Environmental Protection Agency: Monday, December 12, 2005

Monday,
December 12, 2005
Part III
Environmental
Protection Agency
40 CFR Part 112
Oil Pollution Prevention; Spill Prevention,
Control, and Countermeasure Plan
Requirements—Amendments; Proposed
Rule
VerDate Aug<31>2005 18:31 Dec 09, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\12DEP3.SGM 12DEP3
73524 Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules
ENVIRONMENTAL PROTECTION Docket Center (EPA/DC), Docket ID No. number to make an appointment to view
AGENCY EPA–HQ–OPA–2005–0001, 1200 the docket is 202–566–0276.
Pennsylvania Avenue, NW., FOR FURTHER INFORMATION CONTACT: For
40 CFR Part 112 Washington, DC 20460. general information, contact the
[EPA–HQ–OPA–2005–0001; FRL–8007–2] • Hand Delivery: Such deliveries are Superfund, TRI, EPCRA, RMP and Oil
only accepted during the Docket’s Information Center at 800–424–9346 or
RIN 2050–AG23 normal hours of operation, and special TDD 800–553–7672 (hearing impaired).
arrangements should be made for In the Washington, DC metropolitan
Oil Pollution Prevention; Spill
deliveries of boxed information. area, call 703–412–9810 or TDD 703–
Prevention, Control, and
Instructions: Direct your comments to 412–3323. For more detailed
Countermeasure Plan Requirements—
Docket ID No. EPA–HQ–OPA–2005– information on specific aspects of this
Amendments proposed rule, contact either Vanessa E.
0001. EPA’s policy is that all comments
AGENCY: Environmental Protection received will be included in the public Rodriguez at 202–564–7913
Agency. docket without change and may be (rodriguez.vanessa@epa.gov), or Mark
ACTION: Proposed rule. made available online at W. Howard at 202–564–1964
www.regulations.gov, including any (howard.markw@epa.gov), U.S.
SUMMARY: The Environmental Protection personal information provided, unless Environmental Protection Agency, 1200
Agency (EPA or the Agency) is today the comment includes information Pennsylvania Avenue, NW.,
proposing to amend the Spill claimed to be Confidential Business Washington, DC, 20460–0002, Mail
Prevention, Control, and Information (CBI) or other information Code 5104A.
Countermeasure (SPCC) Plan whose disclosure is restricted by statute. SUPPLEMENTARY INFORMATION: This
requirements to reduce the regulatory Do not submit information that you proposed rule would amend the
burden for certain facilities by: consider to be CBI or otherwise requirements for Spill Prevention,
Providing an option that would allow protected through www.regulations.gov. Control, and Countermeasure (SPCC)
owners/operators of facilities that store The www.regulations.gov Web site is an Plans in 40 CFR part 112. First, the
less than 10,000 gallons of oil and meet ‘‘anonymous access’’ system, which proposal would provide an alternative
other qualifying criteria to self-certify means EPA will not know your identity option for the owner/operator of a
their SPCC Plans, in lieu of review and or contact information unless you facility that meets specific qualifying
certification by a Professional Engineer; provide it in the body of your comment. criteria (hereafter referred to as a
providing an alternative to the If you submit an electronic comment, ‘‘qualified facility’’) to self-certify that
secondary containment requirement, EPA recommends that you include your the facility’s SPCC Plan complies with
without requiring a determination of name and other contact information in 40 CFR part 112, in lieu of the
impracticability, for facilities that have the body of the comment and with any requirement for a Professional
certain types of oil-filled equipment; disk or CD–ROM you submit. If EPA Engineer’s (PE) review and certification.
defining and providing an exemption cannot read your comment due to Second, the proposal would provide an
for motive power containers; and technical difficulties and cannot contact alternative option for the owner/
exempting airport mobile refuelers from you for clarification, EPA may not be operator of a facility with oil-filled
the specifically sized secondary able to consider your comment. operational equipment that meets
containment requirements for bulk Electronic files should avoid the use of specific qualifying criterion (hereafter
storage containers. In addition, the special characters, any form of referred to as ‘‘qualified oil-filled
Agency also proposes to remove and encryption, and be free of any defects or operational equipment’’) to establish
reserve certain SPCC requirements for viruses. Comments and suggestions and document an inspection or
animal fats and vegetable oils and regarding the scope of any future monitoring program, prepare a
proposes a separate extension of the rulemaking should be clearly contingency plan, and provide a written
compliance dates for farms. In differentiated from comments specific to commitment of manpower, equipment
proposing these changes, EPA is today’s proposal (e.g., label Suggestions and materials in lieu of secondary
significantly reducing the burden for Future Rulemaking and Comments containment for qualified oil-filled
imposed on the regulated community in on Current Proposal). operational equipment without being
complying with the SPCC requirements, Docket: All documents in the docket required to make an individual
while maintaining protection of human are listed in the www.regulations.gov impracticability determination. Third,
health and the environment. Further, index. Although listed in the index, the proposal would define and provide
the Agency requests comments on the some information is not publicly an exemption for motive power
potential scope of future rulemaking. In available, e.g., CBI or other information containers. Fourth, the proposal would
a separate document in today’s Federal whose disclosure is restricted by a exempt airport mobile refuelers from
Register, the Agency is proposing to statute. Certain other material, such as specifically sized secondary
extend the compliance dates for all copyrighted material, will be publicly containment requirements for bulk
facilities. available only in hard copy. Publicly storage containers. Fifth, the proposal
DATES: Comments must be received on available docket materials are available removes and reserves certain SPCC
or before February 10, 2006. either electronically in requirements for animal fats and
ADDRESSES: Submit your comments, www.regulations.gov or in hard copy at vegetable oils. Finally, the proposal
identified by Docket ID No. EPA–HQ– the EPA Docket, EPA/DC, EPA West, provides a separate extension of the
OPA–2005–0001 by one of the following Room B102, 1303 Constitution Ave., compliance dates for farms and, in a
methods: NW., Washington, DC. The Public separate notice in today’s Federal
• Federal Rulemaking Portal: Reading Room is open from 8:30 a.m. to Register, the Agency is proposing to
www.regulations.gov. Follow the on-line 4:30 p.m., Monday through Friday, extend the compliance dates for all
instructions for submitting comments. excluding legal holidays. The telephone facilities. The contents of this preamble
• Mail: The mailing address of the number for the Public Reading Room is are:
docket for this rulemaking is EPA 202–566–1744, and the telephone I. General Information
Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules 73525
II. Entities Potentially Affected by This I. General Information in § 112.1(b) from any oil-filled
Proposed Rule operational equipment during the ten
III. Statutory Authority and Delegation of To reduce regulatory burden for
qualified facilities and to address years prior to the Plan certification date
Authority
several concerns involving oil-filled or, since becoming subject to the SPCC
IV. Background
V. Today’s Action operational equipment, motive power requirements if the facility has been in
A. Qualified Facilities containers, airport mobile refuelers, and operation for less than ten years.
1. Eligibility Criteria • EPA proposes to exempt from the
provisions specific to animal fats and
a. Total Facility Oil Storage Capacity SPCC rule certain motive power
vegetable oils, EPA proposes to amend
Threshold containers. Motive power containers are
b. Reportable Discharge History the SPCC Plan requirements in 40 CFR
onboard bulk storage containers used
2. Proposed Requirements for Qualified part 112. The Agency also proposes a
solely to power the movement of a
Facilities separate extension of the compliance
motor vehicle (i.e., fuel tanks), or
a. Self-Certification and Plan Amendments dates for farms. Specifically:
ancillary onboard oil-filled operational
b. Environmental Equivalence and • EPA proposes an alternative option
Impracticability Determinations equipment (i.e., hydraulics and
for the owner/operator of a qualified
c. SPCC Plan Exceptions lubrication systems) used solely to
facility to self-certify his/her SPCC Plan,
3. Alternative Options Considered facilitate its operation. This exemption
prepared in accordance with 40 CFR
a. Extension/Suspension Options would not apply to transfers of fuel or
b. Multi-tiered Structure part 112, in lieu of review and
other oil into motive power containers
c. One-time Notification certification by a Professional Engineer
at an otherwise regulated facility. This
B. Qualified Oil-filled Operational (PE). A qualified facility is a facility
exemption would not apply to a bulk
Equipment subject to the SPCC requirements that
1. Proposed Oil-Filled Operational
storage container mounted on a vehicle
(1) has a maximum total facility oil
Equipment Definition for any purpose other than powering the
storage capacity of 10,000 gallons or vehicle itself, for example, a tanker
2. Eligibility Criteria—Reportable less; and (2) had no reportable oil
Discharge History truck or mobile refueler. Additionally,
3. Proposed Requirements for Qualified
discharge as described in § 112.1(b) this exemption would not apply to oil
Oil-Filled Operational Equipment In during the ten years prior to self- drilling or workover equipment,
Lieu of Secondary Containment certification or, since becoming subject including rigs.
a. Contingency Plans and a Written to the SPCC requirements if the facility • EPA proposes to exempt airport
Commitment of Manpower, Equipment has been in operation for less than ten mobile refuelers from the specifically
and Materials years. Under this proposed approach,
b. Inspections or Monitoring Program sized secondary containment
facility owners/operators of qualified requirements for bulk storage containers
4. Alternative Options Considered
facilities choosing to self-certify their under § 112.8(c)(2) and (11) of the SPCC
a. Capacity Threshold Qualifier
b. Multi-Tiered Structure SPCC Plans may not deviate from any rule. Airport mobile refuelers are
c. Extension/Suspension Options requirement of the SPCC rule under vehicles found at airports that have
5. Qualified Facilities and Qualified Oil- § 112.7(a)(2) (with two exceptions) and onboard bulk storage containers
Filled Operational Equipment Overlap may not make impracticability designed for, or used to, store and
C. Motive Power determinations in their SPCC Plans as transport fuel for transfer into or from
1. Definition of Motive Power described under § 112.7(d). The two an aircraft or ground service equipment.
2. Proposed Exemption exceptions are that facility owners/
3. Alternative Options Considered The remaining provisions of § 112.8(c)
operators of qualified facilities choosing and the general secondary containment
a. Equipment-Based Motive Power
Exemption to self-certify their SPCC Plans would requirements of § 112.7(c) would still
b. Threshold-Based Motive Power have flexibility with respect to the apply to the onboard bulk storage
Exemption security requirements and container containers on airport mobile refuelers
c. Exclusion From Storage Capacity integrity testing. and the transfers associated with this
Calculation • EPA proposes a definition for oil- equipment.
D. Airport Mobile Refuelers filled operational equipment and • The Agency proposes to amend the
1. Definition of Airport Mobile Refueler proposes that owners and operators of requirements for animal fats and
2. Proposed Amended Requirements facilities where qualified oil-filled
E. Animal Fats and Vegetable Oils vegetable oils in Subpart C of Part 112
VI. Proposed Extension of Compliance Dates
operational equipment is located have by removing § 112.13 (requirements for
for Farms the alternative of preparing an oil spill onshore oil production facilities),
A. Eligibility Criteria contingency plan and a written § 112.14 (requirements for onshore oil
B. Proposed Compliance Date Extension for commitment of manpower, equipment drilling and workover facilities), and
Farms and materials, without having to § 112.15 (requirements for offshore oil
VII. Statutory and Executive Order Reviews determine that secondary containment drilling, production, or workover
A. Executive Order 12866—Regulatory is impracticable on an individual facilities) because these sections do not
Planning and Review equipment basis (make an individual
B. Paperwork Reduction Act apply to facilities that handle, store, or
C. Regulatory Flexibility Act
impracticability determination as transport animal fats and vegetable oils.
