Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule-Amendments, 58784-58832 [E9-27156]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Rules and Regulations]
[Pages 58784-58832]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27156]



[[Page 58783]]

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Part III





Environmental Protection Agency





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40 CFR Part 112



Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure 
(SPCC) Rule--Amendments; Final Rule

Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / 
Rules and Regulations

[[Page 58784]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8979-8]
RIN 2050-AG16


Oil Pollution Prevention; Spill Prevention, Control, and 
Countermeasure (SPCC) Rule--Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On December 5, 2008, EPA amended the Spill Prevention Control, 
and Countermeasures (SPCC) rule to provide increased clarity with 
respect to specific regulatory requirements, to tailor requirements to 
particular industry sectors, and to streamline certain rule 
requirements. The Agency subsequently delayed the effective date of 
these amendments to January 14, 2010, to allow the Agency time to 
review the amendments to ensure that they properly reflect 
consideration of all relevant facts. EPA also requested public comment 
on the delay of the effective date and its duration, and on the 
December 2008 amendments. Having reviewed the record for the amendments 
and the additional comments, EPA has decided to make only limited 
changes to the amendments. With respect to the majority of the December 
amendments, EPA is either taking no action or providing minor technical 
corrections. EPA is, however, removing the following provisions in the 
December 2008 amendments: the exclusion of farms and oil production 
facilities from the loading/unloading rack requirements; the exemption 
for produced water containers at an oil production facility; and the 
alternative qualified facility eligibility criteria for an oil 
production facility.

DATES: This final rule is effective on January 14, 2010.

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 the index at 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. Principe at 202-564-7913 (principe.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. Final Amendments Effective without Change
    1. Hot-Mix Asphalt (HMA)
    2. Pesticide Application Equipment and Related Mix Containers
    3. Applicability of Mobile Refueler Requirements to Farm Nurse 
Tanks
    4. Residential Heating Oil Containers
    5. Definition of Facility
    6. Facility Diagram
    7. Loading/Unloading Racks
    8. General Secondary Containment
    9. General Secondary Containment for Non-Transportation-Related 
Tank Trucks
    10. Security
    11. Integrity Testing
    12. Integrity Testing Requirements for Animal Fats and Vegetable 
Oils
    13. Oil Production Facilities
    a. Definition of Production Facility
    b. Modifications to Sec.  112.9 for Drilling and Workover 
Facilities
    c. Exemption for Certain Intra-Facility Gathering Lines
    d. Flowlines and Intra-facility Gathering Lines
    (i) Compliance Alternative in Lieu of Secondary Containment for 
Flowlines and Intra-facility Gathering Lines
    (ii) Contingency Plan for Flowlines and Intra-facility Gathering 
Lines
    (iii) Requirements for a Flowline and Intra-Facility Gathering 
Line Maintenance Program
    e. Flow-Through Process Vessels
    (i) Exemption from Sized Secondary Containment for Flow-Through 
Process Vessels
    (ii) Additional Requirements in Lieu of Sized Secondary 
Containment for Flow-Through Process Vessels
    (iii) Reportable Discharge from Flow-Through Process Vessels
    f. Alternative Compliance Measures for Produced Water Containers
    g. Clarification of the Definition of Permanently Closed 
Containers
    14. Man-made Structures
    15. Wind Turbines
    16. Technical Corrections
    B. Technical Corrections to Provisions of the December 2008 
Amendments
    1. Tier I Qualified Facilities and Appendix G Plan Template
    2. Underground Emergency Diesel Generator Tanks at Nuclear Power 
Stations
    3. SPCC Plan Preparation and Implementation for New Oil 
Production Facilities
    4. Compliance Date Provisions Specific to Farms
    C. Provisions Removed from Final Rule
    1. Exclusions for Oil Production Facilities and Farms from 
Loading/Unloading Rack Requirements
    2. Alternative Qualified Facility Eligibility Criteria for an 
Oil Production Facility
    3. Exemption for Produced Water Containers
    D. Oil and Natural Gas Pipeline Facilities
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

    On December 5, 2008, the Environmental Protection Agency (EPA or 
the Agency) amended the Spill Prevention, Control, and Countermeasure 
(SPCC) rule to address a number of issues raised by the regulated 
community (73 FR 74236). EPA is now amending the December

[[Page 58785]]

