
evidence of contamination occurring as a result of these containers or
equipment to warrant their regulation under the pesticide container-
containment rule. However, EPA reserved the option of reexamining the
need for Federal regulation of on-farm pesticide bulk storage in the
future if it became apparent that the application or use of pesticides
was having significant detrimental impacts. Similarly, EPA does not
believe that the regulation of pesticide application equipment and
related mix containers used at a farm is appropriate under the SPCC
rule.
EPA believes that, on a farm, the storage and application of
pesticide mixtures that may contain oil just prior to application can
be addressed through the use of best management practices (BMPs) that
minimize the potential for discharges to navigable waters and adjoining
shorelines. For example, a number of states have ``Farm*A*Syst''
programs (partnerships between government agencies and private business
that foster pollution prevention on farms) that detail on-farm
pesticide BMPs such as: (1) Adhere to pesticide label instructions and
prepare only the necessary amount needed for immediate use; (2) prepare
the pesticide mix immediately before application; (3) the equipment
spray tank should be half full with water prior to mixing in the
pesticide formulation; and (4) pesticides should be mixed and loaded on
a concrete pad (Improving Storage and Handling of Pesticides, Farm-a-
Syst North Carolina, April 1997. Found at https://www.soil.ncsu.edu/
assist/pesticides/. This document is also available in the docket for
this rule proposal).
EPA requests comments on the proposed exemption of pesticide
application equipment and related mix containers from SPCC
applicability. 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. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
In the December 2006 amendments to the SPCC rule (71 FR 77266,
December 26, 2006), EPA exempted mobile refuelers from the sized
secondary containment requirements applicable to bulk storage
containers. In the amended regulation, EPA defined a mobile refueler as
``a bulk storage container onboard a vehicle or towed, that is designed
or used solely to store and transport fuel for transfer into or from an
aircraft, motor vehicle, locomotive, vessel, ground service equipment,
or other oil storage container.'' (Sec. 112.2). In this action, EPA
seeks to clarify that the definition of mobile refueler includes a
nurse tank, which is a mobile vessel used at farms to store and
transport fuel for transfers to or from farm equipment, such as
tractors and combines, and to other bulk storage containers, such as
containers used to provide fuel to wellhead/relift pumps at rice farms.
A nurse tank is often mounted on a trailer for transport around the
farm, and EPA believes that this function is consistent with that of a
mobile refueler. A nurse tank, like other types of mobile refuelers, is
exempt from the sized secondary containment requirements, but would
need to meet the general secondary containment requirements at Sec.
112.7(c).
EPA does not believe that additional regulatory action is warranted
to clarify that a nurse tank at a farm can be considered a mobile
refueler. EPA welcomes comments on this approach.
3. Alternative Options Considered
In developing the amendments proposed in this notice, EPA
considered the following alternatives for differentiating the SPCC
requirements for farms:
a. No Action
With the promulgation of the final amendments to the SPCC rule on
December 26, 2006, EPA estimated that approximately 145,000 of the
152,000 farms subject to the SPCC rule (95 percent of regulated farms)
identified in the Regulatory Impact Analysis may be eligible for the
``qualified facility'' or self-certification option. Additionally, EPA
is proposing an alternative compliance option for a subset of qualified
facilities by adding a new tier, identified as Tier I qualified
facilities, that would provide even more flexibility to farms.
EPA believes that considerable flexibility was provided in the
December 2006 amendments, as well as other amendments being proposed in
this notice to address the definition of facility, the security and
integrity testing requirements, residential heating oil containers, and
further streamlining of the requirements for qualified facilities.
Nevertheless, EPA has concluded based on comments from agricultural
stakeholders, farm-related site visits, and the August 16, 2006 final
action concerning pesticide containers (71 FR 47330), that additional
amendments to the SPCC rule related to farms are necessary. Therefore,
EPA chose not to propose this ``no action'' option.
b. Exempt Farms Below a Certain Storage Capacity Threshold
EPA considered exempting farms that stored oil below a certain
storage capacity threshold from the SPCC requirements, but determined
that sufficient data to support such an exemption exclusive to farms do
not currently exist. Storage tanks found at farms are similar in
function and design as those found at other types of facilities, and
therefore have a similar potential for a discharge. Thus, an effort to
substantiate an exemption for a subset of affected farms below a
certain threshold would be difficult. As a result, EPA chose not to
propose this option.