D. Unfunded Mandates Reform Act required in § 112.7(d)); and establish • EPA proposes to extend the
E. Executive Order 13132—Federalism and document an inspection or compliance dates for farms, while the
F. Executive Order 13175—Consultation monitoring program for this equipment Agency considers whether the unique
and Coordination With Indian Tribal to detect equipment failure and/or a nature of this sector warrants
Governments discharge in lieu of providing secondary differentiated requirements under the
G. Executive Order 13045—Protection of containment for qualified oil-filled SPCC rule.
Children From Environmental Health & operational equipment. Today’s • Under the current regulations in
Safety Risks
H. Executive Order 13211—Actions That
proposal would eliminate the current § 112.3(a), (b) and (c), a facility that was
Significantly Affect Energy Supply, requirement for an individual in operation on or before August 16,
Distribution, or Use impracticability determination for oil- 2002 must make any necessary
I. National Technology Transfer and filled operational equipment at a facility amendments to its SPCC Plan by
Advancement Act that has had no discharges as described February 17, 2006, and fully implement
its SPCC Plan by August 18, 2006. A and implement it, if necessary to ensure proposed extension. Regarding
facility that came into operation after compliance with this part, on or before modifications of the SPCC regulations,
August 16, 2002 but before August 18, August 18, 2006. In a separate notice in to the extent practicable, EPA will
2006, must prepare and fully implement today’s Federal Register, the Agency is establish deadlines for compliance
an SPCC Plan on or before August 18, proposing to extend the compliance implementation that commence one
2006. The owner or operator of an dates for all facilities to October 31, year after promulgating the regulatory
onshore or offshore mobile facility must 2007. Reviewers should refer to that revisions.
maintain their Plan, but must amend notice for a complete discussion of the
II. ENTITIES POTENTIALLY AFFECTED BY THIS PROPOSED RULE

Industry category NAICS code
Crop and Animal Production ................................................................................................................................... 111–112

Crude Petroleum and Natural Gas Extraction ......................................................................................................... 211
Coal Mining, Non-Metallic Mineral Mining and Quarrying ....................................................................................... 2121/2123/213114/213116
Electric Power Generation, Transmission, and Distribution .................................................................................... 2211
Heavy Construction ................................................................................................................................................. 234
Petroleum and Coal Products Manufacturing ......................................................................................................... 324
Other Manufacturing (including animal fats and vegetable oil manufacturing) ....................................................... 31–33
Petroleum Bulk Stations and Terminals .................................................................................................................. 42271
Automotive Rental and Leasing .............................................................................................................................. 5321
Gasoline Service Stations ....................................................................................................................................... 447
Fuel Oil Dealers ....................................................................................................................................................... 4543
Waste Management and Remediation .................................................................................................................... 562
Other Commercial Facilities (including Retail Stores, Apartment Buildings, Wholesalers and Janitorial Services) 44–45, 51–55, 56172
Transportation (including Pipelines and Airports), Warehousing, and Marinas ...................................................... 482–486/488112–48819/4883/
48849/492–493/71393
Elementary and Secondary Schools, Colleges ....................................................................................................... 611
Federal, State, Local Government and Military Installations .................................................................................. 92
Hospitals/Nursing and Residential Care Facilities .................................................................................................. 621–623
The list of potentially affected entities and DOT, effective February 3, 1994, SPCC Plans in 40 CFR 112.3(a) and (b)
in the above table may not be has redelegated the responsibility to several times, and has extended the
exhaustive. The Agency’s aim is to regulate certain offshore facilities from compliance date for 40 CFR 112.3(c)
provide a guide for readers regarding DOI to EPA. (see 69 FR 48794 (August 11, 2004) for
those entities that potentially could be further discussion on the extensions).
IV. Background
affected by this action. However, this This action was taken by EPA in order
action may affect other entities not On July 17, 2002, EPA published a to provide the regulated community
listed in this table. If you have questions final rule amending the Oil Pollution with sufficient time to comply with the
regarding the applicability of this action Prevention regulation (40 CFR part 112) 2002 revised rule and to allow the
to a particular entity, consult the person promulgated under the authority of regulated community time to
listed in the preceding section entitled section 311(j) of the CWA. This revised understand the 2004 clarifications and
FOR FURTHER INFORMATION CONTACT. rule included requirements for SPCC be able to incorporate them in their
Plans and for Facility Response Plans updated SPCC Plans. The current
III. Statutory Authority and Delegation (FRPs). It also included new subparts deadline for the preparation and
of Authority outlining the requirements for various certification of revised SPCC Plans for
Section 311(j)(1)(C) of the Clean Water classes of oil; revised the applicability facilities maintaining their current SPCC
Act (CWA or the Act), 33 U.S.C. of the regulation; amended the Plan is February 17, 2006. Plans must be
1321(j)(1)(C), requires the President to requirements for completing SPCC implemented by August 18, 2006.
issue regulations establishing Plans; and made other modifications (67 Facilities that became subject to the
procedures, methods, equipment, and FR 47042). The revised rule became SPCC rule after August 16, 2002 are
other requirements to prevent effective on August 16, 2002. After currently required to develop and
discharges of oil from vessels and publication of this rule, several implement their Plans by August 18,
facilities and to contain such discharges. members of the regulated community 2006.
The President delegated the authority to filed legal challenges to certain aspects On September 20, 2004, EPA
regulate non-transportation-related of the rule. Most of the issues raised in published two Notices of Data
onshore facilities to the EPA in the litigation have been settled, Availability (NODAs). The first NODA
Executive Order 11548 (35 FR 11677, following which EPA published made available and solicited comments
July 22, 1970), which has been replaced clarifications in the Federal Register to on submissions to EPA suggesting more
by Executive Order 12777 (56 FR 54757, several aspects of the revised rule (69 focused requirements for facilities
October 22, 1991). A Memorandum of FR 29728, May 25, 2004).1 subject to the SPCC rule that handle oil
Understanding (MOU) between the U.S. EPA has extended the dates for below a certain threshold amount,
Department of Transportation (DOT) revising and implementing revised referred to as ‘‘certain facilities’’ (69 FR
and EPA (36 FR 24080, November 24, 56182). Streamlined approaches for
1 American Petroleum Institute v. Leavitt, No.
1971) established the definitions of facilities with oil capacities below a
1:102CV02247 PLF and consolidated cases (D.D.C.
transportation- and non-transportation- filed Nov. 14, 2002). The remaining issue to be
certain threshold were discussed in the
related facilities. An MOU among EPA, decided concerns the definition of ‘‘navigable NODA documents. The second NODA
the U.S. Department of Interior (DOI), waters’’ in § 112.1. made available and solicited comments
on whether alternate regulatory other bulk storage container requirements for SPCC Plans for all
requirements would be appropriate for requirements under § 112.8(c) and the facilities and all types of oil in § 112.7.
facilities with oil-filled and process general secondary containment In response to the Edible Oil Regulatory
equipment (69 FR 56184). EPA has requirements under § 112.7(c) which Reform Act (EORRA), EPA promulgated
reviewed the public comments and data also applies to the transfers of oil separate subparts in part 112 for
submitted in response to the NODAs in associated with airport mobile refuelers. facilities storing or using various classes
developing today’s proposal. In contrast to a mobile or portable of oil, but the requirements in each
In addition, the Agency considered bulk storage container such as a mobile subpart are the same. EORRA required
regulatory relief for airport mobile refueler, a ‘‘motive power container’’ is most Federal agencies to differentiate
refuelers in response to concerns raised an integral part of a motor vehicle between and establish separate classes
by the aviation sector. Airport mobile (including aircraft), providing fuel for for various types of oil, specifically,
refuelers are vehicles that are used on propulsion or providing some other between animal fats and oils and
an airport facility to refuel aircraft and operational function, such as lubrication greases, and fish and marine mammal
ground service equipment (such as belt of moving parts or for operation of oils and oils of vegetable origin,
loaders, tractors, luggage transport onboard hydraulic equipment. Motive including oils from seeds, nuts, and
vehicles, deicing equipment, and lifts) power containers on vehicles used kernels; and other oils and greases,
used at airports. The onboard bulk solely at non-transportation related including petroleum. The result of this
storage containers on airport mobile facilities fall under EPA jurisdiction and approach was that the new Subpart C
refuelers that are used to transport and are subject to the SPCC regulation. included requirements for animal fat
transfer fuel into or from aircraft and Examples of motive power vehicles and vegetable oil (AFVO) facilities—
ground service equipment are include, but are not limited to: buses; onshore facilities (excluding production
considered mobile or portable bulk recreational vehicles; some sport utility facilities) (§ 112.12), onshore oil
storage containers under the SPCC rule vehicles; construction vehicles; aircraft; production facilities, (§ 112.14) onshore
because they are used to store oil prior farm equipment; and earthmoving oil drilling and workover facilities
to further distribution and use. As such, equipment (e.g., such as at a drilling or (§ 112.13), and requirements for offshore
they are subject to all applicable SPCC workover facility). Examples of facilities oil drilling, production, or workover
rule provisions, including the sized or locations that may be covered by the facilities (§ 112.15). While the Agency
secondary containment provisions of SPCC requirements solely because of the recognized that some of these
§ 112.8(c)(2) and (11). These provisions presence of motive power containers requirements are not applicable to
require the secondary containment, include, but are not limited to, heavy facilities that handle, store or transport
such as a dike or catchment basin, to be equipment dealers, commercial truck AFVO, these sections were promulgated
sufficient to contain the capacity of the dealers, and parking lots. because the Agency had not proposed
largest single compartment or container While the concept of ‘‘motive power’’
differentiated SPCC requirements for
and include sufficient freeboard to is not directly addressed in the SPCC
public notice and comment. As a result,
contain precipitation. regulation, such vehicle fuel containers
the current requirements for petroleum
Regulated community members in the may fall under the definition of ‘‘bulk
oils were also applied to animal fats and
aviation sector have expressed concern storage container’’ in § 112.2, while the
vegetable oils. EPA is today proposing
that requiring such sized secondary onboard lubrication system may be
to remove those sections from the SPCC
containment for airport mobile refuelers considered oil-filled operational
requirements that are not applicable or
is not practicable for safety and security equipment. Therefore, motive power
appropriate to animal fats and vegetable
reasons. (Included in the Docket for containers which store oil used for the
oils.
today’s proposal are the letters that have propulsion of a vehicle are subject to all
been submitted to EPA regarding this the requirements under § 112.8(c) if they Additionally, EPA has issued the
matter.) Specifically, it has been argued have a capacity of 55 gallons or more. SPCC Guidance for Regional Inspectors.
that to require these refuelers to park in These requirements include specifically The guidance document is intended to
specially designed secondary sized secondary containment for bulk assist regional inspectors in reviewing a
containment areas located within an storage containers, integrity testing facility’s implementation of the SPCC
airport’s aircraft operations area could (visual plus non-destructive testing), rule. The document is designed to
create a safety and security hazard and a requirement to engineer facilitate an understanding of the rule’s
because it would require grouping of the containers to avoid discharges (such as applicability, to help clarify the role of
vehicles or place impediments in the an overfill alarm). Additionally, any oil- the inspector in the review and
operations area. Additionally, requiring filled operational equipment with a evaluation of the performance-based
mobile refuelers to return to capacity of 55 gallons or more mounted SPCC requirements, and to provide a
containment areas located within the on a vehicle are subject to the general consistent national policy on several
airport’s tank farm between refueling secondary containment requirements SPCC-related issues. The guidance is
operations may increase the risk of listed in § 112.7(c). also available to both the owners and
accidents (and therefore accidental oil EPA recognizes that, in most cases, operators of facilities that may be
discharge), as the vehicles would travel the requirements of § 112.8(c), including subject to the requirements of the SPCC
with increased frequency through the specifically sized secondary rule and to the general public on the
busy aircraft operations area. EPA containment and the general secondary Agency’s website at www.epa.gov/
acknowledges these concerns and seeks containment requirements under oilspill. This guidance is a living
to provide relief for airport mobile § 112.7(c), are not practicable for motive document and will be revised, as
refuelers from the specifically sized power containers. It has never been necessary, to reflect any relevant future
secondary containment requirements for EPA’s intent to regulate motive power regulatory amendments in a timely
bulk storage containers, while containers. Therefore, EPA is proposing manner. Accordingly, EPA welcomes
protecting the environment from to exempt such motive power containers comments from the regulated
refueler spills, particularly those from the SPCC regulation. community and the public on the
associated with transfers. Consequently, In the July 17, 2002 final SPCC rule, guidance document within 60 days of
these refuelers remain subject to the the Agency promulgated general this NPRM, as described on the website.