2008 amendments to make technical corrections. In addition, EPA has 
decided to remove three provisions from the SPCC rule it had adopted in 
December 2008. In all other respects, the amendments have not been 
changed. The following provisions, which 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''), will become effective without modification:
     Exemption for hot-mix asphalt (HMA);
     Exemption for 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 pesticide formulations;
     Exemption for residential heating oil containers, which 
applies to aboveground containers, as well as completely buried heating 
oil containers, at single-family residences, including those located at 
farms;
     Clarification that the definition of mobile refueler 
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;
     Amendment of 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 reaffirm that the ``facility'' 
definition governs the applicability of 40 CFR part 112;
     Amendment of the facility diagram requirement at Sec.  
112.7(a)(3) to clarify how containers, fixed and mobile, are identified 
on the facility diagram. EPA also clarified 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, as well as indicate the 
potential range in number of containers and the anticipated contents 
and capacities of the mobile or portable containers;
     Definition of the term ``loading/unloading rack,'' and 
clarification that this definition governs the applicability of the 
provisions for facility tank car and tank truck loading/unloading racks 
at Sec.  112.7(h);
     Amendment of the general secondary containment 
requirements at Sec.  112.7(c) to clarify the scope of secondary 
containment so that an owner or operator 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);
     Extension of 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;
     Amendment of 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;
     Amendment of the requirements at Sec. Sec.  112.8(c)(6) 
and 112.12(c)(6) to allow an owner or operator to consult and rely on 
industry standards to determine the appropriate qualifications for 
personnel performing tests and inspections, as well as the type and 
frequency of integrity testing required for a particular container size 
and configuration;
     Amendment of 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) so as to 
provide 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 
relating to container construction and configuration;
     Amendment of the definition of ``production facility'' to 
be consistent with the amended definition of ``facility'';
     Clarification that drilling and workover activities are 
not subject to the provisions at Sec.  112.9;
     Alternative compliance option for flow-through process 
vessels at oil production facilities requiring general secondary 
containment and additional oil spill prevention measures in lieu of the 
sized secondary containment requirements that would apply to this 
equipment;
     Definition of the term ``produced water container'', and 
an alternative compliance option for these containers at oil production 
facilities requiring general secondary containment, a PE-certified 
process or procedure designed to remove free-phase oil that accumulates 
on the surface of the produced water container, and additional oil 
spill prevention measures in lieu of the sized secondary containment 
requirements that would apply to these containers;
     Exemption for certain intra-facility gathering lines 
subject to requirements of the U.S. Department of Transportation's 
(DOT's) pipeline regulations in 49 CFR parts 192 or 195;
     Specific requirements for a flowline/intra-facility 
gathering line maintenance program and an alternative compliance option 
of contingency planning for flowlines and intra-facility gathering 
lines in lieu of the general secondary containment requirements; and
     Clarification of the definition of ``permanently closed'' 
as it applies to oil production facilities and containers present at an 
oil production facility.

The following provisions of the 2008 amendments will become effective 
with technical corrections:
     Exemption for underground oil storage tanks that supply 
emergency diesel generators at nuclear power generation facilities, 
revising the provision to state that the exemption applies ``provided 
that such a tank is subject to any Nuclear Regulatory Commission 
provision regarding design and quality criteria, including but not 
limited to* * *'' (emphasis added);
     Designation of a subset of qualified facilities (``Tier I 
qualified facilities'') with a set of streamlined SPCC rule 
requirements. 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. In Sec.  
112.6 and the Appendix G SPCC Plan template, technical corrections 
include clarifications and corrections of typographical and formatting 
errors; and,
     Amendment of the compliance date provision for new oil 
production facilities, so that it applies to new oil production 
facilities that begin operations after November 10, 2010. This change 
is necessary to align with the current compliance date for other 
facilities.

In this notice, EPA is also removing the paragraphs in Sec.  112.3 
specific to farms because on June 19, 2009 EPA established the same 
compliance dates for farms as for all other facilities (74 FR 29136); 
such differentiated provisions are no longer necessary.
    Additionally, EPA was particularly interested in receiving comments 
on

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these provisions as indicated in the February 2009 notice. After 
consideration of all relevant facts and public comments, EPA is 
removing the following provisions which were promulgated on December 5, 
2008 from the SPCC regulation:
     The exemption for certain produced water containers that 
do not contain oil in amounts that may be harmful as certified by a PE; 
and
     The alternative criteria for an oil production facility to 
be eligible to self-certify an SPCC Plan as a qualified facility.

The Agency is also removing the specific exclusion of oil production 
facilities and farms from the loading/unloading rack requirements at 
Sec.  112.7(h). Finally, EPA commits to continue inter-Agency 
discussions with DOT to clarify jurisdiction over facilities as 
described in the joint memorandum ``Jurisdiction over Breakout Tanks/
Bulk Storage Tanks (Containers) at Transportation-Related and Non-
Transportation-Related Facilities'' (February 4, 2000).
    This rulemaking marks the completion of the SPCC action proposed on 
October 15, 2007 (72 FR 58378), finalized on December 5, 2008 (73 FR 
74236), and for which the Agency considered public comments again in 
February 2009 (74 FR 5900, February 3, 2009). Hereafter, comments 
addressing the December 5, 2008 amendments will be referred to as 
``comments from the 2009 comment period.'' However, EPA recognizes that 
because of the changes in this action, and specifically provisions that 
have been removed from the December 2008 Amendments, facilities may 
need additional time to comply with the SPCC amendments. For example, 
owners or operators of facilities with marginal wells may need a PE to 
certify amendments to their SPCC Plan if the facility does not meet the 
qualified facility eligibility criteria. Because of the uncertainty 
surrounding the final amendments to the December 5, 2008 rule and the 
delay of the effective date, the Agency will propose to extend the 
compliance date.