The Agency welcomes comments on this or other alternatives that
could serve to address the needs of the agricultural sector, while at
the same
[[Page 58385]]
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.
c. Alternative Qualified Facility Eligibility Criteria for Farms
Under Sec. 112.6, a ``facility'' that has an aggregate above
ground storage capacity of 10,000 gallons or less and that has not had
a single discharge exceeding 1,000 U.S. gallons or two discharges each
exceeding 42 U.S. gallons within any twelve month period in the three
years prior is eligible for the ``qualified facility'' Plan
requirements (i.e. a self-certified Plan in lieu of a PE certified
Plan). The current criteria for ``qualified facilities,'' found at
Sec. 112.3(g), treat farms like all other facilities. However, there
may be alternative criteria unique to farms that would be appropriate
for identifying qualified facilities. EPA requests comment on (1)
whether a change in the criteria is appropriate for farms; and (2)
whether a higher threshold is appropriate for farms. Any alternative
approach presented must include an appropriate rationale in order for
the Agency to be able to consider it for final action.
C. Residential Heating Oil Containers
EPA understands that many regulated facilities, including farms,
may include within the geographical confines of the facility the
residence of the owner or operator. EPA did not intend to regulate
residential uses of oil (i.e., those at non-commercial buildings) under
the SPCC rule. For example, in 1973, EPA set the minimum facility
aggregate storage capacity threshold for SPCC applicability (1,320
gallons) by considering common sizes of residential heating oil
containers. The Agency stated in the preamble to the 1973 final SPCC
rule (38 FR 34164, December 11, 1973) that containers of 660 gallons
are the normal domestic code size for nonburied heating oil containers,
and that buildings may have two such containers. Thus, the presence of
a heating oil container at a residence was generally not intended, by
itself, to trigger SPCC applicability since residences generally do not
have significant quantities of other types of oil. However, at the time
the rule was originally promulgated, the Agency did not consider
residential heating oil containers that may be co-located with
businesses. As a result, EPA recognizes that owners and operators may
be counting these residential containers in determining the
applicability of the SPCC rule to their facility, and including these
containers in their SPCC Plans. Therefore, EPA proposes to amend the
rule to exempt single-family residential heating oil containers.
This exemption would apply to aboveground as well as completely
buried heating oil tanks at single-family residences. Heating oil tanks
used for on-site consumptive use of oil are specifically exempted from
the 40 CFR part 280 requirements, which apply to underground storage
tanks (USTs). The SPCC rule does not apply to ``any completely buried
storage tank * * * that is subject to all of the technical requirements
of part 280 of this chapter or a State program approved under part 281
of this chapter * * * '' (Sec. 112.1(d)(4)). Because USTs used for
storing heating oil for consumptive use on the premises where stored
are exempted from part 280, completely buried tanks used for
residential heating would currently need to be included in the storage
capacity of an SPCC-regulated facility, and would be subject to
applicable SPCC requirements.
1. Exemption for Residential Heating Oil Containers
EPA is proposing to specifically exempt from SPCC applicability
containers that are used to store oil for the sole purpose of heating
single-family residences (including residences at a farm) by adding a
new paragraph (9) under the general applicability section, Sec.
112.1(d). EPA also proposes to modify Sec. 112.1(d)(2) so that the
capacity of single-family residential heating oil containers would not
be counted toward facility oil storage.
The current proposal would remove from SPCC applicability
containers (both aboveground and completely buried) located at single-
family residences that are used solely to store heating oil used to
heat the residence. Under the proposed amendments, the owner or
operator would not count any residential heating oil container as part
of the facility's aggregate storage capacity for the purpose of
determining SPCC applicability, and no SPCC requirements would apply to
the exempted containers. The SPCC requirements would continue to apply,
however, to containers for oil used to heat other non-residential
buildings within a facility, because the exemption covers only
residential heating oil containers.
This exemption is not limited to facilities with only one single-
family home; EPA recognizes that there may be multiple single-family
homes within one facility. For example, a farm that has multiple
single-family homes within its boundaries would not need to consider
the residential heating oil tanks at any of those homes for purposes of
SPCC applicability. Groups of single-family homes within a military
base would similarly be exempted.
EPA requests comment on this proposed exemption for single-family
residential heating oil containers, and whether there is a better way
to characterize containers used to store oil for heating buildings with
a residential, rather than commercial, use, including whether there are
any unique situations in which a residential heating oil tank would be
subject to the SPCC rule because the aboveground oil storage capacity
is greater than 1,320 U.S. gallons. Any alternative approach presented
must include an appropriate rationale in order for the Agency to be
able to consider it for final action.
2. Alternative Option Considered: Exemption for Residential Heating Oil
Containers Only at Farms
EPA initially considered providing an exemption only for
residential heating oil containers located at farms, because farms
commonly include, within the geographical confines of the facility, the
residence of the farmer. Under this option, only heating oil containers
associated with residences on farms would benefit from an exemption
from the SPCC rule. However, EPA understands that a facility associated
with another industry sector, such as a military base or university, or
a small business run out of the owner's home, may also contain a
residential heating oil container. The Agency determined that there was
no rationale to support not expanding the exemption to all residential
heating oil containers. Therefore, the Agency chose not to propose this
option.
EPA requests comment on this option, and whether an exemption for
residential heating oil containers should be limited to any specific
sector. Any alternative approach presented must include an appropriate
rationale in order for the Agency to be able to consider it for final
action.