The guidance document is a separate V. Today’s Action Contingency Plan or NCP) to classify oil
effort from this rulemaking. EPA does discharges based on the location and
A. Qualified Facilities
not plan to address comments on the size of the discharge (see 40 CFR 300.5).
guidance document when taking final EPA proposes to amend the Oil The NCP refers to discharges greater
action on this rule. Comments on the Pollution Prevention regulation (40 CFR than 10,000 gallons to inland waters as
guidance document should not be part 112) to provide an option to allow ‘‘major,’’ while other thresholds are
submitted to the docket for this the owner or operator of a facility that used to classify ‘‘minor’’ and ‘‘medium’’
rulemaking. Refer to the website meets the qualifying criteria (hereafter discharges. The classes are provided as
www.epa.gov/oilspill for the text of the referred to as a ‘‘qualified facility’’) to guidance to the On-Scene Coordinator
guidance document and for instructions self-certify the facility’s SPCC Plan in (OSC), and serve as criteria for the
for providing suggestions on the lieu of certification by a licensed actions delineated in the NCP. It is
guidance document. The EPA urges professional engineer (PE). EPA important to note, however, that the
proposes to amend § 112.3 to describe NCP quantitative thresholds are only
readers to review the guidance
the SPCC eligibility criteria that a provided to help the OSC determine
document for assistance in
regulated facility must meet in order to response action, and do not imply
understanding the SPCC rule and associated degrees of hazard to the
be considered a qualified facility. A
today’s proposal. Pursuant to today’s qualified facility would be a facility public health or welfare, or
proposal, EPA anticipates issuing an subject to the SPCC rule that (1) has an environmental damage. The NCP size
updated guidance document in 2006 to aggregate facility oil storage capacity of classes nevertheless define an oil
reflect finalization of this rulemaking 10,000 gallons or less; and (2) had no discharge to inland waters exceeding
such that inspectors and the regulated discharges as described in § 112.1(b) 10,000 gallons as a major discharge.
community have accurate and timely during the ten years prior to self- A discharge of 10,000 gallons or more
information on SPCC requirements. certification or since becoming subject is also one of the factors used in
Although the scope of today’s to the SPCC requirements if less than identifying facilities that must prepare
proposal was originally intended to ten years. Facilities that have been and submit a Facility Response Plan
address only certain targeted areas of subject to SPCC for less than ten years, (FRP) under § 112.20(f)(1). The FRP rule
the SPCC requirements, the Agency is including new facilities, would need to applies to facilities that could
including several additional proposed demonstrate no discharges as described reasonably be expected to cause
in § 112.1(b) only for the period of time substantial harm to the environment
modifications to address a number of
they have been subject to the SPCC rule. due to a discharge to waters of the U.S.
issues and concerns raised by the
Self-certified Plans would not be and adjoining shorelines.
regulated community. As highlighted in Second, state regulations also provide
the EPA Regulatory Agenda and the allowed to include ‘‘environmentally
equivalent’’ alternatives to required Plan support for the use of a 10,000-gallon
2005 OMB report on ‘‘Regulatory threshold. A number of states
Reform of the U.S. Manufacturing elements as provided in § 112.7(a)(2) or
to claim impracticability with respect to differentiate regulatory requirements
Sector,’’ there are other issues under based on a facility’s total storage
consideration for possible future any secondary containment
requirements as provided in § 112.7(d). capacity, with some states specifying a
rulemaking action. The modifications 10,000-gallon threshold. For example,
The two exceptions for which the owner
proposed today do not preclude a future Maryland requires that all commercial
and operator would still be allowed to
rulemaking on other issues not facilities storing more than 10,000
use environmentally equivalent
addressed in today’s proposal. Rather, gallons of oil obtain an oil operations
measures are with respect to security
EPA is working to identify additional permit; Minnesota requires facilities
and integrity testing. Facilities with
areas where regulatory reform may be storing between 10,000 and 1,000,000
complicated operations and lower
appropriate. For these additional areas, gallons of oil to prepare a prevention
capacities may find that the current rule
the Agency expects to issue a proposed and response plan; and Oregon places
offers a more cost-effective method of
rule in 2007. Additionally, EPA in special requirements on marine
achieving compliance than the proposed
conjunction with DOE will be facilities storing more than 10,000
option. Therefore, a qualified facility
conducting an energy impact analysis of gallons of oil. The 10,000-gallon
could choose to follow the current SPCC
the SPCC requirements, and will threshold is also frequently used in
requirements (including the PE
consider the results of this analysis to setting requirements for certain storage
certification) to take advantage of the
inform the Agency’s deliberations over tanks. For example, New York requires
flexibility offered by PE-certified a ‘‘secondary containment system’’
any future rulemaking. EPA is interested impracticality determinations and around all aboveground storage tanks
in whether there are other aspects of the environmentally equivalent measures. (ASTs) with a storage capacity greater
SPCC regulatory requirements, beyond
1. Eligibility Criteria than or equal to 10,000 gallons, and
those that are addressed in today’s
Wisconsin caps the size of ASTs that
proposal, that should be the focus of a. Total Facility Oil Storage Capacity
can be used for fueling vehicles at
future rulemaking. The Agency also Threshold
10,000 gallons.
requests that commenters who provide EPA proposes to limit qualified Finally, 10,000 gallons is a common
suggestions regarding future rulemaking facilities to a total maximum storage storage tank size, and EPA believes that
clearly differentiate them from capacity of 10,000 gallons of oil. EPA setting a maximum capacity at 10,000
comments submitted on today’s considered many different factors before gallons would address the concerns that
proposal (e.g., label Suggestions for selecting this storage capacity. First, smaller facilities have raised. In fact, the
Future Rulemaking and Comments on EPA has established 10,000 gallons as a Small Business Administration Office of
Current Proposal). The Agency will not threshold in several other rules relating Advocacy suggested that a 10,000-gallon
address these suggestions when taking to oil discharges. This threshold threshold is a reasonable volume to
final action on this proposed rule, but quantity is used in the National Oil and address the concerns of facilities with
will take them into consideration in Hazardous Substances Pollution relatively smaller volumes of oil. The
future rulemaking decisions. Contingency Plan (National Agency seeks comments on whether this
threshold appropriately addresses the filled operational equipment, the account for such occurrences in the
concerns of facilities with relatively Agency believes that a clean spill discharge history criterion.
smaller volumes of oil, while history is a suitable criterion for
2. Proposed Requirements for Qualified
maintaining the environmental demonstrating eligibility for Plan self-
Facilities
protection intended by the regulation. If certification, while still effectively
commenters suggest alternative volume maintaining good prevention practices. a. Self-Certification and Plan
thresholds, it will be important for the Part 110 defines a discharge of oil in Amendments
comments to also include a justification such quantities that may be harmful to Some in the regulated community,
for such alternative volume thresholds the public health, welfare, or the particularly facilities with relatively
in order for the Agency to adequately environment of the United States as a smaller volumes of oil, identified the
consider the comments submitted. This discharge of oil that violates applicable cost of the PE certification of SPCC
data would be useful in final rule water quality standards; a discharge of Plans as one of its major concerns. This
deliberations. oil that causes a film or sheen upon the view was echoed in the comments
While EPA recognizes that a discharge surface of the water or on adjoining submitted in response to the NODAs.
of less than 10,000 gallons can be shorelines; or a discharge of oil that The Agency has reviewed the
harmful, regardless of how the NCP causes a sludge or emulsion to be requirements in light of the information
defines ‘‘major discharge,’’ EPA believes deposited beneath the surface of the provided and today proposes to allow
that it is reasonable to allow facilities water or adjoining shorelines (40 CFR for self-certification of SPCC Plans by
with a capacity of no more than 10,000 110.3). The Agency refers to such owners and operators of qualified
gallons to prepare and implement a Plan discharges in § 112.1(b) of the rule. Any facilities. With this proposal, the
that complies with the SPCC rule person in charge of a facility must report Agency is responding to those concerns.
requirements and provides adequate any such discharge of oil from the The elements of the proposed self-
protection against discharges without facility to the National Response Center certification requirement are very
the involvement of a PE. These facilities (NRC) at 1–800–424–8802 immediately.
generally have less complex operations similar in scope to those of the PE
While EPA recognizes that past release certification: owners and operators that
and petroleum system configurations, history does not necessarily translate
and smaller oil storage capacities than choose to self-certify their Plans must
into a predictor of future performance, certify that they are familiar with the
other types of facilities subject to the the Agency believes that discharge
SPCC requirements. Thus, the Agency requirements of the SPCC rule; they
history is a reasonable indicator of a have visited and examined the facility;
believes that a responsible owner or
facility owner or operator’s ability to the Plan has been prepared in
operator at these facilities should be
develop an SPCC Plan for the facility accordance with accepted and sound
able to comply with the SPCC rule
without the involvement of a PE. Hence, industry practices and standards;
provisions without review and
EPA proposes to use a facility’s procedures for required inspections and
certification of the SPCC Plan by a PE,
discharge history as a qualification testing have been established; the Plan
and that simplifying the rule will result
criterion indicating the facility’s ability is being fully implemented; the facility
in greater environmental protection by
to effectively develop and implement its meets the qualification criteria set forth
improving compliance.
SPCC Plan. By establishing a good oil under § 112.3(g)(1); the Plan does not
b. Reportable Discharge History spill prevention history, a facility include any environmental equivalence
EPA proposes that a qualified facility qualifies for the self-certification option measures as described in § 112.7(a)(2);
subject to the SPCC requirements must offered in this proposal. the Plan contains no determinations of
have no reportable oil discharges as The Agency requests comments on impracticability under § 112.7(d); and
described in § 112.1(b) during the ten the appropriateness of a reportable the Plan and the individual(s)
years prior to self-certification or since discharge history criterion for responsible for implementing the Plan
becoming subject to the SPCC determining the qualification of a have the full approval of management
requirements, whichever is less. facility for the self-certification option, and the facility has committed the
Facilities that have been subject to SPCC whether it is necessary, and whether necessary resources to fully implement
for less than ten years, including new there are other indicators of a facility’s the Plan. The self-certification provision
facilities, would need to demonstrate no effective implementation of the oil would be optional. Under today’s
discharges as described in § 112.1(b) pollution prevention requirements proposal, an owner or operator of a
only for the period they have been under part 112 that should be qualified facility could choose to
subject to SPCC. This criterion is based considered. In addition, the Agency also comply with the current requirements
on a proposal regarding oil-filled specifically requests comments on the under part 112 if that is more suitable
electrical equipment submitted by the proposed ten-year period for which to his/her particular situation.