II. Entities Potentially Affected by This Final Rule

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               Industry sector                         NAICS Code
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Oil Production...............................                     211111
Farms........................................                   111, 112
Electric Utility Plants......................                       2211
Petroleum Refining and Related Industries....                        324
Chemical Manufacturing.......................                        325
Food Manufacturing...........................                   311, 312
Manufacturing Facilities Using and Storing                      311, 325
 Animal Fats and Vegetable Oils..............
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
Government...................................                         92
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    The list of potentially affected entities in the above table may 
not be exhaustive. The Agency's goal is to provide a clear 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

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published a final rule amending the SPCC rule, formally known as the 
Oil Pollution Prevention regulation (40 CFR part 112). The July 2002 
rule amendments (67 FR 47042) 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. After 
publication of these rule amendments, several members of the regulated 
community filed legal challenges to certain aspects.\1\ All of the 
issues raised in the litigation have now been resolved; EPA published 
clarifications in the Federal Register to several aspects of the 
amended rule (69 FR 29728, May 25, 2004).\2\ In a separate Federal 
Register notice, the Agency published a final rule announcing the 
vacatur of the July 17, 2002 definition of ``navigable waters'' in 40 
CFR part 112,\3\ and restoring it back to the regulatory definition 
promulgated by EPA in 1973 (73 FR 71941, November 26, 2008).
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    \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 July 2002 
rule amendment.
    \2\ Several comments requested that the Agency codify the 
clarifications as part of the December 2008 rulemaking. To the 
extent the subject matter of the clarification were reflected in the 
rulemaking, the Agency either incorporated the clarification in the 
regulatory text or reaffirmed the Agency's position in the preamble. 
See 73 FR 74236, December 5, 2008.
    \3\ This action was taken in accordance with an order issued by 
the United States District Court for the District of Columbia 
(D.D.C.) in American Petroleum Institute v. Johnson, 571 F.Supp.2d 
165 (D.D.C. 2008).
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    Concerns were also raised about the ability to implement certain 
aspects of the July 2002 rule amendments. As a result, EPA proposed 
additional 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 (71 FR 77266, December 26, 2006). Additionally, EPA made 
available the SPCC Guidance for Regional Inspectors in December 2005. 
This guidance document is intended to assist regional inspectors, as 
well as members of the regulated community, in reviewing the 
implementation of the SPCC rule at a regulated facility. The guidance 
document is designed to provide more detail about the rule's 
applicability, to help clarify the role of the inspector in reviewing 
and evaluating 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 revise this guidance to address the regulatory 
amendments in this action and the December 2006 amendments (71 FR 
77266, December 26, 2006). EPA welcomes comments from the regulated 
community and the public on the guidance document at any time. 
Instructions for submitting comments are provided on the EPA Office of 
Emergency Management Web site.
    On December 5, 2008 (73 FR 74236), EPA again amended the SPCC rule 
to clarify certain provisions, to tailor requirements to particular 
industry sectors, and to streamline certain rule requirements. These 
requirements were to become effective on February 3, 2009. However, the 
effective date of the December 2008 rulemaking was delayed for 60 days 
from February 3, 2009 to April 4, 2009, in accordance with the January 
20, 2009 White House memorandum entitled ``Regulatory Review,'' and the 
January 21, 2009 memorandum from the Office of Management and Budget 
entitled ``Implementation of Memorandum Concerning Regulatory Review'' 
(M-09-08, January 21, 2009 OMB memorandum). (These memoranda are 
available for review in the docket for this rulemaking.) The Agency 
took this action to ensure that the rule properly reflected 
consideration of all relevant facts. Accordingly, EPA requested public 
comment on the delay of the effective date and its duration, and 
further comment on the regulatory amendments contained in the final 
rule amendments (74 FR 5900, February 3, 2009). On April 1, 2009, the 
Agency further delayed the effective date of the December 2008 
rulemaking until January 14, 2010 (74 FR 14736). The Agency took this 
action to allow sufficient time to address the comments received on the 
February 3, 2009 notice. EPA is now promulgating several limited 
revisions to the December 2008 amendments as a result of the Agency's 
review of comments and consideration of all relevant facts.
    Section V of this notice describes EPA's action on the December 
2008 amendments. For a complete discussion of the comments received 
during the 2009 comment period, see Comment and Response Document for 
2008 Final SPCC Amendments, Comment Period Ending March 2009, a copy of 
which is available in the docket for this rulemaking.
    Furthermore, EPA has extended the dates for preparing or amending, 
and implementing revised SPCC Plans in 40 CFR 112.3(a), (b), and (c) in 
a rule published on June 19, 2009 (74 FR 29136). In that action, the 
Agency also established dates for the owners and operators of farms to 
prepare or amend their SPCC Plans, and implement those Plans.

