Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Rule Requirements-Amendments, 74236-74323 [E8-28159]
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Federal Register / Vol. 73, No. 235 / Friday, December 5, 2008 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
DATES: This final rule is effective
February 3, 2009.
40 CFR Part 112
ADDRESSES: The public docket for this
rulemaking, Docket ID No. EPA–HQ–
OPA–2007–0584, contains the
information related to this rulemaking,
including the response to comment
document. All documents in the docket
are listed in index at the https://
www.regulations.gov. Although listed in
the index, some information may not be
publicly available, such as Confidential
Business Information (CBI) or other
information the disclosure of which is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically at https://
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 of the Public Reading Room is
202–566–1744, and the telephone
number to make an appointment to view
the docket is 202–566–0276.
[EPA–HQ–OPA–2007–0584; FRL–8746–3]
RIN 2050–AG16
Oil Pollution Prevention; Spill
Prevention, Control, and
Countermeasure Rule Requirements—
Amendments
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AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency (EPA or the Agency) is
amending 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 those facility
owners or operators subject to the rule,
which should result in greater
protection to human health and the
environment. Specifically, this final
rule: Exempts hot-mix asphalt (HMA),
pesticide application equipment and
related mix containers, and heating oil
containers at single-family residences
from the SPCC rule; amends the
definition of ‘‘facility’’ to clarify the
existing flexibility associated with
describing a facility’s boundaries;
amends the facility diagram requirement
to provide additional flexibility; defines
‘‘loading/unloading rack’’ to clarify the
equipment subject to the provisions for
facility tank car and tank truck loading/
unloading racks, as well as amends the
provisions for this equipment; provides
streamlined requirements for a subset of
qualified facilities; amends the general
secondary containment requirement to
provide more clarity; exempts nontransportation-related tank trucks from
the sized secondary containment
requirements; amends the security
requirements; amends the integrity
testing requirements to allow greater
flexibility in the use of industry
standards; amends the integrity testing
requirements for containers that store
animal fats or vegetable oils and meet
certain criteria; streamlines a number of
requirements for onshore oil production
facilities; and exempts underground oil
storage tanks at nuclear power
generation facilities. EPA is also
providing clarification in the preamble
to this final rule on additional issues
raised by the regulated community and,
in a separate action in the Federal
Register of November 26, 2008, (73 FR
72016), the Agency is proposing a new
compliance date for farms.
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FOR FURTHER INFORMATION CONTACT: For
general information, contact the
Superfund, TRI, EPCRA, RMP, and Oil
Information Center at 800–424–9346 or
TDD at 800–553–7672 (hearing
impaired). In the Washington, DC
metropolitan area, contact the
Superfund, TRI, EPCRA, RMP, and Oil
Information Center at 703–412–9810 or
TDD 703–412–3323. For more detailed
information on specific aspects of this
final 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 Final
Rule
III. Statutory Authority and Delegation of
Authority
IV. Background
V. This Action
A. Hot-Mix Asphalt
1. Hot-Mix Asphalt Exemption
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
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3. Differentiating the SPCC Requirements
for Farms
C. Residential Heating Oil Containers
1. Exemption for Residential Heating Oil
Containers
2. Alternative Option Considered
D. Definition of Facility
1. 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. Revision to the Facility Diagram
Requirement Regarding Mobile or
Portable Containers
2. Indicating Complicated Areas of Piping
or Oil-filled Equipment on a Facility
Diagram
F. Loading/Unloading Racks
1. Loading/Unloading Rack Definition
2. Requirements for Loading/Unloading
Racks
3. Exclusions
4. Alternative Option Considered
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 Option Considered
H. General Secondary Containment
1. Revisions to the General Secondary
Containment Requirement
I. General Secondary Containment for NonTransportation-Related Tank Trucks
J. Security
1. Revisions to the Security Requirements
K. Integrity Testing
1. Amendments to Integrity Testing
Requirements
L. Animal Fats and Vegetable Oils
1. Differentiated Requirements for AFVOs
2. Differentiation Criteria: Containers
Subject to FDA Regulations—21 CFR
part 110
3. Differentiation Criteria: Elevated Bulk
Storage Containers
4. Differentiation Criteria: Containers made
from Austenitic Stainless Steel
5. Differentiation Criteria: Containers with
No External Insulation
6. Differentiation Criteria: Shop-Fabricated
Containers
7. Required Recordkeeping
8. Other Suggested Criteria and Options
M. Oil Production Facilities
1. Definition of Production Facility
2. Modifications to § 112.9 for Drilling and
Workover Facilities
3. SPCC Plan Preparation and
Implementation
4. Flowlines and Intra-facility Gathering
Lines
5. Flow-Through Process Vessels
6. Alternative Qualified Facility Eligibility
Criteria for Oil Production Facilities
7. Produced Water Containers
8. Clarification of the Definition of
Permanently Closed Containers
9. Oil and Natural Gas Pipeline Facilities
N. Man-made Structures
O. Underground Emergency Diesel
Generator Tanks at Nuclear Power
Stations
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P. Wind Turbines
Q. Technical Corrections
VI. Statutory and Executive Order Reviews
A. Executive Order 12866—Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order—13132 Federalism
F. Executive Order 13175—Consultation
and Coordination with Indian Tribal
Governments
G. Executive Order 13045—Protection of
Children from Environmental Health &
Safety Risks
H. Executive Order 13211—Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898—Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
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I. General Information
The Environmental Protection Agency
(EPA or the Agency) is amending the
Spill Prevention, Control, and
Countermeasure (SPCC) rule to address
a number of issues that have been raised
by the regulated community. These
amendments are intended to clarify,
tailor, and streamline certain
requirements for those facility owners or
operators who are required to prepare
and implement an SPCC Plan (or
‘‘Plan’’). Specifically:
• EPA is exempting hot-mix asphalt
(HMA) from the SPCC requirements.
This material is unlikely to flow as a
result of the entrained aggregate, such
that there would be very few
circumstances in which a discharge of
HMA would have the potential to reach
navigable waters or adjoining
shorelines. EPA will continue to
regulate asphalt cement (AC), asphalt
emulsions, and cutbacks, which are not
HMA (that is, they are not entrained
with aggregate).
• EPA is exempting pesticide
application equipment and related mix
containers, regardless of ownership or
where used, that may currently be
subject to the SPCC rule when crop oil
or adjuvant oil is added to formulations.
• EPA is exempting residential
heating oil containers (that is, those
used solely at single-family residences)
from the SPCC requirements. This
exemption applies to aboveground
containers, as well as completely buried
heating oil tanks, at single-family
residences, including those located at
farms.
• EPA is modifying the definition of
‘‘facility’’ to clarify that contiguous or
non-contiguous buildings, properties,
parcels, leases, structures, installations,
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pipes, or pipelines may be considered
separate facilities, and to specify that
the ‘‘facility’’ definition governs the
applicability of 40 CFR part 112. These
revisions will 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 is revising the facility diagram
requirement at § 112.7(a)(3) to clarify
how containers, fixed and mobile, are
identified on the facility diagram. EPA
is also clarifying that 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 can 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 can mark the area on the
diagram. If the total number of mobile
or portable containers changes, the
owner or operator can 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 is defining the term ‘‘loading/
unloading rack,’’ and specifying that
this definition governs the applicability
of the provision at § 112.7(h), Facility
tank car and tank truck loading/
unloading rack. This amendment
provides clarity to the regulated
community on whether this provision
applies to a facility. Furthermore, EPA
is specifically excluding 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 is
finalizing editorial revisions to the
provision at § 112.7(h) for clarity.
• EPA is streamlining and tailoring
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 has the option
to self-certify his SPCC Plan. This final
rule further designates a subset of
qualified facilities (‘‘Tier I qualified
facilities’’) as those that meet the current
qualified facility eligibility criteria and
that have no oil storage containers with
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an individual aboveground storage
capacity greater than 5,000 U.S. gallons.
The owner or operator of a Tier I
qualified facility has the option to
complete a self-certified SPCC Plan
template (found in Appendix G to 40
CFR part 112) in lieu of a full SPCC
Plan. The owner or operator can
complete the SPCC Plan template,
which is comprised of a set of
streamlined SPCC rule requirements,
and implement those streamlined
requirements, to comply with the SPCC
regulation. All other qualified facilities
will be designated as ‘‘Tier II qualified
facilities.’’
• EPA is amending the general
secondary containment requirements at
§ 112.7(c) to clarify that the scope of
secondary containment need only take
into consideration the typical failure
mode, and most likely quantity of oil
that would be discharged, consistent
with current Agency guidance. This
amendment also provides additional
examples of prevention systems for
onshore facilities found at § 112.7(c)(1).
• EPA is extending the exemption
from the sized secondary containment
requirement for mobile refuelers
provided in the December 2006 SPCC
rule amendments (71 FR 77266,
December 26, 2006) to nontransportation-related tank trucks at a
facility subject to the SPCC rule.
• EPA is amending the facility
security requirements at § 112.7(g) to
allow an owner or operator of a facility
to tailor his security measures to the
facility’s specific characteristics and
location. A facility owner or operator is
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 action extends the
streamlined security requirements that
EPA provided to qualified facilities in
the December 2006 SPCC rule
amendments (71 FR 77266, December
26, 2006) to all facilities subject to the
security requirements.
• EPA is amending the requirements
at §§ 112.8(c)(6) and 112.12(c)(6) to
provide flexibility in complying with
the bulk storage container integrity
testing requirements. That is, EPA is
modifying the current provision to
allow an owner or operator to consult
and rely on industry standards to
determine the appropriate qualifications
for personnel performing tests and
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inspections, as well as the type and
frequency of integrity testing required
for a particular container size and
configuration. This action extends the
streamlined bulk storage container
inspection requirement that EPA
provided to qualified facilities in the
December 2006 SPCC rule amendments
(71 FR 77266, December 26, 2006) to all
facilities subject to the integrity testing
provisions.
• EPA is differentiating 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 (AFVOs). EPA is
providing the Professional Engineer (PE)
or an owner or operator self-certifying
an SPCC Plan with the flexibility to
determine the scope of integrity testing
that is appropriate for containers that
store AFVOs, based on compliance with
certain FDA regulations and other
criteria.
• EPA is finalizing several
amendments to tailor the requirements
for oil production facilities to address a
number of concerns that have been
raised by this sector. Specifically, EPA
is: Modifying the definition of
‘‘production facility’’ to be consistent
with the amendments to the definition
of ‘‘facility;’’ extending the timeframe by
which the owner or operator of a new
oil production facility must prepare and
implement an SPCC Plan; providing an
alternative option for flow-through
process vessels at oil production
facilities to comply with the general
secondary containment requirement and
additional oil spill prevention measures
in lieu of sized secondary containment
requirements; providing an exemption
for certain intra-facility gathering lines
subject to regulatory requirements of the
U.S. Department of Transportation’s
(DOT’s) pipeline regulations in 49 CFR
parts 192 or 195; providing an
alternative option for flowlines and
intra-facility gathering lines at oil
production facilities for contingency
planning in lieu of all secondary
containment requirements, while
establishing more specific requirements
for a flowline/intra-facility gathering
line maintenance program; exempting
certain produced water containers that
do not contain oil as certified by a
Professional Engineer (PE); providing
compliance alternatives to sized
secondary containment for produced
water storage containers that are not
otherwise exempt; establishing an
option for an oil production facility to
be eligible to self-certify an SPCC Plan
as a qualified facility; and clarifying the
definition of ‘‘permanently closed’’ as it
applies to oil production facilities and
containers present at an oil production
facility.
• EPA is exempting underground oil
storage tanks deferred under 40 CFR
part 280 that supply emergency diesel
generators at nuclear power generation
facilities and that are subject to design
criteria under the Nuclear Regulatory
Commission (NRC) regulations. This
exemption includes both tanks that are
completely buried and tanks that are
below-grade and vaulted.
In this notice, EPA is also reiterating
clarifications to a number of issues of
concern to the regulated community
that were provided in the 2007 proposal
(72 FR 58378, October 15, 2007),
including the consideration of manmade structures in determining how to
comply with the SPCC rule
requirements and the applicability of
the rule to wind turbines that are used
to produce electricity. Additionally,
EPA is explaining actions that will be
taken in collaboration with DOT to
clarify the jurisdiction over facilities, as
defined in a Memorandum of
Understanding (MOU) between the DOT
and EPA (36 FR 24080, November 24,
1971). EPA also is finalizing technical
corrections to §§ 112.3 and 112.12. This
rulemaking marks the completion of the
SPCC-related improvements planned by
the Agency at this time. EPA greatly
benefited from the considerable public
input in the recent SPCC rulemakings.
Given the breadth of these changes, and
the importance of the SPCC program,
EPA plans to review the implementation
of these changes after these latest
revisions become effective. With regard
to the oil production industry, this
revision would include an examination
of the utility and effectiveness of the
new approaches for avoiding and
minimizing spills.
II. Entities Potentially Affected by This
Final 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
4861, 48691
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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 titled 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 or
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 superseded by
Executive Order 12777 (56 FR 54757,
October 22, 1991). An MOU between
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 July 2002 rule included
revisions to the 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
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of the rule.1 All of the issues raised in
the litigation have been resolved; EPA
published clarifications in the Federal
Register to several aspects of the revised
rule (69 FR 29728, May 25, 2004),2 and
in a separate action in the Federal
Register of November 26, 2008, (73 FR
71941), the Agency is announcing the
vacatur of the July 17, 2002 revisions to
the definition of ‘‘navigable waters.’’ In
addition, concerns were raised about the
ability to implement certain aspects of
the July 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,
removal of provisions inapplicable to
AFVOs, and the compliance date for
farms. See the rule amendment that was
published in the Federal Register at 71
FR 77266 (December 26, 2006) for a
more detailed discussion of these
amendments.
In addition, EPA released the SPCC
Guidance for Regional Inspectors in
December 2005. 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 on the
Agency’s Web site at https://
www.epa.gov/emergencies. EPA intends
to issue revisions to this guidance
document that address changes made to
the SPCC rule, consistent with the
regulatory amendments in this action
and the December 2006 amendments (71
FR 77266, December 26, 2006).
1 American Petroleum Institute v. Johnson, 571
F.Supp. 2d 165 (D.D.C. 2008). The only issue
resolved through litigation was the challenge to the
definition of navigable waters in the 2002 rule
amendment.
2 Several commenters requested that the Agency
codify the clarifications as part of this rulemaking.
To the extent the subject matter of the clarification
has been reflected in this rulemaking, the Agency
has either incorporated the clarification in the
regulatory text or reaffirmed the Agency’s position
in this preamble.
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92
Furthermore, 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 a rule published
May 16, 2007 (72 FR 27443). EPA took
the most recent action to provide
owners or operators of facilities the time
necessary 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 amendment. EPA expects that this
extension will 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 at 72 FR 27443,
May 16, 2007 for further discussion of
the July 1, 2009 compliance date. In a
separate action in the Federal Register
of November 26, 2008 (73 FR 72016),
EPA is also proposing new dates by
which the owners or operators of
facilities must prepare or amend and
implement their SPCC Plan.
The December 2006 SPCC rule
amendments (71 FR 77266, December
26, 2006) addressed only certain areas of
the SPCC requirements and specific
issues and concerns raised by the
regulated community. The EPA
Regulatory Agenda and the 2005 Office
of Management and Budget (OMB)
report on ‘‘Regulatory Reform of the
U.S. Manufacturing Sector’’ highlighted
other areas where further changes may
be appropriate. Therefore, in October
2007, EPA proposed additional
amendments to the SPCC rule to address
these changes (72 FR 58378, October 15,
2007). Section V of this notice describes
EPA’s final action on those proposed
amendments and presents the major
comments received on the proposal, as
well as EPA’s response to those
comments. For a more complete
discussion of the comments received,
and the Agency’s response to comments,
see Comment and Response Document:
Spill Prevention, Control, and
Countermeasure Rule 2008
Amendments, a copy of which is
available in the docket for this
rulemaking.
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V. This Action
a. Comments
A. Hot-Mix Asphalt
A number of alternative approaches
focused on extending the exemption to
other similar materials, such as AC,
Group 5 oils (that is, those oils with
specific gravities greater than or equal to
1.0), waxes and other heavy oils. One
commenter suggested extending the
exemption to all solid or non-flowing
materials, such as whenever oil is mixed
with material that will make the mixture
unlikely to flow at ambient
temperatures: Oil mixed with sorbents,
gelled oils, etc. Another commenter
suggested extending the exemption to
other Group 5 oils. Other commenters
suggested extending this exemption to
paraffin wax or to all waxes. One
commenter requested that EPA clarify
that any oils associated with asphalt
production be regulated if their total
volume exceeds 1,320 U.S. gallons.
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.
Under this amendment to the SPCC
rule, EPA is exempting HMA from SPCC
rule applicability.
1. Hot-Mix Asphalt Exemption
EPA is exempting HMA from SPCC
rule applicability by adding a new
paragraph (8) under the general
applicability section, § 112.1(d), and
modifying § 112.1(d)(2) so that the
capacity of storage containers solely
containing HMA is not counted toward
the facility’s oil storage capacity
calculation. EPA is taking this action
based on the fact that this material is
unlikely to flow as a result of the
entrained aggregate, such that there
would be very few circumstances in
which a discharge of HMA would have
the potential to reach navigable waters
or adjoining shorelines. This is
particularly of concern at facilities
subject to the SPCC requirements solely
because of the presence of HMA. EPA
never intended that HMA be included
as part of a facility’s SPCC Plan.
a. Comments
Several commenters expressed
general support for the exemption, and
no comments were submitted that
opposed the proposed exemption.
b. Response to Comments
EPA agrees with the commenters and
is finalizing the exemption for HMA, as
proposed.
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2. Alternative Options Considered
As an alternate approach, EPA also
considered exempting both HMA and
AC from the requirements of the SPCC
rule, but chose not to propose, nor
finalize, such an option. Therefore, this
exemption for HMA does not include
AC. Although AC is semi-solid or solid
at ambient temperature and pressure, it
is generally stored at elevated
temperatures. At such elevated
temperatures, AC has fluid flow
properties 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 rule to prevent
discharges to navigable waters or
adjoining shorelines.
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b. Response to Comments
The Agency disagrees with these
commenters. Unlike HMA, these
materials do have the potential to
discharge into navigable waters or
adjoining shorelines because they are
generally stored at elevated
temperatures and thus, are capable of
flowing if there is a release from the
container. No new or compelling data
was provided by commenters who
disagreed with this position. However,
it should be noted 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. If a
facility owner or operator determines
that there is a reasonable expectation of
a discharge of oil to navigable waters or
adjoining shorelines from any single oil
container (including a container storing
oil associated with hot-mix asphalt
production), and other rule applicability
criteria are met, then all oil containers
at the facility are subject to the rule’s
requirements (except as otherwise
exempted).
In addition, as EPA noted in the
preamble to the proposed rule, the
Agency believes that the SPCC rule
already 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
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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) and 112.12(c)(2)).
Therefore, the flow properties of Group
5 oils (as for any oil) may be considered
in designing appropriate means of
secondary 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.
B. Farms
The owner or operator of a farm, by
virtue of storing or using oil, is
potentially subject to the SPCC
requirements. EPA promulgated the
definition of farm at § 112.2 in the
December 2006 amendments to the
SPCC rule (71 FR 77266, December 26,
2006), which 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.’’
While the December 2006 amendments
streamlined the requirements for most
of the farms that are subject to SPCC
requirements, EPA believes further
amendments to the SPCC regulations are
appropriate given the unique
characteristics of farms (for example,
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; may have multiple
fueling sites; may be located in a remote
area; stores oil on-site for on-farm use
and not for further distribution; uses oil
seasonally in different quantities; and
leases a significant amount of land to or
from secondary parties. EPA is
finalizing a number of amendments to
the SPCC rule potentially affecting
farms and other facilities which were
proposed in October 2007 (72 FR 58378,
October 15, 2007), including an
exemption for pesticide application
equipment and related mix containers,
and providing clarification on the
applicability of the mobile refueler
requirements to farm nurse tanks.
Additionally farms are likely to benefit
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from other amendments finalized in this
rule, such as clarifications to the
definition of facility; the option to allow
a subset of qualified facilities (‘‘Tier I
qualified facilities’’) to complete the
SPCC Plan template in Appendix G of
this part in lieu of preparing a full SPCC
Plan; exemption of residential heating
oil tanks at single family residences;
amendments to the security and
integrity testing requirements;
exemption from the loading/unloading
rack requirements; and amendments to
the facility diagram requirements.
In addition, EPA extended the
compliance date for the owner or
operator of a farm, as defined in § 112.2,
to prepare or amend and implement the
farm’s SPCC Plan until the effective date
of a rule addressing whether to provide
differentiated requirements for farms (71
FR 77266, December 26, 2006). EPA
believes that the amendments to the
SPCC rule in this action address the
concerns raised by the agricultural
industry. In a separate action in the
Federal Register of November 26, 2008,
(73 FR 72016), EPA is proposing new
dates by which the owner or operator of
a farm that is a qualified facility must
prepare or amend and implement his
SPCC Plan.
1. Exemption for Pesticide Application
Equipment and Related Mix Containers
EPA is adding a new paragraph (10)
under the general applicability section,
§ 112.1(d), to exempt all pesticide
application equipment and related mix
containers. EPA is also modifying
§ 112.1(d)(2) so that the capacity of
these pesticide application equipment
and related mix containers is not
counted toward the facility’s oil storage
capacity calculation. Pesticide
application equipment includes ground
boom applicators, airblast sprayers, and
specialty aircraft that are used to apply
measured quantities of pesticides to
crops and/or soil. Related mix
containers are those used to mix
pesticides with water and, as needed,
adjuvant oils, just prior to loading into
application equipment. In the October
2007 (72 FR 58378, October 15, 2007),
proposal, EPA proposed to limit this
exemption to pesticide application
equipment and related mix containers
used at farms. In this final rule,
however, EPA is extending the
exemption to all pesticide application
equipment and related mix containers,
regardless of ownership or where used,
because the application of pesticides
through the use of this equipment is the
same at any location.
EPA is taking this action consistent
with its findings in evaluating the
potential harm posed by pesticide
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containers and application equipment
when promulgating the Standards for
Pesticide Containment Structures in 40
CFR part 165, Subpart E (see 71 FR
47330, August 16, 2006). These
regulations apply to retailers who
repackage agricultural pesticides,
custom blenders of agricultural
pesticides, and commercial applicators
of agricultural pesticides, but do not
apply to pesticide application
equipment and related mix containers,
because they do not fit the definition of
stationary pesticide containers. In the
development of the proposed exemption
to the SPCC rule (72 FR 58378, October
15, 2007), EPA indicated that pesticide
formulations may contain crop oil or
adjuvant oil in the mix formulations just
prior to application, which could
subject certain pesticide containers to
the SPCC requirements. This same
condition could exist at agricultural
retailers that provide custom
application services, as well as
commercial applicators. At these
facilities, pesticide application
equipment, such as ground boom
sprayers and aerial applicators could be
loaded with pesticide mix formulations
with crop oil or adjuvant oil. In these
instances, similar to on-farm pesticide
application equipment, this equipment
could have been subject to the SPCC
requirements when oil is mixed with
the pesticide formulation just prior to
use.
Under this amendment, containers (55
U.S. gallons or greater in capacity)
storing oil prior to mixing it with a
pesticide, or containers used to store
pesticides that contain oil, are
considered bulk storage containers and
continue to be regulated as such under
the SPCC rule.
a. Comments
Several commenters expressed
general support for the exemption of
pesticide application equipment and
related mix containers on farms from
the SPCC requirements. Other
commenters suggested that the
exemption should be extended to all
users of this equipment, arguing that
this would limit the potential for
duplicative regulation of pesticides by
the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) and the SPCC
program. For example, the energy
utilities sector requested an exemption
for the pesticide application equipment
and related mix containers they use to
maintain their right-of-way networks
and to preserve treated wood poles used
in electricity transmission and
distribution. One commenter suggested
that the Agency exempt pesticide
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mixtures with low concentrations of oil
from SPCC regulation altogether.
b. Response to Comments
EPA evaluated the merits of extending
the exemption for all pesticide
application equipment and related mix
containers at farms to all such
equipment, regardless of ownership or
where used, based on the fact that this
pesticide use, and certain pesticide
containers, are already subject to
‘‘similar’’ regulation under FIFRA to
assure the safe use, reuse, storage, and
disposal of pesticide containers. As
such, EPA agrees with the commenters
that it would be appropriate to extend
the exemption to pesticide application
equipment and related mix containers,
regardless of ownership or point of use.
On the other hand, EPA does not
agree that the Agency should exempt
pesticide mixtures with low
concentrations of oil from SPCC
regulation. Pesticide mix formulations,
such as those that contain crop oil or
adjuvant oil, are potentially subject to
the SPCC rule because they are
considered oil mixtures. The statutory
definition of oil includes oil of any kind
and in any form (33 U.S.C. section
1321(a)(1)), and does not exclude oil
mixtures. Discharges of oil mixtures to
navigable waters or adjoining shorelines
may be harmful as set forth in 40 CFR
part 110.
2. Applicability of Mobile Refueler
Requirements to Farm Nurse Tanks
In the October 2007 notice of
proposed rulemaking (72 FR 58378,
October 15, 2007), EPA clarified that the
definition of mobile refueler, as
promulgated in the December 2006
amendments to the SPCC rule (71 FR
77266, December 26, 2006), includes a
nurse tank, which is a mobile/portable
container used at farms to store and
transport fuel for transfers to or from
farm equipment (such as tractors and
combines) to other bulk storage
containers (such as containers used to
provide fuel to wellhead/relift pumps)
at the farm. A nurse tank is often
mounted on a trailer for transport
around the farm; thus, 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 at
§§ 112.8(c)(2) and 112.12(c)(2), but is
still subject to the general secondary
containment requirements at § 112.7(c).
a. Comments
Several commenters supported the
Agency’s clarification that a nurse tank
is considered a mobile refueler, and
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thus exempt from the sized secondary
containment requirements. Some
commenters also requested that EPA
clarify that the definition of mobile
refuelers includes non-road licensed
refueling equipment which are used to
refuel farm equipment in the fields.
b. Response to Comments
EPA agrees with those commenters
supporting the clarification. EPA also
understands that agricultural retail
suppliers may provide refueling services
via non-road licensed equipment to
farm equipment in farm fields. As the
Agency described in the preamble to the
proposed rule (72 FR 58378, October 15,
2007), a nurse fuel tank is typically used
at a farm to store and transport fuel to
or from farm equipment. Therefore, EPA
agrees with commenters that non-road
licensed equipment that is used to
refuel farm equipment functions as a
mobile refueler, similar to a farm fuel
nurse tank. Additionally, owners and
operators of these nurse tanks may
benefit from other amendments in this
action regarding the extension of relief
from sized secondary containment to all
non-transportation-related tank trucks.
For example, nurse tanks containing oils
other than a fuel such as lubrication or
hydraulic oil, would also be eligible.
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3. Differentiating the SPCC
Requirements for Farms
In developing the amendments in the
October 2007 proposed rule, EPA
considered and took comment on a
number of alternatives for
differentiating the SPCC requirements
for farms, but are not finalizing them, as
discussed below.
a. No Further Action
EPA evaluated whether any further
action was necessary specific to farms,
including no further action. As
described in the proposal (72 FR 58378,
October 15, 2007), the Agency proposed
amendments based on previous
comments from agricultural
stakeholders, farm-related site visits
conducted by EPA and the August 16,
2006, action concerning pesticide
containers (40 CFR part 165, Subpart E,
71 FR 47330). EPA is finalizing those
actions; the Agency also is promulgating
the following additional amendments to
the SPCC regulation that could also
benefit farmers: Clarifications to the
definition of facility; the option to allow
the owners and operators of a subset of
qualified facilities (i.e., ‘‘Tier I qualified
facilities’’) to complete the SPCC Plan
template in Appendix G of this part in
lieu of preparing a full SPCC Plan;
exemption of residential heating oil
tanks at single family residences,
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including at farms; amendments to the
security and integrity testing
requirements; exemption from the
loading/unloading rack requirements;
and amendments to the facility diagram
requirements.
b. Exempt Farms Below a Certain
Storage Capacity Threshold
EPA considered exempting farms that
stored oil below a certain oil storage
capacity threshold (other than 1,320
U.S. gallons) from the SPCC
requirements, but determined that there
was insufficient data available to
support an exemption exclusive to
farms. While farming operations may be
unique, the 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 discharge. As a result, EPA chose not
to propose this option, but did request
comment on the merits of this approach.
c. Alternative Qualified Facility
Eligibility Criteria for Farms
Under § 112.6, a facility that has an
aggregate aboveground storage capacity
of 10,000 U.S. 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 to Plan certification, or since
becoming subject to 40 CFR part 112 if
the facility has been in operation for less
than three years 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 § 112.3(g),
treat farms like all other facilities.
However, EPA considered whether there
are alternative criteria unique to farms
that would be appropriate for
identifying qualified facilities. In the
October 2007 proposed rulemaking,
EPA requested comment on (1) whether
a change in the criteria is appropriate
for farms; and (2) whether a higher
threshold is appropriate for farms.
d. Comments
Several commenters recommended
that the Agency provide an exemption
for farms at a minimum of 10,000 U.S.
gallons oil storage capacity, citing a lack
of risk at such a volume and/or the
potential for cost savings, although no
specific data was provided to support
this position. Other commenters
suggested that EPA adopt a higher
threshold, such as a 20,000-gallon
threshold, as a criterion for qualified
facility eligibility. Specifically,
agricultural stakeholders requested that
EPA raise the Tier I individual container
threshold to 10,000 U.S. gallons and
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raise the Tier II total oil storage capacity
threshold to 20,000 U.S. gallons. These
commenters supported this threshold by
citing limitations on the lower limit for
bulk purchase of oil, the need to
maintain empty and/or seasonal-use
tanks on a farm, the lack of financial
resources to hire environmental
managers, the low likelihood of oil
spills in the industry, and general
environmental stewardship practices
inherently in place.
Still other commenters provided
additional comments and suggestions
related to farms. One commenter
requested that EPA remove the qualified
facility approach so that all farmers,
including small businesses and other
small oil storage facilities are required
to prepare a complete SPCC Plan
certified by a PE based on 1,320-gallon
storage capacity. Other commenters
requested additional time for farms to
comply with the SPCC regulation,
stating that this additional time will
provide farmers and others the
opportunity to work with government
agencies, including the U.S. Department
of Agriculture (USDA), on the
development of a model plan or
guidelines. Finally, a commenter sought
clarification that oil tanks not in use can
be classified as out of service, without
the need to remove the tanks from the
facility.
e. Response to Comments
EPA continues to believe that there is
insufficient data to support an outright
exemption exclusively for farms beyond
the existing aboveground storage
capacity threshold of 1,320 U.S. gallons
that applies to all facilities
(§ 112.1(d)(2)(ii)). As noted previously,
no data was provided by the
commenters to support such an
exemption. In addition, EPA notes that
a significant number of owners and
operators of farms will benefit from the
amendments finalized in this action and
the December 2006 SPCC rule
amendments (71 FR 77266, December
26, 2006), which allow a significant
number of farms to develop selfcertified SPCC Plans.
With respect to an alternative
‘‘qualified facility’’ threshold, EPA
considered the commenters’ suggestions
for modifying the existing qualified
facilities threshold of 10,000 U.S.
gallons total aboveground storage
capacity. However, the agricultural
community did not provide information
that would lead the Agency to conclude
that farms are sufficiently different to
warrant further differentiation from
other facilities that store oil. In fact, EPA
believes that many non-farm facilities
could have similar needs to purchase
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fuel in bulk and may have similar if not
identical storage needs as identified by
agricultural stakeholders. Thus, EPA is
not persuaded by these comments to
raise the existing qualified facilities
threshold solely for farms beyond
10,000 U.S. gallons. In setting the
qualified facilities threshold at 10,000
U.S. gallons in the December 2006
amendments, EPA sought to provide an
alternative for facilities, among other
things, with simple oil storage
configurations and smaller quantities of
oil handled (see 71 FR 77271, December
26, 2006). EPA continues to maintain
that the focus of the qualified facilities
alternative should be on simple
configurations and small quantities of
oil stored or handled.3
It should also be noted that, as
described in Section V.G of this notice,
EPA is finalizing a multi-tiered
approach to allow the owner or operator
of a facility that meets the eligibility
criteria for a qualified facility to selfcertify his SPCC Plan, and allow the
owners or operators of a subset of
qualified facilities (i.e., ‘‘Tier I qualified
facilities’’) to complete the SPCC Plan
template in Appendix G of this part in
lieu of preparing a full SPCC Plan. EPA
believes that the Tier I qualified facility
alternative should focus on facilities
with the simplest configurations and
smallest oil storage containers.
Commenters did not provide sufficient
data to support an increase in the Tier
I threshold for farms higher than
proposed. For more information on Tier
I and Tier II qualified facilities, see
Section V.G of this notice.
EPA also disagrees that the
amendments to the SPCC rule in
December 2006 provide ‘‘special
treatment’’ to any eligible facility.
Farmers, small businesses, and other
small oil storage facilities may be
eligible to self-certify their SPCC Plans
if they meet the eligibility criteria for
qualified facilities in § 112.3(g). In
providing this option for facilities
handling smaller amounts of oil, the
Agency sought to focus on those
smaller, less complex operations that
may be concerned about the impact of
using a PE on their limited budget.
Some of the current noncompliance
with the SPCC regulation may be
attributed to those concerns. The
Agency believes that providing a
streamlined option for owners and
operators of these smaller, less complex
facilities should improve the overall
3 Although the Agency chose not to raise the
threshold for farms in identifying who is eligible as
a ‘‘qualified facility,’’ the Agency estimates that
under the current qualified facilities eligibility
criteria, greater than 90 percent of farms subject to
the SPCC rule could be eligible.
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compliance for the SPCC regulation,
ultimately resulting in greater
environmental protection (71 FR 77270,
December 26, 2006). The owners and
operators of farms, small businesses and
other small oil storage facilities may be
eligible to self-certify their SPCC Plans
if they meet the eligibility criteria for
qualified facilities in § 112.3(g).
EPA defines permanently closed at
§ 112.2. Any container that meets this
definition is not subject to the SPCC
regulation and therefore would not be
included in the facility’s aggregate oil
storage capacity. The definition does not
require that the permanently closed
container be removed from the facility.
Similarly, a new, empty tank that
arrives at a farm or other SPCCregulated facility is not to be counted
towards a facility’s aggregate oil storage
capacity until the tank is actually used
to contain oil. EPA discusses this
clarification further in section V.M of
this notice.
In response to the commenters
requesting additional time for farms to
comply with the SPCC regulation, EPA
believes that the amendments to the
SPCC rule in this final action address
the concerns raised by the agricultural
industry. Farmers will benefit from
many of the streamlined rule provisions
including: Clarifications to the
definition of facility; the option to allow
the owners and operators of a subset of
qualified facilities (i.e., ‘‘Tier I qualified
facilities’’) to complete the SPCC Plan
template in Appendix G of this part in
lieu of preparing a full SPCC Plan;
exemption of residential heating oil
tanks at single family residences,
including farmsteads; amendments to
the security and integrity testing
requirements; exemption from the
loading/unloading rack requirements;
and amendments to the facility diagram
requirements. Furthermore, in a
separate action in the Federal Register
of November 26, 2008, (73 FR 72016),
EPA is proposing a new compliance
date for the owner or operator of a farm,
as defined in § 112.2, that also meets the
eligibility criteria as a qualified facility,
to prepare or amend and implement the
farmer’s SPCC Plan.
C. Residential Heating Oil Containers
Many regulated facilities, including
farms, may include the residence of the
owner or operator within the
geographical confines of the facility.
EPA did not intend to regulate
residential uses of oil (that is, those at
non-commercial buildings) under the
SPCC rule. Therefore, EPA is exempting
residential heating oil containers at
single family residences from the SPCC
requirements.
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1. Exemption for Residential Heating Oil
Containers
EPA is adding a new paragraph (9)
under the general applicability section,
§ 112.1(d) to exempt from SPCC
applicability containers that are used to
store oil for the sole purpose of heating
single-family residences (including a
residence at a farm). EPA is also
modifying § 112.1(d)(2) so that the
capacity of the single-family residential
heating oil containers are not counted
toward facility aggregate oil storage
capacity. This action removes from
SPCC applicability containers (both
aboveground and completely buried)
located at a single-family residence that
are used solely to store heating oil used
to heat the residence. Under this
amendment, the owner or operator is
not required to 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 will apply to the exempt
containers. The SPCC requirements
continue to apply, however, to oil
containers used to heat other nonresidential buildings within a facility,
because the exemption covers only
residential heating oil containers at
single family residences.
a. Comments
Several commenters expressed
support for the exemption of residential
heating oil containers at single family
residences from the SPCC requirements.
However, some commenters suggested
extending the exemption to locations
beyond single-family residences. One
commenter suggested that EPA exempt
buildings and offices located remotely
from mining operations. Another
commenter suggested the exemption
should include heating oil tanks at a
facility occupied daily, with storage
capacity not exceeding 5,000 gallons, in
containers not exceeding 1,000 gallons,
because these facilities are regularly
occupied, and thus would not pose any
more likelihood of a release than a
single-family residence. One commenter
suggested exempting heating oil storage
containers that serve four or fewer
households, consistent with the Federal
underground storage tank regulations.
b. Response to Comments
EPA agrees with those commenters
who supported the exemption, and is
finalizing the exemption as proposed,
because EPA views a single-family
residence as a household that has direct
ownership of the oil stored in the
heating oil container. The Agency did
not intend, by itself, that a single-family
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residence that stores heating oil for its
use be subject to SPCC applicability,
particularly because such residences
generally do not have significant
quantities of other types of oil. The
preamble to the original 1973 SPCC rule
(38 FR 34164, December 11, 1973),
identified containers of 660 U.S. gallons
as the normal domestic code size for
non-buried heating oil containers, and
that buildings may have two such
containers. The storage capacity
thresholds for SPCC rule applicability
were initially established at 660 U.S.
gallons for an individual container and
1,320 U.S. gallons total aboveground
capacity for the facility, based on the
possible capacity of residential heating
oil containers. Thus, the presence of
heating oil containers at a single-family
residence was generally not intended,
by itself, to trigger SPCC applicability.
On the other hand, EPA disagrees with
those commenters who suggested
extending the exemption beyond
heating oil containers at single-family
residences. Owners and operators of
commercial facilities, such as mining
operations and commercial multi-family
structures (such as condominiums and
apartment complexes), will generally
store much larger volumes of oil, and if
there is a reasonable expectation of an
oil discharge to navigable waters or
adjoining shorelines, EPA believes it
needs to be addressed in the SPCC Plan.
Of course, any facility that has an
aggregate oil storage capacity of less
than 1,320 U.S. gallons in aboveground
containers or 42,000 U.S. gallons in
completely buried tanks are not subject
to the SPCC regulation (see
§ 112.1(d)(2)). In addition, if a
commercial facility (for example, a
university) includes a single-family
residence on the premises, then any
heating oil container associated solely
with this residence is exempt from
SPCC rule applicability.
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2. Alternative Option Considered
EPA invited comments on 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 single-family residences
on farms would benefit from an
exemption from the SPCC rule.
a. Comments
One commenter supported exempting
heating oil storage containers located at
a farm facility’s single-family residence.
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b. Response to Comments
EPA agrees with the commenter that
heating oil containers located at a
single-family residence at a farm should
be exempt from the SPCC rule and is
finalizing such an exemption. However,
the commenter did not provide any
basis to limit the exemption solely to
farms. Because EPA believes the same
rationale applies to exempt heating oil
containers to single-family residences at
facilities other than farms, the
exemption applies to all single-family
residences.
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). Under this
action, EPA is modifying the definition
of facility in three ways: (1) To clarify
that this definition alone governs the
applicability of 40 CFR part 112; (2) to
clarify that containers can be separated
or aggregated, based on various factors
in defining ‘‘facility’’—that is, the owner
or operator has discretion in identifying
which contiguous or non-contiguous
buildings, properties, parcels, leases,
structures, installations, pipes, or
pipelines make up the facility; and (3)
to add the qualifier ‘‘oil’’ before the term
‘‘waste treatment.’’
1. Revisions to the Definition of Facility
EPA is amending the definition of
‘‘facility,’’ as found in § 112.2, in the
following ways:
• To show that only the definition of
‘‘facility’’ rather than the definition of
‘‘production facility’’ determines
applicability for purposes of part 112,
and specifically in § 112.20(f)(1) when
applied to an oil production facility,
EPA is adding the sentence ‘‘Only this
definition governs whether a facility is
subject to this part.’’ to the definition of
facility. This language is consistent with
the clarification on the definition of
facility published in a May 25, 2004
Federal Register notice (69 FR 29728).
• To address concerns over how oil
containers and equipment can be
separated or aggregated for purposes of
determining ‘‘the facility,’’ and thus, the
applicability of the SPCC requirements
to ‘‘the facility,’’ EPA is inserting the
sentence ‘‘Contiguous or noncontiguous buildings, properties,
parcels, leases, structures, installations,
pipes, or pipelines under the ownership
or operation of the same person may be
considered separate facilities.’’ These
revisions allow an owner or operator of
a facility to separate or aggregate
containers to determine the facility
boundaries, based on such factors as
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ownership or operation of the buildings,
structures, containers, and equipment
on the site, and activities being
conducted, property boundaries, and
other relevant considerations. EPA is
adding 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
additions are merely examples of terms
that might define a facility and are
familiar to the regulated community,
such as farmers or oil production
facility owners. They are not meant to
be exclusive.
• To clarify that the term ‘‘waste
treatment’’ refers to oil waste treatment
and not to treatment of any other type
of waste that may be generated, EPA is
amending the first sentence of the
definition of facility to add the qualifier
‘‘oil’’ before the term ‘‘waste treatment.’’
a. Comments
Many commenters expressed general
support for the proposed amendments.
Several commenters stated that these
revisions would allow them the ability
to prioritize compliance activities in
environmentally and economically
beneficial ways (for example, being able
to plan for potential discharges in areas
where they are more likely to occur).
Several commenters indicated that
certain types of facilities, such as those
in the wind power, agriculture,
electrical utility, forestry, aviation, and
coal mining industries, might be
managed by multiple operators, and that
dividing a parcel of land into facilities
on the basis of these individual
operations makes sense.
One commenter, however, objected to
the amendment if it would result in a
facility being disaggregated into more
than one facility, thereby lowering the
total oil capacity volume of the ‘new’
facility to below the regulatory
thresholds.
b. Response to Comments
EPA agrees with those commenters
who supported this approach. The
Agency also agrees with the commenters
that the owner or operator has the
discretion to determine what constitutes
a facility. That is, the rule may become
applicable to a facility for the first time
in cases of aggregation of buildings,
structures or equipment and associated
storage or type of activity, or the
division of the facility may end
applicability due to separation of
buildings, structures or equipment and
associated oil storage or type of activity.
Thus, EPA recognizes that this
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amendment may have the effect of
removing a facility from being subject to
the SPCC requirements. However, an
owner or operator may not make facility
determinations indiscriminately and in
such a manner as to simply avoid
applicability of the rule (for example,
the division of one facility into separate
facilities with one oil storage container
located at each facility where all storage
containers are located side-by-side or
close to each other, and are used for the
same purpose). For further information
on the definition of facility, see Chapter
2 of the SPCC Guidance for Regional
Inspectors.
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2. Determining the Components of a
Facility: Examples of Aggregation or
Separation
The factors for determining the
boundaries of a facility as listed in the
definition of facility are not exclusive,
but are merely examples. The SPCC
Guidance for Regional Inspectors
elaborates on additional factors that may
be considered. 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. In the October 2007 proposed
rule, EPA provided several examples
and hypothetical scenarios of how a
facility owner or operator may
determine what is considered a
‘‘facility’’ for the purposes of an SPCC
Plan (see 72 FR 58387, October 15,
2007).
a. Comments
One commenter stated that, for oil
and gas operations, owners and/or
operators often combine many leases
together. These leases may not be
associated with the same oil or gas field,
but they are associated with the same
operator. The commenter requested
assurance that this practice is consistent
with the amended definition of facility.
While additional comments did not
focus on the specific examples
provided, several commenters raised
questions about how the modification to
the definition of facility may affect
various types of facilities. One
commenter supported flexibility to
prepare single or multiple SPCC Plans
for wind power plants, which
potentially involve many landowners
spread over large areas. One commenter
requested clarity that a petroleum
refinery owner may determine that
refinery operations are a facility and
ongoing remediation activities at the
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same petroleum refinery location can be
considered a separate facility. Another
commenter from the aviation sector
requested that EPA clarify whether a
tank at an exempt facility may be
subject to regulation by transferring fuel
from the tank to a regulated mobile
refueler. Several commenters suggested
that operators may prepare multi-facility
SPCC Plans that combine common
elements (such as structures,
equipment, inspections, integrity
testing, secondary containment designs,
and response procedures), while
retaining site-specific information; these
commenters urge EPA to clarify that
using a single Plan for multiple
locations does not force facilities to be
considered a single facility for FRP
purposes.
b. Response to Comments
As described in the hypothetical
scenario (72 FR 58387, October 15,
2007), the Agency reiterates that an
owner or operator of an oil production
facility may aggregate some or all of his
leases into one Plan, at his discretion,
whether or not they are associated with
the same oil or gas field. Thus, this
practice is consistent with the amended
definition of facility being promulgated
by this action.
With respect to the other comments
submitted on how the definition of
facility may affect various types of
facilities, EPA agrees that wind power
plants, whether spread over large or
small areas and which may involve
multiple landowners, may be
appropriately defined as single or
multiple facilities, depending on the
circumstances, at the owner or
operator’s discretion. Such facilities
may be included in single or multiple
facility SPCC Plans. EPA also generally
agrees with the commenter that a
petroleum refinery owner or operator
may, at his discretion, decide that
remediation activities at an operating
petroleum refinery constitute a separate
facility. Furthermore, EPA agrees with
the commenter that the Agency does not
regulate the transfer of fuel at an exempt
facility. However, once the fuel is
transferred to a regulated container at an
otherwise regulated SPCC facility, the
transfer activity becomes subject to the
SPCC requirements.
Finally, as noted previously, the
definition of facility determines the
applicability for all purposes under part
112. Thus, once an owner or operator
defines the extent of his facility, that
definition determines applicability for
both SPCC and FRP purposes. The
owner or operator may, at his discretion,
create a Plan that includes more than
one site, and define it as one facility
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which pertains to both FRP and SPCC
applicability. An owner or operator may
also combine multiple facilities into a
single SPCC Plan, combining common
elements, while retaining facilityspecific information (a multi-facility
Plan). While the Plan may encompass
multiple facilities, the applicability of
SPCC and FRP requirements is
determined by the extent of each
individual facility. The amendment to
the definition of facility and the
clarifications described in this action
should not be viewed as a deterrent to
the use of multi-facility SPCC Plans, a
concern expressed by operators in the
oil production sector.
3. Alternative Options Considered
In developing the amendments
finalized in this notice, EPA considered
alternatives for addressing the definition
of facility, including taking no action,
and addressing concerns only through
guidance. No comments were received
on these specific alternative options.
EPA also requested comments on other
alternatives that could serve to address
the needs of the regulated community,
while at the same time maintain
appropriate levels of environmental
protection.
a. Comments
A commenter suggested removing the
terms ‘‘* * * property, parcel, lease
* * *’’ from the definition of facility
because the commenter believes these
terms complicate and confuse the
definition. Another commenter urged
EPA to state that the determination of a
‘‘facility’’ for the purpose of preparing
an SPCC Plan does not preclude the
operator from making a different
determination of the scope of the facility
for the purposes of reporting or
planning under any other Federal or
state statute. Other commenters
recommended that EPA clarify that a
lease does not necessarily define a
facility. Another commenter also
requested that EPA clarify that the
definition of facility excludes DOT and
U.S. Coast Guard (USCG) components.