Utility Solid Waste Activities Group facilities would be required to have had Qualified facilities that choose to self-
(USWAG), as described in the no reportable discharges in order to certify would not automatically lose
documents supplementing the meet this qualification. The Agency eligibility for a self-certified Plan and be
September 20, 2004 NODA at 69 FR requests that any alternative criterion or required to obtain PE certification in the
56184. In its proposal, USWAG time period suggested include an event of a discharge as described in
recognized that facilities that pose a appropriate rationale and supporting § 112.1(b). EPA has the authority to
risk, in terms of oil discharges in data to assist the Agency in considering require SPCC Plan amendments under
quantities that are harmful (reportable them for final action. The Agency is also § 112.4. Section 112.4(a) requires a
under 40 CFR part 110), should not be aware that events such as natural facility that has discharged more than
granted relief. USWAG specifically disasters, acts of war or terrorism, 1,000 gallons of oil in a single discharge
proposed a ten-year spill history as a sabotage, or other calamities, beyond the as described in 40 CFR part 110, or that
potential criterion to be eligible for control or planning ability of the facility has discharged more than 42 gallons of
relief. In general, NODA commenters owner or operator, may cause a oil in each of two discharges as
expressed strong support for the reportable oil discharge. The Agency described in 40 CFR part 110 in any 12-
USWAG proposal. As in the case of oil- therefore requests comments on how to month period, to submit information to
the EPA Regional Administrator (RA) in the SPCC Plan in accordance with flexibility in these performance-based
within 60 days of the date of the § 112.3(g)(2). provisions is best suited to SPCC Plans
discharge. As per § 112.4(d), the RA may that are reviewed and certified by a PE.
b. Environmental Equivalence and Today’s proposed amendment would
require the facility to amend its SPCC
Impracticability Determinations allow qualified facilities to opt out of
Plan in order to prevent and contain
discharges, and the RA could require a Under § 112.7, facility owners and the PE certification, but would not allow
facility to obtain PE-certification of its operators have the flexibility to deviate facilities that take advantage of this
SPCC Plan. In addition, a discharge of from specific rule provisions if the Plan option to include environmentally
oil ‘‘in such quantities as may be states the reason for nonconformance equivalent measures in their SPCC Plans
harmful’’, as defined in 40 CFR 110.3 and if equivalent environmental pursuant to § 112.7(a)(2). EPA is
that does not trigger the reporting protection is provided by some other proposing this limitation on qualified
requirements of § 112.4(a) must still be means of spill prevention, control or facilities because EPA believes that in
reported to the National Response countermeasure. These general, without the advantage of the
Center. Criminal action can be taken ‘‘environmentally equivalent’’ measures expertise and knowledge that a PE
against an owner or operator of a facility must be described in the SPCC Plan, brings to the development of an SPCC
if discharges are not reported. EPA also including how the equivalent Plan, deviations based on
receives copies of the NRC reports and environmental protection will be environmental equivalence may not be
has the authority under § 112.1(f) to achieved based on good engineering adequate. However, as discussed below,
require a facility to prepare and practice. Allowance for EPA believes that allowing certain
implement an SPCC Plan or any ‘‘environmentally equivalent’’ deviations may be appropriate for at
applicable part of a Plan. The time deviations is provided in § 112.7(a)(2) least some owners of qualified facilities,
frame for this review and amendment and are only available for requirements without employing PE expertise.
process is described in § 112.4. The not related to secondary containment, Therefore, EPA is proposing to allow
facility may choose to appeal the RA’s such as fencing and other security certain deviations with respect to
decision to require a Plan amendment measures, preventing catastrophic tank facility security and integrity testing of
under § 112.4. The RA also has failure due to brittle fracture, integrity bulk storage containers.
authority to require preparation and testing, and liquid level alarms. As part EPA is also proposing that qualified
implementation of a Plan or applicable of the SPCC Plan, any environmentally facilities be precluded from claiming
part of a Plan under § 112.1(f). equivalent measures are also required to impracticability and using contingency
The Agency requests comment on the be certified by a PE. The PE’s SPCC Plan planning in lieu of secondary
appropriateness of using the existing certification requirements include containment. EPA believes that a PE’s
authorities under the SPCC regulations consideration of industry standards for knowledge and expertise is needed for
rather than establishing a separate the Plan, which would include appropriate contingency planning and
process that would automatically equivalent environmental protection other measures that must be put in place
require a facility to obtain PE review measures. in the absence of secondary
and certification of the facility’s SPCC The SPCC rule also provides containment. Thus, requiring qualified
Plan in the event of a reportable flexibility for owners/operators who facilities that opt out of PE certification
discharge. The Agency requests that any determine that the general secondary to adhere to the current set of
alternative approaches presented containment requirements in § 112.7(c) requirements would maintain the same
include an appropriate rationale and or any of the applicable additional standard of environmental protection
supporting data in order for the Agency requirements for secondary containment provided in the existing rule.
to be able to consider them for final in subparts B and C are impracticable. Today’s proposal would not preclude
action. Where impracticability is demonstrated, a qualified facility from choosing
Under § 112.5 of the SPCC rule, an the SPCC rule allows facility owners environmentally equivalent measures or
owner or operator must review and and operators the flexibility to instead from demonstrating impracticability
amend the SPCC Plan following any develop a contingency plan and comply with respect to secondary containment
change in facility design, construction, with additional requirements as requirements, although the qualified
operation or maintenance that described in § 112.7(d). The SPCC Plan facility would need to comply with the
materially affects its potential for a must explain why containment current SPCC requirements (including
discharge as described in § 112.1(b). A measures are not practicable, provide an the PE certification) in order to utilize
PE must then certify any and all of these oil spill contingency plan that follows the flexibility offered by PE-developed
technical amendments to the SPCC the provisions of 40 CFR part 109 impracticability determinations and
Plan, as currently required under (Criteria for State, Local and Regional environmentally equivalent measures.
§ 112.3(d). Under today’s proposal, Oil Removal Contingency Plans), and In some circumstances, it may be more
technical amendments to SPCC Plans of provide a written commitment of cost effective for a PE to prepare an
qualified facilities would not be manpower, equipment, and materials SPCC Plan which utilizes
required to be certified by a PE. Instead, required to expeditiously control and environmentally equivalent measures or
an owner or operator would be allowed remove any quantity of oil discharged contingency planning, than for the
to self-certify technical amendments to that may be harmful as described in 40 owner/operator to comply with the
the Plan under the proposed CFR part 110. A PE must certify any SPCC provisions as outlined in today’s
§ 112.3(g)(2) provision, and facilities impracticability determinations, as well proposal. Also, facilities with
with PE-certified Plans which qualify as the contingency plan and additional unconventional operations which
for self-certification would be allowed measures implemented in lieu of qualify for this alternative may find that
to choose to self-certify future technical containment. Because of the expertise the current rule requirement for PE
amendments rather than hire a that a PE has in evaluating whether certification offers a more cost-effective
professional engineer to certify the particular measures provide equivalent method of achieving compliance
technical amendment. Facilities would environmental protection and in because it provides additional flexibility
be required to document the self- knowing how to effectively implement through performance-based provisions.
certification of a technical amendment such measures, EPA believes that the The Agency requests comments on the
appropriateness of restricting the use of in the discovery of oil discharges. (Note The Agency is also proposing to
impracticability determinations and that the security requirements in provide flexibility in the area of
environmentally equivalent measures by § 112.7(g) do not apply to production integrity testing for qualified facilities.
those qualified facilities that choose the facilities.) The Agency continues to believe that
option of self-certification in order to Today’s proposal would allow a owners and operators should rely on the
ensure an adequate level of qualified facility to develop a general appropriate use of industry standards
environmental protection. Any security plan that provides equivalent for the integrity testing requirements. As
alternative approach presented must environmental protection to the EPA stated in its May 2004 letter to the
include an appropriate rationale and requirements in § 112.7(g). The Agency Petroleum Marketers Association of
supporting data in order for the Agency recognizes that these security provisions America (available at http://
to be able to consider it for final action. can be approached differently by the www.epa.gov/oilspill/pdfs/
variety of facilities that would qualify PMAA_letter.pdf), the Agency
c. SPCC Plan Exceptions for self-certification under today’s recognizes that in certain site-specific
Today’s proposal for self-certification proposal. It should be noted that this is circumstances, visual inspection may be
of qualified facilities would restrict the an option and a qualified facility in appropriate and sufficient for
use of alternative environmentally compliance with the current compliance with the integrity testing
equivalent measures for qualified requirements under § 112.7(g) would requirement. The Agency expects that
facilities that elect to develop their not be required to develop a security the selection of particular testing
SPCC Plan without the services of a PE. plan under the proposed § 112.3(g). methods to comply with the integrity
The Agency’s concern is that these The security plan would be required testing requirements in the current rule
facilities would no longer have a trained to address how the owner or operator and today’s proposal would be based on
professional, with knowledge to make will: industry inspection standards such as
site-specific equivalence • Secure all bulk storage containers, the Steel Tank Institute (STI) SP–001,
determinations, reviewing and piping and oil-filled equipment from American Petroleum Institute (API)
certifying their Plan. However, EPA unauthorized access or acts of Standard 653 and API Recommended
recognizes that some of the prescriptive vandalism which could result in a Practice 12–R1. These industry
provisions in the current regulatory discharge of oil; standards address the qualifications of
requirements may prove difficult for • Secure appurtenances (valves and/
the tank inspector and the scope/
some qualified facilities to meet. or drains) in the closed position to
frequency of the testing/inspections.
While the Agency still believes that prevent the flow of the contents of the
Thus, in effect, the Agency is proposing
generally allowing use of container which could result in a
to allow owners and operators of
environmentally equivalent measures in discharge of oil;
self-certified Plans is not appropriate, • Secure pump controls in the ‘‘off’’ qualified facilities to consult and rely on
some degree of flexibility in two areas position when not in use and locate industry standards or qualified
may be appropriate for qualified facility pump controls to prevent container inspectors/testing personnel
facilities. The Agency believes that it unauthorized access; to determine the appropriate
can allow qualified facilities to comply • Secure all loading or unloading qualifications for tank inspectors/testing
with a streamlined set of basic security transfer connections for facility piping; personnel and the type/frequency of
measures and integrity testing and integrity testing required for a particular
requirements. The flexibility in these • Address whether security lighting is container size and configuration. The
proposed exceptions would be appropriate to both ensuring the Agency is proposing to allow qualified
analogous to the flexibility provided discovery of oil discharges, and deter facilities to make this determination in
under § 112.7(a)(2), which allows for vandalism. accordance with industry standards
deviations from § 112.7(g) (security) and This security plan would be required without the need to develop a PE-
§ 112.8(c)(6) (integrity testing) that to be documented in the qualified approved environmentally equivalent
would not be available for these facility’s SPCC Plan, and would include deviation, as is currently required under
facilities under today’s proposal. a discussion of how the security plan § 112.7(a)(2). The Agency believes that
EPA recognizes that there is no one will be implemented and the required allowing this flexibility for qualified
single approach to ensure proper facility training/inspections/maintenance for facilities would increase compliance
security. For example, the security security related equipment and and thus environmental protection.
requirements of fencing and lighting activities. The Agency recognizes the The U.S. Small Business
may not always be appropriate for sites unique nature of many of the facilities Administration (SBA) Office of
such as a national, state or local park that would qualify for Plan self- Advocacy has suggested an additional
subject to SPCC, where the site layout certification, and as such, some alternative approach for allowing
may be too extensive to fence, and flexibility is appropriate so these flexibility for integrity testing of small
where perhaps the lighting of a solitary facilities can achieve compliance with shop-built tanks that is based on the
field tank would invite, rather than the security provisions of the current current SP001 standard. The current
deter, would-be intruders. Qualified SPCC rule. The application of the SPCC SP001 standard allows periodic visual
facilities, in lieu of the requirements security measures is often determined inspections for shop-fabricated
under § 112.7(g) of this part, would be by the facility’s geographical/spatial aboveground storage tanks with a total
allowed to prepare a security plan that factors and there is no ‘‘one-size-fits-all’’ capacity of 5,000 gallons, and for which
describes how the facility controls answer to this serious compliance there is spill control and a continuous
access to the oil handling, processing requirement. For example, facilities release detection method (i.e., Category
and storage areas; secures master flow such as farms or national parks may 1 tanks). SBA Office of Advocacy has
and drain valves; prevents unauthorized have unique characteristics that make suggested that EPA allow periodic
access to starter controls on oil pumps; compliance with the current security visual inspections for shop-fabricated
secures out-of-service and loading/ measures, such as potentially fencing aboveground storage tanks at qualified
unloading connections of oil pipelines; the entire facility footprint, facilities, in accordance with this SP001
prevents acts of vandalism; and assists inappropriate. standard, but broaden the applicability
to include shop-fabricated aboveground present at most of these qualified during the interim period, including
storage tanks that have an oil capacity facilities. In the absence of an those that could potentially take
of between 5,000 and 10,000 gallons. In environmental equivalency provision advantage of today’s qualified facilities
all other respects, the SP001 standard that would allow an alternative integrity proposal. A suspension of requirements
would apply. In the SBA’s view, due to testing method for qualified facilities, for qualified facilities would provide
the presence of spill control and a the owner or operator would be required relief for the affected universe until EPA
continuous release detection method (in to perform visual inspections plus non- takes further action.