V. This Action

A. Final Amendments Effective Without Change

    EPA has not modified the following provisions of the December 2008 
amendments (73 FR 74236, December 5, 2008):
     Exemptions for HMA and HMA containers, pesticide 
application equipment and related mix containers, and heating oil 
containers at single-family residences, including those located at 
farms;
     Clarification that the definition of mobile refueler 
includes a nurse tank at farms;
     Amended definition of ``facility'' to clarify the existing 
flexibility associated with describing a facility's boundaries;
     Amended facility diagram requirements to provide 
additional flexibility;
     A definition of ``loading/unloading rack'' to clarify the 
oil transfer equipment subject to the provisions for facility tank car 
and tank truck loading/unloading racks, as well as amended provisions 
for this equipment;
     Amended general secondary containment requirements to 
provide more clarity;
     Exemption of non-transportation-related tank trucks from 
the sized secondary containment requirements;
     Amended security requirements;
     Amended integrity testing requirements to allow greater 
flexibility in the use of industry standards;
     Amended integrity testing requirements for containers that 
store AFVOs and meet certain criteria;
     Amended definition of ``production facility'';
     Clarification that drilling and workover activities are 
not subject to the provisions at Sec.  112.9;
     Exemption for certain intra-facility gathering lines at 
oil production facilities from the SPCC requirements;
     More prescriptive requirements for a flowline/intra-
facility gathering line maintenance program for all oil production 
facilities and an alternative

[[Page 58788]]

compliance option of contingency planning for flowlines and intra-
facility gathering lines in lieu of all secondary containment;
     Alternative compliance 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 the sized secondary containment requirements;
     A definition of ``produced water container'';
     Alternative compliance option to sized secondary 
containment for produced water containers that includes general 
secondary containment, a PE-certified process or procedure designed to 
remove free-phase oil that accumulates on the surface of the produced 
water container, and additional oil spill prevention measures;
     Clarification of the definition of ``permanently closed'' 
as it applies to an oil production facility; and
     Technical corrections.
    This preamble discusses each of these provisions, and any related 
comments received during the 2009 comment period that raise substantive 
policy issues, in more detail below. For a complete discussion of the 
comments received in 2009, see Comment and Response Document for 2008 
Final SPCC Amendments, Comment Period Ending March 2009, a copy of 
which is available in the docket for this rulemaking.
1. Hot-Mix Asphalt (HMA)
    In the December 2008 amendments, EPA exempted HMA and HMA 
containers from SPCC rule applicability. HMA is a blend of asphalt 
cement (AC) and aggregate material, such as stone, sand, or gravel, 
which is formed into final paving products. All types of asphalt, 
including HMA, are petroleum products.
    EPA exempted 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 HMA containers 
is not counted toward the facility's oil storage capacity calculation. 
EPA took 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, if any, 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. See Section V.A of 
the December 5, 2008 notice at 73 FR 74240 for more information about 
this amendment.
    EPA received one comment that recommended that EPA also extend the 
exemption to other products like paraffin wax, asphalt cement, certain 
resins, and various animal fats, and suggested the exemption be based 
on the unique ``self-containing'' characteristics of all these 
materials and the low probability of a spill reaching navigable waters 
or adjoining shorelines. The Agency disagrees with this comment. As EPA 
discussed in the December 5, 2008 amendments, these materials, unlike 
HMA, do have the potential to discharge in quantities that may be 
harmful 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. Conversely, HMA is 
unlikely to flow as a result of the entrained aggregate. The commenter 
did not provide new or compelling data supporting their position. 
Further, 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 no reasonable expectation of a 
discharge of oil to navigable waters or adjoining shorelines from every 
single oil container at the facility (excluding exempt containers), 
then the facility would not be subject to the rule's requirements. 
However, if the facility owner or operator determines that any oil 
container (excluding exempt containers) may have a reasonable 
expectation of a discharge of oil to navigable waters or adjoining 
shorelines, then the facility is subject to the rule provisions.
    Other comments generally supported the amendments to the exemption 
for HMA and HMA containers. Based on this and review of all relevant 
facts, the Agency is making no changes to this provision.
2. Pesticide Application Equipment and Related Mix Containers
    In the December 2008 amendments, EPA added a new paragraph (10) 
under the general applicability section, Sec.  112.1(d), to exempt all 
pesticide application equipment and related mix containers regardless 
of ownership or where used when crop oil or adjuvant oil is added to 
the pesticide formulation. EPA also modified Sec.  112.1(d)(2) so that 
the capacity of 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 containers/
equipment 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 the application equipment. EPA adopted this exemption 
because this type of pesticide use and related mix containers are 
already subject to regulation under the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA), as codified in 40 CFR part 165, to assure 
the safe use (including discharge), reuse, storage, and disposal of 
pesticide containers. 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 (after mixing 
occurs), are considered bulk storage containers and are not exempt 
under the SPCC rule. See Section V.B of the December 5, 2008 notice at 
73 FR 74240 for more information about this amendment.
    Comments generally supported the exemption for pesticide 
application equipment and related mix containers. Based on this and 
review of all relevant facts, the Agency is making no change to this 
provision.
3. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
    In Section V.B. of the preamble to the December 2008 amendments (73 
FR 74241, December 5, 2008), 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, and thus its 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).