Still another commenter suggested that
EPA codify the litigation settlement
language either as rule amendments or
an appendix to the rule. Finally, one
commenter recommended that EPA give
120 days to a facility owner or operator
to resolve any compliance concerns,
including a disputed facility
determination.
b. Response to Comments
EPA disagrees with the suggested edit
to remove the terms ‘‘* * * property,
parcel, lease * * *’’ from the definition
of facility. Unlike the commenter, the
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Agency believes that these terms serve
as clarifying examples of what may
constitute a facility.
EPA agrees that the definition of
facility, as defined in § 112.2, applies
only for purposes of part 112, and not
for purposes of any other Federal or
state statute. However, this would not
prevent the owner or operator of a
facility from defining the facility
boundaries in the same way that he
defines it to comply with other
regulations.
EPA clarifies that a lease may, at the
owner or operator’s discretion,
constitute a facility, but does not
necessarily create a facility. According
to the definition, contiguous or noncontiguous buildings, properties, leases,
structures, installations, pipes, or
pipelines under the ownership or
operation of the same person may be
considered separate facilities. The
definition further lists several sitespecific factors, including, but not
limited to, ownership or operation of
buildings, structures, and equipment on
the same site and types of activity at the
site.
Generally, a facility for SPCC
purposes excludes components which
are not subject to EPA’s jurisdiction, but
are subject to the jurisdiction of other
agencies, such as DOT or USCG.
However, EPA and DOT recognize that
in certain situations, dual jurisdiction
has been applied to certain components
of a facility, and that this approach can
pose confusion to the regulated
community. EPA and DOT thus are
currently working to minimize
overlapping regulation in accordance
with their 1971 MOU regarding agency
jurisdiction (36 FR 24080, November 24,
1971) and will publish the results of
that effort in the Federal Register at a
later date. For more information, please
refer to the proposed rule Federal
Register notice (72 FR 58419, October
15, 2007).
EPA believes that this action
addresses the facility definition issue in
the settlement of the 2002 SPCC rule
litigation, because in the amended
definition, EPA clarifies that only this
definition is used to determine whether
a facility is subject to 40 CFR part 112.
EPA also has stated in this preamble
that the positions that EPA has taken in
the July 2002 SPCC rule litigation
settlement are still the Agency’s existing
positions.
Finally, EPA disagrees that owners or
operators of SPCC regulated facilities
should be given 120 days to address any
possible compliance concerns,
including but not limited to, differences
of opinion on a facility determination.
Whether or not a total or partial Plan is
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needed, or whether an existing SPCC
Plan should be amended is a
compliance issue, subject to the
provisions of § 112.1(f) or § 112.4(e) and
(f). Both of these sections provide
adequate time for appeal from an initial
decision of the Regional Administrator
to the Administrator. Therefore, a
period of 120 days is not included in
this final rule to allow the owner or
operator to resolve compliance issues.
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. EPA is
amending the SPCC rule to provide
additional flexibility to the requirement
that the facility diagram include the
location and contents of each container.
EPA is also requiring that certain
containers and piping, exempted from
SPCC requirements in this action, be
identified on the facility diagram and
marked as ‘‘exempt.’’ This includes
intra-facility gathering lines subject to
the requirements of 49 CFR part 192 or
195 as described in § 112.1(d)(11); and
any produced water container, as
defined in § 112.2, that meets the
requirements at § 112.9(c)(6)(i) as
described in § 112.1(d)(12). This will
assist facility and EPA personnel in
defining the jurisdictional boundaries at
the facility and provide emergency
response personnel with information
that can be used to identify hazards
during a spill response activity. EPA has
not required that all containers
exempted from the rule be marked on
the facility diagram because in many
cases it would be burdensome. For
example, the mobility of motive power
containers and mobile/portable
containers with a capacity of less than
55 U.S. gallons would make them
difficult to track on a facility diagram.
For more information on these
exemptions, see sections V.L and V.M of
this preamble.
1. Revision to the Facility Diagram
Requirement Regarding Mobile or
Portable Containers
EPA is amending § 112.7(a)(3) to
clarify that the facility diagram must
include all fixed (that is, not mobile or
portable) containers. For any mobile or
portable containers (such as drums or
totes), a facility owner or operator must
mark the area of the facility on the
diagram where such containers are
stored. The facility owner or operator
may mark the number of containers,
contents and capacity of each container
either on the facility diagram, or provide
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a separate description in the SPCC Plan.
If the total number of mobile or portable
containers changes, the owner or
operator can include 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.
EPA believes that the revision to the
facility diagram requirements for mobile
or portable containers will simplify the
process for developing a facility diagram
by allowing for a general description of
both the area of the facility where they
are located and of their contents, rather
than representing each container
individually.
a. Comments
Many commenters expressed general
support for the amendments, while one
commenter opposed the amendment
because of increased cost estimates for
facility diagram preparation. Several
other commenters requested that EPA
clarify, via rule language, which
containers are considered mobile or
portable (such as 55-gallon drums,
intermodal bulk containers, mobile/
portable maintenance tanks, and other
small containers put into place and later
moved). Other commenters suggested
that EPA require only mobile or portable
storage container locations that are
‘‘fixed,’’ ‘‘permanent,’’ or ‘‘dedicated’’
be included in the diagram. These
commenters assert that internal facility
tracking of these containers is sufficient
for planning and emergency response
purposes, that single drums are not
reasonable to track on a diagram, and
that their inclusion on the diagram does
not provide increased environmental
protection.
Several additional approaches were
suggested by commenters. One
commenter suggested that EPA allow
facility operators to use ‘‘range
reporting’’ for the number of containers
and their quantities that may be in use
at the facility. One commenter
recommended allowing the use of an
administrative alternative, such as a
computerized tracking system, to
provide real-time information on the
quantity, type, location, and person
responsible for mobile/portable
containers. One other commenter
suggested that § 112.5 should be
amended to specify other examples of
Plan changes that do not require recertification. Finally, one commenter
supported the use of facility diagrams
for SPCC Plans that have already been
prepared for other programs.
b. Response to Comments
The Agency agrees with those
commenters that support the proposal,
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and believes that clarification and
simplification of these requirements
will reduce costs and facilitate
compliance. Thus, EPA disagrees with
the commenter who argued, without any
supporting data, that the facility
diagram amendments would increase
the cost of preparing a facility diagram.
In addition, the Agency does not believe
that it needs to clarify, via rule
language, which containers are
considered mobile or portable. The
Agency has already provided examples
of mobile/portable containers in Section
4.4.4: Secondary Containment
Requirements for Mobile/Portable
Containers of the SPCC Guidance for
Regional Inspectors (for example, 55
gallon drums, skid tanks, totes, and
intermodal bulk containers). Some oil
refinery tank trucks and fueling trucks
dedicated to a particular facility (such
as a construction site, military base, or
similar large facility) may fall under this
category.
The Agency also disagrees with those
commenters regarding the need to
include on the facility diagram only
those mobile or portable container
locations that are ‘‘fixed,’’ ‘‘permanent,’’
or ‘‘dedicated.’’ The Agency believes
and clearly stated in preamble to the
proposed rule (72 FR 58378, October 15,
2007) that mobile or portable containers
should be marked on the facility
diagram in their out-of-service or
designated storage area, primary storage
areas, or areas where they are most
frequently located, and believes that the
final rule language accomplishes this
purpose.
The Agency agrees with the
comments supporting the flexibility of
reporting an area on the facility diagram
(such as a drum storage area) for these
containers, as well as providing
reasonable estimates (including ranges)
for the potential number of mobile or
portable containers, types of oil, and
anticipated capacities in the SPCC Plan.
The Agency believes that these
estimates can be effectively used to
determine the applicability of the rule
thresholds and provide a general
description of the mobile/portable
containers in the Plan; this clarification
may be particularly useful when the
number of containers change frequently
at the facility.
While the idea of an internal
computerized tracking system, utilizing
container bar codes to provide real-time
information on the quantity, type,
location, and person responsible for oil
containers of 55 U.S. gallons or greater
may suit some facilities, the Agency
does not believe it can reasonably
require such a system for all SPCCregulated facilities. However, EPA
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believes that the amendments allow a
facility owner or operator to implement
such a system to assist in their tracking
of mobile or portable containers, and to
use it to meet the SPCC Plan
requirement for these types of
containers, if desired.
Also, the Agency does not believe it
needs to expand the list of examples of
compliance activities that do not require
PE certification, as including every
potential scenario is unreasonable.
Owners or operators can refer to the
existing list of changes that may require
PE certification in § 112.5 and to the
SPCC Guidance for Regional Inspectors.
Finally, the Agency does not require
that a facility diagram be developed
exclusively for the SPCC Plan, and does
not agree that it needs to amend the rule
language to allow for this. A facility
diagram prepared for a state or Federal
plan (including the FRP requirements
under § 112.20) or for other purposes
(for example, 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 (for
example, it includes the contents and
capacities of containers; transfer areas;
and piping). Thus, EPA believes that the
existing regulations allow for a facility
diagram developed for other programs
to be used, which not only facilitates
compliance with this requirement, but
also reduces the cost of diagram
preparation.
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.
Therefore, in the October 2007 proposal
(72 FR 58378, October 15, 2007), EPA
requested 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.
EPA believes that the SPCC Guidance
for Regional Inspectors adequately
addresses the flexibility inherent in the
existing SPCC rule related to indicating
these areas on a facility diagram, and
that no additional rule amendment is
necessary.
a. Comments
Several commenters expressed
general support for an amendment to
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the regulations to provide further
clarification on how piping or oil-filled
equipment can be addressed on the
facility diagram. These commenters
noted the difficulties associated with
including oil-filled equipment or piping
detail on a diagram, and requested that
EPA offer other options. Suggestions
included a table identifying the oilfilled equipment and associated storage
capacities; flow charts; piping
inventories; summary statements;
drawings; PE-required details; electrical
one-line diagrams; and other means.
One commenter suggested that the
clarifications on flexibility provided in
the SPCC Guidance for Regional
Inspectors on the way the facility
diagram can be drawn should be made
part of the rule itself.
Another commenter stated that oilfilled equipment located in buildings
with multiple floors, or in process areas
with numerous other pieces of
equipment, should not be required to be
shown in the facility diagram, because
including such detail is impractical for
a complex site (such as a petroleum
refinery or chemical plant). The
commenter recommended that EPA
limit the diagram requirements
exclusively to fixed bulk oil storage
containers. Other commenters expressed
difficulties with depicting complex
hydraulic and lubricant tubing; older
equipment attributes; and indoor and/or
outdoor piping (particularly at older
facilities) that pose no risk of discharge
to navigable waters or adjoining
shorelines.
b. Response to Comments
The Agency interprets the
requirement at § 112.7(a)(3) to allow an
owner or operator of a facility to
represent such systems in a less detailed
manner on the facility diagram in the
SPCC Plan, as long as the information is
contained in more detailed diagrams of
the systems or is contained in some
other form and such information is
maintained elsewhere at the facility and
this location is referenced in the SPCC
Plan. The SPCC Guidance for Regional
Inspectors describes the Agency’s
interpretation of the requirements for a
facility diagram that allow an owner or
operator to determine the scale and
level of detail shown on a facility
diagram according to the needs and
complexity of the facility. Thus, the
Agency agrees with those commenters
who believe that the guidance
adequately addresses the flexibility for
complying with these requirements. The
guidance document illustrates how the
current regulatory requirement allows
flexibility in the way the facility
diagram is drawn to include complex
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designs of oil-filled equipment or
pipelines. As noted in the guidance
document, schematic representations
that provide a general overview of the
piping service (for example, supply/
return) may provide sufficient
information when combined with a
description of the piping in the SPCC
Plan. Alternatively, overlay diagrams
showing different portions of the piping
system may be used where the density
and/or complexity of the piping system
would make a single diagram difficult to
read. For areas of complicated piping,
which often include different types,
numbers, and lengths of pipes, the
facility diagram may show a simplified
box labeled ‘‘piping’’ or show a single
line that identifies the service (for
example, supply/return), as long as
more detailed diagrams are available
elsewhere at the facility. Therefore,
because the existing regulations already
provide adequate flexibility, which is
further described in the SPCC Guidance
for Regional Inspectors, and because the
Agency believes that amending the
regulatory text will not provide any
greater clarity, EPA has decided not to
provide further amendment to the rule.
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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. EPA is
finalizing a definition for the term
‘‘loading/unloading rack,’’ which
governs whether a facility is subject to
§ 112.7(h). Under this amendment, the
requirements described at § 112.7(h)
only apply to areas of a regulated
facility where a loading/unloading rack,
as defined in § 112.2, is located.
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 described in the
definition of loading/unloading rack
finalized in this action. Therefore, EPA
is specifically excluding oil production
facilities and farms from the
requirements at § 112.7(h).
1. Loading/Unloading Rack Definition
EPA is finalizing the following
definition for ‘‘loading/unloading rack’’
under § 112.2: ‘‘Loading/unloading rack
means a fixed structure (such as a
platform, gangway) 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
loading or unloading arm and may
include any combination of the
following: Piping assemblages, valves,
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pumps, shut-off devices, overfill
sensors, or personnel safety devices.’’
This definition is a slightly modified
version of the definition proposed in
October 2007. In developing the
proposed definition, EPA reviewed
information from a number of different
sources and reviewed various types of
equipment considered components of
loading racks (see 72 FR 58378, October
15, 2007). The Agency sought comment
on the proposed definition of ‘‘loading/
unloading rack’’ and requested
suggestions on any other definitions for
‘‘loading/unloading rack’’ that would be
more suitable. EPA also requested a
description of a ‘‘loading/unloading
arm.’’
a. Comments
Many commenters expressed general
support for the proposed definition of
loading/unloading rack. However, other
commenters opposed the proposed
definition, suggesting that it is too broad
and consequently includes many
loading/unloading areas or equipment
that would not normally be components
of ‘‘racks,’’ such as storage containers
equipped with safety platforms, piping
assemblages, valves, pumps, shut-off
devices, overfill sensors, or personnel
safety devices. One commenter
expressed concern that the proposed
definition of loading rack could include
a facility ‘‘where filling/emptying is
accomplished by direct connection to
the same tanks.’’ Another commenter
expressed concern that, by not defining
‘‘loading arm,’’ EPA might inadvertently
cause hoses used at loading racks to be
identified as loading/unloading arms.
Still another commenter stated that, in
the state of Alaska, many rural facilities
do not have a gangway and a fixed
loading arm, so the proposed definition
would leave these facilities not subject
to § 112.7(h).
Several commenters emphasized that
a loading arm is an essential component
of a loading/unloading rack, and that
EPA’s definition should be modified to
reflect this fact. A commenter
recommended that accessories, such as
piping assemblages, valves, pumps,
shut-off devices, overfill sensors,
personnel safety devices be deleted from
the definition, as these may or may not
be a part of the rack, and one or more
of these devices (for example, overfill
sensors) are typically present on most
tanks. The commenter also
recommended that the definition of
loading/unloading rack be narrowed to
cover only permanently installed
platforms, gangways or loading/
unloading arms used in the loading or
unloading of tack trucks or tank cars.
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Other commenters requested that EPA
more clearly define the components,
such as platforms, gangways, and
loading/unloading arms, and confirm
that flexible hoses used at a loading/
unloading rack should not be
considered loading/unloading arms.
Two commenters provided a suggested
definition for ‘‘loading/unloading arm.’’
Specifically, these commenters
suggested that ‘‘loading/unloading arm’’
be defined as ‘‘consisting of at least two
articulated parts that are connected in
such a way that relative movement is
feasible to transfer product via top or
bottom loading/unloading to a
transportation vehicle.’’
One commenter suggested that the
definition of loading/unloading rack be
changed to identify examples of what
are not loading racks (i.e., a nozzled
connection to a tank, connection
consisting of a flexible hose, a single
connection with a valve, or a loading
structure that is not overhead). This
commenter also requested that EPA
remove references to ‘‘unloading’’ from
the definition.
Two commenters suggested a
definition involving a throughput
threshold for an area to be considered a
loading rack (for example, limiting
‘‘racks’’ to those loading/unloading
facilities with an annual average of 100
trucks, on a five-year rolling average; a
throughput threshold of 800,000 gallons
per month, based on the relatively low
likelihood of a spill when petroleum
product is transferred only
occasionally). Another commenter
suggested that EPA narrow the
definition of loading/unloading racks by
associating the definition with the flowrate capacities of the associated pump
systems, and clarify that loading/
unloading racks are not typically
associated with oil-filled operating
equipment.
One commenter suggested that small
tank transfers—that is, using a small
transfer hose to fill a shop-built tank,
and therefore having the potential of
only a small release—should be viewed
as a loading area and be subject to
§ 112.7(c), whereas large tank
transfers—that is, using a larger hose
equipped with a hose coupler and a
stationary pump to transfer product at a
rate greater than 50 gallons per minute,
with the consequent likelihood of a
larger release—should be viewed as a
loading rack and be subject to
§ 112.7(h). Another commenter
suggested a definition that would
require loading/unloading racks to be
used only for transportation-related tank
trucks, rail cars, or vessels, not intrafacility vehicles.
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Finally, one commenter suggested
that EPA clarify that the requirement
applies only to tank cars or tank trucks
located within the loading/unloading
rack and not to tank cars or trucks
waiting to enter the loading/unloading
rack.
b. Response to Comments
EPA agrees that the proposed
definition of ‘‘loading/unloading rack’’
should be refined to provide clarity and
address the concerns about the scope of
the definition. Therefore, EPA has
modified the proposed definition to
provide more clarity by addressing
concerns that a loading/unloading arm
is an essential component of a loading
rack, while describing other
components that may be found at a
loading or unloading rack.
The Agency does not intend this
definition to include simple loading or
unloading configurations, but rather to
only include the associated equipment
and structure associated with loading/
unloading arms as part of a rack.
Equipment present at a loading/
unloading area where a pipe stand
connects to a tank car or tank truck via
a flexible hose, which is not equipped
with a loading or unloading arm, is not
considered a loading/unloading rack as
defined in this action. However, the
presence of flexible hoses on oil transfer
equipment does not always indicate that
the equipment is exempt from the
definition of loading/unloading rack, as
some top and bottom loading/unloading
racks are made up of a combination of
steel loading arms connected by flexible
hosing.
EPA believes that providing the list of
equipment usually associated with a
loading/unloading rack in the definition
will be useful for the owner or operator
and the PE in determining the
applicability of the rule requirements at
§ 112.7(h) to the facility. The Agency
agrees with commenters that the key to
the definition is the presence of a
loading or unloading arm in association
with a permanent structure and other
equipment. Thus, the Agency has added
the phrase ‘‘a loading/unloading rack
includes a loading or unloading arm’’ in
the definition to illustrate this point.
A definition for ‘‘loading/unloading
arm’’ was not proposed. However, EPA
understands, consistent with comments,
that a loading/unloading arm is
typically a movable piping assembly
that may include fixed piping or a
combination of fixed and flexible
piping, typically with at least one
swivel joint (that is, at least two
articulated parts that are connected in
such a way that relative movement is
feasible to transfer product via top or
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bottom loading/unloading to a tank
truck or rail car). However, certain
loading/unloading arm configurations
present at loading racks may include a
loading/unloading arm that is a
combination of flexible piping (hoses)
and rigid piping without a swivel joint.
In this case, a swivel joint is not present
on the loading arm because flexible
piping is attached directly to the rigid
piping of the loading arm and the
flexible hose provides the movement
needed to conduct loading or unloading
operations in lieu of the swivel joint.
Commenters raised concerns that,
because of the new loading/unloading
rack definition, many transfer
operations (particularly those at rural
facilities with no gangways or fixed
loading arms) will not be regulated
under the SPCC rule. The Agency
disagrees with this assertion. Although
the Agency intends the definition of
loading/unloading rack to clearly
delineate those facilities subject to the
§ 112.7(h) regulatory requirements (such
as sized secondary containment), any
otherwise regulated SPCC facility will
still be subject to the general secondary
containment requirements under
§ 112.7(c) for all areas where oil is
transferred into or out of any regulated
container.
EPA received several alternatives to
the definition of loading/unloading rack
contained in the October 2007 proposal.
EPA considered these alternative
definitions in developing the definition
for loading/unloading rack promulgated
in this notice. Specifically, several
commenters recommended that the
definition of loading/unloading rack be
based on throughput, offering various
throughput numbers as a method of
defining transfer operations that would
be subject to the § 112.7(h)
requirements. However, these
suggestions included limited supporting
data. The complexity in determining a
rack’s throughput for a given time
period would add additional burden on
the owner and operator of a facility.
Furthermore, there is no basis for
deciding on a specific time period for
this determination. Thus, EPA is not
basing its definition of loading/
unloading rack on a rack’s throughput.
Other commenters suggested that the
definition provide examples only of
equipment that should not be
considered a loading or unloading rack.
The Agency believes that it is much
clearer to define the equipment
typically associated with a loading or
unloading rack than to provide a list of
equipment that are not considered a
loading or unloading rack. Most of the
suggested definitions, however, focused
on the presence of a loading arm as
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74249
indicative of a loading or unloading
rack. Many of the definitions focused on
the presence of a structure and a list of
related equipment. EPA agrees with
many of the concepts illustrated in the
alternative definitions received from
commenters. Thus, EPA is finalizing an
equipment-based definition, as
proposed, as a clearer method for
identifying transfer activities subject to
the requirements of § 112.7(h).
Commenters suggested that EPA
delete reference to the accessories, such
as piping assemblages, valves, pumps,
shut-off devices, overfill sensors, and
personnel safety devices from the
definition, as these may or may not be
a part of the rack, and one or more of
these devices (such as overfill sensors)
are typically present on most tanks. The
definition is not intended to address oil
containers (such as tanks); the list of
equipment specifically addresses
equipment associated with loading/
unloading rack structures. EPA believes
that providing examples of equipment
usually associated with loading/
unloading racks would be useful for the
owner or operator of a facility, as well
as the PE, for determining the
applicability of the definition.
EPA also is clarifying in this notice
that tank cars and tank trucks are only
subject to the requirements of § 112.7(h)
when conducting loading or unloading
operations associated with a loading/
unloading rack as defined in this action.
Otherwise, they are subject to the
general secondary containment
requirements at § 112.7(c). In addition,
the definition finalized in this action
typically will not include oil-filled
equipment; however, transfers
associated with oil-filled operational
equipment where a rack is not present
are still required to meet the general
containment requirements of § 112.7(c).
2. Requirements for Loading/Unloading
Racks
Although the title of § 112.7(h) refers
to ‘‘loading/unloading rack,’’ the text of
the requirement referred to ‘‘loading/
unloading areas.’’ Therefore, to provide
additional clarity, EPA is changing all
references from loading/unloading
‘‘area’’ to loading/unloading ‘‘rack.’’ For
example, § 112.7(h)(1) is 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) is similarly
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modified and includes a technical
correction of the word ‘‘break’’ to
‘‘brake’’ to correct a typographical error.
In the preamble to the July 2002
amendments to the SPCC rule (67 FR
47042, July 17, 2002), 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). Thus, this
statement seems to indicate that
§ 112.7(h) does not apply to a loading/
unloading rack (or any other transfer
area) associated with a container that is
exempted from the rule, such as an
Underground Storage Tanks (USTs) that
are subject to all of the technical
requirements of 40 CFR part 280 or a
state program approved under part 281.
As described in the October 2007
proposal (72 FR 58378, October 15,
2007), EPA has reconsidered this
position because a transfer to or from
such a container at an SPCC-regulated
facility is a potential source of discharge
of oil into navigable waters or adjoining
shorelines. Additionally, because a
loading/unloading rack, or other transfer
area, associated with an 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.
Therefore, EPA believes that such a
loading/unloading rack should be
regulated under the SPCC regulations in
the same manner as any other transfer
equipment or transfer activity located at
an otherwise regulated SPCC facility.
a. Comments
Two commenters expressed general
support for the amendments to
§ 112.7(h). However, one commenter
suggested exempting loading/unloading
activity from SPCC regulation, because
standard industry practice is to place
the connection valve inside a secondary
containment area during loading/
unloading. Other commenters suggested
that EPA eliminate the sized secondary
containment requirements for loading/
unloading racks. Another commenter
requested that EPA codify the
settlement language regarding loading/
unloading rack (American Petroleum
Institute v. Leavitt, No. 1:02CV02247
PLF and Marathon Oil Co. v. Leavitt,
No. 1:02CV02254 PLF). One other
commenter suggested revised text for
§ 112.7(h) focusing on special control
measures for portions of the facility
with a higher likelihood of a discharge
as described in § 112.1(b) (such as
transfer areas where containers are
frequently open for filling, or where
couplings are frequently connected and
disconnected from containers).
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With regard to EPA’s reconsideration
of the applicability of § 112.7(h) to a
loading/unloading rack associated with
a container that is exempted from the
rule, such as USTs that are subject to all
of the technical requirements of 40 CFR
part 280 or a state program approved
under 40 CFR part 281, a commenter
disagreed and stated that the provisions
associated with 40 CFR 280.30(a)
address spill prevention.
b. Response to Comments
EPA did not propose: (1) To exempt
(nor does the Agency agree that the final
rule should exempt) loading or
unloading activities conducted at
loading/unloading racks from the SPCC
rule or (2) that such loading/unloading
racks be exempted from the sized
secondary containment requirements.
Although the industry practices
described by the commenter may be
used to meet the rule requirements that
exist for loading and unloading
activities, these do not provide adequate
justification to exempt this equipment
from the SPCC regulation.
Commenters also requested that EPA
codify the settlement language on this
issue. EPA has not done this; however,
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 § 112.7(h) only applies at
facilities with loading and unloading
‘‘racks’’ (69 FR 29728, May 25, 2004).
EPA also maintains its position, as
clarified in a letter to the Petroleum
Marketers Association of America
(PMAA), that loading and unloading
activities that take place beyond the
rack area are not subject to 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 and 69 FR 29728, May 25, 2004).
EPA also does not agree with the
commenter who suggested that further
revisions be made to the rule
requirements at § 112.7(h) to address
special control measures for portions of
the facility with a higher likelihood of
a discharge as described in § 112.1(b).
The Agency believes the current
requirements are appropriate to address
a discharge at the loading/unloading
rack. The clarifications to the language
in § 112.7(h) finalized in this action
address the questions that have been
raised by the regulated community on
how these rule provisions apply to
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loading/unloading racks and do not
apply to areas beyond the ‘‘rack.’’
Finally, one commenter stated that
the provisions associated with 40 CFR
280.30(a) address spill prevention and
thus, the requirements for loading/
unloading racks should not apply to
exempt USTs. While EPA recognizes
that this provision (40 CFR 280.30(a))
describes spill and overfill control
requirements when USTs are being
filled, EPA still believes that the
loading/unloading requirements should
apply to these exempted USTs, for the
reasons described earlier. However, EPA
would note that to the extent that 40
CFR 280.30(a) addresses SPCC
requirements, these measures can be
described in the SPCC Plan, as
appropriate. Therefore, transfers at
loading/unloading racks and transfer
areas associated with exempted USTs
are considered regulated activities at an
otherwise regulated SPCC facility. In
addition, exempted USTs, at an
otherwise regulated SPCC facility,
equipped with a loading/unloading rack
as defined in this action, are subject to
the requirements of § 112.7(h). Also,
exempted USTs, at an otherwise
regulated SPCC facility, equipped with
a transfer area (for example, dispenser
or other transfer equipment) are subject
to the requirements of § 112.7(c). Nonrack transfer areas are required to
provide only general secondary
containment for the most likely
discharge, as discussed in Section V.H
in this action, and may include active
containment measures, such as response
action or sorbent deployment. This
interpretation is consistent with the
approach EPA has taken with other
exempt containers at an otherwise
regulated SPCC facility. For example, 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 therefore clarifying that at an
SPCC-regulated 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 finalized 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). No
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rule change is needed to clarify this
point, because a rule amendment to
exempt a loading/unloading rack
associated with an UST was never
proposed or finalized. This clarification
is intended to correct preamble language
that was inconsistent with the Agency’s
position on other exempt containers and
their associated transfer activities.
3. Exclusions
EPA is specifically excluding onshore
oil production facilities and farms from
the loading/unloading rack
requirements at § 112.7(h) because the
Agency and commenters alike believe
that loading and unloading racks are not
typically associated with these types of
facilities. EPA is exempting these
facilities from the requirements of
§ 112.7(h) for clarity in order to avoid
confusion for owners or operators of oil
production facilities or farms. At other
facilities that likewise do not have a
loading/unloading rack, the provisions
at § 112.7(h) similarly do not apply.
Oil transfer areas, such as loading/
unloading areas at farms and oil
production facilities that are subject to
the SPCC rule, nevertheless remain
subject to the general secondary
containment requirements of § 112.7(c).
As EPA states in the SPCC Guidance for
Regional Inspectors, ‘‘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.’’
a. Comments
Several commenters expressed
general support for the exclusions. In
addition, one commenter requested that
EPA also exclude agricultural retailers
from § 112.7(h) because they are already
subject to FIFRA regulations.
b. Response to Comments
The Agency agrees that it is
appropriate to exclude onshore oil
production facilities and farms from the
loading/unloading rack requirements at
§ 112.7(h). Commenters confirmed
EPA’s understanding that there are few,
if any, loading/unloading racks at oil
production facilities, and that
agricultural oil and fuel transfers at
farms are generally not associated with
loading/unloading racks. However, if an
agricultural retail facility conducts fuel
transfers with equipment that meets the
definition of a loading/unloading rack,
then this facility would be subject to the
loading/unloading rack requirements at
§ 112.7(h). The Agency disagrees with
the commenter who requested that
agricultural retailers also be excluded
for the loading/unloading requirements
of § 112.7(h), because the FIFRA
requirements do not provide spill
prevention requirements at a level
equivalent to the SPCC rule.
4. Alternative Option Considered
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 onshore oil production facilities
from the loading/unloading rack
requirements at § 112.7(h), 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. However, EPA
did not choose this approach because
the Agency believes it was important to
address some of the confusion and
questions raised by the regulated
community.
a. Comments
Several commenters indicated that no
rule change is necessary.
b. Response to Comments
As noted above, EPA disagrees with
the commenters and has finalized the
new definition and associated editorial
changes to the rule to provide additional
clarity in describing the type of
equipment and facilities subject to the
loading/unloading rack requirements
under § 112.7(h).
G. Tier I Qualified Facilities
In December 2006, EPA finalized an
amendment to the SPCC rule to allow
74251
the owner or operator of a qualified
facility to self-certify his SPCC Plan.
The Agency is amending the SPCC rule
to provide an additional option for the
owners and operators of a subset of
qualified facilities that meet an
additional criterion to complete and
implement a streamlined, self-certified
SPCC Plan template (promulgated as
Appendix G to 40 CFR part 112), in
order to comply with the requirements
of the SPCC rule. For clarity, EPA is
now using the term ‘‘Tier II qualified
facility’’ to describe those qualified
facilities as identified by and subject to
the requirements promulgated in the
December 2006 SPCC rulemaking (71 FR
77266, December 26, 2006) and the term
‘‘Tier I qualified facility’’ for a new
subset of these qualified facilities. To
qualify as a Tier I qualified facility in
addition to meeting the eligibility
criteria for a Tier II qualified facility, a
facility must also have no individual
aboveground oil storage containers with
a capacity greater than 5,000 U.S.
gallons.
A Tier II qualified facility is one that
meets the 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). EPA is now
further streamlining the SPCC
requirements for certain qualified
facilities that meet an additional
criterion.
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
10,000 U.S. gallons or less aggregate aboveground oil storage capacity; and
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More than 10,000 U.S. gallons aggregate
aboveground oil storage capacity, or
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Qualified facilities*
All other facilities
Tier I
Tier II
Within any twelve-month period, three years prior to the Plan certification date, or since becoming subject to the SPCC rule if in operation for less than three years, there has been:
(1) No single discharge of oil to navigable waters or adjoining shorelines exceeding 1,000 U.S.
gallons; and
(2) No two discharges of oil to navigable waters or adjoining shorelines each exceeding 42 U.S.
gallons**; and
Within any twelve-month period, three years
prior to the Plan certification date, or since
becoming subject to the SPCC rule if in operation for less than three years, there has
been:
(1) A single discharge of oil to navigable waters or adjoining shorelines exceeding
1,000 U.S. gallons; or
(2) Two discharges of oil to navigable waters
or adjoining shorelines each exceeding 42
U.S. gallons**; or
No individual aboveground oil containers greater than 5,000 U.S. gallons;
Has individual aboveground oil containers
greater than 5,000 U.S. gallons; or
Owner or operator eligible for Tier I qualified
facility status, but decides not to take the
option or chooses to develop a ‘‘hybrid’’
Plan;
Owner or operator eligible for qualified facility
status, but decides not to take the option;
Then: Complete and self-certify Plan template
(Appendix G to 40 CFR part 112) in lieu of a
full PE-certified Plan.
Then: Prepare self-certified Plan in accordance with all applicable requirements of
§ 112.7 and subparts B and C of the rule, in
lieu of a PE-certified Plan.
Then: Prepare PE-certified Plan in accordance with all applicable requirements of
§ 112.7 and subparts B and C.
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* See Section V.M of this notice for more information on qualified facility eligibility criteria specific to the oil production sector.
** This criterion does not include discharges as described in § 112.1(b) that are the result of natural disasters, acts of war, or terrorism. Additionally, the gallon amount described in this criterion addresses the amount of the discharge that actually reaches navigable waters or adjoining
shorelines.
1. Eligibility Criteria
As proposed in October 2007, a Tier
I qualified facility must meet all of the
eligibility criteria for qualified facilities
promulgated by EPA in December 2006
(71 FR 77266, December 26, 2006) with
an additional criterion: A maximum
individual aboveground oil storage
container capacity of 5,000 U.S. gallons.
EPA developed the Tier I category based
on an individual container capacity in
order to link any streamlined
requirements with a reduced potential
for oil discharge. That is, the maximum
individual aboveground container
capacity threshold is set at 5,000 U.S.
gallons because this volume is
consistent with industry consensus
standards that call for varying levels of
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
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containers have a smaller potential
maximum discharge size, and there may
be little or no piping associated with
these small containers.
a. Comments
Several commenters expressed
general support for the eligibility
criterion. However, some commenters
suggested increasing the container
capacity eligibility criterion to 10,000
gallons, while other commenters
suggested various other capacity
thresholds. Several commenters
expressed support for a three-tiered
approach to the eligibility criteria for
qualified facilities, with the use of a PE
only in cases where the tank capacity is
above 20,000 gallons.
One commenter recommended that
criteria be introduced that take into
consideration a facility’s proximity to
environmentally sensitive area(s) either
by distance or some other logical means.
Another commenter suggested using
actual oil storage volumes rather than
capacity to determine eligibility. Still
another commenter suggested that
AFVOs that would solidify without
heating be excluded from the 5,000 U.S.
gallon maximum individual container
capacity.
One other commenter requested that
EPA confirm that oil-filled operational
equipment is eligible for Tier I status.
The commenter noted concern that the
definition of Tier I qualified facility in
§ 112.3(g)(1) may cause confusion about
whether facilities with oil-filled
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operational equipment are eligible for
the Tier I alternative, and whether the
5,000 gallon cap applies to oil-filled
equipment.
Several commenters provided
alternative suggestions to the eligibility
criteria for both tiers of qualified
facilities. One commenter suggested that
the criterion for discharge history
should be more stringent and require
that any discharge during the three-year
period prior to the Plan certification
date disqualify a facility from the selfcertification option as either a Tier I or
Tier II qualified facility. The discharge
history criterion does not include
discharges as described in § 112.1(b)
that are the result of natural disasters,
acts of war, or terrorism. One
commenter requested that EPA define
the term ‘‘terrorism’’ in the explanation
of the criteria to ensure regional
consistency.
Commenters also requested raising
the Tier II threshold above the 10,000
U.S. gallons aboveground oil storage
capacity promulgated in the December
2006 amendments (71 FR 77266,
December 26, 2006).
Finally, commenters suggested that
the qualification criteria do not benefit
oil and gas production stakeholders
because the oil storage capacity
thresholds are too low to allow these
facilities to qualify to develop either a
self-certified Plan or a Plan following
the template in Appendix G.
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b. Response to Comments
The majority of commenters
supported this approach with additional
suggestions. Several commenters
suggested alternative thresholds to
consider for Tier I qualified facilities;
however, these commenters did not
provide sufficient data to support
increasing the thresholds beyond the
proposed Tier I threshold of 5,000 U.S.
gallons for a single oil storage container.
Therefore, EPA is finalizing the Tier I
qualified facilities criterion to require a
maximum individual oil container of
5,000 U.S. gallons.
One commenter suggested
considering proximity to sensitive
environments in determining eligibility
as a qualified facility. However,
consideration of the impact of an oil
discharge to the environment is made
when determining the applicability of
the SPCC regulation to the facility.
Because the SPCC rule only applies to
a facility when it has a reasonable
potential to discharge oil in quantities
that may be harmful to navigable waters
or adjoining shorelines, EPA does not
believe that an additional criterion is
appropriate for an SPCC-regulated
facility that may impact sensitive
environments.
EPA also disagrees with the
commenter who suggested that EPA use
the operational volumes of oil storage at
the facility rather than the shell capacity
of the oil storage containers. The
applicability of the SPCC regulation to
a facility has always been based on shell
capacity when calculating total oil
storage capacity of the facility and the
same oil storage capacity is then
considered in determining applicability
of the self-certification SPCC Plan for
the facility. The operational volume at
a facility may change frequently and
therefore create confusion on which
SPCC requirements apply to the facility
and how to certify the SPCC Plan.
Other commenters requested that EPA
consider excluding from both qualified
facility thresholds—that is, Tier I and
Tier II, the capacity of those containers
containing AFVOs that would solidify
without heating. The Agency disagrees
because, similar to AC and other high
viscosity oils, these AFVO containers
are typically maintained at elevated
temperatures to keep the oil in the
liquid state. The AFVO could still spill,
flow, and, depending on the location of
the facility, could potentially reach
navigable waters or adjoining
shorelines.
One commenter requested
clarification as to whether the term ‘‘oil
storage container’’ included oil-filled
operational equipment. To clarify, the
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maximum individual oil storage
container criterion applies to any
aboveground container at the facility
that contains oil. This includes bulk
storage containers, such as tanks and
mobile or portable containers, oil-filled
operational equipment (such as
transformers), and other oil-filled
equipment, such as flow-through
process equipment. Thus, oil-filled
operational equipment is eligible for
Tier I status.
EPA disagrees with the commenter
suggesting that the criterion for
discharge history be more stringent,
based on the fact that some discharges
result despite adherence to the SPCC
Plan. EPA chose a discharge history
criterion similar to the reporting
requirement in § 112.4(a) because a
discharge smaller than what must be
reported to the EPA Regional
Administrator (RA) under this section
may result from normal handling of oil
at the facility and may not indicate a
recurring problem resulting from a
deficiency in the Plan or improper Plan
implementation. Therefore, the RA
would not likely require the owner or
operator to amend the Plan and the
facility owner or operator should be
eligible to self-certify the SPCC Plan as
a qualified facility.
EPA is not defining terrorism in the
final rule. However, the Agency notes
that the Homeland Security Act of 2002
defines terrorism as ‘‘any activity that
involves an act that is dangerous to
human life or potentially destructive of
critical infrastructure or key resources;
and is a violation of the criminal laws
of the United States or of any state or
other subdivision of the United States;
and appears to be intended to intimidate
or coerce a civilian population, to
influence the policy of a government by
intimidation or coercion or to affect the
conduct of a government by mass
destruction, assassination, or
kidnapping.’’ See Section 2(15),
Homeland Security Act of 2002, Public
Law 107–296, 116 Stat. 2135 (2002). The
Agency does not believe that vandalism
and sabotage are examples of terrorism.
In the December 2006 amendments to
the SPCC rule, EPA identified reportable
discharges caused by external factors
beyond the control of the facility owner
or operator such as natural disasters,
acts of war, or terrorism. The Agency
specifically excluded these events from
consideration in the reportable
discharge history criterion for qualified
facilities and qualified oil-filled
operational equipment. At that time,
EPA excluded sabotage and vandalism
from the list of reportable discharge
history extreme events because these are
not necessarily beyond the control or
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74253
planning ability of the facility owner or
operator. (See 71 FR 77272, December
26, 2006.) The security provisions in
§ 112.7(g) require consideration for acts
of vandalism. The owner or operator of
a facility must describe in the Plan how
he controls access to the oil-handling,
processing and storage areas and the
appropriateness of lighting to both
prevent acts of vandalism and assist in
the discovery of oil discharges.
Additionally, EPA is not changing the
Tier II threshold and is not amending
the total aboveground oil storage
capacity for Tier II qualified facilities in
this final rule as requested by some
commenters. The Agency maintains that
the focus of the qualified facilities
alternative is on facilities with simple
configurations and small quantities of
oil stored or handled. The Agency
addressed the eligibility criteria for the
Tier II qualified facilities in the
December 2006 rulemaking. The Agency
recognizes that regardless of the
threshold quantity selected, there are
likely to be facilities just above that
threshold that will be excluded. To the
extent that facility owners or operators
want to meet the criteria for a qualified
facility, they have the option of
reducing oil storage capacity at their
facility by either removing containers
from the facility inventory, or
permanently closing containers in
accordance with § 112.2.
With regard to the commenter
suggesting that the qualified facilities
approach does not benefit the oil and
gas sector, EPA has estimated that the
Tier II approach does allow
approximately 13 percent of the
smallest oil and gas production
stakeholders to qualify to self-certify
their SPCC Plans based on oil storage
capacities below 10,000 U.S. gallons. In
addition, the Agency also is finalizing
an alternative set of criteria to qualify
for Plan self-certification (Tier II)
specific for oil production facilities. See
Section V.M of this preamble for further
discussion on the alternative criteria for
the oil and gas production sector.
2. Provisions for Tier I Qualified
Facilities
Under this amendment, in lieu of
preparing a full SPCC Plan that is PEor self-certified, an owner or operator of
a Tier I qualified facility will have the
option to complete the SPCC Plan
template found in Appendix G of 40
CFR part 112. The Plan template is
designed to be a simple SPCC Plan that
includes only the requirements that
apply to this tier of regulated facilities.
This final rule streamlines the
requirements for Tier I qualified
facilities by eliminating and/or
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modifying several SPCC requirements
(for example, facility diagram
(§ 112.7(a)(3)) and 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
in § 112.6(a)(3). 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: (1) Introductory
paragraph of § 112.7 4; (2) 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)); (3) general
secondary containment (§ 112.7(c)); (4)
inspections, tests and records
(§ 112.7(e)); (5) personnel, training, and
discharge prevention procedures
(§ 112.7(f)); (6) security (§ 112.7(g)); (7)
qualified oil-filled operational
equipment (§ 112.7(k)); (8) facility
drainage (§§ 112.8(b)(1), 112.8(b)(2),
112.12(b)(1), and 112.12(b)(2)); (9) 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)); (10)
piping inspections (§§ 112.8(d)(4) and
112.12(d)(4)); (11) oil production facility
requirements (§ 112.9(b), 112.9(c)(1),
112.9(c)(2), 112.9(c)(3), 112.9(c)(4),
112.9(c)(5), 112.9(d)(1), 112.9(d)(3), and
112.9(d)(4)); and (12) 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
basis to remove or modify these
requirements for Tier I qualified
facilities. As described below, EPA is
finalizing a set of revised, or
streamlined, requirements applicable to
Tier I qualified facilities in lieu of
certain other existing requirements.
In particular:
• In lieu of the full failure analysis
requirements in § 112.7(b), under new
§ 112.6(a)(3)(i), an owner or operator of
a Tier I qualified facility must 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
4 In the proposal to this rule, EPA inadvertently
omitted from this list the introductory paragraph of
§ 112.7, and for clarity is including it now.
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source of discharge) and include in the
Plan the total quantity of oil that could
be discharged and a prediction of the
direction of flow. This amendment
removes the requirement for an owner
or operator of a Tier I qualified facility
to predict the rate of flow that could
result from an equipment failure.
• In lieu of the separate secondary
containment requirements in
§§ 112.8(c)(2) and (c)(11) and
112.12(c)(2) and (c)(11), under new
§ 112.6(a)(3)(ii), EPA is combining
mobile/portable container requirements
with the other bulk storage container
secondary containment requirements,
and eliminating the requirement for
containment to be ‘‘sufficiently
impervious.’’ Because EPA expects a
Tier I qualified facility to be a small,
simple operation, with oil storage
containers being inside buildings, inside
pre-engineered secondary containment,
or a double-walled tank, the
requirement for containment to be
specifically designed as ‘‘sufficiently
impervious’’ is 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. Therefore,
combining these requirements
streamlines two similar provisions and
simplifies the requirements for Tier I
qualified facilities.
• In lieu of §§ 112.8(c)(8) and
112.12(c)(8), the overfill prevention
requirements, under new
§ 112.6(a)(3)(iii), the owner or operator
of a Tier I qualified facility must 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
overfill prevention procedures.
• As described elsewhere in this
notice, EPA is extending 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. Both Tier I and
Tier II qualified facilities are subject to
the revised security (§ 112.7(g)) and
integrity testing (§§ 112.8(c)(6) and
112.12(c)(6)) provisions.
The following requirements are not
included in the SPCC Plan template
because, for a facility with a smaller oil
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storage capacity or other facilities with
a simple configuration, these
requirements are inapplicable or
unnecessary: (1) Facility diagram
(§ 112.7(a)(3)); (2) facility description
(§ 112.7(a)(3)(ii), 112.7(a)(3)(iii), and
112.7(a)(3)(v)); (3) loading/unloading
rack (§ 112.7(h)); (4) brittle fracture
evaluation (§ 112.7(i)); (5) discussion of
conformance with 40 CFR part 112 or
other applicable State discharge
prevention and containment regulations
and guidelines (§ 112.7(j)); (6) 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)); (7) monitoring
internal heating coils (§§ 112.8(c)(7) and
112.12(c)(7)); (8) effluent treatment
facilities (§§ 112.8(c)(9) and
112.12(c)(9)); (9) 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)); and (10) produced
water container provisions
(§ 112.9(c)(6)).
EPA believes no further
differentiation is warranted for onshore
oil production facilities in § 112.9
(except for the produced water
container provisions in § 112.9(c)(6)
which require PE certification and
therefore do not apply for Tier I
qualified facilities) 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 containers) and therefore, no
further differentiation is warranted. An
onshore drilling or workover facility has
three 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
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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). This provision also
applies to Tier I qualified facilities. That
is, 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 is optional.
Under this final rule, an owner or
operator of a Tier I qualified facility can
choose to prepare and implement either
a full PE-certified SPCC Plan or a selfcertified 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 or
operator chooses not to use the Plan
template in Appendix G, he could
comply with the Tier II qualified facility
requirements in § 112.6(b) or choose to
prepare a full PE-certified Plan instead
of a self-certified one. EPA modified the
introductory sentences to § 112.6 and
the text of § 112.6(a)(1) slightly from the
text that was proposed, in order to make
this optional approach more clear.
a. Comments
Many commenters expressed general
support for the amended requirements
for Tier I qualified facilities. However,
a few commenters indicated that more
stringent requirements would be
appropriate for Tier I qualified facilities.
One commenter suggested that a PE
certify the SPCC Plan template for Tier
I qualified facilities to ensure
compliance. Another commenter
suggested that EPA require review and
approval of the Plan by someone who is
familiar with industry standards and is
‘‘certified’’ to perform inspections
following industry standards; the
commenter believes this would address
the potential liabilities and
environmental impacts associated with
self-certification by inexperienced
owners and operators. One other
commenter suggested that Tier I
qualified facilities should be required to
have a facility diagram, because if Tier
I qualified facilities are small and
simple, a diagram should not be an
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excessive burden. Still another
commenter requested that EPA remove
the five-year review requirements;
instead, the commenter suggested that
the Plan should only be updated
whenever there is a material change in
the facility that may affect discharges.