accordance with the SP001 standard), destructive testing on all classes of Both of these options would allow
there appears to be little likelihood for containers, regardless of size and EPA more time to decide how to
a discharge into navigable waters. The configuration. Qualified facilities would regulate qualified facilities without
SBA Office of Advocacy also believes have to bear the cost and burden of delaying compliance for the entire
this additional option would make the conducting non-destructive testing that universe of SPCC-regulated facilities. In
visual inspection option available to all, may not be necessary under industry contrast, the proposed option would set
and not a subset of, qualified facilities standards. The Agency continues to forth explicit requirements for qualified
and it would benefit those qualified strongly recommend that facilities, facilities that reduce compliance costs
facilities having one tank above 5,000 qualified for self-certification or within the current compliance date
gallons. otherwise, utilize industry standards schedule. Because these options would
EPA is not proposing the SBA that are appropriate to their particular only postpone the rule’s requirements
additional approach for several reasons. tank configurations in developing and for qualified facilities and because the
First the SBA approach would deviate conducting tank inspection and testing Agency believes that the modifications
from the industry standards noted programs and when determining proposed today address the major
above. Second, the Agency is unaware inspector/testing personnel concerns raised by facilities that store
of a technical basis to justify this qualifications. lower volumes of oil, EPA believes it
deviation. EPA must justify divergence The Agency requests comments on appropriate to go forward with today’s
from accepted industry standards under whether the proposed requirements for proposal.
the National Technology Transfer and security and integrity testing for
b. Multi-Tiered Structure
Advancement Act (NTTAA) (see section qualified facilities provide appropriate
VII (I) for a description of NTTAA). flexibility, while maintaining A multi-tiered structure option was
Third, industry standards are environmental protection. Any developed in response to comments
periodically updated and revised to alternative approach presented must EPA received following publication of
account for changes in technology and include an appropriate rationale and the NODA for facilities that handle oil
to remain consistent with good supporting data in order for the Agency below a certain threshold amount (69
engineering practice while this to be able to consider it for final action. FR 56182, September 20, 2004) and is
approach would need to be revised based on a previous analysis prepared
3. Alternative Options Considered for the SBA Office of Advocacy (Jack
through rulemaking. Finally, EPA
believes that by allowing for a deviation EPA considered other options for this Faucett Associates, 2004) (hereafter
from existing industry standards, proposal. These options included (1) ‘‘SBA proposal’’). This revised
compliance would become more providing an indefinite extension of regulatory structure would not only
complex as facilities try to understand deadlines or a suspension of all SPCC relax requirements for PE certification,
the circumstances under which this requirements; and (2) a multi-tiered but also requirements for preparing an
additional approach can be employed. structure of requirements based on a SPCC Plan itself, although under this
The Agency welcomes comment on this facility’s total regulated storage based on approach, the facility would still be
additional approach as well as on the the SBA proposal described in the responsible for complying with the
proposed approach for integrity testing Certain Facilities NODA published last substantive requirements of the SPCC
for qualified facilities. In addition, once year. The Agency also considered rule. It includes a tiered system based
the modifications proposed today are requiring qualified facilities to make a on the total storage capacity of a facility,
promulgated, the Agency is willing to one-time notification to EPA they have as follows:
continue to work with industry tank been in operation or subject to the SPCC • Tier I would include facilities that
inspection standard setting requirements for a period less than ten handle between 1,321 and 5,000 gallons
organizations to update applicable years from the time of Plan certification, of oil (total storage capacity). These
industry standards. Commenters who and therefore could not show a ten-year facilities would not need a written SPCC
have information on the scope and clean spill history as a qualifier. All of Plan (and therefore no PE certification
criteria associated with the industry these options would apply to a defined would be needed), but would have to
visual inspection standards should set of ‘‘qualified facilities’’. adhere to all other SPCC requirements.
provide it to the standards setting • Tier II would include facilities
a. Extension/Suspension Options handling between 5,001 and 10,000
organizations and their national experts
for consideration. Two additional options were gallons of oil (total storage capacity).
At this time, EPA is aware that a considered: An indefinite compliance These facilities would be required to
number of industry standards are date extension and a suspension of all have a written SPCC Plan, but the Plan
changing. Nevertheless, the Agency requirements. Both options would apply would not need to be certified by a PE,
believes that it may be appropriate to to a defined universe of ‘‘qualified’’ and a PE site visit would not be
allow the flexibility of alternative SPCC-regulated facilities. An indefinite required. Standardized plans could be
integrity testing methods for these extension would provide an adopted by a facility conforming to
qualified facilities to be consistent with undetermined future date for standard design and operating
relevant industry standards. For compliance with the rule. As in past procedures, without requiring PE
example, visual inspections may be extensions, all facilities that should certification.
appropriate for the lower volume shop- have had a Plan as of August 16, 2002 • Tier III would include the
built containers in certain would be required to be in compliance remaining SPCC-regulated facilities
configurations that are likely to be with the pre-2002 SPCC requirements (total storage capacity greater than
10,000 gallons). These facilities would approach, as well as on the proposed additional burden of a notification
be required to have a written SPCC Plan approach, the practical application of requirement was not considered
certified by a PE, as currently required the proposal and the rationale for its necessary.
by the 2002 revised SPCC rule. adoption. The Agency welcomes comments on
SBA also suggested that EPA these or other alternatives that could
promulgate an interim final rule that c. One-Time Notification serve to reduce the burden to smaller
excludes small facilities with storage of The Agency recognizes that some oil-handling facilities in particular,
less than 10,000 gallons (the first two facilities otherwise qualifying for while at the same time maintaining
tiers of their three-tier approach) from owner/operator self-certification will appropriate levels of environmental
SPCC Plan requirements, pending have been in existence for fewer than protection by preventing discharges of
completion of the full notice and ten years and will consequently be oil. Any alternative approach presented
comment rulemaking for small facilities unable to demonstrate ten years without must include an appropriate rationale
to develop the aforementioned tiered a discharge as described in § 112.1(b). and supporting data in order for the
requirements. In order to provide Some of these facilities will have come Agency to be able to consider it for final
environmental protection in the interim into existence after August 16, 2002, action.
period, SBA recommended that EPA and will not have been subject to SPCC
regulation until August 18, 2006; some B. Qualified Oil-Filled Operational
require: (1) Regular visual inspections of
will be new facilities beginning Equipment
containers, (2) replacement or
retirement of leaking tanks, and (3) operation after that date. EPA agrees EPA proposes to amend the Oil
compliance with the part 109 with the USWAG comments that a Pollution Prevention regulation (40 CFR
contingency plan requirements or their compliant discharge history of ten years part 112) to provide a definition of oil-
equivalent. In this manner (according to or more provides a higher degree of filled operational equipment and an
SBA), the EPA could address the reality assurance of continuing compliance optional alternative to the general
of the extremely low SPCC compliance than a history of ten years or less. This secondary containment requirements for
rate among small facilities, and would is particularly true when comparing ten- oil-filled operational equipment that
work toward creating a rule that small year compliant facilities to otherwise meets the qualifying criterion (hereafter
facilities would be likely to comply qualified facilities which began referred to as ‘‘qualified oil-filled
with. SBA stated that such a move operations after August 16, 2002, and operational equipment’’). The proposal
would enhance, rather than detract whose owners or operators, to date, would allow owners and operators of
from, environmental protection. have not been subject to the facilities with qualified oil-filled
This approach would provide requirements of the SPCC program, as operational equipment to have the
different levels of regulatory relief based well as start-up facilities without any alternative of preparing an oil spill
on total oil storage capacity alone, operating history. EPA considered contingency plan and a written
basing degree of risk on the surrogate whether owners or operators of newer commitment of manpower, equipment
measure facility size. Many commenters facilities that do not have ten years of and materials to expeditiously control
on the NODA supported this approach, compliance and operation without a and remove any oil discharged that may
which would reduce compliance costs discharge should be required to provide be harmful, without having to make an
by eliminating the PE certification a one-time notification to the Agency. individual impracticability
requirement for facilities under 10,000 This notification would be submitted to determination as required in § 112.7(d).
gallons. However, EPA believes that the Administrator within 30 days of The owner or operator would also be
such an approach poses significant self-certifying a facility’s SPCC Plan and required to establish and document an
implementation problems both for the would include the following inspection or monitoring program for
regulated community and the regulators. information: (1) Name of the facility this qualified oil-filled operational
In particular, the Agency believes that owner/operator; (2) mailing address of equipment to detect equipment failure
without the owner/operator developing the facility owner/operator; (3) type of and/or a discharge, in lieu of providing
a Plan or documentation on how the business conducted at the facility that is secondary containment.
facility will comply or expects to subject to the requirements of this part; EPA proposes to add § 112.7(k) to
comply with the SPCC requirements, it (4) above-ground capacity of the facility; define the SPCC eligibility criterion that
will be challenging for the facility to (5) location of the facility by street qualified oil-filled operational
both meet the substantive requirements address or, if there is no street address, equipment must meet in order to be
(for example, spill notification, response by longitude and latitude; and (6) year considered qualified oil-filled
and preparedness planning, equipment the facility began operations. These operational equipment. Eligibility of a
maintenance, inspection and training, notices could be provided by either facility with oil-filled operational
secondary containment), as well as regular or electronic mail. The Agency equipment would be determined by
provide documentation to the regulators would have the opportunity to provide considering the reportable discharge
that the facility is in compliance. some basic SPCC outreach and history from any oil-filled operational
Additionally, EPA inspectors educational support to these owners and equipment. The qualified oil-filled
conducting site visits would have no operators who, while otherwise operational equipment criterion
written Plan or documentation to assess demonstrating the prerequisites for self- specifically requires that the facility had
the facility’s effectiveness in certification, are unable to demonstrate no discharges as described in § 112.1(b)
implementing its spill prevention ten years without a discharge as from any oil-filled operational
strategy. described in § 112.1(b). This one-time equipment in the ten years prior to the
Although EPA received general notification requirement, if adopted, SPCC Plan certification date, or since
comments supporting this option on a would modify today’s proposed becoming subject to 40 CFR part 112 if
conceptual level, neither the qualified facilities option by increasing the facility has been in operation for less
information presented in the NODA nor its burden for some facilities. EPA than ten years.
the comments addressed the practical decided not to pursue this option This proposed action would provide
application of this alternative. The because it does not differ substantively an alternative means of SPCC
Agency welcomes comments on this from the proposed action and the compliance for this equipment;
therefore, an owner/operator could submitted in response to this NODA and equipment. In order to determine the
choose to follow the current SPCC presents today’s proposal in accordance storage capacity of an individual piece
requirements to provide secondary with our intention to consider of oil-filled operational equipment, the
containment for each piece of qualified alternative containment options for owner/operator would consider the total
oil-filled operational equipment in electrical and operational equipment. storage capacity of the piece of
accordance with § 112.7(c) if desired. Today’s proposal defines oil-filled equipment (i.e., add together the
For example, oil-filled operational operational equipment as ‘‘equipment capacity of multiple compartments or
equipment at electrical substations is which includes an oil storage container reservoirs of oil storage). The owner or
often surrounded by a gravel bed, which (or multiple containers) in which the oil operator must include the storage
serves as a passive fire quench system is present solely to support the function capacity of oil-filled operational
and support for the facility grounding of the apparatus or the device. Oil-filled equipment in order to determine
network and can provide a restriction to operational equipment is not considered applicability of the SPCC regulation to
movement of any oil that may be a bulk storage container, and does not the facility.
released. Gravel beds, if designed to include oil-filled manufacturing As proposed today, oil-filled
prevent a discharge as described in equipment (flow-through process).’’ manufacturing equipment (which
§ 112.1(b) (i.e., drainage systems that do Examples of oil-filled operational involves a flow-through process) would
not serve as a conduit to surface waters) equipment include, but are not limited not qualify for this alternative. Under
may meet the general secondary to, hydraulic systems, lubricating the current rule, oil-filled
containment requirements of § 112.7(c). systems (e.g., those for pumps, manufacturing equipment (which is a
EPA further notes that facilities with oil- compressors and other rotating subset of oil-filled equipment) is not
filled operational equipment located equipment, including pumpjack defined as a bulk storage container. Oil-
within buildings with limited drainage, lubrication systems), gear boxes, filled manufacturing equipment
which prevents a discharge as described machining coolant systems, heat includes, for example, process vessels,
in § 112.1(b), may already meet the transfer systems, transformers, circuit conveyances such as piping associated
requirements for general secondary breakers, electrical switches, and other with a process, and equipment used in
containment of § 112.7(c). If so, a systems containing oil to enable the the alteration, processing or refining of
contingency plan for this equipment is operation of the devices. crude oil and other non-petroleum oils,
not necessary. Ultimately, this would be Oil-filled operational equipment including animal fats and vegetable oils
a decision by the owner and/or operator. differs from bulk storage containers in Oil-filled manufacturing equipment is
several ways. Oil-filled operational inherently more complicated than oil-
1. Proposed Oil-Filled Operational equipment typically has minimal oil filled operational equipment because it
Equipment Definition throughput because such equipment typically involves a flow-through
In July 2002, EPA clarified that oil- does not require frequent transfers of process and is commonly
filled equipment (i.e., oil-filled oil. Further, the oil contained in oil- interconnected through piping. For
electrical, operating, and manufacturing filled operational equipment, such as example, oil-filled manufacturing
equipment) are not bulk storage cooling or lubricating oil, is intrinsic to equipment receives a continuous source
containers and therefore are not subject the operation of the device and of oil, in contrast to the static capacity
to the bulk storage container provisions facilitates the function of the of other, non-flow-through oil-filled
in § 112.8(c), including specifically equipment. A leak of oil from some oil- equipment.