[[Page 58789]]

    Comments generally supported the clarification regarding the 
applicability of mobile refueler requirements to farm nurse tanks. 
Based on this and review of all relevant facts, the Agency is making no 
change to this clarification.
4. Residential Heating Oil Containers
    In the December 2008 amendments, EPA added 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 also modified Sec.  112.1(d)(2) so that the capacity of 
single-family residential heating oil containers is not counted toward 
facility aggregate oil storage capacity. Thus, the owner or operator is 
not required to count any residential heating oil container (i.e., 
those at non-commercial buildings) as part of the facility's aggregate 
storage capacity for the purpose of determining SPCC applicability, and 
no SPCC requirements will apply to these 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. See Section V.C of the December 5, 2008 notice at 73 
FR 74243 for more information about this amendment.
    Comments generally supported the amendments to the exemption for 
residential heating oil containers. The Agency did not intend for the 
presence of heating oil containers at a single-family residence to, by 
itself, trigger SPCC applicability. Based on this and review of all 
relevant facts, the Agency is making no change to this provision.
5. Definition of Facility
    In the December 2008 amendments, EPA amended the definition of 
``facility,'' as found in Sec.  112.2. (EPA 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).) EPA modified 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 aggregated or disaggregated (i.e., 
counted separately), based on various factors in defining the 
``facility'' (in other words, the owner or operator has the discretion 
to identify 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.''
    EPA maintains that under this provision, the owner or operator 
defines the boundaries of his facility, except as noted below. A 
facility may or may not be subject to the SPCC rule depending on how 
the facility owner or operator aggregates buildings, structures or 
equipment and associated storage or type of activity. EPA recognizes 
that this provision clarifies that a facility owner/operator may 
determine that he is no longer subject to the SPCC requirements. 
However, an owner or operator may not characterize a facility so as to 
simply avoid applicability of the rule (for example, defining separate 
facilities around oil storage containers that are located side-by-side 
or within close proximity, and are used for the same purpose). See 
Section V.D of the December 5, 2008 notice at 73 FR 74244 for more 
information about this amendment.
    Comments generally supported the amendments to the definition of 
``facility.'' Based on this and review of all relevant facts, the 
Agency is making no change to this provision.
6. Facility Diagram
    In the December 2008 amendments, EPA revised the requirement that 
the facility diagram include the location and contents of each 
container to provide additional flexibility. EPA amended Sec.  
112.7(a)(3) to clarify that the facility diagram must include all fixed 
containers (that is, those containers that are not mobile or portable). 
For any mobile or portable containers (such as drums or totes), a 
facility owner or operator must mark the storage area on the facility 
diagram for these containers. For the purposes of this provision, 
``storage area'' means the location of their out-of-service containers 
or designated storage area, primary storage area, or areas where mobile 
or portable containers are most frequently located. The facility owner 
or operator may mark the number of containers, contents and capacity of 
each container either on the facility diagram or in a separate 
description in the SPCC Plan. If the total number of mobile or portable 
containers changes, the owner or operator need only include an estimate 
in the Plan of the number of mobile or portable containers, the 
anticipated contents, and capacities of the mobile or portable 
containers maintained at the facility in the Plan.
    EPA also required that certain intra-facility piping (i.e., 
gathering lines) exempted from the SPCC requirements in the December 
2008 action be identified on the facility diagram and marked as 
``exempt.'' This will help facility and EPA personnel define 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. However, EPA has not required 
that all containers exempted from the rule be marked on the facility 
diagram because in many cases, it would be impracticable. For example, 
the mobility of motive power containers and mobile/portable containers 
with a capacity of less than 55 U.S. gallons makes them difficult to 
accurately represent on a facility diagram. See Section V.E of the 
December 5, 2008 notice at 73 FR 74246 for more information about this 
amendment.
    Comments generally supported the amendments to the facility diagram 
provision. One commenter claimed that his facility diagrams identify 
underground storage tanks, but do not label them as exempt from the 
SPCC requirements. The comment argued that marking them as ``exempt'' 
would be an unnecessary expense. The requirement to identify exempt 
USTs was finalized in July 2002 (67 FR 47042, July 17, 2002) and so 
antedates the December 2008 amendments; thus the comment is outside the 
scope of this rulemaking. However, in response, we would note that the 
facility diagram can be supplemented with a table or log that indicates 
which USTs are exempt from the SPCC requirements. Based on this and 
review of all relevant facts, the Agency is making no change to this 
provision.
7. Loading/Unloading Racks
    In the December 2008 amendments, EPA finalized a definition for the 
term ``loading/unloading rack,'' which governs whether a facility's oil 
transfer equipment and areas are subject to Sec.  112.7(h). Under this 
provision, the requirements described at Sec.  112.7(h) only apply to 
oil transfer areas of a regulated facility where a loading/unloading 
rack, as defined in Sec.  112.2, is located. EPA modified the 
definition to provide more clarity, and to indicate that a loading/
unloading arm is an essential component of a loading/unloading rack. 
Other components that may be found at a loading or unloading rack are 
described in the definition. 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 by the December 
2008 amendments.