Many commenters also requested
additional relief for Tier I or other
regulated facilities. One commenter
suggested that ‘‘streamlined’’ regulatory
provisions should be extended to all
regulated facilities. One commenter
suggested that Tier I qualified facilities
should only be required to meet the
general requirements under § 112.7 and
the security and integrity testing
requirements for qualified facilities.
Other commenters requested that EPA
confirm that an Appendix G template
may be certified by a PE, and that Tier
I qualified facilities may complete a full
self- or PE-certified Plan should they
choose. Finally, one commenter
suggested that the owner or operator of
a regulated facility certify under oath
that he has met the SPCC requirements.
b. Response to Comments
EPA’s basis for developing a selfcertified Plan template which contains a
streamlined set of requirements for
facilities that meet the Tier I eligibility
criteria is that the Agency believes that
implementation of the requirements in
the template can provide environmental
protection and prevent the discharge of
oil into navigable waters or adjoining
shorelines. Therefore, EPA does not
agree with commenters that a thirdparty representative (such as a PE or a
certified inspector) should confirm
compliance with the rule requirements.
As stated earlier, due to the simplicity
of these facilities and other factors
described above, EPA believes it is
appropriate to allow a facility owner or
operator to self-certify the SPCC Plan. It
is the responsibility of the owner or
operator of any SPCC-regulated facility
to ensure compliance with 40 CFR part
112 and ensure implementation of the
Plan.
The Agency also disagrees with the
commenter who suggested that EPA
require a facility diagram for Tier I
qualified facilities. Although the Agency
does not intend for a facility diagram to
be an excessive burden for an owner or
operator to develop, EPA believes the
completed template provides the same
information that would be available on
a facility diagram for a Tier I qualified
facility. The SPCC rule requirements for
a facility diagram are: (1) To mark the
location and contents of each fixed oil
storage container (including containers
and piping that are otherwise exempted
from the rule) and storage areas where
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mobile or portable containers are
located; and (2) to include all transfer
stations and connecting pipes. In the
case of a Tier I qualified facility, the
visual representation of the diagram is
not necessary because EPA believes that
these facilities would have few
aboveground oil storage containers with
limited transfer areas and very little
piping (if any). The ‘‘Oil Storage
Containers and Capacities’’ table in
Appendix G, Section III (Table G–2) of
the template requires that all oil storage
containers (such as aboveground
containers, completely buried tanks,
and oil-filled equipment) be listed,
including the contents and oil storage
capacity of each container. The
‘‘Containers with Potential for an Oil
Discharge’’ table in Appendix G, Section
III (Table G–4) requests the following
information for transfer areas and
piping: the volume of oil that could
potentially be discharged and the flow
direction of an uncontained discharge
(i.e., a description of where the
discharge would flow if secondary
containment fails). A facility diagram
for a Tier I qualified facility would
provide minimal additional planning
benefit to prevent an oil discharge from
the facility.
EPA also disagrees that it should
delete the five-year review
requirements. The Agency agrees that
the SPCC Plan should be updated
whenever there is a material change in
the facility that may affect discharges.
However, Tier I qualified facilities
should remain subject to the same
requirement to periodically review and
update the Plan to include more
effective prevention and control
technology in order to reduce the
likelihood of a discharge as described in
§ 112.1(b).
A commenter suggested that all
facilities should be eligible for
streamlined provisions. While the
Agency has amended the SPCC
regulations in the past (71 FR 77266,
December 26, 2006) and in this action
to streamline certain SPCC rule
requirements (for example, security and
integrity testing) for all facilities, the
streamlined provisions included in the
Plan template in Appendix G are
limited to Tier I qualified facilities
based on the Agency’s judgment that
eliminating and/or modifying certain
SPCC requirements was appropriate for
facilities that store or handle smaller
volumes of oil and that meet the
eligibility criteria. Other facilities
contain larger volumes of oil, have large
oil storage containers on-site, or are
more complex, and thus, applying the
streamlined requirements adopted for
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Tier I qualified facilities would be
inappropriate.
Another commenter suggested that
EPA simplify the Plan requirements for
a Tier I qualified facility to include only
the general requirements under § 112.7
and the security and integrity testing
requirements. However, the commenter
did not provide any data to support
eliminating the specific requirements
under Subparts B and C, such as those
pertaining to facility drainage and bulk
storage containers. Therefore, EPA did
not incorporate this change into the
final action.
One commenter requested that EPA
confirm that an Appendix G template
may be certified by a PE. EPA
recognizes that the owner or operator of
a Tier I qualified facility may decide to
obtain assistance in the development of
an SPCC Plan and want to have a PE
certify the Plan; however, the only
required certification for a Plan
following Appendix G is the selfcertification completed by the owner or
operator of the facility. EPA is not
making the PE certification an
additional option for compliance for
Tier I qualified facilities because the
Agency believes that this may suggest
that it expects PE-certified Plans for this
subset of qualified facilities. In addition,
because the purpose of establishing the
‘‘Tier I category’’ was to allow facilities
that met the Tier I eligibility criteria to
meet the requirements of the SPCC rule
in a streamlined manner, EPA believes
it would complicate the rule,
particularly if the owner or operator of
the facility wants to request that
environmental equivalence
determinations be allowed for Tier I
qualified facilities, such as allowed for
Tier II facilities under the Tier II hybrid
Plan. However, as EPA has noted
previously, completion of the Appendix
G template is optional. The owner or
operator of a Tier I qualified facility may
choose to have a PE-certified SPCC Plan
following all the requirements in § 112.7
and subparts B and C, as applicable, or
prepare a hybrid Plan that includes all
applicable provisions under Tier II.
Another commenter suggested
requiring that the owner or operator of
a regulated facility certify under oath
that he has met the SPCC requirements.
Section § 112.6(a)(1) requires the owner
or operator certify that: (i) He is familiar
with the applicable requirements of 40
CFR part 112; (ii) he has visited and
examined the facility; (iii) he has
prepared the Plan in accordance with
accepted and sound industry practices
and standards; (iv) he has established
procedures for required inspections and
testing in accordance with industry
inspection and testing standards or
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recommended practices; (v) he 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) or include an exemption/
measures pursuant to § 112.9(c)(6) for
produced water containers and any
associated piping and appurtenances
downstream from the container; 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. EPA believes
that inclusion of the self-certification
statements in the Plan and signature of
the owner or operator is sufficient to
demonstrate that he understands his
responsibilities under 40 CFR part 112.
3. SPCC Plan Template
The SPCC Plan template for Tier I
qualified facilities is found in Appendix
G in this final rule. To facilitate the
development of SPCC Plans at Tier I
qualified facilities, EPA intends to 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
serves 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 self-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)).
The Agency emphasizes that use of
the Plan template approach is optional.
An owner or operator of a Tier I
qualified facility can 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) (for a Tier II qualified facility)
in order to comply with the
requirements under 40 CFR part 112.
In the October 2007 proposal, EPA
sought comments on whether the SPCC
Plan template addressed 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 sought comments on
the clarity and ease-of-use of the Plan
template. The Agency has modified the
Plan template based on specific
comments received.
a. Comments
Several commenters were generally
supportive of the template format and/
or content. However, one commenter
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indicated that the template is too easy
to use, provides no assurance of
compliance, and will be ignored by
small facilities. Another commenter
suggested that the template does not
provide enough instruction and will
encourage facility operators that have
little knowledge of part 112 to develop
SPCC Plans that are meaningless. On the
other hand, several commenters
expressed concern that the Appendix G
template would be too burdensome.
Other commenters suggested that EPA
allow for a flexible Tier I qualified
facility Plan format rather than require
the owner or operator to use the
template in Appendix G. Several other
commenters suggested that EPA allow,
as part of the Appendix G template, the
Plan to take a ‘‘hybrid’’ approach, as
allowed for Tier II qualified facilities, to
provide flexibility to Tier I qualified
facilities that need to deviate from the
rule requirements when the owner or
operator determines that secondary
containment is impracticable or when
there is an alternative measure that
provides equivalent environmental
protection to an SPCC rule requirement.
A commenter suggested that operators
preparing multi-facility SPCC Plans
covering multiple facilities that are
individually eligible for Tier I status
should also be allowed to use the
template, and that the rule should be
specifically modified to reflect this.
Another commenter suggested that EPA
publish the template as guidance or an
educational primer for Tier I qualified
facilities, and make it readily available
on the EPA Web site. Another
commenter requested that EPA provide
for an online submission of the
template-based Plan for increased
compliance.
Finally, several commenters pointed
out a number of areas where minor
formatting, wording, or other
corrections could be made to the
template for simplification, clarity, or
improved accuracy (as described in the
response to comments section below).
b. Response to Comments
EPA received several comments that
the Plan template in Appendix G is too
burdensome for Tier I qualified
facilities, while other commenters
argued that it is too easy to use. The
Plan template is designed to be a simple
and straightforward SPCC Plan that
includes only the requirements that
should apply to Tier I qualified
facilities. EPA intends to provide
supplementary guidance on the
Agency’s Web site to assist owners and
operators of Tier I (and Tier II) qualified
facilities in the development of an SPCC
Plan for these facilities. Thus, EPA
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expects that such additional guidance
will help those facilities that choose to
utilize the Appendix G template to
comply with the SPCC Plan
requirement.
Several commenters suggested that
EPA allow for a flexible Plan format
rather than require the owner or
operator to use the template in
Appendix G. EPA agrees that it is
appropriate to allow the use of a flexible
Plan format for qualified facilities that,
for example, want to combine multiple
local, state or Federal regulatory
requirements into one Plan, as long as
a cross-reference is provided. Therefore,
EPA is amending the rule language in
§ 112.6(a)(1) to allow for a flexible Plan
format for owners or operators of Tier I
qualified facilities that do not choose to
use the template provided in Appendix
G of the rule. The amended rule text
states that the template in Appendix G
may be used as the SPCC Plan to meet
the 40 CFR part 112 requirements.
However, if the Appendix G template is
not used, then an equivalent Plan must
be prepared in writing, and must be
supplemented with a section that crossreferences the location of requirements
listed in this part. For example, the
owner or operator of a facility that has
developed a Stormwater Pollution
Prevention Plan (SWPPP) under the
National Pollutant Discharge
Elimination System (NPDES) that meets
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all of the applicable SPCC regulatory
requirements in § 112.6(a)(3) and
Appendix G may use the SWPPP as the
SPCC Plan. However, the SWPPP must
include a cross-reference and the selfcertification statements in § 112.6(a)(1)
and Appendix G. An owner or operator
of a Tier I qualified facility may use the
template in Appendix G to comply with
the regulation or use it as a model and
modify it as necessary to meet the
facility-specific needs, as long as all
applicable rule requirements are
included in the SPCC Plan. The
following sample cross-reference is
intended to be an example of the owner/
operator’s development of such a crossreference.
SAMPLE CROSS-REFERENCE FOR PLANS USING LOCAL, STATE, OR OTHER FEDERAL REGULATIONS TO SATISFY SPCC
REQUIREMENTS
SPCC provision
Description of requirement
Plan page
§ 112.4 ..............................
§ 112.5(b) .........................
§ 112.6(a)(1) .....................
§ 112.6(a)(2) .....................
§ 112.6(a)(3)(i) ..................
§ 112.6(a)(3)(ii) .................
§ 112.6(a)(3)(iii) ................
§ 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) .........................
Spill reporting requirements ......................................................................................................................
Five-year Plan review ...............................................................................................................................
Preparation and self-certification of the Plan ...........................................................................................
Certification of technical amendments ......................................................................................................
Failure analysis .........................................................................................................................................
Bulk storage container secondary containment .......................................................................................
Overfill prevention .....................................................................................................................................
Address the type of oil in each container and its storage capacity .........................................................
Address countermeasures for discharge discovery, response, and cleanup ..........................................
Provide contact list and phone numbers for those to be contacted in case of a discharge ...................
Provide NRC notification information ........................................................................................................
Describe procedures you will use when a discharge occurs ...................................................................
Provide appropriate containment and/or diversionary structures or equipment to prevent a discharge
as described in § 112.1(b).
Conduct inspections and tests in accordance with written procedures that you develop for the facility
Train oil-handling personnel in the operation and maintenance of equipment to prevent discharges;
discharge procedure protocols; applicable pollution control laws, rules, and regulations; general facility operations; and the contents of the facility Plan.
Implementation of security measures to prevent unauthorized access to oil handling, processing, and
storage area.
Requirements related to oil-filled operational equipment .........................................................................
Restrain drainage from diked storage areas ............................................................................................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
....................
Use valves of manual, open-and-closed design for the drainage of diked areas; if facility drainage
drains into a watercourse, inspect and drain uncontaminated retained stormwater.
Do not use a container for oil storage unless its material and construction are compatible with the
material stored and conditions of storage such as pressure and temperature.
Drainage of uncontaminated rainwater from the diked area into a storm drain or discharge of an effluent into an open watercourse.
Protect completed buried storage tanks from corrosion and regularly leak test buried metallic storage
tanks.
Do not use partially buried or bunkered metallic tanks for the storage of oil unless protected from corrosion.
Administer integrity testing for storage tanks ...........................................................................................
....................
....................
Promptly correct visible discharges which result in a loss of oil from the container ...............................
....................
Regularly inspect all aboveground valves, piping and appurtenances ....................................................
....................
Requirements for oil production facility drainage .....................................................................................
Material compatibility requirements for containers at oil production facilities ..........................................
Secondary containment requirements for tank battery, separation, and treating facility installations at
oil production facilities.
Container inspection requirements at oil production facilities ..................................................................
Overfill prevention requirements at oil production facilities ......................................................................
Requirements for flow-through process vessels at oil production facilities .............................................
All aboveground valves and piping associated with transfer operations are inspected periodically and
upon a regular schedule.
....................
....................
....................
§ 112.7(e) .........................
§ 112.7(f) ..........................
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§ 112.7(g) .........................
§ 112.7(k) .........................
§§ 112.8(b)(1),
112.12(b)(1).
§§ 112.8(b)(2),
112.12(b)(2).
§§ 112.8(c)(1),
112.12(c)(1).
§§ 112.8(c)(3),
112.12(c)(3).
§§ 112.8(c)(4),
112.12(c)(4).
§§ 112.8(c)(5),
112.12(c)(5).
§§ 112.8(c)(6),
112.12(c)(6).
§§ 112.8(c)(10),
112.12(c)(10).
§§ 112.8(d)(4),
112.12(d)(4).
§ 112.9(b) .........................
§ 112.9(c)(1) .....................
§ 112.9(c)(2) .....................
§ 112.9(c)(3)
§ 112.9(c)(4)
§ 112.9(c)(5)
§ 112.9(d)(1)
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.....................
.....................
.....................
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SAMPLE CROSS-REFERENCE FOR PLANS USING LOCAL, STATE, OR OTHER FEDERAL REGULATIONS TO SATISFY SPCC
REQUIREMENTS—Continued
SPCC provision
Description of requirement
Plan page
§ 112.9(d)(3) .....................
For flowlines and intra-facility gathering lines that do not have secondary containment in accordance
with § 112.7(c), prepare an oil spill contingency plan and a written commitment of resources (except when the facility has submitted a Facility Response Plan in accordance with § 112.20).
Prepare and implement a written program of flowline/intra-facility gathering line maintenance .............
Position or locate mobile drilling or workover equipment so as to prevent a discharge as described in
§ 112.1(b).
Provide catchment basin or diversion structures to intercept and contain discharges ............................
Install a blowout prevention assembly and well control system before drilling .......................................
....................
§ 112.9(d)(4) .....................
§ 112.10(b) .......................
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§ 112.10(c) .......................
§ 112.10(d) .......................
Commenters also suggested that EPA
allow Tier I qualified facilities, as part
of the Appendix G template, to use the
‘‘hybrid’’ approach, as is currently
allowed for Tier II qualified facilities to
provide flexibility to Tier I qualified
facilities that need to deviate from the
rule requirements when the owner or
operator determines that secondary
containment is impracticable, when
there is an alternative measure that
provides equivalent environmental
protection to an SPCC rule requirement,
or when an owner or operator wants to
include an exemption/measures
pursuant to § 112.9(c)(6) for produced
water containers and any associated
piping and appurtenances downstream
from the container. EPA has decided not
to allow Tier I facilities to utilize a
‘‘hybrid approach,’’ because the primary
purpose of developing the ‘‘Tier I’’
category is to allow those facilities with
simple oil storage configurations to have
a relatively simple means to comply
with the SPCC requirements. Allowing
Tier I facilities to use a hybrid approach
would seem to defeat that purpose. If a
facility qualifies to use the Appendix G
template but has site-specific factors
that make it difficult to use the template
as written, then the Appendix G Plan
template may not be an appropriate tool
for the facility to address the oil spill
planning elements for the facility.
Instead, the facility could elect to
comply with the SPCC requirements as
a Tier II qualified facility—that is, selfcertify that they comply with the full set
of rule requirements in § 112.7(c) and
subparts B and C, as applicable, rather
than the differentiated requirements
designed specifically for facilities with
simple oil storage configurations. For
example, if the owner or operator
cannot provide secondary containment
for a bulk storage container at a Tier I
qualified facility because it is
impracticable, then it is appropriate that
the Plan include a facility diagram
(§ 112.7(a)(3)) to show where the
container is located at the facility and a
prediction of the direction, rate of flow
and quantity of oil that may be
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15:28 Dec 04, 2008
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discharged from the container
(§ 112.7(b)). EPA believes it is
appropriate to require the owner or
operator to comply with requirements
that would not otherwise apply to Tier
I qualified facilities because this
information may be necessary as part of
the spill prevention practices for the
facility. Therefore, the owner or
operator of the facility may choose to
develop a hybrid Plan following the Tier
II qualified facility requirements in
§ 112.6(b) or a PE-certified SPCC Plan
following § 112.7 and subparts B and C,
as applicable.
Commenters also requested that EPA
allow the owner or operator of several
facilities that each individually meet the
criteria for a qualified facility to develop
a multi-facility SPCC Plan in accordance
with the Tier I requirements. EPA agrees
that this is appropriate and the final rule
allows flexibility in the Plan format to
accommodate a multi-facility Plan
approach for Tier I qualified facilities.
The owner or operator of the facility is
still required to meet all applicable
requirements of the rule in the Plan as
described in § 112.6(a)(3) and Appendix
G.
With respect to the comment that EPA
allow such SPCC Plans to be submitted
online, EPA does not believe that online
submission of the template-based Plan
will increase compliance with the SPCC
regulation because there is currently no
requirement for the owner or operator of
a regulated facility to submit an SPCC
Plan to the Agency, unless requested to
do so by the Regional Administrator.
The Agency requires that owners and
operators maintain a copy of the Plan at
the facility, in accordance with
§ 112.3(e).
EPA has amended the text that was
proposed as Appendix G of 40 CFR part
112 to incorporate many of the
suggested recommendations in the final
rule. To simplify or clarify use of the
template, these amendments will:
• Ensure the Table in Attachment 3.2
of Appendix G is consistent with the
STI–SP001 requirements for Category I
Tanks.
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....................
....................
....................
• Clarify which oil storage containers
at the facility must be included when
calculating the total facility oil storage
capacity to determine eligibility of the
facility for Tier I and II requirements—
that is, any aboveground container at
the facility that contains oil and that is
not otherwise exempt from the rule.
This includes bulk storage containers,
such as tanks and mobile or portable
containers; oil-filled operational
equipment (such as transformers); and
other oil-filled equipment, such as flowthrough process equipment.
• Include formatting suggestions that
make the template easier to use and
technical corrections, such as providing
letter references for the owner or
operator’s obligations in the certification
statement; numbering tables; using
numbered or lettered superscripts;
identifying acronyms when they are first
used in the document (for example,
Regional Administrator (RA) in Section
III, Part 6); and moving the spill
reporting requirements to the correct
section in the template (from Section III,
Part 6 to Section III, Part 8.)
• Clarify that EPA means
aboveground oil storage capacity in
Section I, Part 6.a and 6.c of Appendix
G.
• Clarify that the NRC Notification
Procedures in Section III, Part 7 must be
conducted immediately following
identification of a discharge to navigable
waters or adjoining shorelines.
• Clarify which containers are exempt
from the regulation and not required to
be included in the table in Section III,
Part 1. Exempt containers that are not
included in the capacity calculation
include: Any container with a storage
capacity of less than 55 U.S. gallons of
oil; storage containers used exclusively
for wastewater treatment; permanently
closed containers; motive power
containers; hot-mix asphalt containers;
heating oil containers used solely at a
single-family residence; and pesticide
application equipment or related mix
containers. Although the criteria to
determine eligibility for qualified
facilities focuses on the aboveground oil
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storage containers at the facility,
completely buried tanks at a qualified
facility, unless they are otherwise
exempt, such as USTs that are subject to
all of the technical requirements of 40
CFR part 280 or a state program
approved under 40 CFR part 281, are
still subject to the rule requirements and
must be addressed in the template. They
are not counted towards the qualified
facility threshold because they are not
aboveground containers. Finally, certain
produced water containers may be
exempt from the rule; however, this
exemption is based on certification by a
PE and therefore produced water
containers at a Tier I qualified facility
SPCC Plan would not be eligible for the
exemption. In other words, the owner or
operator of a Tier I qualified facility
would not be eligible to develop a selfcertified SPCC Plan using the template
in Appendix G and have a produced
water container exempt from the
regulation, because the exemption
requires a PE certification. (See section
V.M of this preamble for further
discussion on produced water
containers.)
• Amend the Onshore Facility
Checklists to indicate that not all
provisions may be applicable to all
owners or operators, and provide
instructions to indicate on the checklist
when a provision is not applicable.
• Clarify the scope of the inspection
requirements for bulk storage containers
in the Inspection Log in Attachment 3
of Appendix G.
• Revise the discussion in Section III,
Part 2 to include the word ‘‘secondary.’’
Finally, EPA considered, but did not
adopt the following recommendations to
amend the template to:
• Revise the template in Appendix G
to change ‘‘navigable waters or
adjoining shorelines’’ to ‘‘discharges as
described in § 112.1(b).’’ EPA refers to
navigable waters or adjoining shorelines
in the template to make the document
easier to understand and more userfriendly; the Agency does not consider
this to be a limitation in the scope of the
rule. The language in § 112.7 also
applies to these facilities and uses the
term ‘‘discharges as described in
§ 112.1(b).’’
• Include a section for state and local
requirements. The Agency does not
believe that it is necessary for the owner
or operator of a facility to address state
or local requirements as part of the
SPCC Plan. However, the Agency is
amending the rule language to allow for
a flexible Plan format for Tier I qualified
facilities. This will allow a facility
owner or operator to address local, state
and/or other Federal requirements in
one Plan for oil spill prevention
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planning purposes if he so chooses. The
Agency will also clarify in rule text that
§ 112.7(j) does not apply to Tier I
qualified facilities.
• Remove mode of failure in the
Secondary Containment table in
Appendix G. This table addresses rule
requirements for both § 112.7(b) and (c)
along with the more specific secondary
containment requirements under
Subparts B and C. Therefore, the Agency
believes it is appropriate to have the
owner or operator identify ‘the mode of
failure; the flow direction and quantity
of the discharge; and the secondary
containment method and containment
capacity’ for the containers listed. The
owner or operator may use either active
or passive approaches for complying
with the secondary containment
requirements (for more information, see
the SPCC Guidance for Regional
Inspectors).
• Refer to the Plan format in
Appendix G as document rather than
‘‘template.’’ Once the owner or operator
completes the Appendix G template to
include site-specific information, the
resulting document is an SPCC Plan for
the facility.
• Amend the self-certification
statement to specifically highlight the
owner or operator’s responsibility to
provide secondary containment. The
elements of the Tier I self-certification
requirement are similar in scope to
those required for an owner or operator
of a Tier II qualified facility who
chooses to self-certify a Plan (as
promulgated in December 2006, 71 FR
77266). Additionally, the Agency has
described the secondary containment
requirements of the regulation in more
detail in the SPCC Guidance for
Regional Inspectors.
• Amend the table heading.
‘‘Secondary containment capacity
(gallons)’’ with the superscript that
identifies the secondary containment
requirements for bulk storage
containers. The Agency believes that the
table appropriately identifies the
secondary containment requirements for
bulk storage containers and mobile/
portable containers. Additionally, the
Agency has described the secondary
containment requirements of the
regulation in more detail in the SPCC
Guidance for Regional Inspectors.
• Move footnotes to the discussion
preceding the tables in the Appendix.
The Agency believes it is appropriate to
provide guidance to assist in the
development of the SPCC Plan template
in a separate document, if necessary,
rather than increase the length of the
template.
• Simplify secondary containment
information (Section III, Tables 1 and
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74259
2). The Agency disagrees that additional
simplification is appropriate for these
tables. The tables are designed to
address the various oil storage
containers, equipment and oil-handling
areas where secondary containment is
required. For Tier I qualified facilities
with only one or two oil storage
containers, the tables should be easy to
complete.
• Amend the information that must
be reported to the NRC in Section III,
Part 7. The bullets in the table cite the
current regulatory requirements in
§ 112.7(a)(4), which also conforms with
the type of information that is collected
by the NRC.
• Amend the Contingency Plan
checklist included as an attachment to
Appendix G. EPA did not propose to
amend the contingency plan
requirements under 40 CFR part 109
and the checklist is intended as a
reminder for the owner or operator to
address these requirements when
developing the contingency plan for the
facility (when applicable). This
contingency plan checklist is intended
as a guide to assist the owner or
operator of a Tier I qualified facility to
prepare a contingency plan in lieu of the
general secondary containment
requirements for qualified oil-filled
operational equipment or as an
alternative to sized secondary
containment for specific equipment at
an oil production facility (such as
flowlines).
4. Self-Certification and Plan
Amendments
The elements of the Tier I selfcertification requirement are similar in
scope to those required for an owner or
operator of a Tier II qualified facility
who chooses to self-certify an SPCC
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
(or some other equivalent Plan) is
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) the 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), or include an
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exemption/measures pursuant to
§ 112.9(c)(6) for produced water
containers and any associated piping
and appurtenances downstream from
the container; 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.
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 is
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 (or
some other equivalent Plan).
If the owner or operator of a Tier I
qualified facility makes changes to the
facility such that the maximum
individual aboveground oil storage
container capacity is greater than 5,000
U.S. gallons, the facility no longer
qualifies as a Tier I facility, even if the
total oil storage capacity is less than
10,000 U.S. gallons, and is not eligible
to implement the self-certified
Appendix G template Plan (or some
other equivalent Plan). 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 U.S.
gallons). If the facility meets the Tier II
qualified facility criteria, within six
months following the change in the
facility, the owner or operator is
required to prepare and implement an
SPCC Plan in accordance with § 112.6(b)
or prepare and implement an SPCC 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 or operator is required to,
within six months following the change
in the facility, prepare and implement
an SPCC Plan in accordance with the
general Plan requirements in § 112.7,
and the applicable requirements in
subparts B and C, including have the
Plan certified by a PE.
a. Comments
A commenter noted that the selfcertification statement ‘‘should not be
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modeled after what EPA desires to see
a licensed PE provide.’’ The commenter
noted that promoting or encouraging
development of qualified facility SPCC
Plans by non-licensed engineers violates
codes in many states.
b. Response to Comments
While the owner or operator of a
qualified facility may choose to selfcertify the SPCC Plan in lieu of a PE
certified Plan, he is still required to
comply with all of the SPCC
requirements and to develop and
implement a spill prevention program
in accordance with good engineering
practices. The owner or operator may do
so by following guidance, industry
standards, industry design
specifications or industry recommended
or best management practices. This is
analogous to how a person with no
accounting experience is expected to
comply with applicable state and
Federal tax laws. Many people choose to
have a Certified Public Accountant
(CPA) prepare their annual tax
documents; however, the Internal
Revenue Service (IRS) does not require
that a CPA conduct this activity. A
person that chooses to complete the tax
forms on his own is not relieved from
the liability to do so in accordance with
all Federal and state requirements. That
person is expected to understand the tax
laws and regulations and prepare the
documents following all applicable
requirements. He may choose to use the
forms and guidance provided by the IRS
or state agency, or use software or other
publicly available guidance to aid him
in the correct completion of the tax
forms.
For SPCC, the Agency believes that an
owner or operator who follows
guidance; standard design and
operational protocols; industry
standards or recommended practices; or
guidance developed by professional
associations is following ‘‘good
engineering practices’’ to comply with
the SPCC rule requirements. Where
operational changes at a facility are
necessary to comply with the rule
requirements, the owner or operator
must follow all appropriate state and
local requirements (such as for
permitting and construction) and, if
necessary, obtain the appropriate
professional assistance. However, in the
case of a qualified facility, EPA believes
that the development of the SPCC Plan
itself is not an engineering function and
an owner or operator can prepare an
SPCC Plan that describes how the
facility complies with the SPCC rule
requirements. For a qualified facility,
the Agency believes it is appropriate for
the owner or operator to attest that the
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information in the SPCC Plan is true
and accurate following the selfcertification language in § 112.6. EPA
modeled the certification statements
after the PE certification provision in
§ 112.3(d) with amendments to remove
language specific to engineering
certification. Although EPA agrees that
the owner or operator of a facility
should not be making engineering
determinations without proper
credentials, the Agency believes that
there are elements of those attestations
that are appropriate for an owner or
operator, such as acknowledging that
they are familiar with the requirements
of this part. EPA also included
additional attestations for the owner or
operator of the facility pertaining to the
qualification criteria and management
approval of the SPCC Plan.
Finally, to the extent that a state has
adopted a law, regulation, or policy,
such as one based on the National
Council of Examiners for Engineering
and Surveying, that requires a PE to
perform certain functions, including
certifying Plans, nothing in this action
affects whether a facility owner or
operator would be required to utilize a
PE to meet the state or local
requirements because this action does
not preempt any state or local
requirements. Therefore, in states where
the engineer licensing boards have
prohibited SPCC Plan self-certification,
the owner or operator may not be able
to utilize the Tier I and Tier II options
to self-certify the Plan to comply with
the SPCC requirements.
5. Tier II Qualified Facility
Requirements
EPA is designating qualified facilities
that do not meet the additional criterion
for Tier I qualified facilities (i.e., no
individual aboveground oil storage
container with a capacity greater than
5,000 U.S. gallons) as Tier II qualified
facilities. Although the organization of
the regulatory text in § 112.6 has
changed in order to accommodate the
tiered approach, the requirements for
Tier II qualified facilities remain the
same as they were when these
requirements were promulgated on
December 26, 2006 (71 FR 77266). Tier
II qualified facilities may choose to
comply with the requirements in
§ 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; any
deviations as allowed pursuant to
§ 112.7(c)(2) and (d) must be certified by
a licensed PE (‘‘hybrid Plan’’). Also see
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section V.M.7.d of this preamble,
Overlap Between Produced Water
Container Alternatives and Qualified
Facilities, for information on using the
‘‘hybrid Plan’’ approach to self-certify
an SPCC Plan using one of the
alternative approaches for produced
water containers (exempt a produced
water container or take advantage of the
alternative requirements in
§ 112.9(c)(6)). Owners and operators of
Tier II qualified facilities are not able to
use the Appendix G template because it
does not include all of the SPCC
requirements that may apply for these
facilities.
Additionally, in order to address the
concerns of the oil and gas sector, EPA
is finalizing an alternative set of
qualified facility eligibility criteria
specific for onshore oil production
facilities that does not rely on facility oil
storage capacities. EPA believes these
alternative criteria are more appropriate
to qualify the oil production facilities
for Plan self-certification. See Section
V.M of this document for further
discussion on the alternative criteria for
the oil and gas production sector.
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a. Comments
Two commenters suggested that EPA
allow Tier II qualified facilities to selfcertify Plans. Additional commenters
requested that Tier II qualified facilities
be allowed to use the template.
b. Response to Comments
EPA is designating qualified facilities
that do not meet the additional criterion
for Tier I qualified facilities (i.e., no
individual aboveground oil storage
container with a capacity greater than
5,000 U.S. gallons) as Tier II qualified
facilities. The requirements for Tier II
qualified facilities remain the same as
they were when they were promulgated
in December 2006. Only Tier I qualified
facilities will be able to use the template
in Appendix G of 40 CFR part 112 to
comply with the SPCC rule. The
streamlined provisions included in the
Plan template in Appendix G are
limited to Tier I qualified facilities
because they were specifically analyzed
and designed for facilities that store
limited quantities of oil, in small oil
storage containers and generally have
simple configurations. Other facilities
contain larger volumes of oil, have large
oil storage containers on-site, or are
more complex and thus, applying the
streamlined requirements adopted for
Tier I qualified facilities would be
inappropriate.
6. Alternative Option Considered
In the October 2007 proposal (72 FR
58378, October 15, 2007), EPA
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described an option wherein the Agency
would exempt a certain subset of
qualified facilities from the SPCC
requirements altogether, based on a
lower facility storage capacity threshold
(such as 5,000 U.S. gallons).
a. Comments
One commenter supported this
option.
b. Response to Comments
EPA did not receive any data to
support an exemption of a subset of
qualified facilities. Therefore, the
Agency is not finalizing this
amendment.
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 (that is, as described in 40
CFR part 110; see § 112.1(b)). EPA is
amending the general secondary
containment provision to provide
additional clarity, consistent with the
guidance published in the SPCC
Guidance for Regional Inspectors. EPA
is also amending § 112.7(c) to provide
an alternative to the sized secondary
containment requirements for flowlines
and intra-facility gathering lines at oil
production facilities, as described in
Section V.M of this notice.
1. Revisions to the General Secondary
Containment Requirement
EPA is amending the general
secondary containment requirement at
§ 112.7(c) in three ways: (1) By adding
text regarding the method, design and
capacity of secondary containment; (2)
by specifically allowing both active and
passive measures of secondary
containment; and (3) by including
additional examples of prevention
systems. Section V.M of this notice
describes an additional modification to
the provision to address flowlines and
intra-facility gathering lines at oil
production facilities.
Specifically, EPA is amending
§ 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
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74261
containment may be either active or
passive in design.’’ This addition is
intended to make clear that the scope of
the general secondary containment
requirement takes into consideration the
typical failure mode, and most likely
quantity of oil that would be discharged,
consistent with current EPA guidance
(SPCC Guidance for Regional
Inspectors).
EPA is also amending § 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. Passive
measures are permanent installations
and do not require deployment or action
by the owner or operator.
EPA is further amending the general
secondary containment provision at
§ 112.7(c)(1) to include the following
additional examples of 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 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
connected troughs/trenches that collect
oil. By expanding the list of examples of
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.
a. Comments
Many commenters expressed general
support for the amendments to
§ 112.7(c). However, one commenter
suggested that allowing secondary
containment for the most likely quantity
of oil discharged instead of worst case
discharge contradicts § 112.7(c) and is
inconsistent with 33 U.S.C.
1321(j)(5)(D).
In addition, some commenters
indicated that this amendment would
increase the number of calculations
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necessary to determine likely release
scenarios. The commenter requested
that EPA provide latitude to the
certifying PE in developing the different
release scenarios and secondary
containment requirements that are
appropriate for the facility, stating that
calculations should not have to be
included. A commenter also suggested
that EPA allow the use of a common
collection area or containment area,
rather than individual containment
when there are several tanks located in
close proximity to each other. Another
commenter suggested that EPA should
clarify in the rule text whether general
secondary containment is required for
buried piping. Other commenters
suggested changes to a sentence in
§ 112.7(c) to replace the word ‘‘tank’’
with ‘‘piping or oil-filled equipment.’’
Additionally, a commenter requested
further examples on the elements that
can comprise an acceptable secondary
containment system, and commenters
suggested that EPA clarify that the list
of examples is not all-inclusive.
b. Response to Comments
The Agency’s authority to promulgate
the SPCC rule is found in 33 U.S.C.
1321(j)(1)(C) and requires the Agency to
promulgate regulations establishing
procedures, methods, equipment and
other requirements for equipment to
prevent discharges of oil and to contain
those discharges. The statutory
provision gives the Agency broad
discretion to establish the requirements
under the SPCC rule. Nowhere in this
statutory provision is a requirement that
the SPCC regulations address worst case
discharges. Section 1321(j)(5)(D),
however, directs the Agency to issue
regulations to require owners or
operators to prepare and submit plans to
respond to worst case discharges.
Consistent with this statutory provision,
EPA has promulgated facility response
plan regulations in 40 CFR part 112
Subpart D. Therefore, EPA does not
agree with the commenter who
suggested that this amendment is
inconsistent with 33 U.S.C.
1321(j)(5)(D).
Commenters also requested
clarification on how much supporting
documentation is necessary (for
example, calculations) to demonstrate
compliance with the general secondary
containment requirements. In order to
determine that the facility has provided
appropriate secondary containment that
complies with § 112.7(c), an EPA
inspector may review the supporting
documentation in the SPCC Plan (see
the SPCC Guidance for Regional
Inspectors, Chapter 4). If calculations
are not included with the SPCC Plan,
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and the inspector suspects the general
secondary containment is inadequate,
the inspector may request supporting
documentation from the owner or
operator. Industry guidance
recommends that facility owners or
operators include any secondary
containment capacity calculations and/
or design standards with the Plan. API
Bulletin D16, ‘‘Suggested Procedure for
Development of Spill Prevention
Control and Countermeasure Plans,’’
contains example calculations to which
inspectors may refer (see Exhibit E of
‘‘Suggested Procedure for Development
of Spill Prevention Control and
Countermeasure Plans,’’ API Bulletin
D16. Third Edition, December 2002).
Calculations may be provided as part of
the documentation to support the
adequacy of containment measures
employed at the facility, although they
are not required. Nevertheless, the Plan
preparer must include enough detail in
the SPCC Plan to describe the efficacy
of the measures used to comply with the
general secondary containment
requirements in § 112.7(c).
With respect to the use of common
containment systems, the Agency wants
to make clear that it is not necessary to
provide separate containment systems
for each individual container or
equipment. Instead, the Plan preparer
may choose to design facility drainage
to provide a common collection area for
multiple containers, piping or oil-filled
equipment located at the facility. In
order to comply with the general
secondary containment requirements,
the owner or operator must first identify
the typical failure mode and quantity of
oil that could be discharged. Based on
site-specific conditions, he can
determine what capacity is needed and
design the secondary containment
system accordingly.
Commenters also requested
clarification on the type of equipment
subject to the general secondary
containment requirements. The general
secondary containment provision in
§ 112.7(c) is intended to address the
potential for oil discharges from all
regulated parts of a facility.
Containment method, design, and
capacity are determined by good
engineering practice to contain an oil
discharge until cleanup occurs. This
determination should consider all areas
of the facility with a potential to
discharge oil, including, but not limited
to, piping (both aboveground and
buried), transfer areas and oil-filled
operational equipment.
The Agency does not agree that it is
necessary to replace the word ‘‘tank’’
with ‘‘piping or oil-filled equipment’’ in
§ 112.7(c), as suggested. Tanks, piping
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and oil-filled equipment are all
examples of primary containment
systems and the Agency does not
believe it is necessary to replace one
example with another in the rule
language. However, the word
‘‘secondary’’ is being added for clarity
and accomplishes the point raised by
the commenter.
EPA also is amending the language in
§ 112.7(c)(1) to include additional
examples of secondary containment
methods, as proposed. One commenter
requested additional clarification on
other methods that may be used to
comply with the secondary containment
requirements, such as surface
impoundments, on their own, or in
connection with other elements, such as
oil/water separators or water treatment.
Section 112.7(c) states that ‘‘at a
minimum, you must use one of the
following prevention systems or its
equivalent * * *.’’ EPA clarified in
Chapter 4 of the SPCC Guidance for
Regional Inspectors that the list of
secondary containment methods in
§ 112.7(c) are examples only and not
meant to be all-inclusive. Other
containment methods may be used,
consistent with good engineering
practice. For example, a facility could
use an oil/water separator, combined
with a drainage system, to collect and
retain discharges of oil within the
facility. Surface impoundments, oil/
water separators, and wastewater
treatment systems that are designed and
maintained in a way to meet the
requirements of § 112.7(c) to prevent a
discharge as described in § 112.1(b)
would also serve as equivalent
prevention systems. Additionally,
certification of the SPCC Plan verifies
that secondary containment methods are
appropriate for the facility and that they
follow good engineering practice.
I. 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. EPA recognizes
that other non-transportation-related
tanker trucks may operate similarly to
mobile refuelers, though not specifically
transferring fuel (i.e., transformer oils,
lubrication oils, or certain AFVOs).
Therefore, they may have the same
difficulty in complying with the sized
secondary containment requirements.
EPA is now extending the amendment
provided to mobile refuelers in the
December 2006 amendments (i.e., an
exemption from the sized secondary
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containment requirements) to nontransportation-related tank trucks at a
facility subject to the SPCC rule.
Specifically, §§ 112.6(a)(3)(ii),
112.8(c)(2), 112.8(c)(11), 112.12(c)(2),
and 112.12(c)(11) have been amended to
include the phrase ‘‘except mobile
refuelers and other non-transportationrelated tank trucks.’’ Such nontransportation-related tank trucks
include those used to store (for short
periods of time) and transport fuel,
crude oil, condensate, non-petroleum,
or other oils for transfer to or from bulk
storage containers; for example, 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)
will still apply.
1. Comments
Commenters generally supported
extending the exemption for mobile
refuelers from the sized secondary
containment requirements in
§§ 112.8(c)(6) and 112.12(c)(6) to nontransportation-related tank trucks.
However, a number of commenters
requested that EPA expand the scope of
the relief or clarify its applicability.
Specifically, commenters requested that
the relief be given to various other types
of vehicles and equipment, including
tank cars or rail cars; mobile refueling
tank trucks at drilling and workover
facilities; vehicles associated with oilfilled electrical/operational equipment;
mobile/portable tanks used for
maintenance activities associated with
oil-filled electrical equipment; vehicles
involved in transloading (as defined in
49 CFR 171.8); and small truck-mounted
refueling and oil tanks, up to 220
gallons, that are used to transport oils
and fuels to various remote facilities
and construction sites.
One commenter opposed extending
the regulatory relief to nontransportation-related tank trucks
because there are technically-feasible
methods for facility owners or operators
to conform with the requirements, such
as double-lined tanks, and that
regulatory relief would effectively
punish those facilities that have already
incurred the costs of conforming with
the sized secondary requirements for
tank trucks. The commenter further
stated that tank trucks are high-risk oil
containers and that to relax the SPCC
requirements would not serve to protect
the environment.
2. Response to Comments
EPA agrees with the commenters who
argued that non-transportation-related
tank trucks at a facility subject to the
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SPCC rule should be exempted from the
sized secondary containment
requirements, but should remain subject
to the general secondary containment
requirements. EPA also agrees with
commenters who suggested that the
exemption from the sized secondary
containment requirements should cover
small truck-mounted oil tanks and other
tank trucks, such as bulk chemical
trucks and vacuum trucks. These trucks
are similar to mobile refuelers and are
included in the exemption from sized
secondary containment when the truckmounted oil tank is used to refill a fuel
container, an electrical transformer, or a
hydraulic reservoir on a combine or
piece of mining equipment. Similarly,
mobile refueling tank trucks at drilling
and workover facilities are included in
the exemption from the sized secondary
containment requirements.
However, EPA disagrees with
commenters that the exemption should
be extended to tank cars or rail cars.
EPA believes that tank cars and rail cars
typically operate in fixed areas of a
facility where sized secondary
containment can be provided, given the
land area that is generally dedicated to
a rail spur. Similarly, the exemption is
not being extended to mobile/portable
containers because the Agency believes
that sized secondary containment can be
provided for containers that generally
operate in fixed locations at a facility,
but are occasionally moved to other
fixed locations within the facility for
similar service.
One commenter suggested that
transloading activities, as defined by
DOT at 49 CFR 171.8, should be
exempted from the sized secondary
containment requirements.
‘‘Transloading’’, which for the purposes
of hazardous materials regulations
means the transfer of a hazardous
material from one packaging to another
packaging for contained shipment of the
material (see 49 CFR 171.8). This
rulemaking, however, focuses on
clarifying SPCC requirements applicable
to non-transportation-related trucks and
the specific topic of ‘‘transloading’’ falls
outside this scope.
EPA also disagrees with the
commenter who opposed extending
regulatory relief to non-transportationrelated tank trucks. EPA believes that
sized secondary containment is not
necessary, and in some cases, not
appropriate, for the same reasons the
Agency exempted mobile refuelers from
the sized secondary containment
requirements. In addition, the general
secondary containment requirement in
§ 112.7(c) still applies, which provides
adequate flexibility for the prevention of
oil discharges as described in § 112.1(b).
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For example, active measures to
respond to an oil discharge from a
vehicular accident may be used to
comply with the general secondary
containment requirement.
J. Security
EPA is amending the facility security
requirements at § 112.7(g) to allow an
owner or operator of a facility to tailor
his security measures to the facility’s
specific characteristics and location.
Thus, this amendment extends the
streamlined security requirements that
EPA provided to qualified facilities in
the December 2006 SPCC rule
amendments (71 FR 77266, December
26, 2006) to all facilities subject to the
security requirements.
1. Revisions to the Security
Requirements
The application of the SPCC security
requirements is often determined by the
facility’s geographical/spatial factors,
such that there is no ‘‘one-size-fits-all’’
method to comply with this
requirement. Therefore, EPA is
modifying the security requirements at
§ 112.7(g) to allow the owner or operator
to design the security arrangements at
the facility to address the specific
circumstances that apply. Thus, this
amendment allows 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 or operator is
required to document in his SPCC Plan
how these security measures are
implemented. These requirements
replace the more prescriptive fencing
and other requirements, previously
found in § 112.7(g)(1) through (5), and
allow the facility owner or operator to
determine how best to secure and
control access to areas where a
discharge to navigable waters or
adjoining shorelines may originate.
EPA believes that this amendment
will eliminate the need for PE-certified
environmentally equivalent alternatives
to the specified security requirements,
because the provision provides the
flexibility for the owner or operator to
provide whatever measures are most
appropriate for the facility, as long as
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they accomplish the stated security
goals. For example, with this rule
revision, the Agency allows the facility
owner or operator to determine how
lighting and/or fencing can be used to
deter intruders and to assist in the
discovery of oil discharges, or whether
taking a different, site-specific approach
is most appropriate. The Agency
believes the added flexibility will not
have a negative impact on the protection
of the environment, and that it will
assist the regulated community to better
tailor the security requirements to their
particular situation.
Because the revised requirements at
§ 112.7(g) apply to all facilities
(excluding oil production facilities),
EPA is removing the security
requirements previously found at
§ 112.6(c)(3) for qualified facilities; the
provision would be redundant.
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a. Comments
Many commenters expressed general
support for the amendments to the
security requirements. One commenter
noted that it is important to allow the
operator to determine the security and
lighting needs for safety reasons.
Another commenter agreed that
flexibility is warranted given increased
security measures due to the
requirements from the Department of
Homeland Security (DHS) or DOT.
Still another commenter suggested
that EPA should not establish security
requirements because DHS has recently
published a rule affecting the security of
farms and is expected to promulgate
additional rules; EPA’s efforts may be
duplicative. Several other commenters
suggested that EPA avoid duplication of
security requirements if existing
security plans are in place as required
by other Federal or state regulations.
Finally, one commenter requested that
EPA provide additional clarification to
identify the security benefits of fencing.
b. Response to Comments
The Agency agrees with the
commenters’ general support for the
amendment and is finalizing the
amendment to the security
requirements, as proposed. With this
amendment, the Agency recognizes that
there is no one single approach to
ensure proper facility security. The
Agency believes that replacing the more
prescriptive fencing and other security
requirements, previously found at
§ 112.7(g), will allow the facility owner
or operator to determine how best to
secure and control access to oil
handling and storage areas at the
facility. This approach provides the
flexibility suggested by several
commenters to prevent unauthorized
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access to the facility using whatever
method is most appropriate. Thus, the
owner or operator of the facility can
comply with DHS security
requirements, other existing Federal,
state or local security requirements, or
an industry recommended practice and
describe these measures in the Plan to
comply with the SPCC security
requirement.