sized secondary containment for bulk filled operational equipment can be Today’s proposal would not change
storage containers and integrity testing. detected by low-level alarms and remote any requirements for oil-filled
However, as EPA stated in the preamble monitoring of the performance of the manufacturing equipment. Oil-filled
to the July 2002 amendments, oil-filled equipment. For example, the loss of oil manufacturing equipment remains
equipment is subject to general from electrical equipment will result in subject to the general SPCC
secondary containment requirements the equipment ceasing to operate, which requirements under § 112.7, including a
described in § 112.7(c), which can be will result in a power outage. Utilities demonstration of impracticability under
provided by various means including have strong economic incentives to § 112.7(d) if the SPCC Plan does not
drainage systems, spill diversion ponds, prevent power outages, to discover and provide for secondary containment as
etc. EPA believes these measures respond to an outage, and to correct the required by § 112.7(c). The containers
provide for safety and also meet the conditions that produced the outage as associated with storage of raw products,
needs of section 311(j)(1)(C) of the quickly as possible. In addition, oil- or the finished oil products are bulk
CWA. filled operational equipment is often storage containers and are not
Though there are times when general subject to routine maintenance and considered oil-filled manufacturing
secondary containment is practicable for inspections to ensure proper operation. equipment or oil-filled operational
oil-filled operational equipment, the Finally, oil-filled operational equipment equipment. Additionally, piping
Agency agreed to continue to evaluate is designed, constructed, and systems not associated with the
whether the general secondary maintained according to specifications alteration, processing or refining of
containment requirements found in for its particular operation and crude oil and other non-petroleum oils,
§ 112.7(c) should be modified for small construction materials are corrosion- including animal fats and vegetable oils
electrical and other types of equipment resistant. are not considered oil-filled
which use oil for operating purposes. However, the oil storage capacity of manufacturing equipment. EPA expects
On September 20, 2004, EPA published oil-filled operational equipment still the owner/operator to delineate bulk
a NODA which made available and counts towards the total oil storage storage containers from the oil-filled
solicited comments on submissions to capacity of the facility. The SPCC manufacturing equipment in the facility
EPA suggesting that alternate regulatory regulation defines storage capacity of a SPCC Plan (e.g., on the facility diagram
requirements for facilities with oil-filled container as the shell capacity of the and in discussion of compliance with
and process equipment would be container. This definition applies to all inspection requirements of the rule).
appropriate (69 FR 56184). EPA has oil storage containers including bulk Additionally, while oil-filled
reviewed the public comments and data storage containers and all oil-filled manufacturing equipment is not a bulk
storage container and is therefore not discharge history criterion to identify a to inherent design and safety
subject to the frequent visual inspection facility’s ability to effectively implement considerations, as well as site
requirement for bulk storage containers its SPCC Plan and prevent discharges in configuration. The oil associated with
under § 112.8(c)(6), EPA believes that it quantities that may be harmful. In oil-filled operational equipment remains
is good engineering practice to have establishing a good oil spill prevention inside the equipment and transfers do
some form of visual inspection or history, a facility then qualifies for the not occur regularly; for oil-filled
monitoring for oil-filled manufacturing oil spill contingency plan option offered electrical equipment (e.g., transformers)
equipment in order to prevent in this proposal. Because the Agency is transfers may occur infrequently, if at
discharges as described in § 112.1(b). proposing to extend this relief to all oil- all. Operational equipment is designed,
Furthermore, it is a challenge to comply filled operational equipment, regardless constructed, and maintained according
with several of the SPCC provisions (for of the oil storage capacity of the to specifications for its particular
example, requirements for security equipment, this criterion is critical in operation and construction materials are
under § 112.7(g) and for establishing an appropriate balance corrosion-resistant. The complexity of
countermeasures for discharge between environmental protection and the equipment and the nature of the use
discovery under § 112.7(a)(3)(iv)) burden relief by identifying those of this equipment may not lend itself to
without some form of inspection or facilities which have demonstrated good traditional bulk storage containment
monitoring program. spill prevention practices in the past. methods and thus flexibility is
The Agency requests comments on appropriate in this area and may
2. Eligibility Criteria—Reportable
the appropriateness of a reportable improve compliance with oil pollution
Discharge History
discharge history criterion for prevention measures. The proposed
Under today’s proposal, the determining the qualifications of a amendments to § 112.7 would give a
alternative to secondary containment for facility with oil-filled operational facility with qualified oil-filled
qualified oil-filled operational equipment for this alternative, whether operational equipment the option of
equipment would not be available to it is necessary, and whether there are implementing an oil spill contingency
facilities that have had a reportable other measures of a facility’s effective plan and written commitment of
discharge from any oil-filled operational implementation of the oil pollution manpower, equipment, and materials
equipment in the ten years prior to the prevention requirements for oil-filled required to expeditiously control and
SPCC Plan certification date, or since operational equipment under 40 CFR remove any quantity of oil discharged
becoming subject to 40 CFR part 112 if part 112 that should be considered. In that may be harmful in lieu of secondary
the facility has been in operation for less addition, the Agency also specifically containment for this equipment,
than ten years. This criterion is based on requests comments on the proposed ten- without having to make an
a proposal submitted by USWAG, as year period by which facilities can meet impracticability determination for each
described in the documents the discharge history criterion. Any piece of equipment. It should be noted
supplementing the September 20, 2004 alternative time periods suggested must that the use of a contingency plan does
NODA at 69 FR 56184. In its proposal, not relieve the owner/operator of
include an appropriate rationale and
USWAG recognized that facilities that liability associated with an oil discharge
supporting data in order for the Agency
pose a risk, in the form of discharges of to navigable waters or adjoining
to be able to consider them for final
oil in quantities that are harmful shorelines that violates the provisions of
action. The Agency is also aware that
(reportable under 40 CFR part 110), 40 CFR part 110.
events such as natural disasters, acts of
should not be granted regulatory relief. In the preamble to the 2002
war or terrorism, sabotage, or other
In general, NODA commenters amendments, EPA discusses how any
calamities, beyond the control or
expressed strong support for the facility which makes a determination of
planning ability of the facility owner or
USWAG proposal. impracticability and has submitted a
40 CFR 110.3 defines a discharge of operator, may cause a reportable oil
Facility Response Plan (FRP) under
oil ‘‘in such quantities that may be discharge. The Agency therefore
§ 112.20 is exempt from the contingency
harmful to the public health, welfare, or requests comments on how to account
planning requirement because such a
the environment of the United States as for such occurrences in the discharge
response plan is more comprehensive
a discharge of oil that violates history criterion.
than a contingency plan following 40
applicable water quality standards; a 3. Proposed Requirements for Qualified CFR part 109. The Agency believes that
discharge of oil that causes a film or Oil-Filled Operational Equipment in this should also apply to a facility with
sheen upon the surface of the water or Lieu of Secondary Containment qualified oil-filled operational
adjoining shorelines; or a discharge of equipment which would choose to
oil that causes a sludge or emulsion to a. Contingency Plans and a Written
Commitment of Manpower, Equipment utilize contingency planning in lieu of
be deposited beneath the surface of the secondary containment in accordance
water or adjoining shorelines. The and Materials
with today’s proposal. If such a facility
Agency refers to such discharges in The regulated community, has already developed an FRP to
§ 112.1(b) of the rule. Any person in particularly electrical facilities, comply with § 112.20, then it would not
charge of a facility must report any such identified secondary containment for need to also develop a contingency plan
discharge of oil from the facility to the oil-filled operational equipment as one in accordance with 40 CFR part 109 for
National Response Center (NRC) at 1– of its major cost concerns. This the qualified oil-filled operational
800–424–8802 immediately. While EPA sentiment was echoed in the comments equipment.
recognizes that past discharge history submitted in response to the NODAs. Since, by definition, oil-filled
does not necessarily predict future With this proposal, the Agency is operational equipment is not considered
performance, the Agency believes that responding to those concerns by a bulk storage container, the facility
discharge history can be used as a providing targeted relief without owner or operator is not required to
surrogate measure for a facility’s ability compromising on environmental comply with the bulk storage
to appropriately manage its oil. Hence, protection. EPA believes that secondary requirements under § 112.8(c) or to
as with the ‘‘qualified facilities’’ containment may be often impracticable conduct both periodic integrity testing
proposal, EPA proposes to use this for oil-filled operational equipment due of the containers and periodic integrity
and leak testing of the valves and piping addition, a discharge of oil under 40 without some form of inspection or
as described under § 112.7(d). However, CFR part 110 that does not trigger the monitoring program.
EPA believes that inspections or reporting requirements of § 112.4(a) A facility owner/operator must be
monitoring are important when there is must still be reported to the National able to quickly detect a discharge from
no secondary containment in place. Response Center. EPA also receives qualified oil-filled operational
Therefore, EPA is proposing to require copies of the NRC reports and has the equipment in order for a contingency
facilities with qualified oil-filled authority under § 112.1(f) to require a plan to be effective. Oil-filled
operational equipment choosing the facility to prepare and implement an operational equipment may be
proposed alternative to secondary SPCC Plan or any applicable part of a frequently monitored by employees
containment to develop and implement Plan. Thus, the RA may require a Plan, tending to the operation, and in such a
an inspection or monitoring program, as partial Plan, or amendments to the Plan case, discharges of oil would be noticed
further discussed in section B.3.b. of to achieve full compliance with the rule, quickly. For many types of operational
this section of the preamble. Since this as deemed appropriate to prevent equipment, particularly oil-filled
proposal for qualified oil-filled further discharges in quantities that may electrical equipment, releases of oil
operational equipment would provide be harmful. rapidly decrease the functionality of the
an optional method of SPCC equipment—for oil-filled electrical
b. Inspections or Monitoring Program equipment, loss of dielectric fluid leads
compliance, a facility with such
equipment could choose to follow the Facility owners or operators that wish to equipment failure and an interruption
current SPCC requirements and provide to take advantage of this proposed of electric power transmission. The
general secondary containment in alternative would be required to need for equipment reliability assures
accordance with § 112.7(c) for this develop an appropriate set of prompt detection of releases of oil,
equipment if desired. Ultimately, this procedures for inspections or a enhancing the probability of a prompt
would be a decision of the owner and/ monitoring program for qualified oil- response action. Therefore, in lieu of
or operator. filled operational equipment. For secondary containment, today’s
facilities that rely on contingency proposal for qualified oil-filled
Facilities with qualified oil-filled
planning in lieu of secondary operational equipment includes the
operational equipment that choose the
containment for qualified oil-filled requirement for a facility owner/
proposed alternative to secondary
operational equipment, discharge operator to establish and document an
containment and that subsequently inspection or monitoring program, in
experience a discharge would not discovery by inspection or monitoring is
of paramount importance for effective addition to the preparation of a
automatically lose eligibility for today’s contingency plan, and a written
proposed relief. Owners/operators of and timely implementation of the
contingency plan. An inspection or a commitment of manpower, equipment,
facilities which discharge oil in and materials to expeditiously control
quantities that may be harmful from oil- monitoring program would ensure that
and remove oil discharged.