[[Page 58790]]

    EPA also changed all references from loading/unloading ``area'' to 
loading/unloading ``rack,'' including modifications to the language in 
Sec.  112.7(h)(1), and corrected the word ``break'' to ``brake'' in 
Sec.  112.7(h)(2). Finally, EPA clarified that Sec.  112.7(h) applies 
to a loading/unloading rack associated with a container that is 
exempted from the rule, such as 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. Additionally, EPA clarified 
that transfer areas (equipped with dispensers or other transfer 
equipment) that are associated with exempted USTs, at an otherwise 
regulated SPCC facility, are subject to the requirements of Sec.  
112.7(c). See Section V.F of the December 5, 2008 notice at 73 FR 74248 
for more information about this amendment.
    EPA agrees with the comment that EPA's definition of ``loading/
unloading rack'' does not apply to a flexible hose used to load and/or 
unload oil from a tanker truck or railcar unless the flexible hose is 
connected to a loading/unloading arm. The Agency does not intend this 
definition to include areas where loading or unloading is achieved 
using only flexible hoses. 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 because some top 
and bottom loading/unloading racks consist of a combination of steel 
loading arms connected by flexible hoses.
    Comments generally supported the ``loading/unloading rack'' 
definition and amendments to the requirements for a ``loading/unloading 
rack.'' Based on this and review of all relevant facts, the Agency is 
making no change to these provisions.
 8. General Secondary Containment
    In the December 2008 amendments, EPA amended the general secondary 
containment requirement at Sec.  112.7(c) in three ways:
     By adding text regarding the method, design and capacity 
of secondary containment-- to make it clear that the scope of the 
general secondary containment requirements takes into consideration the 
typical failure mode, and most likely quantity of oil that would be 
discharged, consistent with EPA guidance (SPCC Guidance for Regional 
Inspectors);
     By specifically referencing both active and passive 
measures of secondary containment to make it clear that general 
containment requirements 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 an operator. These 
measures may be deployed either before an activity involving the 
handling of oil starts, or in reaction to a discharge, as 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. The design and capacity flexibility described in 
paragraph Sec.  112.7(c) is specifically for equipment and containers 
subject to this paragraph and not for other secondary containment 
provisions of this rule; and.
     By including 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), when 
uncoupling hoses after bulk transfer operations, and for pumps, valves, 
and fittings. Sumps and collection systems generally involve a 
permanent pit or reservoir connected to troughs/trenches that collect 
oil. By expanding the list of examples of secondary containment 
methods/prevention systems found in Sec.  112.7(c)(1), EPA intended to 
increase the clarity and better represent current prevention practices. 
EPA emphasizes that the list of containment methods/prevention systems 
are examples only; other containment methods may be used, consistent 
with good engineering practice. See Section V.H of the December 5, 2008 
notice at 73 FR 74261 for more information about this amendment.
    As EPA discussed in the December 5, 2008 amendments, the Plan 
preparer should include enough detail in the SPCC Plan to describe the 
efficacy of the measures used to comply with the general secondary 
containment requirements (see the SPCC Guidance for Regional 
Inspectors, Chapter 4). While EPA does not require that calculations be 
kept in the Plan, it recommends the facility owner or operator maintain 
them such that if questions arise during the inspection, the 
calculations which serve as the basis for the capacity of the secondary 
containment system will be readily available for review.
    Comments generally supported the amendments to the general 
secondary containment requirements. Based on this and review of all 
relevant facts, the Agency is making no change to these provisions.
9. General Secondary Containment for Non-Transportation-Related Tank 
Trucks
    In the December 2008 amendments, EPA extended the exemption from 
the sized secondary containment requirements provided to mobile 
refuelers in the December 2006 amendments (71 FR 77266, December 26, 
2006) to non-transportation-related tank trucks at a facility subject 
to the SPCC rule. Other non-transportation-related tanker trucks may be 
transferring non-fuel oils (i.e., transformer oils, lubrication oils, 
or certain AFVOs) and operate similarly to mobile refuelers; therefore, 
they may not be able to comply with the sized secondary containment 
requirements. Specifically, EPA amended Sec. Sec.  112.6(a)(3)(ii), 
112.8(c)(2), 112.8(c)(11), 112.12(c)(2), and 112.12(c)(11) to include 
the phrase ``except mobile refuelers and other non-transportation-
related tank trucks.'' Such non-transportation-related tank trucks 
include those used to store 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 
Sec.  112.7(c) still apply. See Section V.I of the December 5, 2008 
notice at 73 FR 74262 for more information about this amendment.
    EPA agrees with comments supporting the exemption from the sized 
secondary containment requirements for non-transportation-related tank 
trucks at a facility subject to the SPCC rule. One comment noted that 
the exemption from sized secondary containment should be rescinded, 
given the use of truck and skid mounted tanks as storage containers at 
temporary sites and the high risks associated with these tanks. EPA 
disagrees with the comment. As stated in the preamble to the December 
5, 2008 amendments, the Agency concluded that it is generally not 
practicable to provide sized secondary containment for non-
transportation-related tank trucks because they are moving from 
location to location within a facility. A non-transportation-related 
tank truck that only operates in a single or fixed location within the 
facility (i.e., it does not move within the facility for