The Agency does not believe it needs
to provide additional clarification to
identify the security benefits of fencing,
as the flexibility in this rule allows that
determination to be made by the owner
or operator based on his facility’s
specific circumstances.
K. Integrity Testing
EPA is amending the requirements at
§§ 112.8(c)(6) and 112.12(c)(6) to
provide flexibility in complying with
the bulk storage container integrity
testing requirements. Specifically, EPA
is modifying the 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 and frequency of integrity testing
required for a particular container size
and configuration. Thus, this action
extends the streamlined bulk storage
container integrity testing requirement
that EPA provided to qualified facilities
in the December 2006 SPCC rule
amendments (71 FR 77266, December
26, 2006) to all facilities subject to the
integrity testing provision.
1. Amendments to Integrity Testing
Requirements
EPA is replacing the previous
regulatory requirements at §§ 112.8(c)(6)
and 112.12(c)(6) with the integrity
testing requirements promulgated in
December 2006 for qualified facilities
(§ 112.6(c)(4)). This amendment 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 and the frequency
and type of testing and inspections,
which take into account container size,
configuration, and design.
Because the revised requirements at
§§ 112.8(c)(6) and 112.12(c)(6) apply to
all facilities (excluding oil production
facilities), EPA is removing the integrity
testing requirements previously found at
§ 112.6(c)(4) for qualified facilities; this
provision is redundant. These revised
provisions allow, for example, an owner
or operator to adopt integrity testing
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requirements that are outlined in
industry standards in lieu of integrity
testing without the need for
environmental equivalence
determinations certified by a PE. An
owner or operator is still required 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 also is still required to conduct
frequent inspection of the outside of the
container for signs of deterioration,
discharges, or accumulation of oil inside
diked areas.
Under the revised provision, a facility
owner or operator may still deviate from
the rule 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.
These amendments apply only to the
integrity testing requirements in
§§ 112.8(c)(6) and 112.12(c)(6). The bulk
storage container inspection
requirements for onshore oil production
facilities in § 112.9(c)(3) are not affected
by this amendment.
a. Comments
Many commenters expressed general
support for the amendments to the
integrity testing provisions. Some
commenters suggested that a
requirement for visual inspections with
weekly or monthly frequency would be
inappropriate because such a schedule
is impracticable; they agreed that the
frequency and documentation of visual
inspections should be based upon PE
judgment and site-specific conditions.
Other commenters agreed that the PE
should determine the appropriate
testing/inspection requirements for each
container and that industry standards
should be used as appropriate.
Two commenters suggested that the
amendments are too prescriptive, and
not performance-based, and that the
amendment detracts from a PE’s ability
to assess site-specific conditions. Other
commenters disagreed with EPA’s
reference to industry standards in
setting environmental regulations and
objected to the use of the term ‘‘industry
standards’’ for inspector qualifications
and integrity testing methods because
these standards are unnecessarily strict.
In addition, several other approaches
were suggested by commenters. One
commenter suggested that tank integrity
testing criteria should be limited to
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visual inspections. One commenter
suggested extending ‘‘environmental
equivalence of visual-only testing to all
elevated tanks and tanks on release
prevention barriers (RPBs), regardless of
volume.’’ One commenter suggested that
EPA should allow the owner or operator
of a facility with indoor tanks to adopt
different inspection requirements (not
outlined by industry standards); the
facilities would still have to keep
records and perform monthly visual
inspections, but not be required to hire
third-party inspectors.
One commenter suggested that EPA
should codify the PMAA standards;
these standards allow operators, who
are not certified tank inspectors, but
who have training and experience to
visually inspect tanks at petroleum
production facilities, refineries, and
terminals, to conduct such inspections.
Several other commenters specifically
recommended using standards, such as
Steel Tank Institute (STI) SP001 and
American Petroleum Institute (API)
Standard 653. One commenter
suggested that EPA should eliminate the
phrase ‘‘qualified personnel’’ from the
amended rule text. A few other
commenters recommended that EPA
incorporate API/EPA litigation
settlement language concerning
inspection requirements for smaller
containers, specifically allowing visual
inspection in certain site-specific
circumstances, into the regulation at
§ 112.12(c)(6).
b. Response to Comments
EPA agrees with those commenters
who supported amending the integrity
testing requirements at §§ 112.8(c)(6)
and 112.12(c)(6). EPA disagrees that the
amendments are too prescriptive. The
amended integrity testing requirements
are intended to provide more flexibility
to the owner or operator of an SPCCregulated facility in the selection of the
appropriate scope and frequency of
integrity testing for all classes of bulk
storage containers, including indoor and
outdoor tanks and portable containers
(such as 55-gallon drums and totes). The
July 2002 rule revisions (67 FR 47042,
July 17, 2002) amended the integrity
testing requirements in §§ 112.8(c)(6)
and 112.12(c)(6) to require visual
inspections, plus some other form of
testing, for each bulk storage container
55 U.S. gallons or greater; this
amendment modifies this requirement
to allow the owner or operator to
determine the frequency and type of
testing and inspections that are
appropriate, according to site-specific
conditions (for example, type and age of
tanks, condition of tanks, and overall
tank/secondary containment
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configuration), while also considering
relevant integrity testing standards.
EPA maintains that inspection of
containers storing oil in accordance
with recognized industry inspection
(integrity testing) standards is an
important aspect of oil spill prevention.
Industry standards are technical
guidelines created by experts in a
particular industry for use throughout
that industry. These guidelines assist in
establishing common levels of safety
and common practices for manufacture,
maintenance, and repair. Created by
standard-setting organizations using a
consensus process, the standards
establish the minimum accepted
industry practice. EPA recognizes that
some industry standards now provide
differentiated inspection requirements
for various container sizes and
configurations that may allow for visual
inspection of certain types of oil storage
containers, such as drums and totes and
certain tanks up to 5,000 U.S. gallons.
EPA’s amendments to the integrity
testing requirements are intended to
allow the use of these industry
standards without the need for
environmental equivalence discussions
in an SPCC Plan when a recognized
industry standard is followed. EPA
notes that use of a particular standard is
voluntary; however, when a standard (or
any part of a standard) is incorporated
into a facility’s SPCC Plan, then
adherence to that standard (or part of a
standard) is mandatory for
implementation of the SPCC Plan.
It should also be noted that these
amendments do not restrict the use of
environmental equivalence, including
establishing differentiated inspection
requirements for shop-built tanks versus
field-erected tanks, and other
alternatives suggested by commenters.
Owners or operators still have the
ability to develop alternative,
environmentally equivalent integrity
testing procedures for bulk storage
containers in accordance with
§ 112.7(a)(2). These equivalent measures
must be in accordance with good
engineering practice and are subject to
certification by a PE.
EPA described the environmental
equivalence flexibility available to a PE
with respect to integrity testing in a
letter to the PMAA.5 While the policy
and approach for the use of
environmental equivalence described in
this letter is still valid, the approach
taken in this final rule amending the
integrity testing requirements allows
5 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.
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inspection requirements outlined in
industry standards to be used without
the need for environmental equivalence
determinations certified by a PE. A
major industry standard for integrity
testing (STI SP001) was modified since
the letter to PMAA was written to
outline ‘‘good engineering practice’’ for
integrity testing of shop-built
containers. This may affect a PE’s
decision whether to certify an
environmentally equivalent approach as
described in the PMAA letter, or to
follow the industry standard as
provided by the amendment finalized in
this rule.
In response to the comment that EPA
should clarify acceptable industry
standards for all integrity testing
procedures, the Agency provided a list
of organizations that may be helpful in
the identification and explanation of
industry standards in the Federal
Register notice for the July 2002 SPCC
rule revisions (67 FR 47058, July 17,
2002). In addition, EPA also provided
an overview and description of the
scope and key elements of pertinent
industry standards in Chapter 7 of the
SPCC Guidance for Regional Inspectors.
While the Agency is allowing industry
to rely on industry standards to assess
the inspection and integrity testing
scheme, EPA does not believe that any
specific industry standards should be
incorporated, by reference, into the rule.
As EPA noted in the preamble to the
July 2002 SPCC rule revisions (67 FR
47070, July 17, 2002), while facility
owners or operators should look to
specific industry standards as a guide
for preparing SPCC Plans, EPA does not
believe that incorporating specific
standards into this rule is appropriate.
Such incorporation freezes standards
into rules, which may become outdated
or obsolete. The decision in every case
as to the applicability of any industry
standard will be one for the PE, or the
owner or operator of the facility who
self-certifies an SPCC Plan.
Finally, commenters suggested
allowing the use of alternative
inspection techniques and the
qualification requirements for
inspectors; however EPA believes that
these amendments are consistent with
industry standards related to integrity
testing.
L. Animal Fats and Vegetable Oils
Under this final rulemaking, EPA is
differentiating the integrity testing
requirements at § 112.12(c)(6) for an
owner or operator of a facility that
handles certain types of AFVOs.
EPA is providing the PE or an owner
or operator self-certifying an SPCC Plan
with the flexibility to use a visual
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Because this is an alternative, EPA is
not requiring that an owner or operator
use this option. The alternative provides
additional flexibility in meeting the
provisions set forth in § 112.12(c)(6) to
address stakeholder concerns. In
addition, an owner or operator may
make an environmental equivalence
determination, in accordance with
§ 112.7(a)(2) for integrity testing of a
bulk storage container.
1. Differentiated Requirements for
AFVOs
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inspection program for integrity testing
that is appropriate for containers that
store AFVOs that meet certain criteria.
This flexibility applies 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) The
containers are elevated; (2) the
containers are made from austenitic
stainless steel; (3) the containers have
no external insulation; and (4) the
containers are shop-built. That is, an
owner or operator with containers
meeting these criteria can use visual
inspection of these containers
equivalent to industry standards, in lieu
of the revised integrity testing
requirements found at § 112.12(c)(6),
without having to make an
environmental equivalence
determination in accordance with
§ 112.7(a)(2). The owner or operator is
required to document the procedures for
inspections and testing in their SPCC
Plan, including those for AFVO bulk
storage containers that are eligible for
the differentiated requirements
described in this amendment.
EPA notes that this alternative option
is based not on the differences between
petroleum oil and AFVOs, but on the
way these oils are stored and handled at
a facility. With regard to the comment
about certain AFVOs solidifying at room
temperature, EPA notes that the
applicability of the SPCC rule must be
made in accordance with the provisions
set forth in § 112.1. The Agency notes
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. However, if a facility owner
or operator determines that there is a
reasonable expectation to discharge oil
to navigable waters or adjoining
shorelines for any single oil container,
all oil containers at the facility are
subject to the rule’s requirements,
except as otherwise exempted.
The Agency acknowledges comments
on the criteria being both too limiting
and also overly lax, but EPA believes
that the criteria developed strikes the
appropriate balance between regulatory
requirements and environmental
protection.
Stakeholders have commented that
AFVOs merit differentiated
requirements under the SPCC
regulation. In particular, the regulated
community has pointed 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. (See 72 FR
58400, October 15, 2007, for a
discussion of EPA’s data review.) EPA
then considered whether 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
would be appropriate. EPA focused
specifically on the integrity testing
requirements for bulk storage of AFVOs
to address concerns raised by the
regulated community. As a result, this
final rule establishes differentiated
integrity testing requirements for certain
bulk storage containers that store
AFVOs and that meet specific design
and operational criteria.
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a. Comments
Several commenters expressed
support for EPA’s efforts to reduce the
regulatory burden to facilities storing
AFVOs because these substances are
different from petroleum oils. One
commenter appreciated EPA’s
clarification regarding reasonable
expectation of discharge for AFVOs that
are solid or semi-solid at ambient
temperature and pressure. However, one
commenter suggested the current
criteria are too limiting to provide relief,
because many AFVO storage containers
would not meet the criteria and thus,
would not be eligible. Another
commenter, on the other hand,
indicated the proposal was overly lax
and should be reconsidered.
b. Response to Comments
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2. Differentiation Criteria: Containers
Subject to FDA Regulations—21 CFR
Part 110
The differentiated integrity testing
requirements finalized in this action are
available only to those bulk storage
containers that are subject to the
applicable sections of the FDA
regulation at 21 CFR part 110. When
developing an integrity testing program
for AFVO bulk storage containers, FDA
rule requirements may substitute for an
industry standard. Applicable
requirements within 21 CFR part 110,
when taken together with the additional
criteria in this amendment, serve as
equivalent alternative measures that
include the main elements of an
integrity testing program under the
SPCC regulation. The minimal elements
for an integrity testing program can be
separated into three main structural
integrity areas: (1) Container
foundations, (2) container support
structures, and (3) the container itself.
• 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.
• Container support structure. 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.
• Container itself. 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 be corrosion
resistant when in contact with food.
FDA also requires equipment that is in
the manufacturing or food-handling area
and that does not come into contact
with food must be constructed and kept
in a clean condition (21 CFR 110.40(c)).
The 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.
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a. Comments
One commenter agreed with the logic
that container foundations and support
structures meeting the FDA
requirements may also meet the intent
and practicality of the SPCC
requirements. Another commenter
agreed that offering options for
environmental equivalence is a good
step, but suggested that the options
should go beyond the FDA standards
and include other industry standards
that offer equivalent protection.
b. Response to Comments
EPA agrees with those comments
supporting the use of FDA’s regulations
as a basis for establishing a qualifying
criterion for differentiated integrity
testing requirements for AFVOs. The
Agency also agrees that compliance
with industry standards and
requirements other than 21 CFR part
110 may also meet the SPCC inspection,
evaluation, and testing requirements. In
the preamble to the July 2002 SPCC rule
amendments, EPA provided examples of
industry standards that may constitute
good engineering practice for assessing
the integrity of different types of
containers for oil storage (67 FR 47120,
July 17, 2002). Additionally, the SPCC
rule provides flexibility regarding the
integrity testing requirements of bulk
storage containers, as long as the
alternatives provide equivalent
environmental protection per
§ 112.7(a)(2).
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3. Differentiation Criteria: Elevated Bulk
Storage Containers
The differentiated integrity testing
requirements finalized in this action are
available only to those bulk storage
containers that are elevated. Food
equipment, by design, is generally
elevated above the floor using legs or
another means of support so that the
space between the 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 used for food oils also
facilitates complete drainage because
they are designed such that the oil is
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, selfdraining containers operating using
gravity flow allows complete drainage
and prevents substances other than oil
(such as water) from accumulating at the
bottom of the container, thus
minimizing corrosion. EPA believes that
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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.
a. Comments
Several commenters suggested
including non-elevated containers in
EPA’s criteria for the integrity testing
provision. Commenters reference nonelevated food industry tanks that are
positioned on pads so long as the area
can be adequately cleaned and kept in
good repair, and vessels that incorporate
a bottom-discharge design which
eliminates the build-up of water and
materials in the bottom of the tank and
prevents corrosion.
b. Response to Comments
While EPA recognizes similarities
between elevated and bottom-discharge
designs, the Agency does not agree with
the request to expand the scope of the
AFVO alternative criterion to include
non-elevated bulk storage containers.
Although some food industry facilities
may use non-elevated tanks, food
equipment is generally designed to be
elevated (for example, to stand on legs);
this elevated design allows the space
between the plant equipment and the
floor to be easily cleaned. FDA also
recommends that all equipment should
be so installed and maintained so as to
facilitate cleaning of the equipment and
of all adjacent spaces.
Bottom-discharge designs similarly
eliminate the build-up of water and
materials in the bottom of the tanks.
However, the Agency believes that
having the tanks elevated facilitates
maintenance, inspections, and
monitoring for oil discharges all around
the bulk storage container, all of which
are critical in allowing for the
differentiated integrity testing
requirements. It is important to note that
the differentiated requirements are an
available alternative. The owner or
operator may choose to include bulk
storage container designs that provide
equivalent environmental protection in
their SPCC Plan, in accordance with
§ 112.7(a)(2). For example, bulk storage
containers built according to industry
standards (such as 3–A Sanitary
Standards) may provide additional
features that facilitate visual inspection
(such as manholes for internal
inspection) that may provide
comparable environmental protection.
4. Differentiation Criteria: Containers
Made From Austenitic Stainless Steel
The differentiated integrity testing
requirements finalized in this action are
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available only for those bulk storage
containers that are made of austenitic
stainless steel. EPA believes that nonhomogenous container systems (for
example, containers with external
insulation, an external coating, a mildcarbon steel shell, an internal liner) are
more complex than homogenous
container systems (such as 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 is limiting this
alternative approach for integrity testing
to AFVO bulk storage containers made
of austenitic stainless steel.
a. Comments
A commenter agreed with EPA to
limit the alternative integrity testing
requirements to austenitic stainless steel
tanks and vessels. However, several
commenters suggested that EPA
consider including carbon steel tanks in
the eligibility criteria for the flexibility
to determine the scope of integrity
testing, especially considering the
widespread use of these containers and
the consistency with EPA’s current
SPCC guidance. A commenter also cited
the cost difference between a mild steel
tank (commonly used in the industry)
and a stainless steel tank.
b. Response to Comments
EPA agrees with the commenter who
supported limiting the alternative
integrity testing requirements to bulk
storage containers made of austenitic
stainless steel for the reasons stated
above. As one commenter noted, carbon
steel tanks that are interior-lined may
pose more significant inspection
requirements because the interior lining
may fail to adhere to the tank, and not
provide the intended protection of the
carbon steel. Other commenters
believed that limiting alternative testing
requirements to austenitic stainless steel
would limit the usefulness of the
alternative option. While this assertion
may be correct, the Agency nevertheless
believes that expanding this alternative
to include carbon steel containers is not
appropriate, because non-austenitic
stainless steels, including but not
limited to carbon steel, are not as
inherently corrosion resistant as
austenitic stainless steel to the materials
stored or handled in them (that is, they
are more susceptible to internal
corrosion) or to the operating
environment (that is, they are more
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susceptible to external corrosion).
Furthermore, non-austenitic stainless
steel containers may require a liner;
these liners can fail or delaminate,
promoting the potential for internal or
external corrosion. Thus, the Agency
believes the austenitic stainless steel
criterion is an integral part of the
criteria for differentiated requirements.
Again, these differentiated requirements
are an available alternative that the
owner or operator may choose to
include in their SPCC Plan. The owner
or operator may choose to make an
environmental equivalence
determination, in accordance with
§ 112.7(a)(2), for similar corrosion
resistant materials.
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5. Differentiation Criteria: Containers
With No External Insulation
The differentiated integrity testing
requirements finalized in this action are
available only to those bulk storage
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 requirement that
requires an inspection between the
insulation and the exterior surface of a
bulk storage container. Furthermore, the
Agency does 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
eligible for this alternative for integrity
testing.
a. Comments
One commenter stated that effective
visual examination is difficult for tanks
with external insulation; therefore, the
commenter agreed that the alternative
integrity testing requirements should
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only be applied to tanks with no
external insulation. However, several
commenters suggested that EPA revise
its AFVO alternate integrity testing
criteria to allow insulated or jacketed
tanks to be used under this amendment,
as long as there are sufficient access
ports installed in key locations to
observe an appropriate quantity of the
exterior of the tank. Commenters cite
the need for this type of tank to
maintain product viscosity. Commenters
also note that there is an established
industry practice allowing for visual
inspection of insulated tanks. In
addition, one commenter suggested
insulation is very prevalent in the
industry and the increased energy cost
for non-insulated containers would be
prohibitive.
b. Response to Comments
The Agency agrees with those
commenters that supported limiting the
alternative criterion to bulk storage
containers that have no external
insulation because external insulation is
a barrier to visual examination, making
effective visual inspection difficult. At
the same time, EPA recognizes that
some AFVO bulk storage containers
need insulation to maintain
temperatures. However, the Agency
disagrees with the commenters that
suggested this criterion should be
expanded to include jacketed tanks that
have sufficient access ports installed at
key locations.
The Agency believes it is important
that the criteria for differentiated
requirements account for the effect of
corrosion under the thermal insulation,
including but not limited to, the effect
of moisture, chloride leaching, and/or
temperature. The effects of corrosion
under thermal insulation are well
documented in the technical literature.
(See, for example, National Association
of Corrosion Engineers (NACE) Standard
RP0198–2004.) Thus, because external
insulation covering the outside of a bulk
storage container acts as a barrier to
effective visual examination, EPA
believes this is a minimum criterion for
this alternative, the Agency is limiting
the alternative criterion to those
containers that have no external
insulation. However, bulk storage
containers that store food oil and are
built according to industry standards
(such as 3–A Sanitary Standards) may
have additional design features that
provide equivalent environmental
protection and thus meet the intent of
the criteria. For example, container
configurations built according to 3–A
Sanitary Standards typically include
‘‘manholes’’ that facilitate complete
access for examination of the entire
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internal surface. These containers also
typically have an outer shell (that is, a
double wall) that is sealed completely
(for example, with completely welded
seams) so that the container integrity is
maintained by removing any potential
for the insulation to be exposed to
moisture. In addition, some AFVO bulk
storage containers that are refrigerated
may suppress corrosion potential,
whereas containers that are heated to
facilitate oil flow may promote
corrosion potential. The Agency
believes the rule provides the facility
owner or operator with significant
flexibility to make an environmental
equivalence determination, in
accordance with § 112.7(a)(2), which
may be used to address those insulated
bulk storage containers that have
alternative configurations, including
access ports.
Finally, the Agency disagrees with
those commenters who suggested that
the alternative criterion should include
insulated containers because they are
prevalent in the industry or because the
increased energy cost for non-insulated
containers would be prohibitive. The
Agency is not mandating the use of any
type of container, but rather is allowing
flexibility for the owner or operator of
facilities that have containers that meet
the alternative criterion.
6. Differentiation Criteria: ShopFabricated Containers
The differentiated integrity testing
requirements finalized in this action are
available only to shop-fabricated
containers (i.e., shop-built). Shopfabricated containers are those
containers that are shop-assembled in
one piece before they are transported to
the installation site; this limits the
maximum capacity of the container so
that it 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 field-erected
containers, and they are typically
comprised of a single type of material
with a single wall thickness.
Field-erected (i.e., field-constructed)
containers, on the other hand, can store
much larger volumes of oil. They have
larger container capacities because
individual pieces of the container can
be transported to and assembled at the
installation site. Because of their greater
size and complexity, field-erected
containers generally have more stringent
engineering requirements than shopfabricated containers, which would
need to be considered in developing an
appropriate integrity testing program.
For example, field-erected containers
may have variable shell-wall
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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. 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 likelihood of a
discharge or failure (§ 112.7(i)).
This option, therefore, is limited to
shop-fabricated containers because they
are simpler in design and construction
(they are 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 rule
amendment is consistent with past
regulatory guidance and current
industry best practices for this
particular class of bulk storage
containers.
a. Comments
One commenter suggested that EPA
should not limit consideration of
alternative integrity testing to only
shop-fabricated containers. The
commenter indicated that while fielderected tanks are larger than shopfabricated tanks, they are designed to
meet industry standards; there are no
data to support a higher failure rate; and
industry standards for visual
inspections apply to field-erected tanks.
Two commenters also suggested that
EPA modify the rule to clarify that tanks
that are pre-fabricated in sections, and
then field-erected in a limited number
of places, should qualify for the
alternative provisions, since many
AFVO facilities utilize these tanks and
there are fewer field welds than for a
completely field-erected tank. In
addition, one commenter suggested that
these partial field-assembled tanks are
not necessarily the large capacity
containers that EPA may seek to exclude
from the integrity testing provision.
b. Response to Comments
For the reasons stated above, EPA
believes it is appropriate to limit the
alternative integrity testing criterion to
shop-fabricated containers: They are
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simpler in design and construction in
relation to field-erected containers,
including those bulk storage containers
that are partially field assembled. EPA
believes this criterion distinguishes
between more complex bulk storage
containers, which may require greater
integrity testing scrutiny, and smaller,
less complex containers.
EPA disagrees with the commenter
who questioned whether this criterion
was relevant, by asserting that the
industry standards for visual inspection
apply to field-erected tanks. While
visual inspection may be a component
of an integrity testing program for fielderected tanks, EPA is unaware of any
industry standard which limits integrity
testing for a field-erected bulk storage
container to visual inspection only.
Industry standards typically incorporate
visual inspection into a broader
integrity testing program which
typically also includes non-destructive
testing on a regular schedule and
includes inspection of the tank’s shell
and bottom plate. EPA believes this
criterion, in combination with the
others, limits the applicability of the
integrity testing relief to those AFVO
containers that, because of equipment
design and handling requirements
already provide environmentally
equivalent protection. In contrast,
containers that are partially shopfabricated and then finalized in the field
may be subject to additional inspection
requirements to bring these containers
into service and for continued service
beyond fully shop-fabricated containers.
It should also be noted that the rule
provides sufficient flexibility to make an
environmental equivalence
determination, in accordance with
§ 112.7(a)(2), which may be used to
address fielded-erected containers that
may vary in complexity, including fielderected containers comprised of prefabricated sections.
7. Required Recordkeeping
The SPCC regulations require that
inspections and tests be conducted in
accordance with the written procedures
that the owner or operator or the
certifying PE develop for the facility and
that records of inspections and testing
be kept with the SPCC Plan in
accordance with the recordkeeping
provisions of § 112.7(e). EPA believes
that visual inspection that is part of the
periodic maintenance of the 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 take advantage
of this alternative option for AFVOs, the
owner or operator or PE should refer to
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the appropriate requirements under 21
CFR part 110 to develop an appropriate
inspection, evaluation, and testing
program for an SPCC-regulated facility.
No comments were submitted in
reference to this requirement.
8. Other Suggested Criteria and Options
EPA received a number of comments
with suggestions for other approaches to
provide integrity testing relief to certain
AFVO containers.
a. Comments
Two commenters suggested extending
the testing frequency for AFVO
containers based upon the internal
corrosion differences between AFVO
and petroleum-based oils. Other
commenters suggested that EPA exempt
from the integrity testing requirements
storage containers used for AFVO in
compliance with the secondary
containment provisions and that
undergo visual inspection on a routine
basis. The commenters noted that a leak
would be discovered before it could
escape into the environment due to the
inspection frequency.
Another commenter requested that
EPA use the same approach for AFVO
as detailed in the SPCC Guidance for
Regional Inspectors (Chapter 7) where it
is explained that other design
approaches, other industry standards, or
other good engineering practices may be
used alone or as a ‘hybrid’ program
where equivalent results in meeting the
SPCC requirements is obtained. The
commenter suggested that the language
should be expanded to allow the same
alternatives for similar containers of all
oil covered by the regulation.
One commenter recommended that
EPA require a certified external tank
and vessel inspection every ten years for
tanks/vessels greater than 10,000 gallons
capacity when non-hazardous
substances are stored and annual
inspections are conducted by a
preventive maintenance inspector who
is familiar with the equipment and the
FTPI 2007–1 standard.
Several commenters suggested
exempting milk storage containers from
SPCC requirements based on additional
regulations which address storage for
on-farm milk storage containers.
Specifically, these commenters
identified the Grade ‘‘A’’ Pasteurized
Milk Ordinance (PMO), which
addresses milk intended for human
consumption.
b. Response to Comments
Regarding the comment on extending
inspection frequency for AFVO
containers, the rule does not establish a
required frequency and the owner or
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operator of the facility or PE can
establish an inspection schedule to
account for the chemical and physical
characteristics of the oil being stored
and for any other factors which may
affect the integrity of a bulk storage
container. In response to the comment
requesting that EPA allow visual
inspection and secondary containment
instead of integrity testing on AFVO
storage containers, EPA notes that the
revisions to § 112.12(c)(6) may allow the
owner or operator to conduct visual
inspections to satisfy the integrity
testing requirements, as long as they are
conducted in accordance with industry
standards.
EPA is also finalizing changes to
§ 112.12(c)(6) incorporating industry
standards into an integrity testing
program for AFVO bulk storage
containers (consistent with the
provision finalized at § 112.8(c)(6) for
other oils). EPA also believes there is
sufficient flexibility provided in
§ 112.7(a)(2) to make an environmental
equivalence determination with respect
to developing a hybrid integrity testing
program. Therefore, EPA believes that
the rule already allows other design
approaches, other industry standards, or
other good engineering practices to be
used alone or as a ’hybrid’ program
where equivalent results in meeting the
SPCC requirements are obtained.
Regarding the comments suggesting
that integrity testing should follow
specific fiberglass tank and pipe
industry standards (FTPI 2007–1), the
SPCC rule requires that the Plan be
prepared in accordance with good
engineering practices, including
consideration of applicable industry
standards (§ 112.3(d)(1)(iii)). An owner
or operator may follow the fiberglass
tank and pipe standards, if appropriate
for the particular facility’s
characteristics. Thus, the rule already
provides for this. However, it should be
noted that when a standard (or any part
of a standard) is incorporated into a
facility’s SPCC Plan, then adherence to
that standard (or part of a standard) is
mandatory for implementation of the
Plan.
In response to the proposed
differentiated integrity testing
requirements for certain AFVO bulk
storage containers, several commenters
requested an exemption for bulk storage
containers holding milk. The Agency
considered comments supporting an
exemption of certain milk bulk storage
containers from the SPCC requirements.
PMO is a model ordinance maintained
through a cooperative agreement
between the states, the FDA, and the
regulated community. States typically
adopt it either by reference or by
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directly incorporating its requirements
into statutes or regulations. EPA agrees
with commenters that milk containers
merit further consideration with respect
to SPCC rule applicability and the PMO.
Thus, in the near future, EPA intends to
publish a proposed rule on alternative
regulatory approaches for milk,
including an exemption based upon the
PMO.
M. 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 presented by the
regulated community, EPA is finalizing
certain revisions that further streamline,
tailor or clarify the SPCC requirements
for oil production facilities. Specifically,
EPA is finalizing the following
modifications for oil production
facilities: excluding oil production
facilities from the loading/unloading
rack requirements at § 112.7(h), as
described in Section V.F of this action;
revising the definition of ‘‘production
facility’’; extending the timeframe by
which the owner or operator of a new
oil production facility must prepare and
implement an SPCC Plan; providing an
alternative option for flow-through
process vessels at oil production
facilities to comply with the general
secondary containment requirement and
additional oil spill prevention measures
in lieu of sized secondary containment
requirements; providing an exemption
for certain intra-facility gathering lines
from the SPCC requirements; providing
an alternative option for flowlines and
intra-facility gathering lines at oil
production facilities for contingency
planning in lieu of all secondary
containment requirements, while
establishing more prescriptive
requirements for a flowline/intra-facility
gathering line maintenance program;
providing compliance alternatives for
certain produced water containers that
do not contain oil as certified by a PE;
providing compliance alternatives to
sized secondary containment for
produced water storage containers that
are not otherwise exempt; establishing
alternative criteria for an oil production
facility to be eligible to self-certify an
SPCC Plan as a qualified facility; and
clarifying the definition of
‘‘permanently closed’’ as it applies to an
oil production facility.
1. Definition of Production Facility
As described in Section V.D of this
action, EPA is modifying the definition
of ‘‘facility’’ to clarify that contiguous or
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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. To
provide clarity consistent with these
revisions, EPA is also finalizing
modifications to the definition of
‘‘production facility.’’ A ‘‘production
facility’’ is a type of ‘‘facility’’ as defined
in § 112.2. The revised definition reads
as follows: ‘‘Production facility means
all structures (including but not limited
to wells, platforms, or storage facilities),
piping (including but not limited to
flowlines or intra-facility 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 (including condensate)
and associated storage or measurement
and is located in an oil or gas field, at
a facility. This definition governs
whether such structures, piping, or
equipment are subject to a specific
section of this part.’’
With these revisions, EPA is adding a
sentence at the end of the definition 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 sections of the
rule may apply at a particular facility.
(The sections for administrative and
general rule requirements continue to
apply to all facilities under 40 CFR part
112.) This change to the definition of
production facility addresses concerns
raised during litigation challenging the
2002 rule amendments and discussed in
the May 25, 2004 Federal Register
notice (69 FR 29728). EPA has also
modified the phrase ‘‘and located in a
single geographical oil or gas field
operated by a single operator’’ to clarify
that a production facility ‘‘is located in
an oil or gas field.’’ This is consistent
with this rulemaking’s revisions to the
definition of ‘‘facility’’ that emphasize
the flexibility in how a facility owner or
operator can determine the boundaries
of a facility.
a. Comments
Several commenters expressed
general support for EPA’s proposed
amendments to the definition of
‘‘production facility.’’ However, one
commenter stated that the reference to
‘* * * property, parcels, leases * * *’
in the definition of ‘‘facility’’ causes
uncertainty because leases regularly
extend beyond the size of a production
facility. Several commenters also
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suggested that the proposed addition of
the phrase ‘‘may be,’’ would cause the
definition to become ambiguous.
The Agency also received comment
on various other suggested options. For
example, operators of facilities
producing AFVO requested that EPA
clarify that this section applies only to
petroleum oil production by adding the
word ‘‘petroleum’’ to the definition of
production facility, while several other
commenters suggested removing the
reference to ‘‘a single geographical oil or
gas field’’ to reduce confusion. Several
commenters expressed concerns
regarding multi-facility Plans for
production facility operations. Another
commenter requested EPA remove the
phrase ‘‘gathering line’’ from the
definition of production facility to avoid
dual jurisdiction. Two commenters
requested additional clarity regarding
natural gas and the definition of
production facility. Finally, two
commenters suggested that EPA include
additional infrastructure, activities and
equipment that support production
operations under the specific
requirements of § 112.9, or requested
use of a ‘‘primary function’’ test of a
facility to determine the facility’s
applicability to specific sections of the
SPCC regulation.
b. Response to Comments
EPA agrees with those commenters
who supported the modifications to the
definition, and is finalizing revisions to
the definition of ‘‘production facility,’’
with certain changes as described in this
section. The Agency disagrees that the
revised definition leads to industry
uncertainty. The changes clearly
indicate that the definition of
production facility specifically
identifies which rule requirements
apply to a facility. For example, oil
production facilities are excluded from
the rule requirements in § 112.8: ‘‘Spill
Prevention, Control, and
Countermeasure Plan requirements for
onshore facilities (excluding production
facilities),’’ whereas the rule
requirements in § 112.9: ‘‘Spill
Prevention, Control, and
Countermeasure Plan requirements for
onshore oil production facilities’’
specify that these requirements only
apply to production facilities.
EPA also disagrees with the
commenter who suggested that the
addition of the term ‘‘petroleum’’ to the
definition of production facility is
necessary. The addition of the term
‘‘petroleum’’ is unnecessary because the
definition itself indicates that the type
of facilities addressed in the definition
is one that is involved with petroleum
crude oil production and not any other
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type of oil production, such as AFVO
production. EPA’s intent has always
been that the definition of production
facility addresses petroleum crude oil
production, extraction, recovery, lifting,
stabilization, separation or treatment
and associated storage or measurement.
For example, the definition includes
terms associated with petroleum crude
oil production, such as gathering lines
and flowlines which are exclusively
associated with upstream petroleum
crude oil/gas production, not AFVO
production or processing facilities. The
term ‘‘oil or gas field’’ is used
exclusively in upstream crude oil and
gas production, not in AFVO
production. This language further
clarifies that the definition of
production facility is specific to
petroleum crude oil and gas production
operations rather than AFVO
production.
Several commenters expressed
concern regarding multi-facility Plans
for oil production operations. The
Agency does not intend to require an
owner or operator who uses one SPCC
Plan to address multiple SPCC-regulated
facilities to aggregate the storage
capacity of the individual facilities
covered in the multi-facility SPCC Plan.
However, the method in which an
owner or operator defines the
boundaries of individual facilities must
be consistent in determining both FRP
and SPCC applicability. The Agency
believes that the changes to the
definitions of ‘‘facility’’ and
‘‘production facility’’ will not
discourage the use of multi-facility
Plans because the Agency does not
require the aggregation of individual
facility capacities covered under a
multi-facility Plan. To provide further
clarity, EPA has removed the limiting
term ‘‘single geographic’’ from the
production facility definition. This
change together with the other
modifications finalized in this action,
make it clear that an owner or operator
is not compelled, by the definition of
production facility, to aggregate separate
facilities located in a ‘‘single
geographic’’ oil production field into a
single facility. If an owner or operator
has several distinct operations in one oil
field, he is not required to consolidate
these operations into a single facility.
On the other hand, the owner or
operator does have the flexibility to
consolidate these operations if he so
chooses.
To address the commenter’s concerns
that EPA is adding the terms ‘‘intrafacility’’ in front of the term gathering
line, the Agency notes that the addition
of this term clarifies that EPA only
regulates those gathering lines located
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within a facility, as determined by the
owner or operator. The Agency
disagrees with commenters who
suggested removing the term ‘‘gathering
lines’’ from the production facility
definition to avoid dual jurisdiction.
Gathering lines that are located within
the boundaries of an SPCC-regulated
facility are considered to be ‘‘intrafacility gathering lines’’ and are subject
to EPA’s jurisdiction. However, EPA is
exempting intra-facility gathering lines
subject to the regulatory requirements of
DOT’s pipeline regulations in 49 CFR
parts 192 or 195 from this regulation.
See section V.M.4 of this notice for more
information.
EPA does agree that clarification on
how these rules address natural gas
facilities is appropriate. In some cases,
a natural gas production facility may
store condensate (petroleum oil) in
quantities that meet the applicability
criteria for the SPCC requirements and
should be considered a production
facility when determining applicability
of specific requirements in the rule
(such as § 112.9). In this final rule,
therefore, EPA is adding the phrase
‘‘(including condensate)’’ to the
definition. This clarification is
consistent with the current definition
and provides additional clarity. Gaseous
phase hydrocarbons, such as natural
gas, present at SPCC-regulated facilities
are not regulated under the SPCC rule.
A detailed explanation of this
interpretation can be found at 69 FR
29729–29730, May 25, 2004.
EPA does not agree with the ‘‘primary
function’’ approach to determine the
applicability to specific sections of the
SPCC regulation or the commenters’
interpretation that, where geographic
considerations warrant, the definition of
production facility should include all
infrastructure associated with activities
and equipment that support operations
(such as base camps, airports, vehicle/
equipment repair operations, electrical
generating facilities, construction
equipment). The definition of
‘‘production facility’’ is used to
determine which of the sections of the
rule apply for these support operations.
The definition of production facility
extends to all containers and equipment
directly related to the production of
crude oil; it does not include
infrastructure (containers and
equipment) not uniquely associated
with or in support of crude oil
production. This is consistent with the
approach the Agency has taken in other
EPA regulations, such as the Resource
Conservation and Recovery Act (RCRA)
Subtitle C regulations for oil and natural
gas exploration, development and
production (53 FR 25447, July 6, 1988).
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Thus, the Agency is clarifying in this
notice that only the infrastructure,
containers and equipment uniquely
associated with the production of crude
oil is subject to the specific
requirements for a production facility
(§ 112.9). Containers, equipment and
piping containing crude oil used in the
production, extraction, recovery, lifting,
stabilization, separation or treatment of
oil or gas condensate, or their associated
storage or measurement is considered
part of an oil production facility and
subject to the specific requirements of
§ 112.9. Specific examples of containers,
piping or equipment uniquely
associated with or in support of the
production of crude oil include, but are
not limited to: Well heads; flowlines
and intra-facility gathering lines;
manifolds; heater treaters, free-water
knockout or other primary separation
vessels; bulk storage containers for
crude oil or condensate; produced water
containers; containers or pits storing
drilling fluids; drilling oil storage/use;
containers used for drilling completion
operations; and hydraulic, dielectric,
and lubrication oils used exclusively to
support oil production operations. All
other infrastructure or equipment that
indirectly support crude oil production
must meet the specific bulk storage
requirements under § 112.8 or specific
AFVO requirements under § 112.12, as
applicable. (Any infrastructure and
equipment at a facility subject to the
SPCC rule, whether in direct support of
crude oil production operations, or not,
are also subject to the general rule
requirements of §§ 112.1–112.7.)
For example, containers storing oil
that support vehicle repair or
maintenance (such as gasoline,
lubricating oil) at a production facility
are subject to both the general rule
requirements and the specific
requirements of § 112.8 because they are
not directly or uniquely associated with
crude oil production. Similarly, heating
oil storage containers that support
offices, oil storage to support
construction activities, oil storage in
transformers or electrical utility
stations, or oil storage/processing to
support refining operations (for
example, topping facilities) and other
bulk storage or the operational use of oil
in containers, equipment and piping not
used in the production, extraction,
recovery, lifting, stabilization,
separation or treatment of oil or gas
condensate, or their associated storage
or measurement are not considered part
of an oil production facility and
therefore are subject to both the general
rule requirements and the rule
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requirements for onshore facilities
under § 112.8 (or § 112.12 for AFVO).
The 1971 MOU memorialized the
agencies’ intent to minimize
overlapping regulation by ‘‘assign[ing]
one agency the responsibility for
regulating a complete operation at any
one facility.’’ EPA and DOT will revise
the 2000 guidance memorandum,
acknowledging that it has not provided
a clear basis for implementing the 1971
MOU or delineating EPA and DOT
jurisdiction (36 FR 24080, November 24,
1971). EPA will continue its work to
improve SPCC guidance for pipeline
operators and will communicate the
results of discussions in a manner that
affords further opportunity for public
comment.
2. Modifications to § 112.9 for Drilling
and Workover Facilities
To clarify that drilling and workover
activities are not subject to the
provisions at § 112.9, EPA is amending
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 is also amending the
introductory sentence of the section
accordingly.
As described in the October 2007
proposed rule (72 FR 58378, October 15,
2007), during the life of an oil well,
maintenance or remedial work may be
necessary to improve productivity. A
specialized workover rig, and associated
containers and equipment are brought
on-site to perform maintenance or
remedial activities on the well.
Workover operations that perform
maintenance or remedial activities on
oil wells 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). Workover activities are a
distinct operation and, if conducted by
a separate owner or operator, may be
considered a separate mobile facility.
Workover facilities may have 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 in operation or
storing oil (that is, they are not
‘‘permanently closed’’), then the
production facility owner or operator
must maintain his own SPCC Plan
during workover activities.
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a. Comments
Two commenters expressed support
for EPA’s clarification excluding drilling
and workover facilities from the
provisions of § 112.9.
b. Response to Comments
The Agency agrees with the
commenters and is finalizing the
amendment as proposed.
3. SPCC Plan Preparation and
Implementation
As described in the October 2007
proposed rule (72 FR 58378, October 15,
2007), the variables associated with the
start of operations at new oil production
facilities could lead to significant
changes in necessary storage capacity
and facility design. In this rulemaking,
EPA is finalizing an amendment to
allow a new oil production facility (that
is, one that becomes operational after
July 1, 2009) a period of six months after
the start of operations to prepare and
implement an SPCC Plan. EPA is
excluding oil production facilities from
the current requirements at
§ 112.3(b)(1), and is adding a new
paragraph at § 112.3(b)(3) to require the
owner or operator of a new oil
production facility to prepare and
implement an SPCC Plan six months
after the start of operations.
The rule amendment applies at a new
oil production facility that begins
operating after July 1, 2009. The
amendment does not apply to drilling or
workover activities at a production
facility. Drilling and workover
operations are subject to the
requirements at § 112.3(c) for mobile
facilities and may implement a general
SPCC Plan. Therefore, both during the
initial drilling of the well, as well as
during any workover activity, there are
measures required for spill prevention
and response for any oil discharges that
occur from a drilling or workover
facility subject to this rule. This
amendment would not apply to an
existing production facility in which a
new well is drilled, and added to the
existing tank battery/facility. In this
case, the facility owner or operator must
amend the SPCC Plan in accordance
with § 112.5(a), which requires the Plan
to be amended within six months of the
facility change, and implementation
within six months of the amendment.
With this amendment, EPA recognizes
that for some oil fields, based on the
often variable conditions of the oil
reservoir, the type and proportion of
products may be uncertain until after
the process of extraction has started.
During this timeframe, additional
equipment may be added or removed
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from the facility which would require
an amendment to the SPCC Plan and the
owner or operator of a new oil
production facility may need to make
multiple revisions to the Plan. The
Agency believes that allowing a new oil
production facility six months after the
start of operations to prepare and
implement an SPCC Plan properly
addresses these concerns. 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, or the storage of other oils in
capacities that exceed the rule’s current
oil storage capacity thresholds for
applicability.
a. Comments
Several commenters expressed
support for EPA’s proposed amendment
to allow new oil production facilities six
months to prepare and implement an
SPCC Plan. Two commenters, however,
suggested that EPA allow owners and
operators one year for sufficient time for
Plan preparation and implementation.
Another commenter suggested that EPA
provide an automatic extension for a
facility owner or operator based on his
inability to obtain the services of a PE.
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b. Response to Comments
The Agency agrees with those
commenters supporting an extension of
six months to the timeframe by which
an oil production facility must prepare
and implement an SPCC Plan. The
Agency disagrees with the suggested
alternative of one year for the owner or
operator to prepare and implement an
SPCC Plan after the start of production
operations. The Agency recognizes the
unique characteristics of an oil
production facility, but given that an oil
production facility is likely to stabilize
operations within six months from startup, a one-year time period for Plan
preparation and implementation is
inappropriate. If a facility owner or
operator needs additional time to
prepare and implement the SPCC Plan,
the existing rule already provides the
owner or operator the opportunity to
request an extension of time to come
into compliance in accordance with
§ 112.3(f) when circumstances are
beyond his control. This may occur, for
example, when there are no qualified
personnel available or if there are
equipment delivery delays.
4. Flowlines and Intra-Facility
Gathering Lines
EPA is finalizing a conditional
exemption from secondary containment
requirements under the SPCC rule for
flowlines and intra-facility gathering
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lines. That is, in lieu of general
secondary containment, an owner or
operator may opt to prepare a
contingency plan and written
commitment of manpower, equipment,
and materials. Additionally, EPA is
finalizing specific requirements for a
flowlines and intra-facility gathering
lines maintenance program. EPA is also
exempting intra-facility gathering lines
that are subject to the regulatory
requirements at 49 CFR parts 192 or 195
from the SPCC requirements. EPA is not
promulgating definitions of flowlines
and intra-facility gathering lines in this
action.
a. Definition of Flowline and IntraFacility Gathering Line and Exemption
In the October 2007 proposal (72 FR
58378, October 15, 2007), EPA
requested comments as to whether
regulatory definitions for ‘‘flowline’’
and ‘‘intra-facility gathering line’’ are
necessary, and if so, suggestions for
appropriate definitions. This request
was intended to determine whether
clarification of the scope of the terms
and their applicability under the SPCC
rule was necessary. EPA indicated in
the proposal that the Agency did not
believe that such definitions were
necessary because there is a common
understanding of these terms within the
affected industry. The Agency is
clarifying the scope of the SPCC rule’s
applicability to gathering lines and
finalizing an amendment that exempts
the ‘‘intra-facility’’ gathering lines that
are subject to both EPA and DOT
regulatory requirements from the SPCC
rule in response to comments on the
proposed conditional exemption from
secondary containment requirements for
flowlines and intra-facility gathering
lines. The Agency believes that this
exemption is a logical outgrowth of the
proposal and the comments received. In
the October 2007 proposal, EPA
acknowledged that given the
characteristics of certain intra-facility
gathering lines, these pipelines may be
regulated under requirements of both
EPA and DOT (72 FR 58407, October 15,
2007). EPA also recognized in the
proposal that DOT requirements for
pipelines may be similar in scope to
SPCC regulations, so that compliance
with DOT requirements may be
considered environmentally equivalent
to certain SPCC requirements. EPA also
recognized in the proposal that DOT
requirements for pipelines may be
similar in scope to SPCC regulations, so
that compliance with DOT requirements
may be considered environmentally
equivalent to certain SPCC
requirements. DOT has promulgated
regulations for pipelines under 49 CFR
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parts 192 (Transportation of Natural
and Other Gas by Pipeline), 194
(Response Plans for Onshore Oil
Pipelines) and 195 (Transportation of
Hazardous Liquids by Pipeline). DOT
has the statutory authority over gas or
hazardous liquid pipelines of any
diameter within environmentally
sensitive rural areas (defined as
‘‘unusually sensitive areas’’), and liquid
pipelines above six inches in diameter
operating at low pressure. While many
gathering lines are under DOT’s
statutory authority, only a subset of
them has DOT regulatory requirements.