filled operational equipment should re- facilities are alerted quickly of
The Agency requests comments on
evaluate the effectiveness of the SPCC equipment failures and/or discharges. A
the appropriateness of this requirement
Plan (specifically the contingency plan, written description of the inspection or as a qualification for this alternative,
written commitment of resources and monitoring program would be required and whether there are other measures
inspections/monitoring alternative to be included in the SPCC Plan. Under that a facility could take to ensure that
discussed in today’s proposal) and the existing requirement in § 112.7(e), a contingency plan is activated in a
determine the need for secondary the owner or operator would be required timely manner upon equipment failure
containment measures in lieu of to keep a record of inspections and tests, or discharge. The Agency also requests
contingency planning. Additionally, the signed by the appropriate supervisor or comments on whether there are other
Regional Administrator (RA) may inspector, for a period of three years. requirements that should be added for
determine that a facility is no longer Records of inspections and tests kept facilities with oil-filled operational
eligible to have a contingency plan in under usual and customary business equipment to be able to establish and
lieu of secondary containment without practices suffice (e.g., records of document an inspection or monitoring
making an impracticability inspections and tests required by this program, use a contingency plan, and
determination, and such facilities may rule may be maintained in electronic or provide a written commitment of
be required to amend their Plans to any other format which is readily manpower, equipment and materials in
provide secondary containment for their accessible to the facility and to EPA lieu of secondary containment for
oil-filled operational equipment. The personnel). qualified oil-filled operational
RA has the authority to require SPCC While oil-filled operational equipment. Any alternative approach
Plan amendments under § 112.4. equipment is not a bulk storage presented must include an appropriate
Section 112.4(a) requires a facility that container and is therefore not subject to rationale and supporting data in order
has discharged more than 1,000 gallons the frequent visual inspection for the Agency to be able to consider it
of oil in a single discharge as described requirement for bulk storage containers for final action.
in 40 CFR part 110, or that discharged under § 112.8(c)(6), EPA believes that it
more than 42 gallons of oil in each of is good engineering practice to have Alternative Options Considered
two discharges as described in 40 CFR some form of visual inspection or EPA considered alternative
part 110 in any 12-month period to monitoring for oil-filled operational approaches to address streamlined
submit information to the RA within 60 equipment in order to prevent requirements for small oil-filled
days of the date of the discharge. As per discharges as described in § 112.1(b). operational equipment. One option was
§ 112.4(d), the RA has the authority to Additionally, it is a challenge to comply similar to the qualified facilities
require the facility to amend its SPCC with several of the SPCC provisions (for proposal, in which eligibility of a
Plan in order to prevent and contain example, requirements for security facility with oil-filled operational
discharges; e.g., the RA may require a under § 112.7(g) and for equipment would be determined by
facility to install secondary containment countermeasures for discharge considering capacity thresholds and
for oil-filled operational equipment. In discovery under § 112.7(a)(3)(iv)) reportable discharge history from any
oil-filled operational equipment. Agency has no information describing an SPCC Plan. Such an approach would
Another option would call for a tiered the types of oil-filled operational have exempted a significant portion of
set of requirements for electrical and equipment, capacities and distribution the regulated universe with oil-filled
other oil-filled operational equipment. for other industries. Additionally, we operational equipment from the
EPA also considered options similar to have limited specific information on the development of an SPCC Plan entirely
those presented for the qualified various sizes of oil-filled electrical and instead would only need to develop
facilities proposal: (1) providing an equipment to assist in establishing a a contingency plan and a written
indefinite extension of the Plan revision threshold for an individual piece of commitment of manpower, equipment
and implementation dates for certain equipment. and materials in the event of a
types of oil-filled operational The Agency seeks comments on discharge. Tier III would require that all
equipment; and (2) suspending all SPCC whether eligibility for qualified oil- other oil-filled operational equipment
requirements for certain types of oil- filled operational equipment status with capacities greater than 20,000
filled operational equipment. should be based on a specific level of gallons for an individual piece of
aggregate oil-filled operational equipment be required to comply with
a. Capacity Threshold Qualifier equipment storage capacity at a given the current SPCC rule.
The Agency considered an alternative facility. The Agency seeks comments on Although the Agency agrees that some
approach based on various levels of whether a threshold criterion achieves regulatory modifications are appropriate
aggregate oil storage capacity at a an appropriate balance of facility for facilities containing oil-filled
facility for determining which facilities burden and environmental protection operational equipment, there is still a
would be eligible for reduced burden as for oil-filled operational equipment. reasonable potential for discharge from
qualified oil-filled operational Any available data specific to either the this equipment and coverage by some
equipment. EPA considered limiting the capacity, location, or size distribution of type of SPCC Plan is warranted. The
proposed option by including two oil-filled operational equipment within Agency believes this is true even for
alternative storage capacity thresholds a facility or within a specific industry facilities composed entirely of oil-filled
from which the owner/operator may sector would be useful in Agency operational equipment. EPA also has
determine the equipment or facility’s deliberations for final rulemaking. concerns about the suggestion to allow
eligibility: (1) The storage capacity of an Comments specific to establishing a facility owners and operators to define
individual piece of oil-filled operational threshold criterion for oil-filled each piece of oil-filled equipment as a
equipment is 1,320 gallons or less, operational equipment should include separate facility because of the potential
regardless of the facility’s total oil-filled supporting data that: (1) Demonstrates for greater rule complexity,
operational equipment aggregate why the suggested volume threshold is implementation questions and
capacity; or (2) the aggregate oil-filled preferred; and (2) estimates the number confusion across the wide variety of
operational equipment storage capacity (or percentage) of facilities that would facilities covered by the SPCC rule. For
at the facility is 10,000 gallons or less. be eligible for qualified oil-filled example, the Agency may have to define
EPA also considered an alternative operational equipment status. Any and develop criteria that would be used
range of thresholds for both an alternative approach presented should by the facility owner or operator to
individual piece of oil-filled operational include an appropriate rationale and determine which equipment is a
equipment (ranging from 2,640 to 5,000 supporting data in order for the Agency separate facility, which is not, and how
gallons) and for the facility aggregate to be able to consider it for final action. the elements of a facility plan would
capacity of 20,000 gallons in order to address these differences. Uncertainty
provide a greater degree of burden b. Multi-Tiered Structure
and confusion about the definition of a
reduction than the alternative The tiered structure option was facility could lead to a greater lack of
thresholds considered by EPA. In considered in response to comments compliance and the potential for greater
determining potential threshold EPA received following publication of a environmental harm.
capacities, EPA considered current Notice of Data Availability for oil-filled
thresholds in the rule, as well as equipment (69 FR 56184, September 20, c. Extension/Suspension Options
proposals by industry. This was 2004) and is based on a previous EPA could propose an indefinite
intended to limit this relief to small proposal put forth by USWAG that extension to the compliance dates,
pieces of oil-filled operational focused on electrical equipment. A similar to the previous extensions
equipment or to facilities storing smaller central element of this option would already granted, that would apply to oil-
aggregate volumes of oil in oil-filled allow the facility owner or operator to filled operational equipment. This
operational equipment. The total facility define each discrete unit of this type of action would allow EPA more time to
oil-filled operational equipment storage oil-filled equipment as a facility. This decide how to regulate oil-filled
capacity threshold addresses the co- option would also establish three tiers operational equipment without delaying
location of oil-filled operational for regulated onshore oil-filled compliance for the entire universe of
equipment within a facility. operational equipment based on the SPCC-regulated facilities and
The Agency decided not to propose a storage capacity of the equipment. equipment. However, the extension
threshold criterion because we believe Individual pieces of oil-filled would be for a yet-to-be-determined
this equipment is unique and different operational equipment with an oil length of time, and for an unspecified
from bulk storage containers and storage capacity of 1,320 gallons or less set of requirements. Since so many
manufacturing equipment (flow-through (Tier 1) would have been exempt from facilities have oil-filled operational
process) such that the spill history alone all SPCC requirements. For individual equipment, if changes to these
suffices as a qualifying criterion to pieces of oil-filled operational requirements are delayed, a significant
determine eligibility. The Agency was equipment with a capacity greater than number of facilities might have to
also concerned with the limited amount 1,320 but less than 20,000 gallons and modify their existing Plans more than
of information provided in response to which meet additional qualifying once to accommodate future rule
the NODA. The data submitted in criteria (Tier II), facility owners and changes. As with past extensions, EPA
response to the NODA was primarily operators would have the option of would continue to require that oil-filled
from the electrical industry and the preparing a contingency plan in lieu of operational equipment comply with pre-
2002 SPCC requirements during the 55 gallons solely for the purpose of The Agency is seeking comments on
interim period at facilities that should providing fuel for propulsion, or solely the proposed definition of motive power
have had an SPCC Plan as of August 16, to facilitate the operation of the vehicle. containers or if there are any other
2002, providing no immediate relief. The concept of ‘‘motive power’’ is not definitions for ‘‘motive power’’ that
A suspension of all requirements for addressed in the SPCC regulations, but would be more suitable. Any alternative
oil-filled operational equipment would the EPA–DOT MOU in Appendix A to approach presented must include an
provide immediate relief until further 40 CFR part 112 specifically refers to the appropriate rationale and supporting
notice and provided EPA with more transportation of oil, not to data in order for the Agency to be able
time to decide how to regulate this transportation in the general sense. As to consider it for final action.
equipment. The Agency is concerned a result, oil storage containers with a
that this option provides no 2. Proposed Exemption
capacity greater than 55 gallons used for
environmental protection during the motive power fall under the SPCC rule This proposed rule amendment would
time that new requirements are and secondary containment and other exempt motive power containers, as
developed. SPCC requirements apply. However, defined above, from SPCC rule
EPA welcomes comments on these or EPA never intended to regulate motive applicability through a proposed
other alternatives that could reduce the power containers on buses, sport utility additional paragraph under the general
burden at facilities with oil-filled vehicles, small construction vehicles, applicability section, § 112.1(d).
operational equipment, while aircraft and farm equipment, or facilities Furthermore, these storage containers
maintaining appropriate levels of or locations such as heavy equipment would not be counted toward facility
environmental protection. The Agency dealers, commercial truck dealers, or capacity under § 112.1(d)(2). EPA
is also interested in comments related to certain parking lots that may be subject recognizes that there is a potential for an
the application of the USWAG proposal to the SPCC requirements (including oil discharge as described in § 112.1(b)
to other types of oil-filled operational bulk storage containment, inspection, from motive power containers, such as
equipment. Any alternative approaches and overfill protection) solely because from a breach in the fuel storage
presented must include an appropriate of the presence of motive power container, from an overfill event, or
rationale and supporting data in order containers. Nor does EPA intend to from a rupture of oil-filled operational
for the Agency to be able to consider require facilities otherwise subject to the equipment such as a hydraulic line on
them for final action. SPCC rule to include motive power heavy construction equipment. EPA has
the authority, under 311(j)(1)(C) of the
Qualified Facilities and Qualified Oil- containers in their Plans.