[[Page 58791]]

purposes of transferring oil) is not eligible for this provision and 
would still be subject to the sized secondary containment requirement. 
Based on this and review of all relevant facts, the Agency is making no 
change to this provision.
10. Security
    In the December 2008 amendments, EPA amended the facility security 
requirements at Sec.  112.7(g) to be performance-based and allow an 
owner or operator of a facility to tailor its security measures to the 
facility's specific characteristics and location. This provision 
extended 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.
    Specifically, EPA modified the security requirements at Sec.  
112.7(g) to allow an owner or operator to design the security 
arrangements at the facility to address the specific circumstances that 
apply. This provision 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 the SPCC 
Plan how these security measures are implemented. These requirements 
replace the more prescriptive fencing and other requirements, 
previously found in Sec.  112.7(g)(1) through (5). Because the revised 
requirements at Sec.  112.7(g) apply to all facilities (excluding oil 
production facilities), EPA removed the security requirements 
previously found at Sec.  112.6(c)(3) for qualified facilities; the 
provision would be redundant. See Section V.J of the December 5, 2008 
notice at 73 FR 74263 for more information about this amendment.
    Comments generally supported the amendments to the provision for 
security requirements. Based on this and review of all relevant facts, 
the Agency is making no change to this provision.
11. Integrity Testing
    In the December 2008 amendments, EPA amended 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. Specifically, EPA modified 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, EPA extended 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.
    Specifically, EPA replaced the previous regulatory requirements at 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) with the requirement for 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.
    These revised provisions allow, for example, an owner or operator 
to adopt visual inspections for certain types of containers, as 
outlined in industry standards, to satisfy the integrity testing 
requirements without the need for environmental equivalence 
determinations certified by a PE. However, EPA notes that certain 
containers may not fall within the scope of an industry standard or may 
not have an applicable industry standard; in this case, the owner or 
operator of the facility may develop an environmentally equivalent 
inspection and testing program in accordance with Sec.  112.7(a)(2) to 
comply with the integrity testing requirements described in Sec. Sec.  
112.8(c)(6) and 112.12(c)(6) (for more information, see Chapter 7 of 
the SPCC Guidance for Regional Inspectors). In the case of a Tier II 
qualified facility, the environmentally equivalent integrity testing 
program will require PE certification. See Sec.  112.6(b)(3)(i) and 
112.6(b)(4) for more information on PE certification of environmental 
equivalence for Tier II qualified facilities.
    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 must also conduct 
frequent inspection of the outside of the container for signs of 
deterioration, discharges, or accumulation of oil inside diked areas. 
Because the revised requirements at Sec. Sec.  112.8(c)(6) and 
112.12(c)(6) apply to all facilities (excluding oil production 
facilities), EPA removed the integrity testing requirements previously 
found at Sec.  112.6(c)(4) for qualified facilities. See Section V.K of 
the December 5, 2008 notice at 73 FR 74264 for more information about 
this amendment.
    EPA agrees with the comments supporting the provision for integrity 
testing requirements. However, several comments generally opposed these 
amendments, and one comment questioned the need for more flexibility 
with regard to the integrity testing requirements. EPA recognizes that 
certain containers do not have applicable industry standards and notes 
that the rule already provides flexibility to integrity testing in that 
the owner or operator can rely on a PE to provide an environmentally 
equivalent method of integrity testing in Sec.  112.7(a)(2). 
Nonetheless, the December 2008 amendments address broader concerns with 
the integrity testing requirements by revising the rule text under 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6). No new or compelling 
information or data was provided by comments that supported changing 
EPA's position. Based on this and review of all relevant facts, the 
Agency is making no change to this provision.
12. Integrity Testing Requirements for Animal Fats and Vegetable Oils
    In the December 2008 amendments, EPA differentiated the integrity 
testing requirements at Sec.  112.12(c)(6) for an owner or operator of 
a facility that handles certain types of AFVOs. Specifically, EPA 
provided the PE or an owner or operator self-certifying an SPCC Plan 
with the flexibility to use a visual inspection program for integrity 
testing for containers that store AFVOs and that meet certain criteria 
identified in Sec.  112.12(c)(6)(ii). 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, as well as meet the following additional criteria: 
(1) The