EPA recognizes that gathering lines
can be outside the Agency’s jurisdiction
because they ‘‘transport’’ oil outside of
an oil production facility. EPA has
jurisdiction only over nontransportation-related facilities, which
includes pipelines that transport oil
within a facility. Any inter-facility
pipeline, including a gathering line, that
transports oil between facilities or from
a facility to a vessel, or from a facility
to a transportation-related pipeline
facility, such as a transmission line, or
a pipeline breakout tank, 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. Depending
upon how an owner/operator defines
his facility under the SPCC rule, an oil
production facility may also include
gathering lines. While gathering lines
within the SPCC facility boundaries are
intra-facility piping, EPA is maintaining
the term intra-facility gathering lines
because it is a term that is well
recognized within the production
sector. For those intra-facility gathering
lines that are regulated by both EPA and
DOT, EPA is exempting them from the
SPCC requirements. In other words, the
exemption is for intra-facility gathering
lines present at a facility where the
piping is subject to both EPA and DOT
jurisdiction and regulations. EPA’s
focus with the SPCC rule is the
regulation of oil storage at facilities
engaged in activities related to drilling,
producing, gathering, processing,
refining, transferring, distributing and
use of oil, while DOT’s focus is in the
area of pipeline regulation; therefore,
EPA believes it is appropriate to defer
to DOT’s technical regulation in lieu of
EPA’s intra-facility gathering line
requirements. EPA believes this change
is appropriate and is a logical outgrowth
of the proposal and several comments
received regarding jurisdiction of intrafacility gathering lines.
Only those lines that are subject to
DOT regulations are eligible for the
exemption finalized in this action.
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Those intra-facility gathering lines
located at a facility that are not subject
to the regulatory requirements at 49 CFR
parts 192 and 195 remain subject to the
requirements in 40 CFR part 112. Other
equipment and piping at an oil
production facility (such as flowlines),
remain subject to the SPCC
requirements. In addition, this
exemption requires that owners or
operators of a facility identify and mark
as ‘‘exempt’’ the location of exempt
piping on the facility diagram. This
requirement will assist facility and EPA
personnel in defining the boundaries of
EPA and DOT jurisdiction and provide
response personnel with information
used to identify hazards during a spill
response activity.
As discussed in Section V.D of this
notice, an owner or operator has the
flexibility under the definition of
facility to determine the boundaries of
their SPCC facility; thus, the facility
may include intra-facility gathering
lines. DOT defines a production facility
under 49 CFR parts 195 as ‘‘piping or
equipment used in the production,
extraction, recovery, lifting,
stabilization, separation or treating of
petroleum or carbon dioxide, or
associated storage or measurement. (To
be a production facility under this
definition, piping or equipment must be
used in the process of extracting
petroleum from the ground, and
preparing it for transportation by
pipeline.)’’ (49 CFR 195.2) This
definition is similar in scope to EPA’s
definition of production facility
described above. However, DOT
provides additional specificity regarding
the endpoints of a production operation
for the purpose of defining a gathering
line. Under 49 CFR part 192, DOT
clarifies that the beginning of gathering
may not extend beyond the furthermost
downstream point in a production
operation (49 CFR 192.8(a)(1)).
Comments. Two commenters
suggested clarifications of the term
flowline, one of whom suggested a
definition. Two other commenters
stated that definitions for flowline or
intra-facility gathering line were not
needed, while several commenters
suggested that the references to
‘‘gathering lines’’ with flowlines be
eliminated, citing the confusion of using
the term and noting the MOU with DOT,
which specifically limits EPA’s
jurisdiction of these lines. Another
commenter requested that EPA clarify
that post-separation gas gathering lines
are exempt from the SPCC rule. One
other commenter suggested that EPA
modify § 112.1(d)(1)(ii) to include an
exemption for all gathering lines.
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Response to comments. EPA disagrees
with those commenters that suggest
there is a need to define the terms
‘‘flowline’’ and ‘‘gathering line.’’ EPA
believes the oil production sector has a
common understanding of these terms
and that specific definitions are not
needed. ‘‘Flowlines’’ are piping that
transfer crude oil and well fluids from
the wellhead to the tank battery where
separation and treatment equipment are
typically located. Flowlines may also
connect a tank battery to an injection
well. Depending on the size of the oil
field, flowlines may range in diameter
and run from hundreds of feet to miles
between the wellheads and the tank
batteries or primary separation
operations. The term ‘‘gathering lines’’
refers to piping or pipelines that transfer
crude oil product between tank
batteries, within or between facilities.
Gathering lines often originate 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 considers gathering lines subject
to EPA’s jurisdiction if they are located
within the boundaries of an otherwise
regulated SPCC/FRP facility (that is,
intra-facility gathering lines). Therefore,
to address the concerns raised by
commenters, the Agency is including
the phrase ‘‘intra-facility’’ in front of the
term gathering lines to clarify that EPA
only has the authority to regulate
piping, in this case intra-facility
gathering lines, which are located
within a facility boundary. The Agency
also is finalizing an amendment that
excludes from regulation those ‘‘intrafacility’’ gathering lines subject to both
EPA and DOT regulatory requirements.
Specifically, one commenter suggested
that EPA modify § 112.1(d) to include
an exemption for all gathering lines.
While EPA does not agree that all intrafacility gathering lines, located within a
production facility, should be excluded
from the SPCC requirements, the
Agency does agree that minimizing dual
regulation, where appropriate, is
beneficial to the regulated community.
Therefore, EPA is finalizing a new
exemption under § 112.1(d)(2)(i) and
112.1(d)(11) for intra-facility gathering
lines subject to DOT regulation. The
Agency believes this change is
appropriate and is a logical outgrowth of
the proposal and several comments
received regarding jurisdiction of intrafacility gathering lines.
However, the Agency does not want
to create a regulatory ‘‘gap’’ with this
action. Gathering lines, as well as
flowlines are a source of oil spills, as
demonstrated in EPA’s study of the
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exploration and production sector,
‘‘Considerations for the Regulation of
Onshore Oil Exploration and Production
Facilities Under the Spill Prevention,
Control, and Countermeasure
Regulation (May 30, 2007; located in the
docket for this rulemaking: EPA–HQ–
OPA–2007–0584–0015). Currently, EPA
has only a limited set of requirements
for flowlines and intra-facility gathering
lines, whereas DOT has more
comprehensive requirements for
pipelines (which are only applicable to
a subset of gathering lines within DOT
jurisdiction). Additionally, there are no
industry standards for flowline or
gathering line maintenance. Therefore,
intra-facility gathering lines located at a
facility that are not subject to the
regulatory requirements under 49 CFR
parts 192 or 195 remain subject to EPA’s
SPCC regulations under 40 CFR part
112. These lines also remain subject to
EPA jurisdiction and the Agency, if
appropriate, can use existing rule
mechanisms under § 112.1(f) to bring
exempted intra-facility gathering lines
back under the SPCC rule requirements.
One commenter requested that EPA
clarify that post-separation gas gathering
lines are exempt from the rule. EPA
maintains its position that hydrocarbons
in a gaseous phase under ambient
temperature and pressure, such as
natural gas, are not regulated under the
SPCC rule. However, production
facilities can include piping with both
oil and gas phases. In this instance, such
a facility’s dual-phase flowlines and
intra-facility gathering lines (that is,
those carrying both gas and liquid phase
hydrocarbon) are subject to the SPCC
requirements (unless they are subject to
49 CFR parts 192 or 195 and are
therefore exempt) because if the lines
were to rupture or leak, they may
discharge oil to navigable waters or
adjoining shorelines in quantities that
may be harmful as defined in 40 CFR
part 110.
b. Exemption From Secondary
Containment
EPA believes that secondary
containment is, in most cases,
impracticable for flowlines and intrafacility gathering lines. Therefore, the
Agency is amending § 112.7(c) to
provide an alternative (which is
optional) to the general secondary
containment requirements for flowlines
and intra-facility gathering lines (unless
they are exempt from regulation). In lieu
of secondary containment, the Agency
will require the 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
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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. The Agency is tailoring
the requirements in an effort to improve
compliance and enhance environmental
protection.
Comments. Several commenters
expressed support for EPA’s proposed
amendment to remove the secondary
containment requirements for flowlines
and intra-facility gathering lines at oil
production facilities. Several
commenters requested, however, that
EPA acknowledge the option for owners
or operators to select sized secondary
containment based on site conditions
and recommendations of the PE under
certain circumstances. One commenter
suggested a modification to allow
collection areas rather than individual
containment along gathering lines.
Another commenter, however, stated
that the proposed amendment to exempt
flowlines and intra-facility gathering
lines at oil production facilities from the
secondary containment requirements is
inconsistent with 33 U.S.C.
1321(j)(5)(D).
Response to comments. EPA agrees
with the majority of commenters that
secondary containment for flowlines
and intra-facility gathering lines is, in
most cases, impracticable and that
providing secondary containment for
these lines can be difficult and
expensive for an owner or operator.
Flowlines and intra-facility gathering
lines are often several miles long, can be
buried, can extend far from the main
facility, and are often placed across land
that is not owned by the owner or
operator of the oil production facility.
Providing secondary containment
structures for these lines may result in
soil erosion and negative impacts to the
land (such as when they are located in
farm fields). 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 lines.
The Agency also recognizes that some
facilities have already installed
containment for flowlines and intrafacility gathering lines and therefore
should not be required to provide a
contingency plan in addition to
secondary containment. Therefore, EPA
agrees with those commenters who
suggested that the requirement for a
contingency plan in lieu of secondary
containment should be an option.
Contingency planning is one of the
many tools that the Agency has
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provided in the SPCC regulatory
requirements. The Agency disagrees
with the comment arguing that a
contingency plan requirement is
inconsistent with the intent of 33 U.S.C.
1321(j)(5)(D). The Agency’s authority to
promulgate the SPCC regulations is
found in Section 311(j)(1)(C) of the
Clean Water Act, 33 U.S.C. 1321(j)(1)(C).
Section 311(j)(1)(C) requires the
President to issue regulations
establishing procedures, methods,
equipment, and other requirements to
prevent discharges of oil to navigable
waters or adjoining shorelines from
vessels and facilities and to contain
such discharges. The statutory provision
gives the Agency broad discretion to
establish the requirements under the
SPCC rule. Also, Section 311(j)(5)(D), 33
U.S.C. 1321(j)(5)(D), lists the
requirements for facility response plans.
The Agency has promulgated
regulations for facility response plans in
40 CFR 112.20 and 112.21. The purpose
of the SPCC program is to prevent and
control oil discharges from reaching
navigable waters or adjoining
shorelines. However, it is important to
recognize that despite best prevention
efforts, discharges may occur. The
contingency plan requirements under
the SPCC program have dual purposes.
They include components to prevent oil
that has escaped its container or
secondary containment from reaching
navigable waters or adjoining
shorelines, and also include
components that address the timely and
appropriate response actions to be
implemented when an oil discharge
does impact navigable waters or
adjoining shorelines.
c. Contingency Plan in Lieu of
Secondary Containment
EPA is amending §§ 112.7(c) and
112.9(d)(3) to provide an alternative to
the secondary containment
requirements for flowlines and intrafacility gathering lines at an oil
production facility. In lieu of secondary
containment, a facility owner or
operator may opt to implement an oil
spill contingency plan in accordance
with 40 CFR part 109 (Criteria for State,
Local and Regional Oil Removal
Contingency Plans) and prepare 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. The Agency is
amending this provision in an effort to
improve compliance and enhance
environmental protection. The use of a
contingency plan does not relieve the
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74275
owner or 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). EPA is also amending
§ 112.7(a) to make it clear that the
contingency plan provisions under
§ 112.9(d)(3) are not subject to the
environmental equivalence provision.
Comments. Several commenters
expressed support for EPA’s proposal to
require an oil spill contingency plan in
lieu of secondary containment. One
commenter, however, suggested an
option to require annual physical
inspections and the installation of
isolation valves. Two other commenters
requested that EPA reduce the burden of
using this alternative option, because
the documentation effort for a
contingency plan is extensive.
Response to comments. The Agency
does not agree that annual physical
inspections and the installation of
isolation valves are appropriate, because
this could prove to be impracticable for
some lines, specifically those that are
buried.
With respect to the comments
regarding the additional burden that a
contingency plan requirement would
impose on facilities, the Agency
recognizes that this amendment would
require additional documentation.
However, EPA believes that a
contingency plan is necessary when
secondary containment is not provided.
This final rule allows the owner or
operator of the facility to develop a
contingency plan as an option to general
secondary containment. The
contingency plan required when
secondary containment is not
practicable for flowlines and intrafacility gathering lines should rely on
strong maintenance, corrosion
protection, testing, recordkeeping, and
inspection procedures to prevent and
quickly detect discharges from such
lines. It should also ensure quick
availability and deployment of response
equipment. The complexity or
simplicity of a facility’s contingency
plan is subject to good engineering
practice as determined by the certifying
PE. EPA developed a model contingency
plan as part of the SPCC Guidance for
Regional Inspectors. This model plan is
intended only as an example and
inspectors should only use the
document for this purpose.
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
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recognizes that compliance with the
DOT requirements (for example, 49 CFR
part 194) for these gathering lines may
be considered to satisfy the contingency
planning requirement. Therefore a
contingency plan developed for 49 CFR
part 194 may serve to meet the SPCC
Plan requirements. In addition, as
previously discussed, the Agency is
exempting intra-facility gathering lines
that are subject to the regulatory
requirements under 49 CFR part 192 or
195 from 40 CFR part 112. Furthermore,
the owner or operator of an oil
production facility who has prepared an
FRP under § 112.20 satisfies the
contingency planning requirement for
flowlines and intra-facility gathering
lines because an FRP is more
comprehensive than a contingency plan
under 40 CFR part 109. If such a facility
owner or operator has already
developed an FRP to comply with
§ 112.20, then he does not need to
develop a contingency plan in
accordance with 40 CFR part 109. The
certifying PE must ensure that the FRP
is adequate for the facility and prepared
in accordance with good engineering
practice. Similarly, the owner or
operator of an oil production facility
who has prepared a state spill or
pollution prevention contingency plan
that meets the requirements of 40 CFR
part 109 may opt to use this state plan
to comply with the SPCC contingency
plan requirements.
It should also be noted that the
contingency planning requirement is an
alternative to the requirement for
general secondary containment for
flowlines and intra-facility gathering
lines and the facility owner or operator
can decide which option to comply
with. The purpose of this action is to
provide options and streamlined
requirements that should improve
compliance with the rule. The Agency
recognizes that flowlines and intrafacility gathering lines are a source of oil
discharges and believes that this action
provides an alternative method for
owners/operators to develop spill
prevention and response practices for
this equipment to maintain
environmental protection.
d. Requirements for a Flowline and
Intra-Facility Gathering Line
Maintenance Program
EPA is amending the requirement for
an owner or operator to prepare and
implement a written flowline and intrafacility gathering line maintenance
program under § 112.9(d)(4). This action
specifies that the requirements apply to
intra-facility gathering lines, as well as
flowlines at an oil production facility.
Intra-facility gathering lines pose the
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same potential for discharge as
flowlines. EPA never intended to
regulate the two types of piping
differently. Under the amended
provisions, a maintenance program
must address procedures to:
• Ensure that such flowlines and
intra-facility gathering lines and
associated valves and equipment are
compatible with the type of production
fluids, their potential corrosivity,
volume, and pressure, and other
conditions expected in the operational
environment.
• 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, if there is no
secondary containment.
• 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.
• Promptly remove or initiate actions
to stabilize and remediate any
accumulations of oil discharges
associated with flowlines, intra-facility
gathering lines, and associated
appurtenances.
Comments. Several commenters
expressed support for EPA’s proposed
revisions to the flowline/intra-facility
gathering line program, although some
commenters suggested the addition of
corrosion protection for these lines. A
number of commenters expressed
concern that the requirement for a
contingency plan and maintenance
program would be burdensome. Some of
these commenters suggested using a
maintenance program based on risk
levels and good industry practices, as
determined by a PE. Another
commenter requested that the current
language be maintained for a program of
flowline maintenance.
Other commenters provided suggested
other revisions. Specifically, some
commenters provided alternative
language for the provisions under
§ 112.9(d)(4). One commenter stated that
the proposed requirement under the
design and development requirements
of § 112.9(d)(4)(i) is vague and
unnecessary given the responsibility of
a PE certifying the Plan. Other
commenters also suggested adding
language that would acknowledge that
other methods of immobilizing
hydrocarbons in soil matrices such as
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physical, chemical and/or biological
treatment methods to address oil
accumulations associated with flowlines
rather than ‘‘prompt removal.’’ Finally,
commenters expressed concern with the
phrase ‘‘promptly remove’’, as
associated with actions to stabilize and
remediate any accumulations of oil
discharges. Commenters suggested
replacing this phrase with ‘‘upon
discovery’’.
Response to comments. EPA is
finalizing the amended requirements for
a flowline and intra-facility
maintenance program under
§ 112.9(d)(4), specifying that the
requirements apply to intra-facility
gathering lines, as well as flowlines at
an oil production facility. The Agency
believes that an effective flowline
maintenance program is necessary to
detect a discharge in a timely manner so
that the oil discharge response
operations described in the contingency
plan may be implemented effectively.
Additionally, eliminating the
requirement for secondary containment
necessitates more prescriptive
requirements for discharge prevention
to ensure the integrity of the primary
containment of the pipe itself.
EPA is finalizing requirements under
§ 112.9(d)(4) to require a performancebased program of flowline and intrafacility gathering line maintenance that
addresses the facility owner or
operator’s procedures, that must be
documented in their SPCC Plan. EPA
agrees with several comments on the
language associated with these
requirements and has made several
changes to the proposed rule in
response to these comments. EPA is
finalizing the requirement under
§ 112.9(d)(4)(iv) with some
modifications to the proposed
regulatory text. The finalized rule states:
‘‘Promptly remove or initiate actions to
stabilize and remediate any
accumulations of oil discharges
associated with flowlines, intra-facility
gathering lines, and associated
appurtenances.’’ This measure is
intended to ensure the removal of oil
accumulations in order to prevent a
discharge. The Agency disagrees with
the comment that suggested replacing
‘‘Promptly remove’’ with ‘‘Upon
discovery.’’ ‘‘Promptly remove’’
indicates that the owner or operator of
the facility has both the responsibility
and flexibility to outline an inspection
program under § 112.9(d)(4)(ii) which
puts the timeframe for ‘‘prompt
removal’’ in the context of the
inspection frequency. Commenters also
suggested, however, that language be
added that would acknowledge that
other methods of immobilizing
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hydrocarbons in soil matrices, such as
physical, chemical and/or biological
treatment methods can be used. The
Agency agrees that other methods may
be used to stabilize and remediate, and
thus, the regulatory text has been
revised by adding the phrase, ‘‘remove
or initiate actions to stabilize and
remediate’’ to the rule. 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, EPA believes
that the removal of recoverable oil can
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).
EPA believes that the variations in
production facility piping design, layout
and location makes flexibility important
in order to encourage compliance with
this requirement, and believes that this
flexibility is already available. However,
the flowline and intra-facility gathering
line maintenance program requirements
also are subject to the environmental
equivalence provision found at
§ 112.7(a)(2). That is, the facility owner
or operator may deviate from the
requirements if an environmentally
equivalent alternate measure is
implemented. EPA recognizes that other
Federal or state requirements may be
environmentally equivalent to certain
SPCC requirements, including the
flowline and intra-facility gathering line
maintenance program requirement. An
environmental equivalence
determination is subject to review and
certification by a PE.
5. Flow-Through Process Vessels
EPA is modifying the requirements at
§ 112.9(c) to provide an alternative to
the sized secondary containment
requirements for flow-through process
vessels at oil production facilities. Flowthrough process vessels, such as
horizontal or vertical separation
vessels—for example, 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. Specifically,
in lieu of sized secondary containment,
a facility owner or operator may opt to
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provide general secondary containment,
inspect or test flow-through process
vessels and components for leaks,
corrosion or other conditions that could
lead to a discharge, as described in
§ 112.1(b), promptly remove or initiate
actions to stabilize and remediate any
oil accumulations, and take corrective
action should a discharge occur. EPA
also would require that sized secondary
containment be installed if the 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)
within six months of such a discharge.
EPA is taking this action because the
Agency agrees with concerns regarding
the requirement to provide sized
secondary containment around flowthrough process vessels, such as heatertreaters, due to a potential fire hazard if
spilled oil collects around such
equipment. EPA also recognizes that
similar flow-through process equipment
(i.e., oil-filled manufacturing
equipment, such as reaction vessels,
fermentors, high pressure vessels,
mixing tanks, dryers, heat exchangers,
and distillation columns) at nonproduction facilities are 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. However, EPA recognizes that
process equipment at non-production
facilities, such as at manufacturing
facilities, is typically attended during
hours of operation and there is a greater
potential to immediately discover and
correct a discharge at non-production
facilities than at oil production
facilities, which are generally
unattended. Therefore, EPA is requiring
additional measures for flow-through
process vessels at oil production
facilities that do not have sized
secondary containment, including
inspection or testing of components,
prompt removal or initiation of actions
to stabilize and remediate any oil
accumulations, and corrective action.
a. Exemption From Sized Secondary
Containment
EPA is amending the requirements in
§ 112.9(c)(2) to add the phrase ‘‘Except
as described in paragraph (c)(5) of this
section for flow-through process
vessels’’ at the beginning of the
provision. This amendment removes the
requirement to provide sized secondary
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containment for flow-through process
vessels at oil production facilities
without making an impracticability
determination, and allows the facility
owner or operator the option to comply
with the alternate requirements in
§ 112.9(c)(5) instead.
The general secondary containment
requirement of § 112.7(c) still applies 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. As described in
Section V.H of this notice, EPA is
amending § 112.7(c) to clarify that the
provision 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. However, active measures
would generally have limited
applicability at oil production facilities
because these facilities are typically not
attended and owners or operators may
not be able to detect a discharge in a
timely manner to successfully
implement the active measures. In
contrast, passive measures are
installations that do not require
deployment or action by the owner or
operator and may be more appropriate
for unattended production operations.
The SPCC Guidance for Regional
Inspectors provides several examples of
the use of active and passive measures
at an SPCC-regulated facility.
With this action, owners or operators
of oil production facilities are no longer
required 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. However, EPA believes
that oil production facility owners and
operators may want to provide
secondary containment (such as berms)
around the entire tank battery, as many
oil production facilities currently do.
These batteries can include flowthrough process vessels, such as
separators, along with oil stock tanks
and other bulk storage containers. Such
a facility design would provide the
maximum environmental protection.
Comments. Several commenters
expressed support for EPA’s alternative
option for flow-through process vessels
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in lieu of sized secondary containment.
Two commenters, however, requested
that EPA clarify whether secondary
containment is an alternative to the
proposed option, while one commenter
requested clarification on whether EPA
means containment would hold the
single largest process vessel and not
containment sized to hold all vessel
fluids. Another commenter expressed
concern that the proposed requirements
are burdensome; DOE generally
supported that position and encouraged
EPA to consider existing state regulatory
programs in lieu of additional
requirements.
Another commenter expressed
concern that flow-through process
vessels at production facilities cause
pollution that can not be remediated to
the pre-spill condition. Still another
commenter was concerned that more oil
than the contents of the vessels may be
discharged because oil may be
constantly flowing into these vessels
from the wells. Finally, one commenter
expressed concern that the proposed
exemption from sized secondary
containment is inconsistent with 33
U.S.C. 1321(j)(5)(D), which the
commenter believes requires every
SPCC Plan to identify the resources
necessary to ‘‘mitigate or prevent a
substantial threat of’’ a worst case
discharge. The commenter expressed
concern that general secondary
containment for a ‘‘most likely’’ spill
would fail to prevent the worst case
discharge.
Response to comments. EPA
recognizes that some facilities have
already provided sized secondary
containment in accordance with
§ 112.9(c)(2) for flow-through process
vessels at productions facilities. EPA
agrees with commenters that facility
owners or operators who have installed
such containment should not be
required to comply with the additional
requirements for these vessels.
Therefore, EPA is amending the rule to
indicate that flow-through process
vessels equipped with sized secondary
containment in accordance with
§ 112.9(c)(2) and (c)(3) are not required
to comply with the alternate
requirements under § 112.9(c)(5).
In response to the commenter who
asked about the size of containment
required, EPA notes that in determining
how to provide appropriate general
secondary containment for flow-through
process vessels, a production facility
owner or operator may consider the
typical failure mode and most likely
quantity of oil that would be discharged
(see § 112.7(c)). Based on these sitespecific conditions, the owner or
operator can determine what capacity of
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secondary containment is needed, and
design the containment method
accordingly. The design for general
secondary containment should address
site-specific factors, including, but not
limited to, frequency of site visits, rate
of flow of the wells, capacity of the
containers, and whether the facility is
equipped with automatic shut-off
devices to prevent an overflow.
However, as discussed elsewhere in this
preamble, general secondary
containment is based on the most likely
discharge, not the worst case discharge.
EPA agrees with the commenter who
expressed concern regarding the effects
of a discharge from flow-through
process vessels, but the Agency believes
that this alternative approach, which
requires general secondary containment
in accordance with § 112.7(c) and the
additional requirements to inspect,
repair equipment, and address oil
accumulations that may occur following
a discharge from flow-through process
vessels, addresses this concern. The
Agency also believes the alternative
requirements for flow-through process
vessels address the concern that these
facilities are constantly operating and
have constant flow of fluids through this
equipment because the owner or
operator must inspect the equipment
and take corrective action to address a
discharge following procedures
described in the SPCC Plan.
As part of this action, EPA considered
whether existing state regulatory
programs could satisfy the amended
requirements. Although a number of
states do have requirements for oil
production facilities to prevent spills,
they do not provide a comprehensive,
national approach that would be
equivalent to the SPCC requirements, as
these programs have been developed to
meet states’ individual goals. Therefore,
EPA believes that relying solely on state
programs would not provide nationwide
consistent requirements for spill
prevention. However, the Agency
recognizes the benefits of allowing the
owner or operator of a regulated facility
to take credit for compliance with state
program requirements when these serve
to meet certain SPCC requirements and
can be referenced in accordance with 40
CFR part 112.
The Agency also disagrees with those
commenters who characterized the
amended requirements as excessive, and
the requests for EPA to reconsider the
necessity of additional measures in lieu
of sized secondary containment. The
amendment allows an owner or operator
to provide general secondary
containment for flow-through process
vessels and requires new prevention
measures as an alternative to the rule’s
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existing sized secondary containment
requirement. The alternative measures
are optional—that is, the owner or
operator may still choose to comply
with the sized secondary containment
requirement, and the facility owner or
operator decides which option is best
suited to the design and operation of the
facility. The Agency believes that the
alternative approach finalized in this
rule for flow-through process vessels
allows the owner or operator of an oil
production facility flexibility in how to
design secondary containment for this
equipment and in how to comply with
the additional requirements that
maintain environmental protection.
The Agency disagrees with the
commenter who argued that the revised
option for flow-through process vessels
at production facilities is inconsistent
with the intent of 33 U.S.C.
1321(j)(5)(D). The Agency’s authority to
promulgate the SPCC regulations is
found in Section 311(j)(1)(C) of the
Clean Water Act, 33 U.S.C. 1321(j)(1)(C).
Section 311(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 statutory provision
gives the Agency broad discretion to
establish the requirements under the
SPCC rule. The purpose of the SPCC
program is to prevent and control oil
discharges from reaching navigable
waters or adjoining shorelines. Also,
Section 311(j)(5)(D), 33 U.S.C.
1321(j)(5)(D), lists the requirements for
facility response plans. The Agency has
promulgated regulations for facility
response plans in 40 CFR 112.20–21and
this action does not impact the
requirement for an owner/operator to
prepare and implement an FRP when
the facility meets the substantial harm
criteria in § 112.20(f). Therefore, this
amendment does not conflict with the
requirements under 33 U.S.C. 1321
(j)(5)(D).
b. Additional Requirements
Because oil production facilities are
typically unattended while operating,
EPA is adding a provision at
§ 112.9(c)(5) to provide additional
requirements for flow-through process
vessels at those facilities that do not
provide sized secondary containment.
These additional requirements include
periodic inspection and/or testing for
leaks, corrosion, or other conditions that
could lead to a discharge as described
in § 112.1(b); corrective action or repairs
to flow-through process vessels and any
associated components as indicated by
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regularly scheduled visual inspections,
tests, or evidence of an oil discharge;
and prompt removal or initiation of
actions to stabilize and remediate any
accumulations of oil discharges
associated with flow-through process
vessels.
Comments. One commenter
recommended not mandating routine
inspection of flow-through vessels,
because oil and gas operators routinely
visit tank batteries and wells and the
lease operator would observe leaks from
the vessels. The commenter also stated
that weather conditions require aerial
inspections during the winter months,
which may not be possible given the
proposed requirement. Another
commenter expressed concern with the
burden of complying with the
additional inspection requirements.
Several commenters provided
alternative language for promptly
removing any accumulations of oil
discharges as described under
§ 112.9(c)(5). Specifically, commenters
suggested adding language that would
acknowledge other methods of
immobilizing hydrocarbons in soil
matrices (such as physical, chemical
and/or biological treatment methods) to
address oil accumulations associated
with flowlines. Commenters also
expressed concern with the phrase
‘‘promptly remove’’ and suggested
replacing it with the phrase ‘‘upon
discovery.’’
Response to comments. The
requirement of periodic inspection and/
or testing of 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. This is especially
true for components that typically cause
discharges, such as dump valves. These
requirements 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,
remote, and have a constant flow of oil
and well fluids, sized secondary
containment measures provide
environmental protection for any
potential discharge. EPA does not
intend for inspections to create a public
safety concern for personnel conducting
inspections and EPA expects that the
SPCC Plan will include provisions to
address weather-related concerns that
may impact the inspection schedule.
Because EPA is revising the rule such
that flow-through process vessels are
subject to the general secondary
containment requirement (§ 112.7(c))
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instead of the sized secondary
containment requirement, the Agency
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. Therefore, EPA
believes it is important to require that
inspections be completed and
documented in accordance with the
requirements in § 112.7(e).
EPA is amending the requirement
under § 112.9(c)(5)(iii) with some
modifications to the proposed language,
in response to comments regarding
removal of oil accumulations.
Specifically, commenters suggested
adding language that would
acknowledge that other methods of
immobilizing hydrocarbons in solid
matrices, such as physical, chemical
and/or biological treatment methods
should be allowed. EPA agrees that
other methods may be used to stabilize
and remediate and thus, the Agency is
adding the phrase, ‘‘remove or initiate
actions to stabilize and remediate’’ to
address this concern. 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). However, the
Agency disagrees with the comment that
suggested replacing ‘‘Promptly remove’’
with ‘‘Upon discovery.’’ ‘‘Promptly
remove’’ indicates that the owner or
operator of a facility has both the
responsibility and flexibility to outline
an inspection program under
§ 112.9(c)(5)(i) which puts the
timeframe for ‘‘prompt removal’’ in the
context of the inspection frequency.
Finally, EPA believes that variations
in oil production facility piping design,
layout, and location make flexibility
important in order to encourage
compliance with these additional
measures. However, such flexibility is
already available in that these
requirements for flow-through process
vessels are subject to the environmental
equivalence provision found at
§ 112.7(a)(2). For example, other Federal
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74279
or state requirements may be
environmentally equivalent to certain
SPCC requirements. Thus, the facility
owner or operator may deviate from the
requirements if an environmentally
equivalent alternate measure, subject to
review and certification by a PE, is
implemented. The environmental
equivalence provision found at
§ 112.7(a)(2) cannot be used for any
containment provision associated with
flow-through process vessels.
c. Reportable Discharge
EPA is finalizing a provision at
§ 112.9(c)(5)(iv) to require that a
production facility owner or operator
ensure that all flow-through process
vessels subject to this subpart (that is,
are using the new alternative to sized
secondary containment) comply with
§ 112.9(c)(2) and (c)(3) within six
months from the discovery of a
discharge from a flow-through process
vessel of more than 1,000 U.S. gallons
of oil in a single discharge as described
in § 112.1(b), or 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. When
determining spill history, the amount
specified in the criterion (either 1,000 or
42 U.S. gallons) refers to the amount of
the discharge that actually reaches
navigable waters or adjoining
shorelines, and not the total amount of
the discharge. Discharges as described
in § 112.1(b) that are the result of
natural disasters, acts of war, or
terrorism are not considered toward this
requirement. A flow-through process
vessel using this alternative approach
must already comply with § 112.9(c)(1)
and § 112.9(c)(4) and therefore these
requirements were not added to
§ 112.9(c)(5)(iv).
Comments. Two commenters
expressed concern with the reportable
discharge criterion because § 112.4
already requires a facility with a
discharge as described in this provision
to submit a report to the Regional
Administrator within 60 days.
Response to comments. While the
Agency acknowledges that EPA
continues to require a facility that has
had a discharge as described in
§ 112.1(b) to submit a report to the
Regional Administrator within 60 days,
EPA believes that the owner or operator
of a facility that has had such a
discharge, as described in this criterion,
should be required to comply with the
sized secondary containment
requirement because it would appear
that the facility was not able to prevent
discharges to navigable waters or
adjoining shorelines by complying with
the alternative standard—that is, general
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secondary containment with additional
measures. If a facility owner or operator
is unable to successfully prevent oil
discharges using general containment
requirements and additional measures,
EPA believes that requiring sized
secondary containment provides a failsafe method to address the risk of
discharges. The Agency’s preferred
method for preventing discharges from
flow-through process vessels at these
constantly-flowing, unattended facilities
is the use of sized secondary
containment. Sized secondary
containment provides a buffer to allow
for containment of fluids from these
vessels until a discharge is discovered.
Thus, the owner or operator would be
required to automatically amend the
SPCC Plan and provide sized secondary
containment for all flow-through
process vessels at the production facility
within six months of the discharge. This
containment must be sized to contain
the contents of the single largest
container, with sufficient freeboard for
precipitation. Additionally, the owner
or operator must submit a report to the
EPA Regional Administrator as required
under § 112.4(a).
The discharge criterion is a wellestablished threshold in the SPCC rule.
This discharge criterion is similar to the
provision in § 112.4(a) for discharges
that must be reported to the EPA
Regional Administrator. Under § 112.4,
a facility owner or operator must report
certain information to the Regional
Administrator whenever the facility
experiences a discharge reportable
under § 112.4. The Agency has used this
criterion for eligibility for alternative
measures in the past, such as to allow
the owner or operator of a qualified
facility to self-certify the SPCC Plan and
to allow the use of contingency
planning and other measures in lieu of
secondary containment for qualified oilfilled operational equipment (see 71 FR
77266, December 26, 2006). The Agency
believes that finalizing this criterion to
trigger the requirement to redesign
secondary containment is consistent
with other spill history criteria used
elsewhere in the SPCC rule.
6. Alternative Qualified Facility
Eligibility Criteria for Oil Production
Facilities
In December 2006 (71 FR 77266,
December 26, 2006), EPA promulgated
an amendment to the SPCC rule to allow
the owner or operator of a qualified
facility to self-certify his SPCC Plan,
which in this final rule EPA identifies
as a Tier II qualified facility.
Furthermore, as described in Section
V.G of this notice, EPA is establishing
an additional option for a subset of
qualified facilities (designated as Tier I
qualified facilities) that meet an
additional criterion. The owner and
operator of a Tier I qualified facility may
complete and implement a streamlined,
self-certified SPCC Plan template
(promulgated as Appendix G to 40 CFR
part 112).
The following table illustrates the
tiers, criteria, and options for
production facilities meeting the
qualified facilities eligibility criteria and
all other production facilities, as
described in this notice:
Production facilities that are qualified facilities
All other production facilities
Tier I
Tier II
Oil production facility with an aggregate
aboveground oil storage capacity greater
than 10,000 gallons and:
(1) More than two producing wells per single
tank battery with one or more injection
wells;
(2) More than four producing wells per single
tank battery; or
(3) More than ten barrels of crude oil produced per well per day; or
Within any twelve-month period, three years prior to the Plan certification date, or since becoming subject to the SPCC rule if in operation for less than three years, there has been:
(1) No single discharge of oil to navigable waters or adjoining shorelines exceeding 1,000 U.S.
gallons; and
(2) No two discharges of oil to navigable waters or adjoining shorelines each exceeding 42 U.S.
gallons*; and
Within any twelve-month period, three years
prior to the Plan certification date, or since
becoming subject to the SPCC rule if in operation for less than three years, there has
been:
(1) A single discharge of oil to navigable waters or adjoining shorelines exceeding
1,000 U.S. gallons; or
(2) Two discharges of oil to navigable waters
or adjoining shorelines each exceeding 42
U.S. gallons*; or
No individual aboveground oil containers greater than 5,000 U.S. gallons;
Has individual aboveground oil containers
greater than 5,000 U.S. gallons; or
Owner or operator eligible for Tier I qualified
facility status, but decides not to take the
option or chooses to develop a ‘‘hybrid’’
Plan;
Owner or operator eligible for qualified facility
status, but decides not to take the option;
Then: Complete and self-certify Plan template
Appendix G to 40 CFR part 112) in lieu of a
full PE-certified Plan.
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Oil production facility and:
(1) No more than two producing wells per single tank battery / ten barrels or less of crude oil
per well per day / if the facility has an injection well; or
(2) No more than four producing wells per single tank battery / ten barrels or less of crude oil
per well per day / no injection wells; or
(3) The facility has10,000 U.S. gallons or less aggregate aboveground oil storage capacity; and
Then: Prepare a self-certified Plan in accordance with all applicable requirements of
§ 112.7 and subparts B and C of the rule, in
lieu of a PE-certified Plan.
Then: Prepare a PE-certified Plan in accordance with all applicable requirements of
§ 112.7 and subparts B and C.
* This criterion does not include discharges as described in § 112.1(b) that are the result of natural disasters, acts of war, or terrorism. Additionally, the gallon amount described in this criterion addresses the amount of the discharge that actually reaches navigable waters or adjoining
shorelines.
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In the October 2007 proposed rule,
EPA solicited comment on whether the
Agency should consider alternative
criteria in identifying a ‘‘qualified
facility,’’ and thus, allow the owner or
operator of an oil production facility to
self-certify the SPCC Plan,
notwithstanding the tank storage
capacity at the facility. Specifically,
EPA requested comment on an approach
that was suggested by EPA and two
approaches that were suggested by DOE
(see 72 FR 58411, October 15, 2007 for
a more detailed description of the
specific approaches on which EPA
solicited comment.) Based on the
comments received, and the Agency’s
evaluation of this industry sector, EPA
is finalizing in this rule an amendment
that provides alternative criteria for
identifying qualified facilities in the oil
production sector for onshore facilities.
EPA believes that alternative eligibility
criteria for identifying a qualified
facility for certain onshore oil
production facilities is appropriate
because, notwithstanding their simple
configurations, many of these small oil
production facilities cannot meet the
10,000 gallon aggregate aboveground oil
storage capacity threshold for Tier I and
II qualified facility designation. Given
(1) the large number of marginal or
stripper wells in the U.S.6; (2) that they
contribute a significant portion of the
country’s oil production; and (3) EPA’s
understanding of the particular
aboveground oil storage container
capacities and the nature of the fluids
handled at certain small oil production
facilities, other criteria beyond oil
storage container capacity are more
appropriate in determining whether an
owner or operator of such a facility
should self-certify his SPCC Plan. These
other criteria, unique to small oil
production facilities, serve to identify a
qualified facility consistent with the
intent of this approach as promulgated
on December 26, 2006 (71 FR 77266), by
identifying the simplest operations by
factors other than strictly capacity.
A qualified oil production facility is
one that meets all of these conditions:
(1) No more than two producing wells
per single tank battery if the facility has
an injection well; or no more than four
producing wells per single tank battery
with no injection wells at the facility;
(2) each well produces no more than ten
barrels of crude oil per day; and (3) the
facility has not had a single discharge as
described in § 112.1(b) exceeding 1,000
U.S. gallons or two discharges as
6 The
Interstate Oil and Gas Compact Commission
estimates that there are 422,255 marginal oil wells
as of January 1, 2007 (IOGCC Marginal Wells: 2007
Report).
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described in § 112.1(b) each exceeding
42 U.S. gallons within any twelve
month period in the three years prior to
Plan certification, or since becoming
subject to 40 CFR part 112 if the facility
has been in operation for less than three
years. Facilities with no more than two
producing wells are eligible to be a
qualified facility regardless of whether
they have injection wells. Discharges as
described in § 112.1(b) that are the
result of natural disasters, acts of war,
or terrorism do not disqualify a facility
owner or operator from the alternative
option described above.
The Tier II qualified facility eligibility
criteria at § 112.3(g)(2) have been
amended to include these criteria for oil
production facilities. The owner or
operator of a qualified oil production
facility may choose to prepare a selfcertified 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
production or shipping records
available to support his eligibility.
Records kept under usual and
customary business practices will
suffice, and must be kept for a period of
three years, in accordance with
§ 112.7(e).
Owners or operators of oil production
facilities may meet Tier II qualified
facility eligibility through either
criterion—has an aggregate aboveground
oil storage capacity of 10,000 U.S.
gallons or less (§ 112.3(g)(2)(i)); or the
criteria described above for an onshore
oil production facility (§ 112.3(g)(2)(ii)).
An oil production facility that also
meets the Tier I qualified facility
eligibility criteria in § 112.3(g)(1) (that
is, the facility has no individual oil
storage container with a capacity greater
than 5,000 U.S. gallons) would be
eligible to develop an SPCC Plan
following the template in Appendix G to
the SPCC rule finalized in this
rulemaking (see Section V.G of this
notice).
Elsewhere in today’s preamble, EPA
clarified that a natural gas production
facility storing condensate (petroleum
oil), in quantities that meet the SPCC
applicability criteria, is considered an
oil production facility. Since such an
onshore natural gas production facility,
as described above, is considered an
onshore oil production facility, it may
be eligible for the qualified facility relief
for marginal wells if it meets the other
new criteria finalized today in
§ 112.3(g)(2)(ii). Additionally, since a
natural gas production facility can often
store smaller quantities of oil, the
facility may already meet the existing
‘‘capacity based’’ qualified facility
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criteria in § 112.3(g)(2)(i), available to all
facility types.
Additionally, in order to provide the
owner or operator of a production
facility that meets the qualified facility
criteria with the necessary time to fully
understand the new regulatory options
finalized in today’s action, EPA is
proposing, in a separate action in the
Federal Register of November 26, 2008
(73 FR 72016), a new compliance date
to prepare or amend and implement the
production facility’s SPCC Plan.
a. Alternative Qualified Facility
Eligibility Criteria for Oil Production
Facilities
This approach is intended as an
alternative to the existing 10,000 gallon
aggregate aboveground oil storage
capacity eligibility criteria. It provides
tailored qualified facility eligibility
criteria based on process operating
conditions and equipment unique to oil
production facilities rather than static
oil storage capacity. The owner or
operator of an oil production facility
that meets the 10,000 gallon threshold
may already self-certify his SPCC Plan
and does not also need to meet the
differentiated criterion for oil
production facilities finalized in this
action.
Ten barrels or less of crude oil
produced per well per day. The ten
barrels or less per well per day criteria
was chosen because this production rate
is consistent with the definition of a
‘‘stripper well.’’ EPA established
differentiated requirements for ‘‘stripper
wells’’ under the CWA, which were
codified in 1979 (see 40 CFR 435.60).
The Interstate Oil and Gas Compact
Commission (IOGCC) also defines
‘‘stripper wells’’ as wells that produce
ten barrels of oil per day or less.7 This
production rate limits the qualified oil
production facility approach to those
facilities with smaller quantities of oil
and associated fluids.
Maximum of two producing wells per
single tank battery (if the facility has an
injection well) or maximum of four
producing wells per single tank battery
(with no injection wells at facility). In
the October 2007 proposal, EPA
suggested that the criterion used to
identify qualified oil production
facilities should be a maximum of four
wells at a single tank battery producing
no more than ten barrels of oil per day
(72 FR 58378, October 15, 2007). The
Agency requested comment on this
approach. While commenters expressed
7 See 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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support generally for a definition of
‘‘qualified facility’’ specific to the oil
production sector, they also argued that
limiting the definition to those facilities
with four wells or fewer would not
allow many facilities to take advantage
of this approach. However, the Agency
analyzed comments provided on the
original proposal that established
qualified facilities (70 FR 73524,
December 12, 2005) together with the
comments provided on the approach
described in the October 2007 proposed
rule (72 FR 58378) relative to the overall
reason for identification of a qualified
facility; that is, that owners and
operators of facilities that handle small
oil quantities, with simple,
straightforward processes and
equipment, should be capable of
developing, implementing, and selfcertifying an SPCC Plan without the
services of a PE. With this underlying
principle in mind, EPA considered the
type and scale of operations and the
equipment involved at small, marginal
well oil production facilities and
concluded that when there are no
injection wells at the facility, four
producing wells per single tank battery
is an appropriate criteria to define a
simple oil production facility
configuration.
One or more injection wells are
typically used to inject produced water
underground for disposal or to enhance
recovery of oil from production wells.
The underground injection process can
add additional piping to the design of
an oil production facility. Consequently,
EPA has included a ‘‘no injection wells’’
criterion for qualified oil production
facilities with more than two wells per
single tank battery. The injection well
process typically consists of piping
extending from a produced water
container to the injection wellhead,
valves, and pumps and may include
tank level indicators, floats, flow
controls, and actuators/switches that
add additional equipment to the oil
production facility. EPA believes the
integration of such injection equipment
and its operation into the design and
operation of the production facility calls
for PE certification rather than the
owner or operator self-certifying of the
SPCC Plan at facilities that have more
than two production wells and injection
wells. EPA also does not believe it is
reasonable or appropriate for an owner
or operator to designate the injection
well and its associated piping a separate
facility just to meet the alternative
qualified facility eligibility criteria.
However, as noted in section V.M.7, an
injection well that injects fluids that
were stored in a container that is
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exempt from the SPCC regulation under
§ 112.9(c)(6)(i) will not preclude a
facility from being eligible for treatment
as a qualified facility under
§ 112.3(g)(2)(ii). Therefore, the Agency
believes that at a facility with no
injection wells and a maximum of four
producing wells per single tank battery,
each of which produce ten barrels or
less of crude oil per well per day,
captures the oil production operations
targeted by the self-certification option
because these facilities, with a limited
number of producing wells per tank
battery operating at a low flow rate, and
no injection wells or associated
equipment, are less complex than other
oil production facilities.
Commenters also argued that ‘‘no
injection wells’’ is not part of an
established definition and that small
facilities that utilize injection for
secondary or tertiary recovery would
not qualify. As EPA considered the type
and scale of operations, and the likely
quantities of oil handled, EPA also
analyzed whether marginal well oil
production facilities with an injection
well that handle small oil quantities
could be similarly less complex than
other oil production facilities. The
Agency established the threshold of two
wells per single tank battery if there is
one or more injection wells at the
facility because field observation and
professional judgment suggests that
with two wells, the tank battery is
typically situated near the well head to
minimize the length of flowlines. As the
number of wells flowing to a single tank
battery decreases to two wells, the
footprint of the facility potentially
decreases and the lesser area
encompassed by a facility with fewer
wells flowing to the tank battery means
that significantly shorter flowlines are
needed to move well fluids to
separation and storage processes. EPA
also understands that as the number of
wells in a lease (the term used for the
area of wells run by an owner or
operator) decreases, the number of tanks
and separators typically decreases.