D. Definition of Facility
EPA first defined both ``facility'' and ``production facility'' at
Sec. 112.2 in the July 2002 amendments to the SPCC rule (67 FR 47042,
July 17, 2002). ``Facility'' is defined as: ``any mobile or fixed,
onshore or offshore building, structure, installation, equipment, pipe,
or pipeline (other than a vessel or a public vessel) used in oil well
drilling operations, oil production, oil refining, oil storage, oil
gathering, oil processing, oil transfer, oil distribution, and waste
[[Page 58386]]
treatment, or in which oil is used, as described in Appendix A of this
part. The boundaries of a facility depend on several site-specific
factors, including, but not limited to, the ownership or operation of
buildings, structures, and equipment on the same site and the types of
activity at the site.'' ``Production facility'' is defined as ``all
structures (including but not limited to wells, platforms, or storage
facilities), piping (including but not limited to flowlines or
gathering lines), or equipment (including but not limited to workover
equipment, separation equipment, or auxiliary non-transportation-
related equipment) used in the production, extraction, recovery,
lifting, stabilization, separation or treating of oil, or associated
storage or measurement, and located in a single geographical oil or gas
field operated by a single operator.''
Since the July 2002 amendments were published, members of the
regulated community have asked EPA which of these definitions governs
the term ``facility'' as it is used in the applicability determination
of the Facility Response Plan requirements under Sec. 112.20(f)(1)
when applied to an oil production facility. In May 2004, EPA issued a
Federal Register notice clarifying this issue (69 FR 29728, May 20,
2004). Specifically, section 112.20(f)(1) describes the applicability
of the Facility Response Plan (FRP) rule by setting the criteria for
determining whether a ``facility could, because of its location,
reasonably be expected to cause substantial harm to the environment * *
*'' [emphasis added]. Members of the regulated community were concerned
that the language in the definition of production facility (``located
in a single geographical oil or gas field'') would require aggregation
of oil production structures and equipment in such a way that would
trigger the applicability of the FRP rule. However, as stated in the
May 2004 Federal Register notice (69 FR 29728), because Sec.
112.20(f)(1) consistently uses the term ``facility,'' not ``production
facility,'' it is the definition of ``facility'' in Sec. 112.2 that
governs who is subject to Sec. 112.20(f)(1), regardless of the
specific type of facility. Thus, consistent with the May 2004 notice,
the definition of ``facility'' governs the meaning of facility as it is
used in Sec. 112.20(f)(1), and accordingly, EPA is now proposing to
amend the definition of facility to add language clarifying this point.
Industry sectors, including farms, military bases and other large
government facilities (e.g., national parks), airports, and
universities also have raised concerns over how to aggregate or
separate containers, buildings, structures, installations, equipment,
and piping for the purpose of SPCC applicability. Regulated community
members have expressed concern that non-contiguous oil-handling areas
with similar purposes or ownership are required to be aggregated
together as one ``facility'' to calculate total oil storage and
determine SPCC applicability. A farmer, for example, often has multiple
fuel storage sites on land under his management, which may include
owned and leased tracts. A USDA study shows that among farmers
surveyed, satellite fuel storage sites were an average distance of 4.1
miles from the main site (U.S. Department of Agriculture, ``Fuel/Oil
Storage and Delivery for Farmers and Cooperatives.'' March 2005).
EPA believes that the existing definition of ``facility'' provides
considerable flexibility, and that the extent of a facility depends on
site-specific circumstances. The SPCC Guidance for Regional Inspectors
(version 1.0, November 28, 2005) describes factors that may be
considered relevant in delineating the boundaries of a facility for
SPCC purposes. Those factors may include, but are not limited to:
ownership, management, or operation of the containers, buildings,
structures, equipment, installations, pipes, or pipelines on the site;
similarity in functions, operational characteristics, and types of
activities occurring at the site; adjacency; or shared drainage
pathways. Consistent with this approach, EPA is proposing to amend the
definition of facility to clarify that contiguous or non-contiguous
buildings, properties, parcels, leases, structures, installations,
pipes, or pipelines may be considered separate facilities.
For further clarity, EPA is also proposing to amend the definition
of ``production facility,'' as discussed in Section L of this notice.
1. Proposed Revisions to the Definition of Facility
EPA is proposing to amend the definition of ``facility,'' as found
in Sec. 112.2, in three ways: To clarify that this definition alone
governs applicability of 40 CFR part 112; to clarify that contiguous or
non-contiguous buildings, properties, parcels, leases, structures,
installations, pipes, or pipelines may be considered separate
facilities; and to add the qualifier ``oil'' before the term ``waste
treatment.''
To address concerns over whether the definition of ``facility'' or
the definition of ``production facility'' controls the term
``facility'' as it is used in Sec. 112.20(f)(1) when applied to an oil