[[Page 58792]]

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 Sec.  112.12(c)(6)(i), without 
having to document the reasons for using an environmentally equivalent 
measure in accordance with Sec.  112.7(a)(2). The owner or operator is 
required to document the procedures for inspections and testing in the 
SPCC Plan, including those for AFVO bulk storage containers that are 
eligible for the differentiated requirements described in this 
provision.
    EPA does not require that an owner or operator use this alternative 
compliance option. This alternative provides additional flexibility in 
meeting the provisions set forth in Sec.  112.12(c)(6) to address 
stakeholder concerns. EPA recognizes that certain types of containers 
do not have applicable industry standards. The December 2008 amendments 
revised the SPCC rule to provide an environmentally equivalent approach 
to comply with the integrity testing requirements for AFVO containers 
or have a PE provide an environmentally equivalent method of integrity 
testing in accordance with Sec.  112.7(a)(2). See Section V.K of the 
December 5, 2008 notice at 73 FR 74264 for more information about this 
amendment.
    EPA agrees with comments supporting the differentiated integrity 
testing requirements for an owner or operator of a facility that 
handles certain types of AFVOs. One comment requested greater 
flexibility in determining the appropriate integrity testing measures 
for bulk AFVO storage containers, including an extension of the 
inspection frequency for tanks storing AFVO. The owner or operator can 
identify the appropriate integrity testing measures for bulk AFVO 
storage containers following either Sec.  112.12(c)(6)(i) or Sec.  
112.12(c)(6)(ii). Additional flexibility may be achieved when a PE 
provides an environmentally equivalent method of integrity testing in 
accordance with Sec.  112.7(a)(2). The SPCC rule requires that 
inspections of AFVO bulk storage containers be conducted on a regular 
schedule, but does not otherwise specify an inspection frequency for 
these containers. The owner or operator can identify the appropriate 
inspection frequency for the AFVO containers and document the 
inspection frequency in the SPCC Plan. No new or compelling information 
or data was provided by comments that would cause the Agency to change 
its position. Thus, based on this and review of all relevant facts, the 
Agency is making no change to this provision.
13. Oil Production Facilities
    Since its original promulgation in 1973, the SPCC rule has included 
differentiated requirements for oil production facilities (Sec.  
112.9), as compared to other types of facilities (Sec. Sec.  112.8, 
112.10, 112.11, and 112.12). Based on issues presented by the regulated 
community, in the December 2008 amendments EPA adopted certain 
revisions that further streamline, tailor or clarify the SPCC 
requirements for oil production facilities (see Section V.M of the 
December 5, 2008 notice at 73 FR 74270). EPA has decided not to modify 
the following provisions: amended definition of ``production 
facility''; clarification that drilling and workover activities are not 
subject to the provisions at Sec.  112.9; exemption from the SPCC 
requirements for certain intra-facility gathering lines subject to the 
DOT pipeline regulations in 49 CFR parts 192 or 195; specific 
requirements for a flowline/intra-facility gathering line maintenance 
program and an alternative compliance option of contingency planning 
for flowlines and intra-facility gathering lines at oil production 
facilities in lieu of secondary containment requirements; an 
alternative compliance option for flow-through process vessels at oil 
production facilities that requires general secondary containment and 
additional oil spill prevention measures in lieu of the sized secondary 
containment requirements; definition of ``produced water container'' 
and alternative compliance measures for these containers which requires 
general secondary containment, a process or procedure certified by a PE 
designed to remove free-phase oil on the surface of the produced water 
container and compliance with additional oil spill prevention measures 
in lieu of sized secondary containment requirements; and clarification 
of the definition of ``permanently closed'' as it applies to an oil 
production facility.
a. Definition of Production Facility
    Consistent with the revisions to the definition of ``facility'' (as 
described in Section V.D of the December 2008 amendments (73 FR 
74236)), EPA also modified the definition of ``production facility.'' A 
``production facility'' is a type of ``facility'' as defined in Sec.  
112.2. With the December 2008 amendments, EPA added 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 at 
all facilities under 40 CFR part 112.) This change to the definition of 
production facility addresses concerns raised during litigation 
challenging the July 2002 rule amendments and discussed in the May 25, 
2004 Federal Register notice (69 FR 29728). EPA 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 consiste