Depending on the flow rates and well
locations, separate tank batteries serving
widely separated wells may be installed
on one lease. Fewer valves, smaller
separation equipment and fewer or
smaller storage tanks in the tank battery
are also expected at a facility with two
wells than those with four wells per
single tank battery. Finally, based on the
Agency’s best professional judgment
and experience in the field, pumpers
and well service operations typically
occur once or twice per week; on this
basis, the likely quantities of well fluids
and marketable oil generated by a two-
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well operation per single tank battery is
more consistent with the quantities
expected at qualified facilities that are
not oil production facilities. By limiting
the overall number of producing wells,
and therefore the associated equipment
and piping at an oil production facility,
the Agency is targeting those production
facilities that should be eligible to selfcertify SPCC Plans. In order to strike a
balance between those operations with
injection wells and those without, EPA
is allowing oil production facilities with
no more than two producing wells that
also have injection wells an option to
self certify the Plan. Regardless of the
presence of injection wells at these
facilities, the overall number of wells
and associated equipment is still limited
by this approach. In addition, the likely
smaller oil quantities stored at a twowell facility with injection wells
captures the smaller operators targeted
by the self-certification option because
these facilities are similar in complexity
to an oil production facility with four
producing wells per tank battery with
no injection wells. Similarly, the
specification of ‘‘per single tank battery’’
is intended to make clear that the selfcertification option for production
facilities does not extend to a central
processing area (a production treatment
and separation operation that receives
fluids from a qualified facility tank
battery).
Although the criterion limits the
number of wells per single tank battery,
it does not limit the number of tank
batteries located at the oil production
facility. That is, EPA believes that tank
batteries within an oil production
facility may still have simple
configurations and the presence of
multiple tank batteries does not add
complexity to the overall oil production
facility. As EPA discussed previously in
Section V.D of the preamble, the owner
or operator of a production facility has
the flexibility to define the facility’s
boundaries such that it can include
multiple tank batteries. Therefore, if the
oil production facility meets one of the
two alternative criteria described in this
section (that is, it has no more than two
producing wells per single tank battery
each of which produce ten barrels or
less of crude oil per well per day if there
are injection wells; or the facility has no
more than four producing wells per
single tank battery, each of which
produce ten barrels or less of crude oil
per well per day, and has no injection
wells at the facility; and meets the
reportable discharge history criterion)
the owner or operator can self-certify
the SPCC Plan.
Comments. Many commenters
expressed general support that EPA
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utilize other relevant criteria in
identifying a ‘‘qualified facility’’ in the
oil production sector, although most of
the commenters did not support the
approach EPA is promulgating in this
final rule. However, other commenters
questioned why oil production facilities
would have different criteria than
facilities in other industries when they
already have less stringent requirements
under the SPCC rule. Two commenters
opposed any alternative eligibility
criteria for production facilities, arguing
that the basis of the qualified facility
approach is to provide an alternative for
the truly small operator to avoid the cost
of PE certification of his SPCC Plan.
Commenters questioned why EPA
would reduce requirements for oil
production facilities given the sector’s
spill history and operational
complexity. These commenters
requested that all facilities above 1,320
gallons of total aboveground oil storage
capacity should be certified by a PE.
Still other commenters questioned the
number of wells and other conditions
that EPA described in the preamble to
the proposal. One commenter stated that
limiting the option to facilities with four
wells is of concern because the number
is not well-established and would
restrict the applicability of this option.
Several commenters also expressed
concern with the ‘‘no injection wells’’
criterion, noting that injection does not
add complexity to the facility, is a
common practice, and the produced
water that is reinjected is of low oil
content. Commenters also stated that
‘‘no injection wells’’ is not part of an
established definition and that small
facilities that utilize injection for
secondary or tertiary recovery would
not qualify.
Other commenters suggested other
approaches or options that EPA could
pursue. For example, one commenter
suggested the alternative eligibility
criteria should be a production rate less
than five barrels per day per well, and
very simple operations consisting of no
more than three wells flowing to one
tank battery and no injection wells. Two
other commenters provided support for
oil production facilities to qualify for
Tier I, although some commenters
suggested that the Tier I qualified
facility threshold discussed in the
October 2007 proposal would be too
limiting, and suggested that a facility
with one 400 barrel (16,800 U.S.
gallons) oil tank should be eligible for
the Tier I category.
Response to comments. EPA agrees in
principle with the commenters who
supported alternative qualified facility
eligibility criteria for oil production
facilities and is finalizing the option
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described in the proposal with some
modifications. The Agency does not
agree that PE certification should be
required for all facilities with more than
1,320 U.S. gallons oil storage capacity,
given that the Agency has already
promulgated an approach allowing
owners and operators of facilities that
meet certain criteria, including a total
aboveground oil storage capacity of
10,000 U.S. gallons or less to self-certify
Plans. A number of commenters pointed
out that oil production facilities are
already subject to a differentiated set of
requirements under the SPCC rule.
While the Agency recognizes this, it
continues to believe that a differentiated
alternative for facilities with simple
configurations has merit, and that
providing the added flexibility of selfcertification for the smaller oil handlers/
simpler operations, along with the other
streamlined requirements tailored to the
unique features of this sector (as
described elsewhere in the preamble to
this final rule) should improve overall
spill prevention and environmental
protection.
Because the configuration of an oil
production facility is variable,
complexity depends upon a number of
factors, including, but not limited to:
The oil field, production rate, type of
fluid, operating equipment and
conditions, and viscosity of the oil.
Because oil production facilities do not
have a ‘‘typical’’ configuration, the
Agency has finalized eligibility criteria
intended to minimize the complexity of
the operations where self-certification
seems appropriate. By setting the
maximum number of wells at four
producing wells if there are no injection
wells at the facility, or two producing
wells if there are injection wells at the
facility, there is a greater likelihood that
those wells are located near the tank
battery. EPA believes that the four-well
criterion targets those oil production
facilities with less complex operations
and configurations, consistent with
other qualified facilities. Similarly, the
criterion that excludes underground
injection for a facility with four
producing wells eliminates the
complexity associated with injection
related equipment. By limiting the
number of producing wells per single
tank battery to two producing wells at
facilities that have injection, EPA
believes that because of the smaller oil
storage capacities and the greater
likelihood that those wells are located
near the tank battery, a marginal well oil
production facility with two producing
wells is consistent with other qualified
facilities. In addition, the reduced
complexity in decreasing from four to
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two producing wells is similar to the
change in complexity associated with
injection wells. As noted above, EPA
believes a PE need not be involved in
the SPCC Plan at facilities with a
limited number of wells and associated
equipment and piping.
A number of commenters noted that
by limiting the number of wells per tank
battery and not allowing injection wells
to be utilized in designating a qualified
facility for the oil production sector, it
would limit the number of oil
production facilities that could selfcertify their SPCC Plan. First, it should
be noted that in designating a ‘‘qualified
facility’’ in the oil production sector, the
purpose is to identify those facilities
that should be eligible to self-certify
their SPCC Plan without the
involvement of a PE-that is, those
facilities that handle small quantities of
oil, with simple and straightforward
processes and equipment, and not to
maximize the number of oil production
facilities that could be eligible to selfcertify their SPCC Plan. However, EPA
also estimated the number of facilities
that would meet the eligibility criteria
for a qualified facility under the
eligibility criteria promulgated today for
the oil production sector. Based on our
analysis (which can be found in the
Regulatory Impact Analysis for this
action, located in the docket for this
rulemaking), EPA estimates that
approximately one third of oil
production facilities would meet the
alternative eligibility criteria. If those oil
production facilities that meet the
eligibility criteria for self-certification
based on the 10,000 gallon threshold are
also included, EPA estimates that
almost half of oil production facilities
could take advantage of self-certifying
their SPCC Plan. Thus, EPA does not
agree with commenters that the
eligibility criteria being promulgated
today for defining a qualified facility in
the oil production sector is too narrow.
The Agency also agrees that oil
production facilities should also be
eligible as Tier I qualified facilities.
Thus, the owner or operator of an oil
production facility that meets the
criteria finalized under this rulemaking
and additionally meets the Tier I
qualified facility eligibility criteria in
§ 112.3(g)(1) (that is, the facility has no
individual oil storage container with a
capacity greater than 5,000 U.S. gallons)
is also eligible to use the streamlined
Tier I qualified facility SPCC Plan
template (Appendix G to the SPCC rule).
The Agency also does not agree that the
eligibility criteria for Tier I are too
limiting, as the relief provided by the
SPCC Plan template and other
streamlined requirements are targeted to
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a specific segment of the universe of
facilities based upon simplicity of
configuration and a 5,000-gallon limit
on the total aboveground storage
capacity for any single container. EPA
believes that facilities that qualify for
Tier I have a reduced risk of discharge
in harmful quantities due to this limit
on aboveground single container total
storage capacity. Thus, the Agency does
not agree that a 400-barrel container
(16,800 U.S. gallons) should qualify for
Tier I, as this quantity is three times the
container threshold for other Tier I
qualified facilities (with a maximum
aboveground oil storage container of
5,000 U.S. gallons). Commenters did not
provide data to support the larger tank
size or demonstrate how this would
maintain environmental protection.
Larger containers have the potential for
a larger discharge, may have more
stringent requirements for inspection
and maintenance in accordance with
industry standards, and therefore, EPA
believes should not be eligible for the
Tier I streamlined requirements.
b. Alternative Approaches for
Addressing Small Oil Production
Facilities as Suggested by the
Department of Energy (DOE):
Alternative Eligibility Criteria
In the proposal to this rulemaking (72
FR 58378, October 15, 2007), the
Agency sought input on different
eligibility criteria, as suggested by DOE,
to identify a small oil production
facility as a qualified facility. The
criteria would allow for the
development of a self-certified SPCC
Plan, and allow the use of a streamlined
SPCC Plan template for a certain set of
facilities, similar to that found in
proposed Appendix G to the SPCC rule.
Under the qualified facility criteria at
§ 112.3(g), a facility that has an
aggregate aboveground oil storage
capacity of 10,000 U.S. gallons or less
and has not had a single discharge as
described in § 112.1(b) exceeding 1,000
U.S. gallons or two discharges as
described in § 112.1(b) each exceeding
42 U.S. gallons within any twelvemonth period in the three years prior to
Plan certification, or since becoming
subject to 40 CFR part 112 if the facility
has been in operation for less than three
years is eligible for the qualified facility
Plan requirements at § 112.6 (i.e., a selfcertified Plan in lieu of a PE certified
Plan). DOE suggested 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
or stripper well definition for
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identifying qualified facilities. For
example, DOE suggested that a stripper
well be defined using the IRS tax code
definition of 15 barrels or less of oil per
day equivalence (see 26 U.S.C. 613A). In
light of this request, EPA sought
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 spill prevention and
reduce the likelihood of a harmful oil
discharge.
Comments. Several commenters
argued that the current threshold
requirements are too low to provide
significant benefit for marginal oil
production facilities. For example, one
commenter suggested a total
aboveground oil storage capacity of
50,000 gallons where no single
container is greater than 21,000 gallons,
whereas another commenter suggested
removing consideration of this approach
unless produced water storage is
eliminated from the threshold
calculation.
Concerning the stripper well
definition, two commenters supported
DOE’s suggestion to use the IRS tax code
definition for marginal production to
ease compliance. One commenter
indicated that the EPA definition
remains linked to facility storage
capacity, and storage capacity at
marginal wells is not sized based on
current production levels and in fact
decreases over time.
Concerning other regulatory programs
addressing the objectives of the SPCC
rule, one commenter suggested that state
spill prevention regulatory programs
should serve small production facilities
rather than one Federal program.
However, another commenter noted that
states in general simply do not address
equivalent requirements of the SPCC
regulations and especially not to the
extent of the SPCC regulations with
respect to prevention of oil discharges.
Two commenters suggested that EPA
consider other regulatory requirements,
including DOT Carrier Requirements for
Spills, Spill Reporting, Transportation
Security Planning, and EPA’s
Stormwater Discharge Permitting
program, the National Pollutant
Discharge and Elimination System
(NPDES) program, and Underground
Injection Control (UIC) program.
Another commenter suggested allowing
all SPCC facilities to have the option of
using other equivalent prevention plans
to meet SPCC planning requirements.
Finally, one commenter suggested that
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EPA remove the self-certification
provision from the rules so that all
farmers, small businesses and other oil
storage facilities are required to prepare
a complete SPCC Plan certified by a PE
to ensure ‘‘equal and fair treatment for
all owners and operators.’’
Response to comments. The Agency
disagrees with commenters who suggest
establishing a new capacity based Tier
II criterion for oil production facilities
greater than the already established
10,000-gallon threshold for all facilities.
While the Agency received a number of
comments regarding a wide variety of
thresholds for defining a Tier II
qualified facility in the oil production
sector, the comments did not provide
sufficient data to support the threshold
numbers other than it would increase
the number of facilities that would be
eligible as a qualified facility and thus,
self-certify their SPCC Plan. More
importantly, the commenters did not
demonstrate how these new thresholds
would maintain environmental
protection. EPA does not agree with the
commenters to base a new Tier II
qualified facility threshold for oil
production operations solely on an
increased capacity threshold, as there
was no justification for providing oil
production facilities with a higher
threshold than non-production facilities
or for how the higher threshold relates
to simplicity in facility configuration or
operations.
Nevertheless, EPA agrees with
commenters that the oil production
sector has unique characteristics and
that other criteria may better serve in
defining a Tier II qualified facility. For
example, the fact that oil production
facilities have flow-through process
vessels suggests that flow rate (in the
form of an oil production rate) may be
a better approach for setting a new
criterion for identifying the simplest oil
production facility operations. However,
EPA disagrees with commenters who
argued that the IRS tax code definition
of 15 barrels or less of oil per day
should be used in defining flow rate.
Specifically, the IRS definition of 15
barrels of oil or less per day equivalent
is calculated by dividing the average
daily production of domestic crude oil
and domestic natural gas from
producing wells on such property for
such calendar year by the number of
such wells. Thus, under this approach,
a facility will contain wells with
marginal production, such as 15 barrels
of oil per day, but also will likely
contain wells that produce much greater
quantities of oil, because the IRS
definition calculates the average daily
production of oil over all producing
wells, as opposed to the amount of oil
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that flows from any individual well.
EPA believes that using such a
definition defeats the purpose of
identifying a qualified facility, which is
to allow those small facilities that have
relatively simple operations to selfcertify their SPCC Plans. Thus, the
Agency has adopted a per well approach
that places a flow rate cap of ten barrels
or less of oil produced per well per day,
as this is consistent with the definition
of ‘‘stripper well’’ codified at 40 CFR
435.60.
Additionally, because the source of
the oil for production facilities is
through extraction wells, the number of
wells better identifies the complexity of
a production operation. Finally, some of
these facilities are unique as they
reinject fluids in the reservoir for
disposal purposes or for enhanced oil
recovery. The presence of these
injection wells is a characteristic unique
to oil production facilities that can help
to determine the complexity of the
operation. These characteristics, unique
to the oil production sector, provided
the Agency with the basis for a tailored
set of criteria to identify oil production
facilities with simple configurations.
Developing a criterion based solely on
raising the oil storage capacity criterion
would be inconsistent with the rationale
established for the original 10,000gallon criterion and would not
necessarily maintain environmental
protection. Thus, while EPA does not
agree that raising the oil storage capacity
threshold is appropriate, the Agency
does agree with commenters that the
unique characteristics of an oil
production facility allow EPA to
establish alternative criteria for a Tier II
qualified facility, and EPA has finalized
provisions to that effect.
Finally, EPA disagrees with
commenters who suggested that the
SPCC regulations are not needed
because of other regulatory programs,
such as state programs, or the NPDES or
UIC programs. EPA conducted a
comparison of a number of these
programs with the SPCC program and
found that they were not nationally
uniform (see Review of State
Regulations Pertaining to Oil Spill
Prevention at Onshore Production
Facilities and Produced Water
Containers, prepared by Abt Associates
Inc., June 6, 2008, and found in the
docket for today’s rulemaking). Further,
under the Oil Pollution Act and CWA,
EPA is required to promulgate oil spill
prevention regulations, and it cannot
delegate its responsibilities to other
Federal or state programs, but has
streamlined SPCC requirements or
provided targeted exemptions from
SPCC regulation when such regulations
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provide comparable or equivalent
environmental protection. However,
EPA has stated previously that if a
facility owner or operator must comply
with a state or Federal requirement that
also satisfies an SPCC requirement, the
owner or operator can include and
reflect such effort in his SPCC Plan and
not duplicate it solely for SPCC. EPA
wants to minimize duplicative
requirements where possible and is
working to tailor requirements, where
appropriate.
c. Alternative Approaches for
Addressing Small Oil Production
Facilities as Suggested by the
Department of Energy (DOE): Exempt
Existing Stripper Oil and Natural Gas
Wells From all SPCC Requirements
The other approach that DOE
requested that EPA solicit comment on
in the proposal to this rulemaking (72
FR 58378, October 15, 2007) was to
exempt 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 IRS tax code definition of stripper
well property at 26 U.S.C. 613A. In
addition, the eligibility criteria would
not be limited, for example, to those
facilities that did not have injection
wells or used injection wells as
secondary or tertiary recovery
techniques, which DOE has indicated
may be regulated under existing Federal
and state regulatory programs. DOE
believes that such criteria have no direct
relationship to the spill risk posed by
marginal wells facilities and may serve
as a disincentive to enhanced oil and
gas recovery and well maintenance.
Comments. Many of the commenters
expressed support for an exemption of
stripper oil and natural gas wells from
all SPCC requirements. Commenters
expressed concerns that implementation
of the SPCC rule may cause oil
production wells to be shut in. One
other commenter suggested regulating
only crude oil and condensate
containers, given that the releases
reported to the NRC from this industry
sector are low and EPA ‘‘has never
conducted a comprehensive
environmental analysis of the risks
associated with these proposed
regulations and whether they
significantly change from the current
regulatory program to this proposed
one.’’
Response to comments. While the
majority of comments the Agency
received supported an outright
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74285
exemption for stripper oil and natural
gas wells from the SPCC requirements,
the commenters did not provide
sufficient data to justify an exemption or
demonstrate how an exemption would
maintain environmental protection. EPA
also disagrees with the commenters that
the SPCC requirements and compliance
costs alone would cause small oil
production facilities to shut down,
reducing U.S. oil production (see
memorandum dated April 11, 2008,
Preliminary Assessment of SPCC
Compliance Costs and Energy Impacts
on Oil Exploration and Production). As
EPA has noted elsewhere, these
facilities, which are generally
unattended, can store large quantities of
oil and oil/water mixtures in a variety
of containers that may have large
capacities. These factors, as well as
others, highlight the hazard potential
posed by these operations (see
Considerations 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 this rulemaking (EPA–HQ–OPA–
2007–0584–0015)). Thus, based on this
hazard, and without sufficient rationale,
the Agency believes it inappropriate to
grant an outright exemption for such
stripper oil and natural gas wells from
the SPCC requirements. However, EPA
does agree that performance-based
requirements tailored to the unique
characteristics of marginal oil
production facilities are justified, as
EPA has described previously, which
the Agency believes will lead to the
prevention of oil spills.
7. Produced Water Containers
In the proposal for this rulemaking
(72 FR 58378, October 15, 2007), EPA
requested comment including
appropriate rationale, information, and
data, on three approaches related to
produced water containers. The first
approach required general secondary
containment combined with additional
requirements in lieu of sized secondary
containment. The second approach,
advanced by DOE, required inspection,
maintenance, and periodic oil skimming
of produced water containers in lieu of
both sized and general secondary
containment. Finally, comment was
requested on a third approach, again
advanced by DOE, that exempted
produced water treatment facilities
altogether.
Produced water containers are
typically located within a tank battery at
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an oil production facility 8 where they
are used to store well fluids that result
after marketable crude oil is separated
from fluids extracted from the reservoir
and prior to subsequent use (e.g., reinjection or beneficial reuse), further
treatment, or disposal. Under normal
operating conditions, a layer of oil may
be present on top of the fluids in these
containers. The amount of oil by volume
observed in produced water containers
varies, but based on EPA’s
understanding, is generally estimated to
range from less than one to up to ten
percent, and can be greater. However,
the Department of Energy (DOE) and the
oil production sector indicate that the
oil layer may be much less, depending
on the type of oil/water separation
technology used, if any. Many
commenters claim that the SPCC oil
spill prevention requirements are
inappropriately applied to produced
water containers, arguing that in certain
cases these containers hold mostly
water with very low concentrations of
oil or that produced water containers
should be exempt under the exemption
for wastewater treatment. EPA agrees
that the SPCC regulations should not
regulate the storage of oil if the
discharge of that oil is not prohibited
under section 311 of the Clean Water
Act. Section 311(b)(3) prohibits the
discharge of oil into or upon navigable
waters of the United States or adjoining
shorelines in such quantities as may be
harmful, as determined by the
President. That determination is made
in 40 CFR part 110. EPA does not agree
that produced water containers are
eligible for the wastewater treatment
exemption. However, the Agency
recognizes that, depending on the use,
some produced water containers may
serve as oil/water separators, rather than
bulk storage tanks, and such containers
should be regulated in a similar fashion
as other oil/water separators. To address
these concerns, EPA is providing an
exemption for certain produced water
containers holding oil that would not
violate section 311(b)(3) if discharged,
and a differentiated set of requirements
for other produced water containers at
oil production facilities that are used for
oil/water separation. EPA is also
promulgating a definition of produced
water container to clarify which
containers will be eligible for this rule
amendment. The Agency believes that
the approaches for produced water
containers promulgated in this rule
8 A wet gas facility that stores condensate and
meets the other SPCC qualifying criteria is
considered an oil production facility. Otherwise, a
wet gas facility falls outside the scope of the
Agency’s SPCC jurisdiction.
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amendment are a logical outgrowth of
the three approaches discussed in the
proposal and the comments received.
Specifically, EPA is finalizing two
approaches for produced water
containers at oil production facilities.
Under the first approach, EPA is
exempting produced water containers at
oil production facilities from the
requirements of the SPCC rule when a
PE certifies, as part of the SPCC Plan,
that based on the efficiency of the oil/
water separation technology used, the
contents of a produced water container,
if completely discharged, does not
contain oil in amounts that may be
harmful, as described in 40 CFR part
110; the capacity of the exempted
containers would not be counted in oil
storage capacity.
Under the second alternative, which
is drawn from two of the approaches
presented in the proposal, for those
produced water containers that cannot
meet the criterion for the exemption
under this rule, the facility owner/
operator has the option to apply general
secondary containment requirements
and conduct visual inspections,
maintenance and corrective action, in
lieu of sized secondary containment,
when a PE describes in the Plan and
certifies that a practice is established
that is designed to remove the amount
of free-phase oil from the produced
water container on a scheduled and
routine basis. These containers are
counted toward the aggregate storage
capacity. As described below, if the
production facility has certain types of
oil discharges or fails to meet the
requirements of this part of the rule, the
facility will no longer be eligible for the
exemption or the streamlined
requirements.
EPA is taking this action because the
Agency believes that there are
alternative options for produced water
containers that can provide the
regulated community compliance
flexibility while continuing to
effectively protect the environment from
discharges of quantities of oil that may
be harmful. The options the Agency is
providing for produced water containers
are based on the facility’s site-specific
characteristics, and an owner or
operator may still choose to comply
with the sized secondary containment
requirements of § 112.9(c)(2). For
example, if a produced water container
at an existing facility is already located
within sized secondary containment,
the owner/operator may elect to not
follow the alternative requirements in
§ 112.9(c)(6). The comments received on
the produced water options and the
Agency’s responses are located in
section V.M.7.e. below.
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a. Exemption for Produced Water
Containers
A new subsection at § 112.9(c)(6) has
been added to the rule to address the
streamlined requirements for produced
water containers. Paragraph
112.9(c)(6)(i) includes an exemption for
those produced water containers and
any associated piping and
appurtenances downstream of the
container that do not contain oil that
would cause harm as described in 40
CFR 110.3 if the contents of the
container are completely discharged.
EPA recognizes that some oil
production facilities may have (or may
want to install) separation equipment
that performs at a highly efficient rate.
In these cases, the contents of the
produced water containers downstream
of such separation equipment may not
contain oil in quantities that may cause
harm, as described in 40 CFR part 110.
Under 40 CFR part 110, a discharge of
oil in such quantities as ‘‘may be
harmful’’ is defined as one that may
violate applicable water quality
standards; or cause a film or sheen upon
or discoloration of the surface of the
water or adjoining shorelines; or cause
a sludge or emulsion to be deposited
beneath the surface of the navigable
water or upon adjoining shorelines. To
make this determination, the PE should
apply the same standard as is set forth
in 40 CFR 112.1, which allows the
owner or operator (and the PE) to
determine if a container could
reasonably be expected to discharge oil
in quantities that may be harmful as
described in part 110 into or upon
navigable waters. This determination is
made by reference to the volume of oil
reasonably expected to reach navigable
waters or adjoining shorelines, if the
entire contents of the container are
completely discharged, and not by
reference to the volume of oil in the
container.
EPA understands that meeting the
standard described above may require
oil/water separation equipment and/or
techniques such as hydrocyclones,
induced gas floatation, ultra-filtration,
and micro-filtration. Because of the
level of separation efficiency and
treatment required to meet the Part 110
standard, EPA believes that the
involvement of a PE is necessary.
Therefore, EPA is requiring owners/
operators who take advantage of this
exemption to have this part of their
SPCC Plan certified by a PE, even for a
qualified facility. EPA has amended the
PE attestation in § 112.3(d)(1) to add a
provision at (1)(vi) so that the PE
specifically certifies that exempted
produced water containers and any
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associated piping and appurtenances
downstream of the container (which
may include flowlines and other
appurtenances associated with injection
and discharge) meet the 40 CFR part 110
‘‘no harm’’ criterion and these
containers are identified in the Plan and
that appropriate produced water
characteristics in the container, piping
and appurtenances; procedures; or
maintenance required to meet the
standards of Part 110 are identified. The
PE must use his professional judgment
in applying the necessary procedures to
determine that the contents of the
container, if completely discharged, will
meet the ‘‘no harm’’ criteria of 40 CFR
part 110 and documents them in the
Plan. Additionally, in accordance with
§ 112.5, the owner or operator must
verify on an annual basis that the
produced water characteristics in the
container, piping and appurtenances;
procedures; or maintenance required to
meet the standards of Part 110 that
formed the basis for the PE certification
are maintained. The owner or operator
must document the verification and sign
a statement that the produced water
characteristics in the container,
procedures, or maintenance that formed
the basis for the PE certification are
maintained. The following words will
suffice, ‘‘I verify that the produced
water characteristics in the container,
and any associated piping and
appurtenances downstream from the
container; procedures; or maintenance
required to meet the standards of Part
110 are maintained in accordance with
the PE certification.’’ This rule text
provides an example of how the owner
or operator can document the required
annual verification for the exempt
produced water containers. The
verification must be maintained in
accordance with § 112.7(e).
If the facility experiences a discharge
from an exempt produced water
container or any associated piping and
appurtenances downstream from the
container in quantities that may be
harmful to navigable waters or adjoining
shorelines (as described in 40 CFR part
110) then the produced water container
is no longer exempt from the rule and
must comply with all provisions of the
SPCC rule within six months of the
discharge, including the sized
secondary containment requirements at
§ 112.9(c)(2). The final rule, as described
above, focuses on a ‘‘container’’ and
related to discharges under part 110.
Under the requirements of 40 CFR part
110, such a discharge must also be
reported to the National Response
Center (NRC) at 1–800–424–8802.
This exemption does not change the
current requirement for an owner/
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operator of a facility to mark the
location and contents of all containers,
including both exempt and non-exempt
produced water containers, on the
facility diagram. This requirement is
necessary not only to assist response
personnel in identifying hazards during
spill response activities, but also to
assist facility and Agency personnel in
determining whether the exemption
criteria are being met.
b. Alternative Option for Non-Exempt
Produced Water Containers
For those produced water containers
that do not meet the criteria for being
exempt as described above, the facility
owner/operator now has the option to
comply with an alternative set of
requirements in lieu of providing sized
secondary containment. This new
alternative compliance option, which is
drawn from two of the approaches
presented in the proposal, is provided
in paragraph § 112.9(c)(6)(ii) and is
described below.
The first approach described in the
proposal would allow the owner or
operator of a production facility to
comply with the general secondary
containment requirements along with
additional measures as an option in lieu
of sized secondary containment for
existing produced water containers.
Generally, the additional measures were
requirements for periodic inspections,
examination and integrity testing,
prompt removal of oil discharges and
corrective action. The second approach
described in the proposal would allow
the owner or operator of a production
facility to comply with additional
measures in lieu of both general and
sized secondary containment. Generally,
the additional measures under this
approach were visual inspection,
implementation of a skimming program,
prompt removal of oil discharges and
corrective action. In response to
comments, the Agency developed this
alternative compliance option which
includes (1) compliance with general
secondary containment requirements
along with additional measures and (2)
implementation of a procedure or
process to remove free-phase oil or
skimming program.
Specifically, the general secondary
containment requirement at § 112.7(c)
calls for secondary containment to be
designed to hold the most likely
quantity of oil potentially discharged in
an event, rather than installation of
sized secondary containment designed
to hold the contents of the largest
container with sufficient freeboard.
Typically, the quantity of oil contained
by general secondary containment is
expected to be smaller than the amount
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74287
of oil that would need to be contained
by sized secondary containment. EPA
believes that good general secondary
containment practices can be
successfully implemented if such
practices are designed by a PE in
consideration of the site specific factors
and in combination with additional oil
spill prevention practices including
inspections, procedures to minimize the
amount of free-phase oil in the
container and procedures to remove/
remediate discharged oil.
The piping and appurtenances
downstream of the produced water
containers addressed by this section are
also subject to the general secondary
containment requirements in § 112.7(c)
and are not subject to sized secondary
containment requirements. However,
the owner or operator of the facility may
choose to address the downstream
piping and appurtenances using the
optional approach offered under new
§ 112.9(d)(3). These provisions are noted
in the rule under § 112.9(c)(6)(ii)(A) for
clarity.
Procedure to separate free-phase oil.
Under this alternative, the facility
owner or operator must implement a
process and/or procedure for the
produced water container(s) that is
designed to remove free-phase oil that
accumulates on the surface of the
produced water container. EPA expects
this procedure or process will be
implemented on a periodic basis so that
the amount of free phase oil that collects
in these produced water containers is
within the amounts managed by the
general secondary containment scheme
designed by the PE and implemented by
the facility owner/operator. The SPCC
Plan must include a description of the
free-phase oil separation and removal
procedure or process, the frequency it is
implemented or operated, the amount of
free-phase oil expected to be maintained
inside the container, and a description
of the adequacy of the general secondary
containment approach for the produced
water container, including the
anticipated typical failure mode and the
method, design, and capacity for general
secondary containment. Additionally,
the owner or operator must keep records
of the implementation of these
procedures in accordance with
§ 112.7(e).
Like the amendment for exempt
produced water containers, EPA has
amended the PE attestation in
§ 112.3(d)(1) to add a provision at
(1)(vii) so that the PE specifically
certifies that an oil removal procedure
for non-exempt produced water
containers is designed according to good
engineering practice to reduce the
accumulation of free-phase oil, and that
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the procedures and frequency for
required inspections, maintenance and
testing have been established.
Because this removal procedure is
essential for reducing the amount of
free-phase oil in the produced water
tank, EPA requires that if, upon
inspection, it is discovered that the
removal procedure is not implemented,
then the facility owner/operator may no
longer take advantage of this alternative
option and must comply with the sized
secondary containment requirements at
§ 112.9(c)(2) within six months after
EPA informs the facility owner/operator
of this determination of ineligibility for
the option.
Additional requirements. EPA
believes that the combination of general
secondary containment, a free-phase oil
removal methodology as certified by a
PE, and the additional requirements
listed below provide the appropriate
amount of environmental protection for
these containers in lieu of sized
secondary containment. The additional
requirements include periodic
inspection and/or testing of produced
water containers and any associated
piping and appurtenances downstream
from the container for leaks, corrosion,
or other conditions that could lead to a
discharge as described in § 112.1(b);
corrective action or repairs to produced
water containers and any associated
piping as indicated by regularly
scheduled visual inspections, tests, or
evidence of an oil discharge; and
prompt removal or initiation of actions
to stabilize and remediate any
accumulations of oil discharges
associated with produced water
containers.
Periodic inspection and/or testing of
produced water containers and any
associated piping and appurtenances
downstream from the container is
necessary to increase the likelihood that
a discharge will be prevented or
detected promptly when general
secondary containment measures are
used instead of sized secondary
containment.
Corrective action is necessary to
prevent a discharge from occurring, as
well as in response to a discharge. This
measure is intended to prevent
discharges by ensuring that produced
water containers are adequately
maintained.
The requirement to promptly remove
or initiate actions to stabilize or
remediate any accumulations of oil
discharges is intended to ensure the
removal of oil accumulations around the
container and any associated piping and
appurtenances downstream from the
container that may contribute to a
discharge as described in § 112.1(b).
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EPA also considers the removal of oilcontaminated soil as a method to
prevent oil from becoming a discharge
as described in § 112.1(b). Disposal of
oil and/or oil-contaminated media must
be in accordance with applicable
Federal, state, and local requirements.
The intent of these regulatory
revisions is to treat produced water
containers used for oil/water separation
in a manner similar to that of a separator
or flow-through process vessel, such as
a heater-treater, free water knock-out, or
gun barrel, because these produced
water containers are being used for the
same purpose. Use for oil/water
separation is the basis for the
differentiated treatment of flow-through
process vessels as discussed in section
V.M.5 above. Accordingly, these
requirements are similar to those found
at § 112.8(c)(5) for flow-through process
vessels.
Reportable discharge. If the facility
experiences a discharge of 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), occurring within
any twelve month period (excluding
discharges that are the result of natural
disasters, acts of war, or terrorism) from
a non-exempt produced water container,
then the facility owner/operator may no
longer take advantage of this alternative
option and must comply with the sized
secondary containment requirements at
§ 112.9(c)(2) and the inspection
requirements at § 112.9(c)(3) within six
months. Section 112.9(c)(6)(ii)(E) has
been added to provide this requirement.
A non-exempt produced water container
must already comply with § 112.9(c)(1)
and § 112.9(c)(4) and therefore these
requirements were not added to
§ 112.9(c)(6)(ii)(E).
c. Definition of Produced Water
Container
A production facility typically
includes, at a minimum, a wellhead, a
tank battery, and flowlines connecting
the wellhead to the tank battery. The
tank battery includes separation
equipment, a crude oil or condensate
container (stock oil tank), and typically
a produced water container, which
receives both oil and produced water
from the separator, respectively.
Produced water containers are typically
located within the tank battery.
Produced water containers are located
at a facility as part of the process that
separates the oil from other fractions
(water and/or gas). A produced water
container is generally the last container
in the separation process, as there may
be more than one separator (e.g., heater-
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treater, gun barrel, free water knock-out)
used in succession or in combination to
separate the oil/water fraction.
To clarify which containers are
subject to the requirements of
§ 112.9(c)(6), EPA provides a definition
of a produced water container in
§ 112.2. EPA did not propose a
definition for produced water containers
in October 2007, but EPA believes that
the definition promulgated in this
notice is a logical outgrowth of the
proposal. In the October 2007 proposal,
EPA described produced water
containers as bulk storage containers
‘‘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 reuse), further treatment, or
disposal.’’ 72 FR 58413. EPA asked for
and received comments on the
characteristics of produced water
containers (72 FR 58414) and crafted a
definition to establish the specific
containers eligible for this exemption
consistent with the description in the
proposal. A produced water container is
a bulk storage container at an oil
production facility used to store the
produced water after initial oil/water
separation, and prior to reinjection,
beneficial reuse, discharge, or transfer
for disposal. Piping and appurtenances
downstream of the produced water
container may include flowlines and
other appurtenances associated with
injection and discharge.
d. Overlap Between Produced Water
Container Alternatives and Qualified
Facilities
Some production facilities with
produced water containers will meet the
eligibility criteria for qualified facilities,
under the previous eligibility criteria
(see 71 FR 77266, December 26, 2006)
or the additional criteria finalized in
this notice exclusively for oil
production facilities. EPA notes that
both of the optional alternatives for a
produced water container finalized in
this notice (the exemption or the
alternative requirements in lieu of sized
secondary containment) require PE
certification and are not amendments
which can be self-certified. Therefore, if
the owner or operator of an oil
production facility qualifies as a Tier II
qualified facility, and wants to selfcertify his Plan and use one of the
alternative approaches for produced
water containers (exempt a produced
water container or take advantage of the
alternative requirements in
§ 112.9(c)(6)), then he must use a
‘‘hybrid’’ SPCC Plan. Sections of the
Plan satisfying the produced water
container requirements of § 112.9(c)(6)
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must be certified by a PE, who
completes the attestation in
§ 112.3(d)(1)(vi) and/or (vii). Section
112.6(b)(4)(ii) has been modified to
emphasize this point. An owner or
operator of an oil production facility
which qualifies as a Tier I qualified
facility may not use the self-certified
SPCC Plan template found in Appendix
G to 40 CFR part 112 if he wishes to
exempt a produced water container or
take advantage of the alternative
requirements in § 112.9(c)(6), because
the exemption or alternative
requirements for produced water
containers require PE certification and
the template is for self-certification
only.
In addition, the exemption for
produced water containers meeting the
criteria under § 112.9(c)(6)(i) can affect
the applicability of the alternative
qualified facility eligibility criteria for
oil production facilities under
§ 112.3(g)(2)(ii). Under that section, an
oil production facility with injection
wells does not meet the alternative
definition of qualified facility. However,
if the injection well is to inject fluids
from a container that is exempt under
§ 112.9(c)(6)(i), the presence of that
injection well does not make the facility
ineligible for regulation as a qualified
facility under § 112.3(g)(2)(ii).
Comments. Many commenters
expressed support for exempting
produced water containers from the
secondary containment requirements,
SPCC regulation and/or an exemption
for produced water treatment facilities.
Some commenters suggested that the
produced water containers at these
facilities be subject to the wastewater
treatment exemption. Other commenters
suggested exempting produced water
containers according to their location,
upstream or downstream of separation,
because the amount of oil remaining in
the water after primary separation and
treatment is minimal. In fact, several
commenters indicated that EPA has
authority to regulate discharges of oil,
not water. Additionally, one commenter
specifically noted that for older oil
fields, produced water comprises a large
amount of water or brine with extremely
low oil content, ‘‘perhaps 0.1% or less.’’
One commenter claimed that produced
water containers always have a layer of
oil. Another commenter urged EPA to
allow the certifying engineer to make
the determination whether a given
produced water tank or oil/water
separator should have secondary
containment, rather than including
tanks that may or may not include
measurable amounts of oil. Several
commenters suggested produced water
located at oil and gas facilities should be
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subject to the wastewater treatment
exemption.
Two commenters suggested using
‘‘primary separation’’ as the difference
between upstream and downstream
production, while two other
commenters noted it should be ‘‘after
the last separation.’’ Two other
commenters noted that if the facility is
relying on gravity separation, the
atmospheric storage tank should be
considered bulk storage.
Several commenters suggested that
discharges are already regulated by state
law, the National Pollutant Discharge
Elimination System (NPDES) program,
or the Safe Drinking Water Underground
Injection Control (UIC). DOE cited
published information used to establish
national effluent limitations for coastal
oil and gas production facilities,
discussed the efficiency of control and
treatment technologies and found that
numerous end-of-the-pipe treatment
methods can achieve this level of
effluent quality. One commenter
suggested exempting NPDES-permitted
ponds from storage capacity calculation
for SPCC and FRP applicability due to
their very low oil content.
Several other commenters addressed
the proposed approach for additional
requirements for produced water
containers in lieu of sized secondary
containment. One commenter supported
the inspection, maintenance and
periodic skimming proposed approach
as a second option to an exemption. One
commenter stated that field operators
maintain a constant watch over the
amount of oil carryover to the produced
water tanks and when the oil layer
reaches the point of being recoverable,
the oil is skimmed and pumped. One
commenter suggested ensuring that
integrity testing is not required for
produced water containers, because
integrity testing of the typically closedtop fiberglass would be problematic,
expensive, and difficult. However, other
commenters opposed reduced
requirements for produced water
containers and expressed concerns
about the potential for harmful
discharges.
Response. After evaluating the
comments received, EPA is modifying
the requirements at § 112.9(c) to exempt
produced water containers that meet
certain conditions, and to allow an
alternative management scheme (which
is optional) for produced water
containers that are used for oil/water
separation in lieu of sized secondary
containment. In deciding how to
proceed, EPA acknowledges that the
amount of oil by volume observed in
produced water storage containers
varies depending on a number of
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factors, including, but not limited to,
separator efficiency, age and formation
of the oilfield, and use of heat or
chemical separation. EPA agrees with
commenters that after separation, the
amount of oil remaining in produced
water can be minimal given the
characteristics of the oilfield and
facility/separator configuration.
Therefore, EPA agrees with commenters
that certain produced water containers
with minimal amounts of oil may be
eligible for exemption, and that certain
produced water containers that are used
for oil/water separation should be
subject to differentiated requirements;
EPA is allowing a PE to make the
determination whether a given
produced water container should be
eligible for an exemption from the rule
or for alternative requirements as
described in § 112.9(c)(6)(ii). EPA
believes the exemption criteria
(certification by the PE that no discharge
from the produced water container,
including a complete loss of the
capacity of the container, could cause a
discharge in quantities that may be
harmful as described in part 110)
addresses the commenters’ concerns
about regulating produced water
containers that do not contain oil in
harmful quantities. Further, EPA
believes the approach for non-exempt
containers, featuring differentiated
requirements and general secondary
containment, provides appropriate
regulatory requirements for these
produced water containers.
The Agency does not agree, however,
with commenters that produced water
located at oil and gas facilities should be
subject to the wastewater treatment
exemption. The basis for the conditional
exemption in these finalized
amendments is whether oil is present in
quantities that may be harmful. As
stated in the preamble to the 2002
amendments to the SPCC rule, the goal
of an oil production, recovery or
recycling facility is to maximize the
production and recovery of oil, which
presumes that oil is present in
quantities that may be harmful (67 FR
47068, July 17, 2002).
EPA has created a new section that
describes alternative requirements for
produced water containers
(§ 112.9(c)(6)) in lieu of the sized
secondary containment requirements of
§ 112.9(c)(2) and inspection
requirements under § 112.9(c)(3).
Produced water containers are typically
found after the primary separation
conducted by flow-through process
vessels at an oil production facility. In
order to address commenters who
suggested using the term ‘‘primary
separation,’’ the Agency has indicated
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in the definition for produced water
container that the container is used to
store produced water after ‘‘initial’’ oil/
water separation. The Agency agrees
that produced water containers,
including those used to separate oil
from water by means of gravity
separation, are bulk storage containers,
and are therefore subject to
requirements under § 112.9(c),
including those specifically for
produced water containers under
paragraph (c)(6) of that section.
EPA agrees with commenters that oil
production facilities may be regulated
under the NPDES, UIC, other Federal
regulations, and state regulations.
However, the Agency’s review of the
scope of these programs and regulations
indicates that these regulations do not
necessarily provide an equivalent level
of protection from accidental and
incidental discharges of harmful
quantities of oil to those required under
the national SPCC requirements.
Therefore these programs cannot serve
solely as a substitute for an SPCC Plan
at a facility. EPA acknowledges that
onshore oil production facilities may
discharge directly to surface waters
pursuant to an NPDES permit and that
technology-based discharge standards
(effluent guidelines) for onshore
produced water is ‘‘zero discharge’’
(with two exceptions: Produced water
generated west of the 98th meridian that
is put to beneficial use during the
period of discharge (set to 35 mg/L), and
stripper wells). An NPDES permit
typically includes the guideline that the
discharge ‘‘shall be free from substances
in amounts which would cause a visible
sheen or visible deposits in the
receiving water or adjoining shoreline.’’
Because these permitted facilities are
required to eliminate harmful quantities
of oil in produced water, a produced
water container at the facility may be
eligible for the exemption finalized in
this notice. Additionally, the NPDES
requirements may be used by a PE to
address the certification elements
(produced water characteristics in the
container and any associated piping and
appurtenances downstream of the
container, procedures or maintenance)
required for the exemption.9
The Agency is finalizing an
alternative to sized secondary
containment requirements for a
produced water container that does not
meet the conditional exemption criteria
described above. The alternate
9 As noted above, because the definition of
discharge under section 311(a)(2) excludes
discharges subject to an NPDES permit, SPCC
regulations promulgated under section 311(j) do
not, and are not intended to, prevent such
discharges.
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requirements finalized in this action
take into consideration the commenters
suggestions regarding the proposed
alternatives. The finalized set of
requirements include: Implementation
of a procedure designed to separate the
free-phase oil that may accumulate on
the surface of the produced water,
inspection or testing of the produced
water container and components,
prompt removal of or initiation of
actions to contain and stabilize any oil
accumulations, and corrective action
should a discharge occur. The Agency
did not include integrity testing in the
finalized set of additional requirements.
Produced water containers used
specifically for oil/water separation
serve the same purpose as separators or
flow-through process vessel and thus,
EPA is applying similar requirements to
these containers.
EPA also agrees with the comment
that when an oil layer in a produced
water container becomes recoverable,
the oil is typically skimmed and
pumped. Consequently, EPA’s final rule
requiring removal and reduction of freephase oil from the produced water
container is consistent with industry
practice. Whatever procedure is used
must be developed by a PE, described in
the Plan, and implemented by the
owner or operator to reduce the amount
of free-phase oil which may accumulate.
Records of implementation of these
procedures must be maintained in
accordance with § 112.7(e).
8. Clarification of the Definition of
Permanently Closed Containers
The Agency is addressing concerns
expressed by the regulated community
over the requirements for permanently
closing a container, as described in the
definition of ‘‘permanently closed’’ at
§ 112.2. EPA does not believe that
further regulatory action is needed to
address this issue. Specifically, the
SPCC rule exempts from applicability
and from capacity threshold
determinations any oil storage container
that is ‘‘permanently closed.’’ 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. The definition
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does not require that a permanently
closed container be removed from the
facility. In addition, any new container
brought on to a facility that has never
stored oil is not subject to the SPCC
rule, nor is it counted toward the facility
capacity until it stores oil. Furthermore,
any other container that at one time
stored oil but no longer contains oil or
sludge, which is brought on to a facility
and meets the definition of permanently
closed, is not subject to the SPCC rule
nor is it counted toward the facility
capacity until it stores oil.
EPA also is clarifying that the
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., 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 264 and 265.
These regulations describe the
requirements for operators of facilities
that use tank systems for storing or
treating hazardous waste, as well as the
requirements for tank closure and postclosure care (§§ 264.197 and 265.197).
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).
40 CFR 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
265 of RCRA, because these wastes (i.e.
drilling fluids, produced waters, and
other wastes associated with the
exploration, development, or
production of crude oil) are not subject
to these regulations.
Comments. Two commenters
expressed support for EPA’s proposed
clarification that permanently closed
containers need neither be removed
from the facility nor be rendered
permanently out of use in the future.
One commenter suggested additional
clarification stating that permanently
sealed, unused oil containers can
remain on-site at the facility with a
minimum of cleaning and preparation.
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Another commenter expressed concern,
however, that the cost of closing a
container would be prohibitive, and
suggested it may cause premature
abandonment of the operation. The
commenter suggested that requiring a
container to be cleaned is not necessary
since the container would remain
within the diked area.
Several commenters provided other
suggested options. One commenter
suggested that EPA clarify that sealing
an empty container removes the
container from being part of the
production facility according to the
definition of production facility.
Agricultural stakeholders suggested that
EPA modify its position on permanently
closed containers so that a container
removed from service can be placed
back into service with minimal
operational effort so that farmers and
agribusiness can acquire storage
capacity flexibility in response to
variable production rates and economic
conditions. One commenter suggested
that small containers with a capacity
between 500 and 1,500 gallons used for
fueling and maintenance be allowed to
be temporarily closed and exempt from
the SPCC requirements when closed.
Response to comments. The Agency
recognizes that variable economic
conditions and production rates at an
oil production facility may cause certain
containers to be unused for long periods
of time. However, EPA does not believe
that it is appropriate to exempt
containers from the SPCC requirements
without requiring that all liquid and
sludge be removed, even if the container
remains in an area that is diked and it
is for a temporary period of time. A
‘‘temporary closure’’ would be intended
for situations where containers would
only be closed for short periods of time,
and arguably need less stringent
requirements than a permanent closure.
The significant difference in closure
requirements between EPA’s current
‘‘permanent’’ closure requirements and
the suggested ‘‘temporary’’ closure
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, creates the
potential for a discharge, regardless of
the size of the container. One
commenter suggested that such
containers would remain in the diked
area and thus, the potential for oil to be
discharged would be minimal. However,
if a container was no longer subject to
the SPCC rule, there would be no
requirement that it be contained in a
diked area or that any precautions be
taken to prevent the discharge of oil to
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navigable waters or adjoining
shorelines. Finally, EPA believes that
the permanent closure provisions
require actions that render the container
unavailable for oil storage, by requiring
that all connecting lines and piping
must be disconnected from the
container and blanked off, and that all
valves (except ventilation valves) must
be closed and locked, thus preventing
accidental spills where the container is
inadvertently filled with oil. These
provisions also serve as a clear indicator
as to the status of a container and
whether it is considered a regulated
container under this rule and part of the
storage capacity of the facility. EPA
believes that these requirements are
reasonable and provide the flexibility of
allowing the container to remain on site
for future use. EPA does not agree that
cleaning a tank is cost-prohibitive and
may shut in wells prematurely. The
decision to clean and close a container
in accordance with the SPCC provision
is typically made by an owner or
operator who can determine whether it
is cost-effective to close the tank or to
let it remain in service and not incur the
costs associated with closure, including
cleaning.
The Agency also disagrees with the
comments suggesting that an owner or
operator need only ‘‘seal’’ a tank
without requiring that all liquid and
sludge be removed in an effort not to be
subject to the SPCC rule. For a container
to be considered permanently closed at
an oil production facility, as well as at
any other SPCC-regulated facility, 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 (such as secondary
containment).
EPA reiterates the statement it made
in the preamble to the July 2002
amendments 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 with sludge or residues of
product, which could be discharged.
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74291
Discharges from these facilities could
cause severe environmental damage
during such temporary storage and are
therefore subject to the rule’’ (67 FR
47059, July 17, 2002).
Finally, as noted previously, the
definition of ‘‘permanently closed’’ does
not require that a container be removed
from the facility; permanently closed
containers may be brought back into use
as needed for variations in production
rates and economic conditions.
However, a facility owner or operator
should review state and local
regulations, which may have additional
requirements when the container is
brought back into service.
9. Oil and Natural Gas Pipeline
Facilities
EPA’s current SPCC rules exempt
‘‘equipment, or operation of a vessel or
transportation-related onshore or
offshore facility’’ that is subject to DOT
authority under the November 24, 1971
EPA–DOT MOU (1971 MOU; Appendix
A of 40 CFR part 112). The 1971 MOU
memorialized the agencies’ intent to
minimize overlapping regulation by
‘‘assign[ing] one agency the
responsibility for regulating a complete
operation at any one facility.’’ The final
rule makes no change in these
provisions and is not otherwise
intended to impose new requirements
on DOT-regulated oil and natural gas
pipelines. Rather, by granting operators
new flexibility in delineating facility
boundaries, the final rule should reduce
uncertainty and minimize, if not
eliminate, overlapping enforcement. To
the same ends, as EPA stated in the
NPRM, EPA and DOT have committed
to realize the goal of the 1971 MOU to
more clearly define the jurisdictional
scope of the SPCC requirements over oil
and gas related infrastructure.
Comments. Several commenters
expressed support for EPA and DOT in
committing to a revision of the 1971
MOU, noting that a guideline
memorandum issued by EPA and DOT
in 2000 failed to achieve its intended
purpose and has created confusion
concerning the application of SPCC
requirements to breakout tanks that are
subject to DOT’s pipeline safety
regulation (49 CFR part 195). These
commenters urged EPA and DOT to
withdraw or modify the 2000
memorandum and develop additional
guidance, with industry input, for
eliminating dual regulation of pipeline
systems. Commenters representing
natural gas pipeline operators urged
EPA and DOT to designate the specific
equipment and appurtenances that are
part of natural gas pipeline systems
subject to the SPCC exemption in 40
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CFR 112.1. Other commenters suggested
that EPA specifically include an
exemption for dry gas production
facilities in the rule language to prevent
any difference in regional interpretation.
Still other commenters suggested that
EPA determine Agency jurisdiction
according to the primary function of the
facility: one commenter suggested that
DOT should exert sole jurisdiction over
facilities that primarily provide
breakout or pipeline terminus tankage,
and another commenter suggested that
the percentage of throughput by a
particular mode can be used to delineate
jurisdiction. Finally, other commenters
suggested that the jurisdiction for all
gathering lines should be under the sole
jurisdiction of DOT, as these gathering
pipelines would include both pipelines
transporting product from a production
facility, as well as pipelines gathering
production from satellite storage
locations to a central storage location.
Response to comments. The Agency
has consulted with DOT in the
development of this rulemaking, and
will continue these consultations to
address the EPA/DOT jurisdictional
issues. EPA and DOT will revise the
2000 guidance memorandum,
acknowledging that it has not provided
a clear basis for implementing the 1971
MOU or delineating EPA and DOT
jurisdiction. The agencies, as part of that
effort, are evaluating the viability of a
‘‘primary function’’ approach described
by commenters. EPA will continue work
to improve guidance for pipeline
operators and will communicate the
results of discussions in a manner that
affords public comment.
With respect to a ‘dry gas production
facility,’ the Agency maintains its
position that a dry gas production
facility is not an oil production, oil
recovery, or oil recycling facility, as
described in the clarification published
May 25, 2004 in the Federal Register
notice (69 FR 29728) regarding the
applicability of the wastewater
treatment exemption to dry gas
facilities. In that notice, EPA stated, ‘‘A
dry gas production facility is a facility
that produces natural gas from a well (or
wells) from which it does not also
produce condensate or crude oil that
can be drawn off the tanks, containers
or other production equipment at the
facility. As discussed in the preamble to
the July 2002 rulemaking, ‘the goal of an
oil production, oil recovery, or oil
recycling facility is to maximize the
production or recovery of oil. * * *’ 67
FR 47068. A dry gas facility does not
meet this description.’’ As such, dry gas
facilities as defined here are not subject
to the SPCC requirements and therefore,
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do not need to be addressed in the EPA/
DOT MOU.
EPA disagrees with commenters that
all gathering lines should be under the
jurisdiction of DOT. As explained
elsewhere in this notice (see discussion
on flowlines and intra-facility gathering
lines), EPA will continue to regulate
only those intra-facility gathering lines
not subject to DOT regulation. EPA is
also finalizing an exemption to address
the concern of commenters regarding
dual regulatory requirements for these
piping systems.
N. Man-made Structures
The preamble to the October 2007
notice of proposed rulemaking (72 FR
58378, October 15, 2007) addressed the
consideration of man-made structures in
determining the SPCC rule’s
applicability. Consistent with
statements made in the preamble to a
1976 amendment to the rule (41 FR
34164, December 11, 1976), EPA
maintains that man-made features, such
as drainage control structures and dikes,
are not to be used to conclude that there
is no reasonable expectation that a
discharge from the facility will reach
navigable waters or adjoining
shorelines. If there is a reasonable
expectation that a discharge from the
facility would reach navigable waters or
adjoining shorelines in the absence of
such containment or other structures,
the facility is subject to the SPCC
requirements. Secondary containment is
required as part of an SPCC Plan and
man-made structures, such as dikes,
berms and retaining walls are often used
to meet this planning requirement.
However, unless properly implemented
and maintained (as required by the
SPCC rule), man-made structures may
fail, thus putting the environment at risk
in the event of a discharge. Therefore, it
would defeat the preventative purpose
of the rule to consider these structures
(i.e., those required by the regulation)
when determining applicability of the
rule to a facility.
Nevertheless, EPA believes that it is
appropriate for a facility owner or
operator to consider man-made
structures (for example, dikes,
equipment, buildings, basements or
other containment structures) to
determine how to comply with the
SPCC rule. More specifically, if an oil
storage container at a regulated facility
is located inside a building, the PE or
facility owner or operator self-certifying
the SPCC Plan may take into
consideration the ability of the building
walls and/or drainage systems to serve
as secondary containment for the
container. Furthermore, if, at a regulated
facility, indoor conditions are such that
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they reduce external corrosion and
potential for discharges, these operating
conditions may be considered in the
development of a site-specific container
integrity inspection program. Given the
clarifications provided in the preamble
discussion of the proposal, EPA does
not believe that further regulatory action
is needed to address this issue.
1. Comments
Many commenters expressed general
support for the clarifications on manmade structures related to secondary
containment and integrity testing. One
commenter, however, requested
additional discussion and clarification
on ‘‘locationally exempt facilities,’’ that
is, facilities that may not be subject to
the SPCC regulations because of their
low likelihood of discharge to navigable
waters or adjoining shorelines. The
commenter recommended that
consideration of man-made features that
predate construction of an otherwise
regulated facility should be allowed for
a locational exemption.
Other commenters, however, did not
believe that EPA’s clarification goes far
enough and requested specific
exemptions based on EPA’s reasoning
regarding the potential ability for
building features to serve as secondary
containment. Thus, these commenters
recommended exempting certain oil
storage units located wholly within
buildings, such as containers storing
hydraulic oil for an elevator, emergency
generators with a day tank, or
machining coolant systems. Finally, one
commenter recommended clarifying text
in § 112.1(d)(1)(i) to ‘‘allow
consideration of such man-made
features when conducting a reasonable
expectation to discharge
determination.’’
2. Response to Comments
With regard to the commenter
requesting clarification on ‘‘locationally
exempt facilities,’’ in 1976, EPA
amended the SPCC rule to clarify that
when determining applicability of the
rule to a facility, consideration must be
based solely upon the geographical
aspects of the facility, and that
consideration of man-made 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)
should not be considered. When an
owner or operator determines that the
facility could not reasonably be
expected to discharge oil in quantities
that may be harmful to navigable waters
or adjoining shorelines based upon
geographic and locational aspects of the
facility, then no SPCC Plan is required,
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such as when a facility is located in a
topographic low area or on flat land far
from navigable waters or adjoining
shorelines.
EPA disagrees with those commenters
requesting an exemption for oil-filled
equipment or other oil storage
containers located inside buildings.
That is, the requirements apply to all
containers, unless otherwise specifically
exempted, whether they are located
inside or outside a building. Thus, EPA
does not agree that text be included in
§ 112.1(d)(1)(i) to allow the
consideration of man-made features
when conducting a reasonable
expectation to discharge because, as
discussed above, the rule already allows
the facility owner or operator to
consider geographical and locational
aspects of the facility (such as proximity
to navigable waters or adjoining
shorelines, land contour, drainage, etc.)
in the determination. However, the
SPCC Plan preparer may consider
whether the building design provides
adequate secondary containment to
meet the general secondary containment
requirements under § 112.7 for oil
storage containers located indoors at a
regulated facility. The owner or operator
of a facility with oil-filled equipment
may also be eligible for alternative
compliance measures under § 112.7(k)
for qualified oil-filled operational
equipment if it meets the criteria in
§ 112.7(k)(1).
O. Underground Emergency Diesel
Generator Tanks at Nuclear Power
Stations
Under this final action, EPA is
exempting underground oil storage
tanks deferred under 40 CFR part 280,
as originally promulgated, that supply
emergency diesel generators at nuclear
power generation facilities licensed by
Nuclear Regulatory Commission (NRC)
and that meet the NRC design criteria
and quality assurance criteria. This
exemption includes both tanks that are
completely buried and tanks that are
below-grade and vaulted. An
underground storage tank or UST is
defined in 40 CFR part 280 as ‘‘any one
or combination of tanks * * * the
volume of which is 10 percent or more
beneath the surface of the ground.’’
Below-grade vaulted tanks and
completely buried tanks that serve as
underground emergency diesel
generator tanks at nuclear power plants
fall within this definition. Part 280 also
states that a ‘‘storage tank situated in an
underground area (such as a basement,
cellar, mineworking, drift, shaft, or
tunnel) if the storage tank is situated
upon or above the surface of the floor’’
is not an UST. Under the NRC
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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 (such as 10 CFR part
50, Appendix A). These NRC design
criteria cover the design, fabrication,
installation, testing and operation of
structures, systems, and components
important to safety. Future construction
permits and operating licenses for
nuclear power stations may be issued
per 10 CFR part 52, Early Site Permits;
Standard Design Certifications; and
Combined Licenses for Nuclear Power
Plants. 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. 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.
EPA notes that nuclear power plants
have unique characteristics that
differentiate them from other types of
SPCC-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
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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 at nuclear power
plants. EPA is, therefore, exempting
underground oil storage tanks deferred
under 40 CFR part 280 that supply
emergency diesel generators at licensed
NRC nuclear power generation facilities
and that are subject to design criteria
and quality assurance criteria under the
NRC regulations. Below-grade vaulted
tanks and completely buried tanks that
serve as underground emergency diesel
generator tanks at nuclear power plants
fall within this exemption. This is
consistent with 40 CFR 280.10(c)(3)
which indicates that ‘‘Any UST system
that is part of an emergency generator
system at nuclear power generation
facilities regulated by the Nuclear
Regulatory Commission under 10 CFR
part 50, appendix A’’ is deferred from
regulation under certain parts of part
280. Note also that due to this
exemption, these tanks are no longer
counted toward the aggregate oil storage
capacity under § 112.1(d)(2)(i).
1. Comments
Many commenters expressed general
support for the amendments. One
commenter specifically supports the
revision in order to avoid dual
regulation by EPA and NRC. Some
commenters, however, expressed
concern that EPA’s proposed language
was too narrow, because NRC’s
licensing program does not only
regulate tanks under 10 CFR part 50;
new facilities’ tanks are likely to fall
under the alternate regulation of 10 CFR
part 52, and some older facilities might
not be regulated by Appendix A or B of
10 CFR part 50. One commenter
suggested that EPA remove the specific
reference to the text of 10 CFR part 50,
replacing with more general language.
Some commenters also suggested that
vaulted tanks, which are usually
aboveground or in a below-grade
structural vault, should be exempted
because of the impracticability of
inspecting those tanks. One commenter
suggested that EPA can use the phrase
‘‘completely below-grade tank’’ in
§ 112.1(d)(2)(i) and (d)(4) to identify the
exempted tank universe as including
below-grade vaults.
2. Response to Comments
EPA proposed language (72 FR 58378,
October 15, 2007) to exempt completely
buried tanks at a nuclear power
generation facility that meet the NRC
design criteria specifically at 10 CFR
part 50, Appendices A and B. The
Agency agrees with those commenters
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that suggested this language is too
limiting, and that because of this narrow
reference to specific regulatory citation,
grandfathered and/or newly constructed
tanks at nuclear power generation
facilities that are licensed by the NRC
may not be eligible for the exemption
under the SPCC rule. The language may
also cause future confusion if NRC
restructures its requirements or imposes
new ones; the narrow reference may
render this amended language obsolete.
Therefore, EPA has modified the final
rule language to address these concerns
by not including references to 10 CFR
Part 50. This will avoid future
amendments to the SPCC rule in the
event that NRC modifies the specific
regulatory citations regarding design
and/or operating requirements for
completely buried tanks.
EPA agrees with the commenters who
argued that the exemption should be
extended to below-grade, vaulted tanks
that do not meet the definition of a
completely buried tank as defined in
§ 112.2. Commenters argue that there is
insufficient space for physical
inspection of the emergency diesel
generator tanks at nuclear power plants
that are located in below-grade
structural vaults. EPA however,
disagrees that all below-grade, vaulted
tanks should be included in the
exemption because some of these tanks
can be physically inspected. In those
cases, an inspector can routinely walk
into the room and view the sides of the
tank, while in other cases, the design of
the vault is such that the space between
the vault and the tank makes it
impractical for an inspector to enter the
confined space surrounding the tank on
a routine basis. Therefore, EPA is
extending the exemption to these belowgrade, vaulted tanks that do not provide
enough space for physical inspection.
By way of background, 40 CFR part
280.12 defines an ‘‘underground area’’
as ‘‘an underground room, such as a
basement, cellar, shaft or vault,
providing enough space for physical
inspection of the exterior of the tank
situated on or above the surface of the
floor.’’ Thus, where there is insufficient
space for physical inspection, tanks
have been removed from UST
regulation. Therefore, EPA is basing the
exemption on the definition of an UST
under part 280, which encompasses
below-grade, vaulted tanks that cannot
be physically inspected.
P. Wind Turbines
The Agency was requested to address
the applicability of the SPCC rule to
wind turbines used to produce
electricity. As discussed in the October
2007 notice of proposed rulemaking (72
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FR 58378, October 15, 2007), the
Agency believes that wind turbines
meet the definition of oil-filled
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, to
the extent that the wind turbines meet
the oil storage capacity threshold in the
rule. 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 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.
1. Comments
Several commenters agreed that the
discussion in EPA’s proposal added
sufficient clarity on the applicability of
the SPCC rule to wind turbines. One
commenter also suggested that the
discussion about turbines with gearbox
capacities of 55 gallons or more meeting
the definition of oil-filled equipment be
included in EPA’s SPCC Guidance for
Regional Inspectors. Finally, one
commenter considers a wind farm a
facility and, asserted that because the
total oil stored in the turbine gear cases
plus the lubricant replacement storage
may exceed the 1,320-gallon threshold,
a full SPCC Plan should be required.
2. Response to Comments
The Agency agrees with those
commenters who supported EPA’s
clarification on the applicability of the
SPCC requirements to wind turbines. In
addition, EPA will update the SPCC
Guidance for Regional Inspectors to
reflect the clarifications regarding the
applicability of the SPCC rule to wind
turbines that were discussed in the
preamble to the proposed rule
amendments (72 FR 58378, October 15,
2007). In response to the commenter
who requested clarity on whether a
wind farm is a facility, the owner or
operator should refer to the definition of
‘‘facility’’ at § 112.2, to determine how
to aggregate or disaggregate groups of
turbines in order to define the
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boundaries of his facility (or facilities).
A wind farm facility that meets the
rule’s oil storage capacity threshold and,
due to its location, could reasonably be
expected to have a discharge to
navigable waters or adjoining
shorelines, is subject to the SPCC rule
and must prepare and implement an
SPCC Plan. The clarification provided
in this notice does not affect the
applicability of the rule to wind farm
facilities, but explains how wind
turbines are considered under the rule
and what provisions may apply to this
type of equipment.
Q. Technical Corrections
EPA is finalizing 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 or operator 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 is 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 or adjoining shorelines.
EPA also is finalizing 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 40
CFR part 112 by removing several
sections because they were not
appropriate for AFVOs. 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
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corresponding phrase from the
introductory paragraph of the section.
EPA is correcting this inadvertent
omission. Finally, the Agency is
amending the regulation to include
‘‘U.S.’’ before gallons in several places,
to indicate that the Agency means the
U.S. gallon unit of measure and not the
Imperial unit of measure.
1. Comments
One commenter expressed support for
the technical corrections. Another
commenter specifically supported the
technical correction to § 112.12.
2. Response to comments
The Agency agrees with the need for
these technical corrections and is
finalizing them in this rulemaking.
VI. Statutory and Executive Order
Reviews
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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’s
recommendations have been
documented in the docket for this
rulemaking. 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 Final Amendments to the Oil
Pollution Prevention Regulations (40
CFR part 112)’’ (July 2008). A copy of
the analysis is available in the docket
for this rulemaking and the analysis is
briefly summarized below.
For the economic impact analysis of
these amendments, EPA used the SPCC
rule requirements at 40 CFR part 112, as
amended in July 2002 (67 FR 47042,
July 17, 2002) as the baseline to estimate
the potential cost savings to regulated
facilities from these amendments. The
cost savings are not adjusted for the
estimated, potential cost savings for the
2006 rule amendments and may
overestimate the cost savings for these
amendments, particularly for Tier I
qualified facilities, revisions to the
integrity testing requirement, and the
proposed amendments to delay SPCC
Plan preparation and implementation
for new oil production facilities. The
regulatory impact analysis developed in
support of this final rule compares the
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compliance costs for owners and
operators of facilities affected by the
amendments in this rule to the costs
owners and operators would face under
the July 2002 SPCC rule amendments.
The regulatory amendments have
fourteen major components: (1) Exempt
hot-mix asphalt; (2) exempt pesticide
application equipment and related mix
containers; (3) exempt residential
heating oil containers at single-family
residences; (4) amend the definition of
‘‘facility’’ to clarify the currently
existing flexibility associated with
describing a facility’s boundaries; (5)
amend the facility diagram requirement
to provide additional clarity; (6) define
‘‘loading/unloading rack’’ to clarify the
equipment subject to the provisions for
facility tank car and tank truck loading/
unloading racks, as well as amending
the provision for this equipment; (7)
provide streamlined requirements for a
subset of qualified facilities; (8) amend
the general secondary containment
requirement to provide more clarity; (9)
exempt non-transportation-related tank
trucks from the sized secondary
containment requirements; (10) amend
the security requirements; (11) amend
the integrity testing requirements to
allow a greater amount of flexibility in
the use of industry standards; (12)
amend the integrity testing requirements
for containers that store AFVOs that
meet certain criteria; (13) tailor a
number of requirements at oil
production facilities; and (14) exempt
underground oil storage tanks at nuclear
power generation facilities. EPA is also
providing clarification in the preamble
to this rule on two additional issues
identified by the regulated community:
(1) The consideration of man-made
structures in determining how to
comply with the SPCC rule
requirements and (2) 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 this final
rule are as follows:
• Develop the baseline universe of
SPCC-regulated facilities;
• Estimate the number of facilities
affected by the rule amendments;
• Estimate changes in unit
compliance cost for each regulated
facility affected by the rule;
• Estimate total compliance cost
savings to owners and operators of
potentially affected facilities; and
• Annualize compliance cost savings
over a ten-year period, 2010 through
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2019, and discount the estimates using
three and seven percent discount rates.
Based on these steps, EPA estimated
the annualized compliance cost savings
to potentially affected facilities
associated with each of the major
components of the 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 17, 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 where there is only a onetime initial investment because they
would have already incurred the onetime cost. For example, EPA assumes
that an owner or operator of an existing
facility who would qualify for reduced
security requirements under the final
rule that allows facility owners or
operators to tailor their security
measures to the facility’s specific
characteristics and location, would have
already provided the security measures
as per the July 2002 rule amendments or
demonstrated environmental
equivalence for tailored security
measures. Therefore, owners and
operators of existing facilities would not
take advantage of the provided
alternative. Fourth, EPA assumes that
compliance is nationally consistent
although EPA recognizes that there is
variability in state regulations and the
distribution of affected facilities.
Exhibit 1 presents the estimated cost
savings for each rule component and for
the final rule amendments in total. For
several rule amendments, such as the
security requirements and facilities
handling AFVOs, 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.10 The exhibit below presents
10 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 these
regulatory amendments which EPA
estimates to be about $176 million on an
annualized basis (2007$). The total
potential cost savings are calculated
taking into account the mid-point 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 that might exist among the
various components of the rule.11
The oil production sector and farms
will benefit from multiple components
of the final rule. Specifically, farms will
benefit from the amendments to:
requirements for qualified facilities (i.e.,
Tier I); and security requirements,
integrity testing requirements, and the
facility diagram requirements. Farms
will also benefit from the exemption
from loading/unloading rack
requirements; the exemption for
pesticide application equipment and
related mix containers, and singlefamily residential heating oil containers;
and clarifications for nurse tanks and
the definition of ‘‘facility.’’ The total
cost savings to farm owners and
operators from these amendments are
estimated at $13 million on an
annualized basis (2007$).
The oil production sector will also
benefit from a number of the revisions
to the SPCC rules, including the facility
diagram requirements; an exemption
from the loading/unloading rack
requirements and for certain produced
water containers when certified by a PE;
some will benefit from the new
requirements for Tier I qualified
facilities; and amendments specific to
the oil production sector (for example,
the six-month delay in preparation and
implementation of SPCC Plans and the
exemption of flow-through process
vessels from sized secondary
containment requirements). The total
savings to owners and operators of oil
production facilities from all of the
amendments that affect this sector are
estimated at $116 million on an
annualized basis (2007$).
EXHIBIT 1—ESTIMATED COMPLIANCE COST SAVINGS FOR THE REGULATORY AMENDMENTS
Annualized cost savings
($2007, in millions, 7%
discount rate)
Rule component/scenario
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Hot-Mix Asphalt:
Exempt HMA containers .......................................................................................................................................
Farms:
Exempt pesticide application equipment and related mix containers ...................................................................
Applicability of Mobile Refueler Requirements to Farm Nurse Tanks ..................................................................
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 1:
Define ‘‘loading/unloading rack’’ ............................................................................................................................
Tier I Qualified Facilities:
Provide streamlined requirements for Tier I qualified facilities .............................................................................
General Secondary Containment:
Revisions to the general secondary containment provision .................................................................................
General Secondary Containment for Non-Transportation-Related Tank Trucks:
Extend regulatory relief for mobile refuelers to the non-transportation-related tank trucks .................................
Security Requirements:
Revise security requirements 2 ..............................................................................................................................
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 AFVO containers that meet certain criteria 3 .......................................
Oil Production Facilities:
Six-month delay for Plan preparation and implementation ...................................................................................
Exempt flowlines and gathering lines from secondary containment ....................................................................
Flow-through process vessels ...............................................................................................................................
Streamlined requirements for small production facilities with marginal wells ......................................................
Produced water containers ...................................................................................................................................
Man-Made Structures:
Consider manmade structures in determining SPCC rule applicability ................................................................
Nuclear Power Stations:
Exempt underground oil storage tanks at nuclear power generation facilities. ....................................................
Wind turbines:
Clarify applicability of the rule to wind turbines used to produce electricity .........................................................
Total ...............................................................................................................................................................
$8
$4
$2
No cost impact.
$3
$51
$24
No cost impact.
No cost impact.
$9
$11
$2
$24
No net cost impact.
$7
$30
No cost savings estimated.
No cost impact.
Less than $1.
No cost impact.
$176
1 Mid-point estimate (17% of oil production facilities, 50% of AFVO facilities, and 8% of medium and large farms affected). Cost savings might
be higher or lower using different assumptions.
2 Mid-point estimate (50% of farms affected). Cost savings might be higher or lower using different assumptions.
3 Mid-point estimate (65% of facilities affected). Cost savings might be lower using different assumptions.
AFVO facilities would have food oil tanks that are
eligible.
11 Certain industry sectors are affected by
multiple rule components. As a result, taking
advantage of one new requirement might preclude
a facility from benefiting from other proposed
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requirements. The estimate also takes into account
the overlap of the six-month delay with the relief
for new small production facilities. The six-month
delay is specifically designed to allow time for the
facility production operations to stabilize in order
to avoid the need for multiple certifications of the
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Plan by a PE. However, because small production
facilities that meet the new qualified facility criteria
would not have to have their SPCC Plan certified
by a PE, they will not incur cost savings from the
six-month delay in preparing SPCC Plan.
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EPA recognizes that the economic
analysis is constrained by limited
availability of data and information. The
SPCC regulation does not have a
notification requirement for regulated
facilities and thus, EPA relies on state
information; Federal and proprietary
databases; and information from
industry experts as a basis for the cost
information included in the analysis.
B. Paperwork Reduction Act
The information collection
requirements for this final rule have
been submitted for approval to OMB
under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. The information
collection requirements are not
enforceable until OMB approves them.
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 to
navigable waters or adjoining shorelines
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.
Although facility personnel are the
primary data user, EPA also uses the
data in certain situations. In particular,
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 EPA’s inspection program. State
and local governments also may 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 rulemaking, approximately 623,000
existing facilities would be subject to
the SPCC rule in 2010 and have SPCC
Plans. In addition, EPA estimates that
approximately 17,400 new facilities
would become subject to the SPCC
requirements during that year, resulting
in a total of about 640,000 regulated
facilities in 2010.12
12 To estimate the number of SPCC-regulated
facilities in 2010, EPA used the estimated number
of facilities for 2005 (571,000) and applied annual,
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Under this final rule, the storage
capacity of containers solely containing
HMA, residential heating oil containers
at single-family residences, pesticide
application equipment and related mix
containers, and underground oil storage
tanks at nuclear power generation
facilities are exempt from the SPCC
requirements; EPA is amending 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; EPA is amending the facility
diagram requirement to provide
additional clarity for all facilities; EPA
is providing a definition for the term
‘‘loading/unloading rack,’’ which
determines whether a facility is subject
to the provisions at § 112.7(h), as well
as specifically excluding onshore oil
production facilities and farms from the
requirements of § 112.7(h); providing an
option that allows a subset of qualified
facilities (Tier I) to complete and
implement an SPCC Plan template
(Appendix G to 40 CFR part 112) in
order to comply with the SPCC rule
requirements; amending the general
secondary containment requirements to
provide more clarity; exempting nontransportation-related tank trucks from
the sized secondary containment
requirements; modifying the security
requirements to allow an owner or
operator to tailor his security measures
to the facility’s specific characteristics
and location; replacing the current
integrity testing requirements with the
requirements provided for qualified
facilities, as promulgated in December
2006; providing flexibility in the rule for
determining the scope of integrity
testing that is appropriate for containers
that store AFVOs that are intended for
human consumption and that meet
other criteria; and finally, this
rulemaking streamlines the
requirements for oil production
facilities by modifying the definition of
production facility to be consistent with
the amendments to the definition of
facility, extending the timeframe by
which a new oil production facility
must prepare and implement an SPCC
Plan, providing an alternative option for
flow-through process vessels at oil
production facilities to comply with the
general secondary containment
requirements and additional oil spill
prevention measures in lieu of sized
secondary containment requirements,
establishing more specific requirements
industry-specific growth rates that resulted in about
640,000 facilities.
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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, providing an
exemption for certain intra-facility
gathering lines, exempting certain
produced water storage containers at oil
production facilities that do not contain
oil as certified by a Professional
Engineer (PE), establishing alternative
criteria for an oil production facility to
be eligible to self-certify an SPCC Plan
as a qualified facility, and clarifying the
definition of ‘‘permanently closed’’ as it
applies to an oil production facility.
Under this action, an estimated
640,000 regulated facilities are subject
to the SPCC information collection
requirements of this rule in 2010.13 The
Agency estimates that as a result of
these amendments to tailor, clarify, and
streamline certain SPCC requirements,
the reporting and recordkeeping burden
would decrease by approximately 1.3
million hours. The final rule
amendments would reduce capital and
operation and management costs by
approximately $53 million on an
annualized basis.14 Burden is defined at
5 CFR 1320.3(b).
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. When
this ICR is approved by OMB, the
Agency will publish a technical
amendment to 40 CFR part 9 in the
Federal Register to display the OMB
control number for the approved
information collection requirements
contained in this final rule.
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
13 To estimate the number of SPCC-regulated
facilities in 2010, EPA used the estimated number
of facilities for 2005 (571,000) and applied annual
industry-specific growth rates.
14 The paperwork burden reduction does not
include the reduction associated with the
amendment for milk bulk storage containers,
because EPA only accounted for containers storing
petroleum-based oil and not milk or related
substances, when estimating the universe of
affected facilities.
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Federal Register / Vol. 73, No. 235 / Friday, December 5, 2008 / Rules and Regulations
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this final rule on small entities, a
small entity is defined as: (1) A small
business as defined in the U.S. Small
Business Administration’s (SBA)
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 rule, generally defines small
businesses as having less than $0.5
million to $27.5 million per year in
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 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 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 the final rule amendments, the
following issues are addressed: Exempt
HMA and HMA containers, pesticide
application equipment and related mix
containers, residential heating oil
containers at single-family residences,
and underground oil storage tanks at
nuclear power generation facilities from
the SPCC requirements; amend the
definition of ‘‘facility’’ to clarify the
flexibility associated with the existing
definition in describing a facility’s
boundaries; clarify how containers,
fixed and mobile, are identified on the
facility diagram; define ‘‘loading/
unloading rack’’ to clarify whether a
facility is subject to the SPCC rule
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requirements of § 112.7(h); streamline
the requirements for a subset of
qualified facilities (Tier I qualified
facilities); amend the general secondary
containment requirements to provide
more clarity; exempt nontransportation-related tank trucks from
the sized secondary containment
requirements; amend the facility
security requirements to allow an owner
or operator to tailor security measures to
his facility’s specific characteristics and
location; replace the current integrity
testing requirements with the regulatory
requirements for a qualified facility
promulgated on December 26, 2006 (71
FR 77266); provide flexibility in the rule
to determine the scope of integrity
testing that is appropriate for containers
that store AFVOs that are intended for
human consumption and that meet
other criteria; and initiate several
amendments to tailor the requirements
for oil production facilities to address
concerns raised by the production
sector, respectively.
Overall, EPA estimates that this action
will reduce annual compliance costs by
approximately $176 million on an
annualized basis (2007$) for owners and
operators of affected facilities. Total
costs were annualized over a 10-year
period using a seven percent discount
rate. EPA derived these savings by
estimating the number of facilities
affected by each amendment;
identifying the specific behavioral
changes that may occur (for example,
choosing to prepare an SPCC Plan
template instead of a full SPCC Plan);
estimating the unit costs of compliance
measures under the baseline and
amended scenarios; and applying the
change in unit costs to the projected
number of affected facilities.
EPA has therefore concluded that this
rule will relieve regulatory burden for
small entities and therefore, certify that
this rule 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
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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,
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 rule
amendment 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 final rule would reduce
compliance costs on owners and
operators of affected facilities by
approximately $176 million on an
annualized basis (2007$), although EPA
acknowledges this total estimate is
derived from analyses of individual
major components of the rule that are
not necessarily additive, given that they
do not account for interactions that may
exist among the various components.
Thus, this rule amendment is not
subject to the requirements of sections
202 and 205 of the UMRA.
EPA has determined that this rule
amendment contains no regulatory
requirements that might significantly or
uniquely affect small governments. As
explained above, the effect of the rule
amendment will 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
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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 rule amendment 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
section 311(o), states may impose
additional requirements, including more
stringent requirements, relating to the
prevention of oil discharges to navigable
waters or adjoining shorelines. EPA
recognizes that some states have more
stringent requirements (56 FR 54612,
October 22, 1991). This rule amendment
will not preempt state law or
regulations. Thus, Executive Order
13132 does not apply to this action.
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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 rule amendment
does not have tribal implications, as
specified in Executive Order 13175.
This rule amendment will not
significantly or uniquely affect
communities of Indian trial
governments. Thus, Executive Order
13175 does not apply to this action.
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
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explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
Although this final rule is
economically significant in that it
would reduce compliance costs on
owners or operators of affected facilities
by approximately $176 million on an
annualized basis (2007$), it is not
subject to the Executive Order because
the Agency does not have reason to
believe the environmental health or
safety risk addressed by this action
presents a disproportionate risk to
children.
H. Executive Order 13211—Actions
That Significantly Affect Energy Supply,
Distribution, or Use
This rule amendment 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 action is to
decrease the regulatory burden on
facility owners or operators subject to its
provisions.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104–
113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards, such
as materials specifications, test
methods, sampling procedures, and
business practices that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
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 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.
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J. Executive Order 12898—Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States. EPA
has determined that this final rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations because it does not affect
the level of protection provided to
human health or the environment. The
overall effect of the action is to decrease
the regulatory burden on facility owners
or operators subject to its provisions.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is a ‘‘major rule’’ as defined
by 5 U.S.C. 804(2) because it will likely
result in an annual effect on the
economy of $100 million or more. This
rule will be in effect on February 3,
2009.
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
requirements, Secondary containment,
Security, Tanks, Unloading racks, Water
pollution control, Water resources.
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Federal Register / Vol. 73, No. 235 / Friday, December 5, 2008 / Rules and Regulations
Dated: November 20, 2008.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble,
the Environmental Protection Agency
amends 40 CFR part 112 as follows:
■
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
continues to read as follows:
■
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C.
2720; and E.O. 12777 (October 18, 1991), 3
CFR, 1991 Comp., p. 351.
Subpart A—[Amended]
2. Amend § 112.1 as follows:
a. By revising paragraphs (d)(2)(i) and
(d)(2)(ii);
■ b. By revising paragraph (d)(4); and
■ c. By adding paragraphs (d)(8) through
(d)(12).
■
■
§ 112.1
General applicability.
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*
*
*
*
*
(d) * * *
(2) * * *
(i) The completely buried storage
capacity of the facility is 42,000 U.S.
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 the capacity of any
underground oil storage tanks deferred
under 40 CFR part 280 that supply
emergency diesel generators at a nuclear
power generation facility licensed by
the Nuclear Regulatory Commission and
subject to any Nuclear Regulatory
Commission provision regarding design
and quality criteria, not limited to 10
CFR part 50. The completely buried
storage capacity of a facility also
excludes the capacity of a container that
is ‘‘permanently closed,’’ as defined in
§ 112.2 and the capacity of intra-facility
gathering lines subject to the regulatory
requirements of 49 CFR part 192 or 195.
(ii) The aggregate aboveground storage
capacity of the facility is 1,320 U.S.
gallons or less of oil. For the purposes
of this exemption, only containers with
a capacity of 55 U.S. gallons or greater
are counted. The aggregate aboveground
storage capacity of a facility excludes:
(A) The capacity of a container that is
‘‘permanently closed’’ as defined in
§ 112.2;
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(B) The capacity of a ‘‘motive power
container’’ as defined in § 112.2;
(C) The capacity of hot-mix asphalt or
any hot-mix asphalt container;
(D) The capacity of a container for
heating oil used solely at a single-family
residence;
(E) The capacity of pesticide
application equipment and related mix
containers.
(F) The capacity of a produced water
container, as defined in § 112.2, and any
associated piping or appurtenances
downstream of the container, that meets
the requirements at § 112.9(c)(6)(i).
*
*
*
*
*
(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 any underground
oil storage tanks including below-grade
vaulted tanks, deferred under 40 CFR
part 280, as originally promulgated, that
supply emergency diesel generators at a
nuclear power generation facility
licensed by the Nuclear Regulatory
Commission, except that such a tank
may qualify for the exemption if it is
subject to any Nuclear Regulatory
Commission provision regarding design
and quality criteria, not limited to 10
CFR part 50. Such emergency generator
tanks 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.
(11) Intra-facility gathering lines
subject to the regulatory requirements of
49 CFR part 192 or 195, except that such
a line’s location must be identified and
marked as ‘‘exempt’’ on the facility
diagram as provided in § 112.7(a)(3), if
the facility is otherwise subject to this
part.
(12) A produced water container, as
defined in § 112.2 and any associated
piping or appurtenances downstream of
the container, that meets the
requirements at § 112.9(c)(6)(i), except
that such a tank’s location must be
identified and marked as ‘‘exempt’’ on
the facility diagram as provided in
§ 112.7(a)(3), if the facility is otherwise
subject to this part.
*
*
*
*
*
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3. Amend § 112.2 by revising the
definitions for ‘‘Facility,’’ ‘‘Production
facility,’’ and adding definitions for
‘‘Loading/unloading rack’’ and
‘‘Produced water container’’ 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 fixed
structure (such as a platform, gangway)
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 loading or unloading arm,
and may include any combination of the
following: piping assemblages, valves,
pumps, shut-off devices, overfill
sensors, or personnel safety devices.
*
*
*
*
*
Produced water container means a
storage container at an oil production
facility used to store the produced water
after initial oil/water separation, and
prior to reinjection, beneficial reuse,
discharge, or transfer for disposal.
Production facility means all
structures (including but not limited to
wells, platforms, or storage facilities),
piping (including but not limited to
flowlines or intra-facility 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 (including condensate), or
associated storage or measurement, and
is located in an oil or gas field, at a
facility. This definition governs whether
such structures, piping, or equipment
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are 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. By adding paragraph (d)(1)(vi) and
(d)(1)(vii); and
■ e. By revising paragraph (g).
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§ 112.3 Requirement to prepare and
implement a Spill Prevention, Control, and
Countermeasure Plan.
The owner or operator or 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.
*
*
*
*
*
(d) * * *
(vi) That, if applicable, all exempted
produced water containers and any
associated piping and appurtenances
downstream of the container, including
flowlines and other appurtenances
associated with injection or discharge,
meet the criteria described in
§ 112.9(c)(6)(i) and are identified in the
Plan; and appropriate produced water
characteristics in the container and any
associated piping and appurtenances
downstream of the container,
procedures, or maintenance required to
meet the standards of Part 110 required
for the produced water container are
identified in the Plan.
(vii) That, if applicable, for a
produced water container subject to
§ 112.9(c)(6)(ii), any procedure to
minimize the amount of free-phase oil is
designed to reduce the accumulation of
free-phase oil and the procedures and
frequency for required inspections,
maintenance and testing have been
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established and are described in the
Plan.
*
*
*
*
*
(g) Qualified Facilities. The owner or
operator of a qualified facility as defined
in this subparagraph may self-certify his
facility’s Plan, as provided in § 112.6. A
qualified facility is one that meets the
following Tier I or Tier II qualified
facility criteria:
(1) A Tier I qualified facility meets the
qualification criteria in paragraph (g)(2)
of this section and has no individual
aboveground oil storage container with
a capacity greater than 5,000 U.S.
gallons.
(2) A Tier II qualified facility is one
that 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), and either:
(i) Has an aggregate aboveground oil
storage capacity of 10,000 U.S. gallons
or less; or
(ii) Is an onshore oil production
facility with:
(A) No more than two producing
wells per single tank battery, each of
which produce ten barrels or less of
crude oil per well per day, if the facility
has an injection well; or
(B) No more than four producing
wells per single tank battery, each of
which produce ten barrels or less of
crude oil per well per day, and with no
injection wells at the facility.
■ 5. Amend § 112.5 as follows:
■ a. By redesignating paragraphs (b) and
(c) as paragraph (d) and (e);
■ b. By revising the newly redesignated
paragraph (d) and;
■ c. Adding new paragraphs (b) and (c).
The additions and revisions read as
follows:
§ 112.5 Amendment of Spill Prevention,
Control, and Countermeasure Plan by
owners or operators.
*
*
*
*
*
(b) For onshore oil production
facilities with produced water
containers exempted pursuant to the
requirements at § 112.9(c)(6)(i), on an
annual basis, the owner or operator
must verify that the produced water
characteristics in the container and any
associated piping and appurtenances
downstream of the container,
procedures, or maintenance required to
meet the standards of Part 110 that
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74301
formed the basis for the PE certification
described in that section are
maintained. If an owner or operator fails
to maintain the produced water
characteristics in the container, or in the
associated downstream piping and
appurtenances; procedures; or
maintenance required to meet the
standards of 40 CFR part 110 that
formed the basis for the PE’s
certification, then the produced water
container and any associated piping and
appurtenances downstream are
ineligible for this exemption, and you
must, within six months, comply with
all provisions under this part applicable
to the container and amend your Plan.
A technical amendment made under
this section must be prepared within
three months and implemented as soon
as possible, but not later than three
months following the preparation of the
amendment.
(c) The owner or operator of an
onshore oil production facility with
produced water containers exempted
according to the requirements at
§ 112.9(c)(6)(i), must maintain the
verifications in accordance with
§ 112.7(e). You must document your
verification and sign a statement that
the produced water characteristics in
the container and any associated piping
and appurtenances downstream from
the container, procedures, or
maintenance required to meet the
standards of Part 110 are maintained in
accordance with the PE certification.
The following words will suffice, ‘‘I
verify that the produced water
characteristics in the container and any
associated piping and appurtenances
downstream of the container,
procedures, or maintenance required to
meet the standards of 40 CFR part 110
that formed the basis for the PE’s
certification are maintained.’’
(d) Notwithstanding compliance with
paragraphs (a) and (c) of this section,
complete a review and evaluation of the
SPCC Plan at least once every five years
from the date your facility becomes
subject to this part; or, if your facility
was in operation on or before August 16,
2002, five years from the date your last
review was required under this part. As
a result of this review and evaluation,
you must amend your SPCC Plan within
six months of the review to include
more effective prevention and control
technology if the technology has been
field-proven at the time of the review
and will significantly reduce the
likelihood of a discharge as described in
§ 112.1(b) from the facility. You must
implement any amendment as soon as
possible, but not later than six months
following preparation of any
amendment. You must document your
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completion of the review and
evaluation, and must sign a statement as
to whether you will amend the Plan,
either at the beginning or end of the
Plan or in a log or an appendix to the
Plan. The following words will suffice,
‘‘I have completed review and
evaluation of the SPCC Plan for (name
of facility) on (date), and will (will not)
amend the Plan as a result.’’
*
*
*
*
*
■ 6. Revise § 112.6 to read as follows:
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§ 112.6 Qualified Facilities Plan
Requirements.
Qualified facilities meeting the Tier I
applicability criteria in § 112.3(g)(1) are
subject to the requirements in paragraph
(a) of this section. Qualified 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 must either: comply
with the requirements of paragraph
(a)(3) of this section; or prepare and
implement a Plan meeting requirements
of paragraph (b) of this section; or
prepare and implement a Plan meeting
the general Plan requirements in § 112.7
and applicable requirements in subparts
B and C, including having the Plan
certified by a Professional Engineer as
required under § 112.3(d). If you do not
follow the Appendix G template, you
must prepare an equivalent Plan that
meets all of the applicable requirements
listed in this part, and you must
supplement it with a section crossreferencing the location of requirements
listed in this part and the equivalent
requirements in the other prevention
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) You have established procedures
for required inspections and testing 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) or include
an exemption/measures pursuant to
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§ 112.9(c)(6) for produced water
containers and any associated piping
and appurtenances downstream from
the container; 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 U.S. 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,
including having the Plan certified by a
Professional Engineer as required under
§ 112.3(d).
(3) Plan Template and Applicable
Requirements. Prepare and implement
an SPCC Plan that meets the following
requirements under § 112.7 and in
subparts B and C of this part:
introductory paragraph of §§ 112.7,
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)(1),
112.9(c)(2), 112.9(c)(3), 112.9(c)(4),
112.9(c)(5), 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). The template in
Appendix G to this part has been
developed to meet the requirements of
40 CFR part 112 and, when completed
and signed by the owner or operator,
may be used as the SPCC Plan.
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
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loading or unloading equipment, tank
overflow, rupture, or leakage, or any
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
(except mobile refuelers and other nontransportation-related tank trucks),
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), or include
an exemption/measures pursuant to
§ 112.9(c)(6) for produced water
containers and any associated piping
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and appurtenances downstream from
the container, 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
committed the necessary resources to
fully implement the Plan.
(2) Technical Amendments. If you
self-certify your Plan pursuant to
paragraph (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 U.S. 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 paragraph, your selfcertified 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.
(iii) Produced Water Containers. Your
Plan may not include any produced
water container exemptions or
alternative procedures for skimming in
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lieu of sized secondary containment
pursuant to § 112.9(c)(6), unless they
have 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.
(i) As described in paragraph (b)(3) of
this section, the facility owner or
operator may not self-certify 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. 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. 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.
(ii) As described in paragraph (b)(3) of
this section, the facility owner or
operator may not self-certify measures
as described in § 112.9(c)(6) for
produced water containers and any
associated piping and appurtenances
downstream from the container. Such
measures must be reviewed and
certified, in writing, by a licensed
Professional Engineer, in accordance
with § 112.3(d)(1)(vi) or (vii), as
applicable.
(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); to the impracticability
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determination and measures in lieu of
secondary containment pursuant to
§ 112.7(d); or the measures pursuant to
§ 112.9(c)(6) for produced water
containers and any associated piping
and appurtenances downstream from
the container.
■ 7. Amend § 112.7 as follows:
■ a. By revising the first sentence in
paragraph (a)(2);
■ b. By revising paragraphs (a)(3)
introductory text and (a)(3)(i);
■ c. By revising paragraphs (c)
introductory text and (c)(1);
■ d. By revising paragraph (g); and
■ e. By revising the heading to
paragraph (h), paragraphs (h)(1) and
(h)(2).
§ 112.7 General requirements for Spill
Prevention, Control, and Countermeasure
Plans.
*
*
*
*
*
(a) * * *
(2) Comply with all applicable
requirements listed in this part. Except
as provided in § 112.6, your Plan may
deviate from the requirements in
paragraphs (g), (h)(2) and (3), and (i) of
this section and the requirements in
subparts B and C of this part, except the
secondary containment requirements in
paragraphs (c) and (h)(1) of this section,
and §§ 112.8(c)(2), 112.8(c)(11),
112.9(c)(2), 112.9(d)(3), 112.10(c),
112.12(c)(2), and 112.12(c)(11), where
applicable to a specific facility, if you
provide equivalent environmental
protection by some other means of spill
prevention, control, or countermeasure.
* * *
*
*
*
*
*
(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
identify the location of and mark as
‘‘exempt’’ underground tanks that are
otherwise exempted from the
requirements of this part under
§ 112.1(d)(4), and produced water
containers and any associated piping
and appurtenances downstream from
the container, that are otherwise
exempted from the requirements of this
part under § 112.1(d)(12). The facility
diagram must also include all transfer
stations and connecting pipes, including
intra-facility gathering lines that are
otherwise exempted from the
requirements of this part under
§ 112.1(d)(11). 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
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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 as
provided in paragraph (k) of this section
for qualified oil-filled operational
equipment, and except as provided in
§ 112.9(d)(3) for flowlines and intrafacility gathering lines at an oil
production facility. 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; and
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 discharges, use a quick drainage
system for tank car or tank truck
loading/unloading racks. You must
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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]
8. Amend § 112.8 by revising the first
sentence in paragraph (c)(2) and
revising paragraphs (c)(6) and (c)(11) to
read as follows:
■
§ 112.8 Spill Prevention, Control, and
Countermeasure Plan requirements for
onshore facilities (excluding oil production
facilities).
*
*
*
*
*
(c) * * *
(2) Construct all bulk storage tank
installations (except mobile refuelers
and other non-transportation-related
tank trucks) so that you provide a
secondary means of containment for the
entire capacity of the largest single
container and sufficient freeboard to
contain precipitation.* * *
*
*
*
*
*
(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
(such as 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.
*
*
*
*
*
(11) Position or locate mobile or
portable oil storage containers to
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prevent a discharge as described in
§ 112.1(b). Except for mobile refuelers
and other non-transportation-related
tank trucks, you must furnish a
secondary means of containment, such
as a dike or catchment basin, sufficient
to contain the capacity of the largest
single compartment or container with
sufficient freeboard to contain
precipitation.
*
*
*
*
*
■ 9. 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 paragraphs (c)(5) and
(c)(6);
■ e. By revising paragraph (d)(3); and
■ f. By adding paragraph (d)(4).
§ 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) Except as described in paragraph
(c)(5) of this section for flow-through
process vessels and paragraph (c)(6) of
this section for produced water
containers and any associated piping
and appurtenances downstream from
the container, construct all tank battery,
separation, and treating facility
installations, 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 as described in paragraph
(c)(5) of this section for flow-through
process vessels and paragraph (c)(6) of
this section for produced water
containers and any associated piping
and appurtenances downstream from
the container, 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. The
owner or operator of a facility with
flow-through process vessels may
choose to implement the alternate
requirements as described below in lieu
of sized secondary containment
required in paragraphs (c)(2) and (c)(3)
of this section.
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(i) Periodically and on a regular
schedule visually inspect and/or test
flow-through process vessels and
associated components (such as 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 or initiate
actions to stabilize and remediate 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, ensure that all flow-through
process vessels subject to this subpart
comply with § 112.9(c)(2) and (c)(3).
(6) Produced water containers.
(i) A produced water container, and
any associated piping and
appurtenances downstream from the
container, are exempt from the
requirements of this part if a
Professional Engineer certifies in
accordance with § 112.3(d)(1)(vi) that no
discharge from the produced water
container, including a complete loss of
the capacity of the container, could
cause a discharge in quantities that may
be harmful, as described in part 110 of
this chapter. This determination for the
container must be made in accordance
with § 112.1(d)(1)(i).
(A) The SPCC Plan must include a
description of the produced water
characteristics in the container,
procedures, or maintenance required to
meet the standards of Part 110 and the
owner or operator’s annual verifications
prepared in accordance with § 112.5.
(B) If an exempt produced water
container as described in paragraph
(c)(6)(i) of this section experiences a
discharge as described in § 112.1(b),
then such container, piping, and
appurtenances are ineligible for this
exemption and you must comply with
all provisions under this part applicable
to the container, including § 112.9(c)(2)
and (c)(3) within six months of the date
of the discharge.
(ii) For each container not exempted
as described in paragraph (c)(6)(i) of this
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section, comply with § 112.9(c)(1) and
(c)(4); and § 112.9(c)(2) and (c)(3), or:
(A) Implement, on a regular schedule,
a procedure for each produced water
container that is designed to separate
the free-phase oil that accumulates on
the surface of the produced water.
Include in the Plan a description of the
procedures, frequency, amount of freephase oil expected to be maintained
inside the container, and a Professional
Engineer certification in accordance
with § 112.3(d)(1)(vii). Maintain records
of such events in accordance with
§ 112.7(e). Records kept under usual and
customary business practices will
suffice for purposes of this paragraph. If
this procedure is not implemented as
described in the Plan or no records are
maintained, then you must comply with
§ 112.9(c)(2) and (c)(3).
(B) On a regular schedule, visually
inspect and/or test the produced water
container and associated piping for
leaks, corrosion, or other conditions that
could lead to a discharge as described
in § 112.1(b) in accordance with good
engineering practice.
(C) Take corrective action or make
repairs to the produced water container
and any associated piping as indicated
by regularly scheduled visual
inspections, tests, or evidence of an oil
discharge.
(D) Promptly remove or initiate
actions to stabilize and remediate any
accumulations of oil discharges
associated with the produced water
container.
(E) 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 a produced
water container subject to this subpart
(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,
ensure that all produced water
containers subject to this subpart
comply with § 112.9(c)(2) and (c)(3).
(d) * * *
(3) For flowlines and intra-facility
gathering lines that are not provided
with secondary containment in
accordance with § 112.7(c), unless you
have 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
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74305
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 are 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). For flowlines
and intra-facility gathering lines that are
not provided with secondary
containment in accordance with
§ 112.7(c), 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
appurtenances as indicated by regularly
scheduled visual inspections, tests, or
evidence of a discharge.
(iv) Promptly remove or initiate
actions to stabilize and remediate any
accumulations of oil discharges
associated with flowlines, intra-facility
gathering lines, and associated
appurtenances.
Subpart C—[Amended]
11. Amend § 112.12 as follows:
a. By revising the introductory text;
b. By revising the first sentence in
paragraph (c)(2); and
■ c. By revising paragraphs (c)(6) and
(c)(11).
■
■
■
§ 112.12 Spill Prevention, Control, and
Countermeasure Plan Requirements.
If you are the owner or operator of an
onshore facility, you must:
*
*
*
*
*
(c) * * *
(2) Construct all bulk storage tank
installations (except mobile refuelers
and other non-transportation-related
tank trucks) so that you provide a
secondary means of containment for the
entire capacity of the largest single
container and sufficient freeboard to
contain precipitation. * * *
*
*
*
*
*
(6) Bulk storage container inspections.
(i) Except for containers that meet the
criteria provided in paragraph (c)(6)(ii)
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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 (such as containers that are:
shop-built, field-erected, skid-mounted,
elevated, equipped with a liner, doublewalled, 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 nondestructive testing. You must keep
comparison records and you must also
inspect the container’s supports and
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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
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inspections and tests kept under usual
and customary business practices satisfy
the recordkeeping requirements of this
paragraph (c)(6).
*
*
*
*
*
(11) Position or locate mobile or
portable oil storage containers to
prevent a discharge as described in
§ 112.1(b). Except for mobile refuelers
and other non-transportation-related
tank trucks, you must furnish a
secondary means of containment, such
as a dike or catchment basin, sufficient
to contain the capacity of the largest
single compartment or container with
sufficient freeboard to contain
precipitation.
*
*
*
*
*
12. Add Appendix G to read as
follows:
■
BILLING CODE 6560–50–P
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BILLING CODE 6560–50–C
]]>Agencies
[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Rules and Regulations]
[Pages 74236-74323]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28159]
[[Page 74235]]
-----------------------------------------------------------------------
Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 112
Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Requirements--Amendments; Final Rule
Federal Register / Vol. 73 , No. 235 / Friday, December 5, 2008 /
Rules and Regulations
[[Page 74236]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2007-0584; FRL-8746-3]
RIN 2050-AG16
Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure Rule Requirements--Amendments
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
amending 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
those facility owners or operators subject to the rule, which should
result in greater protection to human health and the environment.
Specifically, this final rule: Exempts hot-mix asphalt (HMA), pesticide
application equipment and related mix containers, and heating oil
containers at single-family residences from the SPCC rule; amends the
definition of ``facility'' to clarify the existing flexibility
associated with describing a facility's boundaries; amends the facility
diagram requirement to provide additional flexibility; defines
``loading/unloading rack'' to clarify the equipment subject to the
provisions for facility tank car and tank truck loading/unloading
racks, as well as amends the provisions for this equipment; provides
streamlined requirements for a subset of qualified facilities; amends
the general secondary containment requirement to provide more clarity;
exempts non-transportation-related tank trucks from the sized secondary
containment requirements; amends the security requirements; amends the
integrity testing requirements to allow greater flexibility in the use
of industry standards; amends the integrity testing requirements for
containers that store animal fats or vegetable oils and meet certain
criteria; streamlines a number of requirements for onshore oil
production facilities; and exempts underground oil storage tanks at
nuclear power generation facilities. EPA is also providing
clarification in the preamble to this final rule on additional issues
raised by the regulated community and, in a separate action in the
Federal Register of November 26, 2008, (73 FR 72016), the Agency is
proposing a new compliance date for farms.
DATES: This final rule is effective February 3, 2009.
ADDRESSES: The public docket for this rulemaking, Docket ID No. EPA-HQ-
OPA-2007-0584, contains the information related to this rulemaking,
including the response to comment document. All documents in the docket
are listed in index at the https://www.regulations.gov. Although listed
in the index, some information may not be publicly available, such as
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Certain other material,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically at https://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 of the Public Reading Room is 202-566-1744, and the telephone
number to make an appointment to view the docket is 202-566-0276.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP, and Oil Information Center at 800-424-9346
or TDD at 800-553-7672 (hearing impaired). In the Washington, DC
metropolitan area, contact the Superfund, TRI, EPCRA, RMP, and Oil
Information Center at 703-412-9810 or TDD 703-412-3323. For more
detailed information on specific aspects of this final 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 Final Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
A. Hot-Mix Asphalt
1. Hot-Mix Asphalt Exemption
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. Differentiating the SPCC Requirements for Farms
C. Residential Heating Oil Containers
1. Exemption for Residential Heating Oil Containers
2. Alternative Option Considered
D. Definition of Facility
1. 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. Revision to the Facility Diagram Requirement Regarding Mobile
or Portable Containers
2. Indicating Complicated Areas of Piping or Oil-filled
Equipment on a Facility Diagram
F. Loading/Unloading Racks
1. Loading/Unloading Rack Definition
2. Requirements for Loading/Unloading Racks
3. Exclusions
4. Alternative Option Considered
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 Option Considered
H. General Secondary Containment
1. Revisions to the General Secondary Containment Requirement
I. General Secondary Containment for Non-Transportation-Related
Tank Trucks
J. Security
1. Revisions to the Security Requirements
K. Integrity Testing
1. Amendments to Integrity Testing Requirements
L. Animal Fats and Vegetable Oils
1. Differentiated Requirements for AFVOs
2. Differentiation Criteria: Containers Subject to FDA
Regulations--21 CFR part 110
3. Differentiation Criteria: Elevated Bulk Storage Containers
4. Differentiation Criteria: Containers made from Austenitic
Stainless Steel
5. Differentiation Criteria: Containers with No External
Insulation
6. Differentiation Criteria: Shop-Fabricated Containers
7. Required Recordkeeping
8. Other Suggested Criteria and Options
M. Oil Production Facilities
1. Definition of Production Facility
2. Modifications to Sec. 112.9 for Drilling and Workover
Facilities
3. SPCC Plan Preparation and Implementation
4. Flowlines and Intra-facility Gathering Lines
5. Flow-Through Process Vessels
6. Alternative Qualified Facility Eligibility Criteria for Oil
Production Facilities
7. Produced Water Containers
8. Clarification of the Definition of Permanently Closed
Containers
9. Oil and Natural Gas Pipeline Facilities
N. Man-made Structures
O. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations
[[Page 74237]]
P. Wind Turbines
Q. Technical Corrections
VI. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order--13132 Federalism
F. Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045--Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
The Environmental Protection Agency (EPA or the Agency) is amending
the Spill Prevention, Control, and Countermeasure (SPCC) rule to
address a number of issues that have been raised by the regulated
community. These amendments are intended to clarify, tailor, and
streamline certain requirements for those facility owners or operators
who are required to prepare and implement an SPCC Plan (or ``Plan'').
Specifically:
EPA is exempting hot-mix asphalt (HMA) from the SPCC
requirements. This material is unlikely to flow as a result of the
entrained aggregate, such that there would be very few circumstances in
which a discharge of HMA would have the potential to reach navigable
waters or adjoining shorelines. EPA will continue to regulate asphalt
cement (AC), asphalt emulsions, and cutbacks, which are not HMA (that
is, they are not entrained with aggregate).
EPA is exempting pesticide application equipment and
related mix containers, regardless of ownership or where used, that may
currently be subject to the SPCC rule when crop oil or adjuvant oil is
added to formulations.
EPA is exempting residential heating oil containers (that
is, those used solely at single-family residences) from the SPCC
requirements. This exemption applies to aboveground containers, as well
as completely buried heating oil tanks, at single-family residences,
including those located at farms.
EPA is modifying 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
revisions will 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 is revising the facility diagram requirement at Sec.
112.7(a)(3) to clarify how containers, fixed and mobile, are identified
on the facility diagram. EPA is also clarifying that 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 can 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 can mark the area on the diagram. If the total number of
mobile or portable containers changes, the owner or operator can
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 is defining the term ``loading/unloading rack,'' and
specifying that this definition governs the applicability of the
provision at Sec. 112.7(h), Facility tank car and tank truck loading/
unloading rack. This amendment provides clarity to the regulated
community on whether this provision applies to a facility. Furthermore,
EPA is specifically excluding 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 is finalizing
editorial revisions to the provision at Sec. 112.7(h) for clarity.
EPA is streamlining and tailoring 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 has the option to
self-certify his SPCC Plan. This final rule further designates a subset
of qualified facilities (``Tier I qualified facilities'') as those that
meet the current qualified facility eligibility criteria and that have
no oil storage containers with an individual aboveground storage
capacity greater than 5,000 U.S. gallons. The owner or operator of a
Tier I qualified facility has the option to complete a self-certified
SPCC Plan template (found in Appendix G to 40 CFR part 112) in lieu of
a full SPCC Plan. The owner or operator can complete the SPCC Plan
template, which is comprised of a set of streamlined SPCC rule
requirements, and implement those streamlined requirements, to comply
with the SPCC regulation. All other qualified facilities will be
designated as ``Tier II qualified facilities.''
EPA is amending the general secondary containment
requirements at Sec. 112.7(c) to clarify that the scope of secondary
containment need only take into consideration the typical failure mode,
and most likely quantity of oil that would be discharged, consistent
with current Agency guidance. This amendment also provides additional
examples of prevention systems for onshore facilities found at Sec.
112.7(c)(1).
EPA is extending the exemption from the sized secondary
containment requirement for mobile refuelers provided in the December
2006 SPCC rule amendments (71 FR 77266, December 26, 2006) to non-
transportation-related tank trucks at a facility subject to the SPCC
rule.
EPA is amending the facility security requirements at
Sec. 112.7(g) to allow an owner or operator of a facility to tailor
his security measures to the facility's specific characteristics and
location. A facility owner or operator is 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 action
extends the streamlined security requirements that EPA provided to
qualified facilities in the December 2006 SPCC rule amendments (71 FR
77266, December 26, 2006) to all facilities subject to the security
requirements.
EPA is amending the requirements at Sec. Sec. 112.8(c)(6)
and 112.12(c)(6) to provide flexibility in complying with the bulk
storage container integrity testing requirements. That is, EPA is
modifying the current provision to allow an owner or operator to
consult and rely on industry standards to determine the appropriate
qualifications for personnel performing tests and
[[Page 74238]]
inspections, as well as the type and frequency of integrity testing
required for a particular container size and configuration. This action
extends the streamlined bulk storage container inspection requirement
that EPA provided to qualified facilities in the December 2006 SPCC
rule amendments (71 FR 77266, December 26, 2006) to all facilities
subject to the integrity testing provisions.
EPA is differentiating 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 (AFVOs). EPA is
providing the Professional Engineer (PE) or an owner or operator self-
certifying an SPCC Plan with the flexibility to determine the scope of
integrity testing that is appropriate for containers that store AFVOs,
based on compliance with certain FDA regulations and other criteria.
EPA is finalizing several amendments to tailor the
requirements for oil production facilities to address a number of
concerns that have been raised by this sector. Specifically, EPA is:
Modifying the definition of ``production facility'' to be consistent
with the amendments to the definition of ``facility;'' extending the
timeframe by which the owner or operator of a new oil production
facility must prepare and implement an SPCC Plan; providing an
alternative option for flow-through process vessels at oil production
facilities to comply with the general secondary containment requirement
and additional oil spill prevention measures in lieu of sized secondary
containment requirements; providing an exemption for certain intra-
facility gathering lines subject to regulatory requirements of the U.S.
Department of Transportation's (DOT's) pipeline regulations in 49 CFR
parts 192 or 195; providing an alternative option for flowlines and
intra-facility gathering lines at oil production facilities for
contingency planning in lieu of all secondary containment requirements,
while establishing more specific requirements for a flowline/intra-
facility gathering line maintenance program; exempting certain produced
water containers that do not contain oil as certified by a Professional
Engineer (PE); providing compliance alternatives to sized secondary
containment for produced water storage containers that are not
otherwise exempt; establishing an option for an oil production facility
to be eligible to self-certify an SPCC Plan as a qualified facility;
and clarifying the definition of ``permanently closed'' as it applies
to oil production facilities and containers present at an oil
production facility.
EPA is exempting underground oil storage tanks deferred
under 40 CFR part 280 that supply emergency diesel generators at
nuclear power generation facilities and that are subject to design
criteria under the Nuclear Regulatory Commission (NRC) regulations.
This exemption includes both tanks that are completely buried and tanks
that are below-grade and vaulted.
In this notice, EPA is also reiterating clarifications to a number
of issues of concern to the regulated community that were provided in
the 2007 proposal (72 FR 58378, October 15, 2007), including the
consideration of man-made structures in determining how to comply with
the SPCC rule requirements and the applicability of the rule to wind
turbines that are used to produce electricity. Additionally, EPA is
explaining actions that will be taken in collaboration with DOT to
clarify the jurisdiction over facilities, as defined in a Memorandum of
Understanding (MOU) between the DOT and EPA (36 FR 24080, November 24,
1971). EPA also is finalizing technical corrections to Sec. Sec. 112.3
and 112.12. This rulemaking marks the completion of the SPCC-related
improvements planned by the Agency at this time. EPA greatly benefited
from the considerable public input in the recent SPCC rulemakings.
Given the breadth of these changes, and the importance of the SPCC
program, EPA plans to review the implementation of these changes after
these latest revisions become effective. With regard to the oil
production industry, this revision would include an examination of the
utility and effectiveness of the new approaches for avoiding and
minimizing spills.
II. Entities Potentially Affected by This Final 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 74239]]
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 titled 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 or 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 superseded by Executive Order 12777
(56 FR 54757, October 22, 1991). An MOU between 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 July 2002 rule included revisions to the
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.\1\ All of the issues raised in the litigation have been resolved;
EPA published clarifications in the Federal Register to several aspects
of the revised rule (69 FR 29728, May 25, 2004),\2\ and in a separate
action in the Federal Register of November 26, 2008, (73 FR 71941), the
Agency is announcing the vacatur of the July 17, 2002 revisions to the
definition of ``navigable waters.'' In addition, concerns were raised
about the ability to implement certain aspects of the July 2002 rule.
---------------------------------------------------------------------------
\1\ American Petroleum Institute v. Johnson, 571 F.Supp. 2d 165
(D.D.C. 2008). The only issue resolved through litigation was the
challenge to the definition of navigable waters in the 2002 rule
amendment.
\2\ Several commenters requested that the Agency codify the
clarifications as part of this rulemaking. To the extent the subject
matter of the clarification has been reflected in this rulemaking,
the Agency has either incorporated the clarification in the
regulatory text or reaffirmed the Agency's position in this
preamble.
---------------------------------------------------------------------------
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, removal of provisions inapplicable to AFVOs, and the
compliance date for farms. See the rule amendment that was published in
the Federal Register at 71 FR 77266 (December 26, 2006) for a more
detailed discussion of these amendments.
In addition, EPA released the SPCC Guidance for Regional Inspectors
in December 2005. 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 on the Agency's Web site at https://
www.epa.gov/emergencies. EPA intends to issue revisions to this
guidance document that address changes made to the SPCC rule,
consistent with the regulatory amendments in this action and the
December 2006 amendments (71 FR 77266, December 26, 2006).
Furthermore, 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 a rule published May 16, 2007 (72 FR
27443). EPA took the most recent action to provide owners or operators
of facilities the time necessary 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 amendment. EPA expects that
this extension will 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 at 72 FR
27443, May 16, 2007 for further discussion of the July 1, 2009
compliance date. In a separate action in the Federal Register of
November 26, 2008 (73 FR 72016), EPA is also proposing new dates by
which the owners or operators of facilities must prepare or amend and
implement their SPCC Plan.
The December 2006 SPCC rule amendments (71 FR 77266, December 26,
2006) addressed only certain areas of the SPCC requirements and
specific issues and concerns raised by the regulated community. The EPA
Regulatory Agenda and the 2005 Office of Management and Budget (OMB)
report on ``Regulatory Reform of the U.S. Manufacturing Sector''
highlighted other areas where further changes may be appropriate.
Therefore, in October 2007, EPA proposed additional amendments to the
SPCC rule to address these changes (72 FR 58378, October 15, 2007).
Section V of this notice describes EPA's final action on those proposed
amendments and presents the major comments received on the proposal, as
well as EPA's response to those comments. For a more complete
discussion of the comments received, and the Agency's response to
comments, see Comment and Response Document: Spill Prevention, Control,
and Countermeasure Rule 2008 Amendments, a copy of which is available
in the docket for this rulemaking.
[[Page 74240]]
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. Under this
amendment to the SPCC rule, EPA is exempting HMA from SPCC rule
applicability.
1. Hot-Mix Asphalt Exemption
EPA is exempting HMA from SPCC rule applicability by adding a new
paragraph (8) under the general applicability section, Sec. 112.1(d),
and modifying Sec. 112.1(d)(2) so that the capacity of storage
containers solely containing HMA is not counted toward the facility's
oil storage capacity calculation. EPA is taking this action based on
the fact that this material is unlikely to flow as a result of the
entrained aggregate, such that there would be very few circumstances in
which a discharge of HMA would have the potential to reach navigable
waters or adjoining shorelines. This is particularly of concern at
facilities subject to the SPCC requirements solely because of the
presence of HMA. EPA never intended that HMA be included as part of a
facility's SPCC Plan.
a. Comments
Several commenters expressed general support for the exemption, and
no comments were submitted that opposed the proposed exemption.
b. Response to Comments
EPA agrees with the commenters and is finalizing the exemption for
HMA, as proposed.
2. Alternative Options Considered
As an alternate approach, EPA also considered exempting both HMA
and AC from the requirements of the SPCC rule, but chose not to
propose, nor finalize, such an option. Therefore, this exemption for
HMA does not include AC. Although AC is semi-solid or solid at ambient
temperature and pressure, it is generally stored at elevated
temperatures. At such elevated temperatures, AC has fluid flow
properties 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 rule to prevent discharges to
navigable waters or adjoining shorelines.
a. Comments
A number of alternative approaches focused on extending the
exemption to other similar materials, such as AC, Group 5 oils (that
is, those oils with specific gravities greater than or equal to 1.0),
waxes and other heavy oils. One commenter suggested extending the
exemption to all solid or non-flowing materials, such as whenever oil
is mixed with material that will make the mixture unlikely to flow at
ambient temperatures: Oil mixed with sorbents, gelled oils, etc.
Another commenter suggested extending the exemption to other Group 5
oils. Other commenters suggested extending this exemption to paraffin
wax or to all waxes. One commenter requested that EPA clarify that any
oils associated with asphalt production be regulated if their total
volume exceeds 1,320 U.S. gallons.
b. Response to Comments
The Agency disagrees with these commenters. Unlike HMA, these
materials do have the potential to discharge into navigable waters or
adjoining shorelines because they are generally stored at elevated
temperatures and thus, are capable of flowing if there is a release
from the container. No new or compelling data was provided by
commenters who disagreed with this position. However, it should be
noted 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. If a facility owner or operator determines that there is a
reasonable expectation of a discharge of oil to navigable waters or
adjoining shorelines from any single oil container (including a
container storing oil associated with hot-mix asphalt production), and
other rule applicability criteria are met, then all oil containers at
the facility are subject to the rule's requirements (except as
otherwise exempted).
In addition, as EPA noted in the preamble to the proposed rule, the
Agency believes that the SPCC rule already 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. Sec. 112.8(c)(2) and
112.12(c)(2)). Therefore, the flow properties of Group 5 oils (as for
any oil) may be considered in designing appropriate means of secondary
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.
B. Farms
The owner or operator of a farm, by virtue of storing or using oil,
is potentially subject to the SPCC requirements. EPA promulgated the
definition of farm at Sec. 112.2 in the December 2006 amendments to
the SPCC rule (71 FR 77266, December 26, 2006), which 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.'' While the December 2006
amendments streamlined the requirements for most of the farms that are
subject to SPCC requirements, EPA believes further amendments to the
SPCC regulations are appropriate given the unique characteristics of
farms (for example, 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; may have multiple
fueling sites; may be located in a remote area; stores oil on-site for
on-farm use and not for further distribution; uses oil seasonally in
different quantities; and leases a significant amount of land to or
from secondary parties. EPA is finalizing a number of amendments to the
SPCC rule potentially affecting farms and other facilities which were
proposed in October 2007 (72 FR 58378, October 15, 2007), including an
exemption for pesticide application equipment and related mix
containers, and providing clarification on the applicability of the
mobile refueler requirements to farm nurse tanks. Additionally farms
are likely to benefit
[[Page 74241]]
from other amendments finalized in this rule, such as clarifications to
the definition of facility; the option to allow a subset of qualified
facilities (``Tier I qualified facilities'') to complete the SPCC Plan
template in Appendix G of this part in lieu of preparing a full SPCC
Plan; exemption of residential heating oil tanks at single family
residences; amendments to the security and integrity testing
requirements; exemption from the loading/unloading rack requirements;
and amendments to the facility diagram requirements.
In addition, EPA extended the compliance date for the owner or
operator of a farm, as defined in Sec. 112.2, to prepare or amend and
implement the farm's SPCC Plan until the effective date of a rule
addressing whether to provide differentiated requirements for farms (71
FR 77266, December 26, 2006). EPA believes that the amendments to the
SPCC rule in this action address the concerns raised by the
agricultural industry. In a separate action in the Federal Register of
November 26, 2008, (73 FR 72016), EPA is proposing new dates by which
the owner or operator of a farm that is a qualified facility must
prepare or amend and implement his SPCC Plan.
1. Exemption for Pesticide Application Equipment and Related Mix
Containers
EPA is adding a new paragraph (10) under the general applicability
section, Sec. 112.1(d), to exempt all pesticide application equipment
and related mix containers. EPA is also modifying Sec. 112.1(d)(2) so
that the capacity of these pesticide application equipment and related
mix containers is not counted toward the facility's oil storage
capacity calculation. Pesticide application equipment includes ground
boom applicators, airblast sprayers, and specialty aircraft that are
used to apply measured quantities of pesticides to crops and/or soil.
Related mix containers are those used to mix pesticides with water and,
as needed, adjuvant oils, just prior to loading into application
equipment. In the October 2007 (72 FR 58378, October 15, 2007),
proposal, EPA proposed to limit this exemption to pesticide application
equipment and related mix containers used at farms. In this final rule,
however, EPA is extending the exemption to all pesticide application
equipment and related mix containers, regardless of ownership or where
used, because the application of pesticides through the use of this
equipment is the same at any location.
EPA is taking this action consistent with its findings in
evaluating the potential harm posed by pesticide containers and
application equipment when promulgating the Standards for Pesticide
Containment Structures in 40 CFR part 165, Subpart E (see 71 FR 47330,
August 16, 2006). These regulations apply to retailers who repackage
agricultural pesticides, custom blenders of agricultural pesticides,
and commercial applicators of agricultural pesticides, but do not apply
to pesticide application equipment and related mix containers, because
they do not fit the definition of stationary pesticide containers. In
the development of the proposed exemption to the SPCC rule (72 FR
58378, October 15, 2007), EPA indicated that pesticide formulations may
contain crop oil or adjuvant oil in the mix formulations just prior to
application, which could subject certain pesticide containers to the
SPCC requirements. This same condition could exist at agricultural
retailers that provide custom application services, as well as
commercial applicators. At these facilities, pesticide application
equipment, such as ground boom sprayers and aerial applicators could be
loaded with pesticide mix formulations with crop oil or adjuvant oil.
In these instances, similar to on-farm pesticide application equipment,
this equipment could have been subject to the SPCC requirements when
oil is mixed with the pesticide formulation just prior to use.
Under this amendment, containers (55 U.S. gallons or greater in
capacity) storing oil prior to mixing it with a pesticide, or
containers used to store pesticides that contain oil, are considered
bulk storage containers and continue to be regulated as such under the
SPCC rule.
a. Comments
Several commenters expressed general support for the exemption of
pesticide application equipment and related mix containers on farms
from the SPCC requirements. Other commenters suggested that the
exemption should be extended to all users of this equipment, arguing
that this would limit the potential for duplicative regulation of
pesticides by the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA) and the SPCC program. For example, the energy utilities sector
requested an exemption for the pesticide application equipment and
related mix containers they use to maintain their right-of-way networks
and to preserve treated wood poles used in electricity transmission and
distribution. One commenter suggested that the Agency exempt pesticide
mixtures with low concentrations of oil from SPCC regulation
altogether.
b. Response to Comments
EPA evaluated the merits of extending the exemption for all
pesticide application equipment and related mix containers at farms to
all such equipment, regardless of ownership or where used, based on the
fact that this pesticide use, and certain pesticide containers, are
already subject to ``similar'' regulation under FIFRA to assure the
safe use, reuse, storage, and disposal of pesticide containers. As
such, EPA agrees with the commenters that it would be appropriate to
extend the exemption to pesticide application equipment and related mix
containers, regardless of ownership or point of use.
On the other hand, EPA does not agree that the Agency should exempt
pesticide mixtures with low concentrations of oil from SPCC regulation.
Pesticide mix formulations, such as those that contain crop oil or
adjuvant oil, are potentially subject to the SPCC rule because they are
considered oil mixtures. The statutory definition of oil includes oil
of any kind and in any form (33 U.S.C. section 1321(a)(1)), and does
not exclude oil mixtures. Discharges of oil mixtures to navigable
waters or adjoining shorelines may be harmful as set forth in 40 CFR
part 110.
2. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
In the October 2007 notice of proposed rulemaking (72 FR 58378,
October 15, 2007), EPA clarified that the definition of mobile
refueler, as promulgated in the December 2006 amendments to the SPCC
rule (71 FR 77266, December 26, 2006), includes a nurse tank, which is
a mobile/portable container used at farms to store and transport fuel
for transfers to or from farm equipment (such as tractors and combines)
to other bulk storage containers (such as containers used to provide
fuel to wellhead/relift pumps) at the farm. A nurse tank is often
mounted on a trailer for transport around the farm; thus, 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 at Sec. Sec. 112.8(c)(2) and
112.12(c)(2), but is still subject to the general secondary containment
requirements at Sec. 112.7(c).
a. Comments
Several commenters supported the Agency's clarification that a
nurse tank is considered a mobile refueler, and
[[Page 74242]]
thus exempt from the sized secondary containment requirements. Some
commenters also requested that EPA clarify that the definition of
mobile refuelers includes non-road licensed refueling equipment which
are used to refuel farm equipment in the fields.
b. Response to Comments
EPA agrees with those commenters supporting the clarification. EPA
also understands that agricultural retail suppliers may provide
refueling services via non-road licensed equipment to farm equipment in
farm fields. As the Agency described in the preamble to the proposed
rule (72 FR 58378, October 15, 2007), a nurse fuel tank is typically
used at a farm to store and transport fuel to or from farm equipment.
Therefore, EPA agrees with commenters that non-road licensed equipment
that is used to refuel farm equipment functions as a mobile refueler,
similar to a farm fuel nurse tank. Additionally, owners and operators
of these nurse tanks may benefit from other amendments in this action
regarding the extension of relief from sized secondary containment to
all non-transportation-related tank trucks. For example, nurse tanks
containing oils other than a fuel such as lubrication or hydraulic oil,
would also be eligible.
3. Differentiating the SPCC Requirements for Farms
In developing the amendments in the October 2007 proposed rule, EPA
considered and took comment on a number of alternatives for
differentiating the SPCC requirements for farms, but are not finalizing
them, as discussed below.
a. No Further Action
EPA evaluated whether any further action was necessary specific to
farms, including no further action. As described in the proposal (72 FR
58378, October 15, 2007), the Agency proposed amendments based on
previous comments from agricultural stakeholders, farm-related site
visits conducted by EPA and the August 16, 2006, action concerning
pesticide containers (40 CFR part 165, Subpart E, 71 FR 47330). EPA is
finalizing those actions; the Agency also is promulgating the following
additional amendments to the SPCC regulation that could also benefit
farmers: Clarifications to the definition of facility; the option to
allow the owners and operators of a subset of qualified facilities
(i.e., ``Tier I qualified facilities'') to complete the SPCC Plan
template in Appendix G of this part in lieu of preparing a full SPCC
Plan; exemption of residential heating oil tanks at single family
residences, including at farms; amendments to the security and
integrity testing requirements; exemption from the loading/unloading
rack requirements; and amendments to the facility diagram requirements.
b. Exempt Farms Below a Certain Storage Capacity Threshold
EPA considered exempting farms that stored oil below a certain oil
storage capacity threshold (other than 1,320 U.S. gallons) from the
SPCC requirements, but determined that there was insufficient data
available to support an exemption exclusive to farms. While farming
operations may be unique, the 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 discharge. As a result, EPA
chose not to propose this option, but did request comment on the merits
of this approach.
c. Alternative Qualified Facility Eligibility Criteria for Farms
Under Sec. 112.6, a facility that has an aggregate aboveground
storage capacity of 10,000 U.S. 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 to Plan certification, or since becoming subject to 40 CFR
part 112 if the facility has been in operation for less than three
years 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, EPA considered whether there are
alternative criteria unique to farms that would be appropriate for
identifying qualified facilities. In the October 2007 proposed
rulemaking, EPA requested comment on (1) whether a change in the
criteria is appropriate for farms; and (2) whether a higher threshold
is appropriate for farms.
d. Comments
Several commenters recommended that the Agency provide an exemption
for farms at a minimum of 10,000 U.S. gallons oil storage capacity,
citing a lack of risk at such a volume and/or the potential for cost
savings, although no specific data was provided to support this
position. Other commenters suggested that EPA adopt a higher threshold,
such as a 20,000-gallon threshold, as a criterion for qualified
facility eligibility. Specifically, agricultural stakeholders requested
that EPA raise the Tier I individual container threshold to 10,000 U.S.
gallons and raise the Tier II total oil storage capacity threshold to
20,000 U.S. gallons. These commenters supported this threshold by
citing limitations on the lower limit for bulk purchase of oil, the
need to maintain empty and/or seasonal-use tanks on a farm, the lack of
financial resources to hire environmental managers, the low likelihood
of oil spills in the industry, and general environmental stewardship
practices inherently in place.
Still other commenters provided additional comments and suggestions
related to farms. One commenter requested that EPA remove the qualified
facility approach so that all farmers, including small businesses and
other small oil storage facilities are required to prepare a complete
SPCC Plan certified by a PE based on 1,320-gallon storage capacity.
Other commenters requested additional time for farms to comply with the
SPCC regulation, stating that this additional time will provide farmers
and others the opportunity to work with government agencies, including
the U.S. Department of Agriculture (USDA), on the development of a
model plan or guidelines. Finally, a commenter sought clarification
that oil tanks not in use can be classified as out of service, without
the need to remove the tanks from the facility.
e. Response to Comments
EPA continues to believe that there is insufficient data to support
an outright exemption exclusively for farms beyond the existing
aboveground storage capacity threshold of 1,320 U.S. gallons that
applies to all facilities (Sec. 112.1(d)(2)(ii)). As noted previously,
no data was provided by the commenters to support such an exemption. In
addition, EPA notes that a significant number of owners and operators
of farms will benefit from the amendments finalized in this action and
the December 2006 SPCC rule amendments (71 FR 77266, December 26,
2006), which allow a significant number of farms to develop self-
certified SPCC Plans.
With respect to an alternative ``qualified facility'' threshold,
EPA considered the commenters' suggestions for modifying the existing
qualified facilities threshold of 10,000 U.S. gallons total aboveground
storage capacity. However, the agricultural community did not provide
information that would lead the Agency to conclude that farms are
sufficiently different to warrant further differentiation from other
facilities that store oil. In fact, EPA believes that many non-farm
facilities could have similar needs to purchase
[[Page 74243]]
fuel in bulk and may have similar if not identical storage needs as
identified by agricultural stakeholders. Thus, EPA is not persuaded by
these comments to raise the existing qualified facilities threshold
solely for farms beyond 10,000 U.S. gallons. In setting the qualified
facilities threshold at 10,000 U.S. gallons in the December 2006
amendments, EPA sought to provide an alternative for facilities, among
other things, with simple oil storage configurations and smaller
quantities of oil handled (see 71 FR 77271, December 26, 2006). EPA
continues to maintain that the focus of the qualified facilities
alternative should be on simple configurations and small quantities of
oil stored or handled.\3\
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\3\ Although the Agency chose not to raise the threshold for
farms in identifying who is eligible as a ``qualified facility,''
the Agency estimates that under the current qualified facilities
eligibility criteria, greater than 90 percent of farms subject to
the SPCC rule could be eligible.
---------------------------------------------------------------------------
It should also be noted that, as described in Section V.G of this
notice, EPA is finalizing a multi-tiered approach to allow the owner or
operator of a facility that meets the eligibility criteria for a
qualified facility to self-certify his SPCC Plan, and allow the owners
or operators of a subset of qualified facilities (i.e., ``Tier I
qualified facilities'') to complete the SPCC Plan template in Appendix
G of this part in lieu of preparing a full SPCC Plan. EPA believes that
the Tier I qualified facility alternative should focus on facilities
with the simplest configurations and smallest oil storage containers.
Commenters did not provide sufficient data to support an increase in
the Tier I threshold for farms higher than proposed. For more
information on Tier I and Tier II qualified facilities, see Section V.G
of this notice.
EPA also disagrees that the amendments to the SPCC rule in December
2006 provide ``special treatment'' to any eligible facility. Farmers,
small businesses, and other small oil storage facilities may be
eligible to self-certify their SPCC Plans if they meet the eligibility
criteria for qualified facilities in Sec. 112.3(g). In providing this
option for facilities handling smaller amounts of oil, the Agency
sought to focus on those smaller, less complex operations that may be
concerned about the impact of using a PE on their limited budget. Some
of the current noncompliance with the SPCC regulation may be attributed
to those concerns. The Agency believes that providing a streamlined
option for owners and operators of these smaller, less complex
facilities should improve the overall compliance for the SPCC
regulation, ultimately resulting in greater environmental protection
(71 FR 77270, December 26, 2006). The owners and operators of farms,
small businesses and other small oil storage facilities may be eligible
to self-certify their SPCC Plans if they meet the eligibility criteria
for qualified facilities in Sec. 112.3(g).
EPA defines permanently closed at Sec. 112.2. Any container that
meets this definition is not subject to the SPCC regulation and
therefore would not be included in the facility's aggregate oil storage
capacity. The definition does not require that the permanently closed
container be removed from the facility. Similarly, a new, empty tank
that arrives at a farm or other SPCC-regulated facility is not to be
counted towards a facility's aggregate oil storage capacity until the
tank is actually used to contain oil. EPA discusses this clarification
further in section V.M of this notice.
In response to the commenters requesting additional time for farms
to comply with the SPCC regulation, EPA believes that the amendments to
the SPCC rule in this final action address the concerns raised by the
agricultural industry. Farmers will benefit from many of the
streamlined rule provisions including: Clarifications to the definition
of facility; the option to allow the owners and operators of a subset
of qualified facilities (i.e., ``Tier I qualified facilities'') to
complete the SPCC Plan template in Appendix G of this part in lieu of
preparing a full SPCC Plan; exemption of residential heating oil tanks
at single family residences, including farmsteads; amendments to the
security and integrity testing requirements; exemption from the
loading/unloading rack requirements; and amendments to the facility
diagram requirements. Furthermore, in a separate action in the Federal
Register of November 26, 2008, (73 FR 72016), EPA is proposing a new
compliance date for the owner or operator of a farm, as defined in
Sec. 112.2, that also meets the eligibility criteria as a qualified
facility, to prepare or amend and implement the farmer's SPCC Plan.
C. Residential Heating Oil Containers
Many regulated facilities, including farms, may include the
residence of the owner or operator within the geographical confines of
the facility. EPA did not intend to regulate residential uses of oil
(that is, those at non-commercial buildings) under the SPCC rule.
Therefore, EPA is exempting residential heating oil containers at
single family residences from the SPCC requirements.
1. Exemption for Residential Heating Oil Containers
EPA is adding a new paragraph (9) under the general applicability
section, Sec. 112.1(d) to exempt from SPCC applicability containers
that are used to store oil for the sole purpose of heating single-
family residences (including a residence at a farm). EPA is also
modifying Sec. 112.1(d)(2) so that the capacity of the single-family
residential heating oil containers are not counted toward facility
aggregate oil storage capacity. This action removes from SPCC
applicability containers (both aboveground and completely buried)
located at a single-family residence that are used solely to store
heating oil used to heat the residence. Under this amendment, the owner
or operator is not required to 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
will apply to the exempt containers. The SPCC requirements continue to
apply, however, to oil containers used to heat other non-residential
buildings within a facility, because the exemption covers only
residential heating oil containers at single family residences.
a. Comments
Several commenters expressed support for the exemption of
residential heating oil containers at single family residences from the
SPCC requirements. However, some commenters suggested extending the
exemption to locations beyond single-family residences. One commenter
suggested that EPA exempt buildings and offices located remotely from
mining operations. Another commenter suggested the exemption should
include heating oil tanks at a facility occupied daily, with storage
capacity not exceeding 5,000 gallons, in containers not exceeding 1,000
gallons, because these facilities are regularly occupied, and thus
would not pose any more likelihood of a release than a single-family
residence. One commenter suggested exempting heating oil storage
containers that serve four or fewer households, consistent with the
Federal underground storage tank regulations.
b. Response to Comments
EPA agrees with those commenters who supported the exemption, and
is finalizing the exemption as proposed, because EPA views a single-
family residence as a household that has direct ownership of the oil
stored in the heating oil container. The Agency did not intend, by
itself, that a single-family
[[Page 74244]]
residence that stores heating oil for its use be subject to SPCC
applicability, particularly because such residences generally do not
have significant quantities of other types of oil. The preamble to the
original 1973 SPCC rule (38 FR 34164, December 11, 1973), identified
containers of 660 U.S. gallons as the normal domestic code size for
non-buried heating oil containers, and that buildings may have two such
containers. The storage capacity thresholds for SPCC rule applicability
were initially established at 660 U.S. gallons for an individual
container and 1,320 U.S. gallons total aboveground capacity for the
facility, based on the possible capacity of residential heating oil
containers. Thus, the presence of heating oil containers at a single-
family residence was generally not intended, by itself, to trigger SPCC
applicability. On the other hand, EPA disagrees with those commenters
who suggested extending the exemption beyond heating oil containers at
single-family residences. Owners and operators of commercial
facilities, such as mining operations and commercial multi-family
structures (such as condominiums and apartment complexes), will
generally store much larger volumes of oil, and if there is a
reasonable expectation of an oil discharge to navigable waters or
adjoining shorelines, EPA believes it needs to be addressed in the SPCC
Plan. Of course, any facility that has an aggregate oil storage
capacity of less than 1,320 U.S. gallons in aboveground containers or
42,000 U.S. gallons in completely buried tanks are not subject to the
SPCC regulation (see Sec. 112.1(d)(2)). In addition, if a commercial
facility (for example, a university) includes a single-family residence
on the premises, then any heating oil container associated solely with
this residence is exempt from SPCC rule applicability.
2. Alternative Option Considered
EPA invited comments on 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 single-
family residences on farms would benefit from an exemption from the
SPCC rule.
a. Comments
One commenter supported exempting heating oil storage containers
located at a farm facility's single-family residence.
b. Response to Comments
EPA agrees with the commenter that heating oil containers located
at a single-family residence at a farm should be exempt from the SPCC
rule and is finalizing such an exemption. However, the commenter did
not provide any basis to limit the exemption solely to farms. Because
EPA believes the same rationale applies to exempt heating oil
containers to single-family residences at facilities other than farms,
the exemption applies to all single-family residences.
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). Under this action, EPA is modifying the definition of
facility in three ways: (1) To clarify that this definition alone
governs the applicability of 40 CFR part 112; (2) to clarify that
containers can be separated or aggregated, based on various factors in
defining ``facility''--that is, the owner or operator has discretion in
identifying which contiguous or non-contiguous buildings, properties,
parcels, leases, structures, installations, pipes, or pipelines make up
the facility; and (3) to add the qualifier ``oil'' before the term
``waste treatment.''
1. Revisions to the Definition of Facility
EPA is amending the definition of ``facility,'' as found in Sec.
112.2, in the following ways:
To show that only the definition of ``facility'' rather
than the definition of ``production facility'' determines applicability
for purposes of part 112, and specifically in Sec. 112.20(f)(1) when
applied to an oil production facility, EPA is adding the sentence
``Only this definition governs whether a facility is subject to this
part.'' to the definition of facility. This language is consistent with
the clarification on the definition of facility published in a May 25,
2004 Federal Register notice (69 FR 29728).
To address concerns over how oil containers and equipment
can be separated or aggregated for purposes of determining ``the
facility,'' and thus, the applicability of the SPCC requirements to
``the facility,'' EPA is inserting the sentence ``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.'' These
revisions allow an owner or operator of a facility 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, and activities being conducted,
property boundaries, and other relevant considerations. EPA is adding
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 additions are
merely examples of terms that might define a facility and are familiar
to the regulated community, such as farmers or oil production facility
owners. They are not meant to be exclusive.
To clarify that the term ``waste treatment'' refers to oil
waste treatment and not to treatment of any other type of waste that
may be generated, EPA is amending the first sentence of the definition
of facility to add the qualifier ``oil'' before the term ``waste
treatment.''
a. Comments
Many commenters expressed general support for the proposed
amendments. Several commenters stated that these revisions would allow
them the ability to prioritize compliance activities in environmentally
and economically beneficial ways (for example, being able to plan for
potential discharg