CWA, to impose requirements to
Filled Operational Equipment Overlap 1. Definition of Motive Power prevent oil discharges from motive
Some facilities would meet the power containers. The Regional
criteria for both qualified facilities and EPA proposes to amend the Oil Administrator has the option under
qualified oil-filled operational Pollution Prevention regulation (40 CFR § 112.1(f) to require facilities with
equipment. Such facilities would be part 112) to exempt motive power motive power containers to prepare and
able to benefit from both of the burden- containers, defined as ‘‘onboard bulk implement an SPCC Plan or any
reduction options proposed under storage containers used solely to power applicable part, if a determination is
today’s action. The owner or operator the movement of a motor vehicle, or made that it is necessary in order to
could choose to develop a contingency ancillary onboard oil-filled operational prevent a discharge of oil into waters of
plan and a written commitment of equipment used solely to facilitate its the United States.
manpower, equipment and materials in operation.’’ This definition is intended EPA notes that although this proposal
lieu of secondary containment for to describe containers such as the fuel provides the fuel tanks and ancillary oil-
qualified oil-filled operational tanks that are used solely to provide fuel filled operational equipment on motor
equipment. Since no impracticability for a motor vehicle’s movement or the vehicles with an exemption from SPCC
determination would be required for hydraulic and lubrication operational requirements, oil transfer activities
qualified oil-filled operational oil-filled containers used solely for occurring within an SPCC covered
equipment, the owner or operator could other ancillary functions of a motor facility would continue to be regulated.
self-certify his/her SPCC Plan and vehicle. This definition would not An example of such an activity would
would not be required to have a PE include transfers of fuel or other oil into be the transfer from an onsite tank via
develop and certify the contingency motive power containers at an otherwise a dispenser to motive power containers.
plan for the qualified oil-filled regulated facility, or a bulk storage This transfer activity is subject to the
operational equipment. The container mounted on a vehicle for any general secondary containment
responsibility of preparing a purpose other than powering the vehicle requirements of § 112.7(c), but is not
contingency plan and identifying the itself, for example, a tanker truck or subject to the requirements of § 112.7(h),
necessary equipment, materials and refueler. The definition of motive power because it does not occur across a
manpower to implement the containers would not include oil loading/unloading rack. Regulating a
contingency plan would fall on the drilling or workover equipment. transfer between unregulated motive
owner or operator of the qualified Specifically, it would not apply to the power containers and a regulated tank is
facility. drilling or workover rigs themselves; required by § 112.1(b), which requires
however, other earthmoving equipment that the SPCC rule apply to owners or
C. Motive Power (such as a bulldozer, trucks, or earth- operators of facilities that transfer oil
There are some motive power moving equipment) located at a drilling and oil products. Another example
containers already exempt from the or workover facility would be included would be an airport mobile refueler at
SPCC requirements based on the rule in the scope of the definition. Similarly, an SPCC-regulated airport that transfers
exemption for containers with an oil seismic exploration vehicles located at, oil to motive power containers or to an
storage capacity of less than 55 gallons. for example, oil and gas drilling, aircraft. That transfer activity would
However, there are certain motor workover and production facilities, again be subject to the general
vehicles (including aircraft) that contain would be included in the scope of the secondary containment requirements of
oil in capacities greater than or equal to definition of motive power. § 112.7(c), but not subject to the
requirements of § 112.7(h), again 3. Alternative Options Considered c. Exclusion From Storage Capacity
because it does not generally occur EPA considered other options to Calculation
across a loading/unloading rack. address motive power containers greater
An onboard bulk storage container EPA could exclude motive power
than 55 gallons in size. These options containers from the storage capacity
that supplies oil for the movement of a
included: (1) Exemption of all motive determination at a regulated facility and
vehicle or operation of onboard
power containers, except motive power from the definition of bulk storage
equipment, and at the same time is used
containers on aircraft and mining container to clarify that these containers
for the distribution or storage of this oil
equipment, which would be subject to are not counted towards the 1,320
is not subject to this proposed
exemption. For example, a mobile the general requirements under § 112.7; gallon aboveground oil storage
refueler that has an onboard bulk (2) exemption of all motive power threshold for the regulation.
storage container used to distribute fuel containers below a certain gallon Nevertheless, the facility would have to
to other vehicles on a site may also draw threshold, with containers above this consider these containers in their
its engine fuel (for propulsion) from that threshold remaining subject to the overall facility SPCC Plan. Although
container. Because EPA continues to general requirements under § 112.7; and motive power containers would not be
consider bulk storage containers (3) exclusion of motive power considered bulk storage containers, they
mounted on vehicles or towed by a containers only from the facility storage would be subject to the general
vehicle (such as a typical cargo tanker capacity calculation and bulk storage requirements of the rule under § 112.7,
truck) subject to certain transfer-related container requirements. including the provision for secondary
SPCC requirements, these containers are a. Equipment-Based Motive Power containment. The facility SPCC Plan
not subject to today’s proposed Exemption would have to identify the presence of
exemption. As noted above, the motive power containers on-site, in
exemption applies only to onboard bulk EPA could choose to exempt motive addition to their reasonable potential for
storage containers used solely to power containers, except containers on discharge as per § 112.7(b). This option
provide motive power or to facilitate the aircraft and mining equipment, from the is more complex for the regulated
operation of the vehicle. requirements of 40 CFR part 112. The community and is not a clear exemption
EPA is not extending the exemption majority of motive power containers of motive power containers.
for motive power containers to oil would be exempt from the SPCC rule.
EPA would require that the containers Each of these alternative options was
drilling and workover equipment, rejected because they did not address
including rigs. The Agency believes that on aircraft and mining equipment be
covered by the SPCC requirements the implementation issues with
due to the unique nature of oil drilling regulating motive power containers
and workover rig operations and the because these containers typically have
much larger volume than other motive under the SPCC requirements. The
large amounts and high flow rates of oil
power containers and potentially pose a Agency welcomes comments on these or
associated with these activities, it would
greater threat to the environment in the other alternatives that could serve to
not be appropriate or environmentally
event of a discharge as described in reduce the burden for facilities with
sound to exempt them from the SPCC
112.1(b). However, in the context of motive power containers, while at the
requirements, and thus they should
motive power containers, there is no same time maintaining appropriate
remain subject to 40 CFR part 112. The
information on the degree of likelihood levels of environmental protection. Any
purpose of offering the exemption is to
of a discharge from motive power alternative approaches presented must
offer relief for a particular set of
containers of different oil storage include an appropriate rationale and
equipment (e.g., automobiles) that may
capacities nor is there data available to supporting data in order for the Agency
be present at an otherwise regulated
SPCC facility, and not to offer relief for EPA specific to mining and aircraft to be able to consider them for final
facilities that may be mobile and move equipment discharges that would justify action.
from place to place as in the case of a this option. Therefore, the Agency chose D. Airport Mobile Refuelers
drilling or workover rig. Although not to propose this option.
drilling and workover equipment, Airport mobile refuelers are vehicles
b. Threshold-Based Motive Power that are used on an airport to refuel
including rigs, are not exempt, other Exemption
motive power equipment located at aircraft and ground service equipment.
drilling or workover facilities (e.g., Another option considered was to Their onboard bulk storage containers
trucks, automobiles, bulldozers, seismic exempt motive power containers with a are used to transport and transfer fuel
exploration vehicles or other earth- capacity below a certain threshold, and and are subject to the SPCC rule because
moving equipment) would be exempted. requiring containers with a capacity they are containers used to store oil
The agency believes that the general above the established threshold to have prior to use, while being used, or prior
protection and the spill response and appropriate containment under to further distribution in commerce. As
planning activities provided at an § 112.7(c). Those motive power such, they are subject to all applicable
otherwise regulated SPCC facility will containers included in the rule would SPCC rule provisions, including the
help the facility to address the spills only be required to have general secondary containment provisions of
associated with these motive power containment, and would be exempt § 112.8(c)(2) (applicable to all bulk
containers. However, the specific from all other requirements in §§ 112.7 storage containers) and § 112.8(c)(11)
provisions (such as blowout prevention) and 112.8(c). However, EPA rejected (applicable more specifically to mobile/
which are present in the current rule for this option because it has no basis for portable bulk storage containers). These
drilling or workover rigs, need to be choosing an appropriate threshold for provisions require a secondary means of
preserved to maintain an adequate level these containers and there is no data containment, such as a dike or
of environmental protection for these that clearly supports any specific catchment basin, sufficient to contain
unique activities. Therefore, an quantity. In addition, it would still the capacity of the largest single
exemption for drilling and workover present implementation problems for compartment or container with
equipment, including rigs, is those motive power containers that were sufficient freeboard to contain
inappropriate. subject to the regulation. precipitation.
Regulated community members in the secondary containment requirements at Secondary containment systems
aviation sector have expressed concern § 112.8(c)(2) and (11) would directly sufficient to contain the capacity of the
that requiring sized secondary conflict with the Uniform Fire Code largest single compartment or container
containment for airport mobile refuelers applicable to fuel handling at airports. with sufficient freeboard to contain
is not practicable for safety and security EPA believes, however, that these bulk precipitation would no longer be
reasons. They argue that requiring storage containers should remain required. Notwithstanding, there is a
refuelers to park in specially designed subject to the general secondary potential for oil discharges as described
secondary containment areas located containment requirements at § 112.7(c) in § 112.1(b) from airport mobile
within an airport’s aircraft operations as this provision affords sufficient refuelers. Indeed, there are documented
area could create a safety and security flexibility to the owner/operator and cases of reportable discharges while fuel
hazard because it entails grouping the certifying PE to select a spill prevention is transferred from storage into the
vehicles or placing impediments in the method that would not conflict with the mobile refuelers and during aircraft
operations area. In addition, they claim applicable Uniform Fire Code. Thus, refueling activities. Fuel leaks have
that requiring mobile refuelers to return EPA is proposing to exempt airport occurred while the mobile refueler is
to containment areas located within the mobile refuelers from the specifically parked or idle. Therefore, the general
airport’s tank farm between refueling sized secondary containment secondary containment requirements of
operations may increase the risk of requirements for bulk storage containers § 112.7(c) would continue to apply to
accidents (and therefore accidental oil in § 112.8(c)(2) and (11). EPA believes airport mobile refuelers under this
discharge), as the vehicles would travel that this exemption is appropriate for proposal.
with increased frequency through the airport mobile refuelers, so as not to Section 112.7(c) lists several
busy aircraft operations area. They also conflict with the specific Uniform Fire appropriate containment methods a
claim that providing secondary Code requirements for airport fueling facility owner or operator can provide,
containment for mobile refuelers during activities, while preserving including curbs, gutters, barriers, or
airport operations presents inherent environmental protection (especially for sorbent materials. However, EPA
difficulties and point to controls on fuel transfers associated with airport recognizes that permanent containment
design, inspection, maintenance and mobile refuelers), afforded by the spill structures such as curbs may not be
operation of mobile refuelers imposed prevention provisions outlined in appropriate in all cases. The Agency
by the Federal Aviation § 112.7(c). EPA also believes that this made informal contact with nine airport
Administration’s Advisory Circulars. clarification for airport mobile refuelers engineering and construction firms who
For example, the storage containers on applies to mobile refuelers operating at indicated that providing sized
the mobile refuelers must be all airports, both those certified under secondary containment areas for airport
manufactured to U.S. DOT–406 14 CFR part 139 and non-certified mobile refuelers is not a common
specifications for pressure vessels (49 airports. practice. We also learned that mobile
CFR 178.346). refuelers are not involved in every
1. Definition of Airport Mobile Refueler airport fueling operation, and when
EPA is aware that certain airports EPA proposes to amend the Oil refuelers are present, there is no
subject to FAA’s regulations at 14 CFR Pollution Prevention regulation (40 CFR standard method for ensuring sized
part 139 require certification by the part 112) to exempt airport mobile secondary containment. EPA cautions
FAA Administrator or his delegated refuelers from the requirements of that these results are drawn from only
agent. As part of this certification, the § 112.8(c)(2) and (11). In today’s a small number of firms that provide
Agency understands that compliance proposal, EPA defines an airport mobile construction and engineering support
with Uniform Fire Code requirements, refueler as ‘‘a vehicle with an onboard for the aviation industry rather than
among other requirements in 14 CFR bulk storage container designed for, or directly from the airport owners or
part 139, must be detailed in the Airport used to, store and transport fuel for operators.
Certification Manual to obtain FAA transfer into or from an aircraft or Appropriate containment and/or
approval and thus an Airport Operating ground service equipment.’’ This diversionary structures or equipment
Certificate per part 139. The Agency definition is adapted from definitions in must be designed to prevent a discharge
understands that the applicable Uniform the U.S. DOT Federal Aviation as described in § 112.1(b). The Agency
Fire Code includes National Fire Administration’s Advisory Circular 150/ believes general secondary containment
Protection Association’s (NFPA) 30, 5230–4 on Aircraft Fuel Storage, should be designed to address the most
Flammable and Combustible Liquids Handling, and Dispensing on Airports, likely discharge from the primary
Code, NFPA 407, Standard for Aircraft and NFPA 407 for Aircraft Fuel containment system. Section § 112.7(c)
Fuel Servicing and NFPA 415, Standard Servicing. The definition is intended to allows for the use of certain types of
on Airport Terminal Buildings, Fueling describe vehicles of various sizes active containment measures
Ramp Drainage, and Loading Walkways. equipped with a bulk storage container (countermeasures or spill response
In particular, NFPA 407 requires that such as a cargo tank (tank trucks, tank capability) which prevent a discharge to
aircraft fuel servicing vehicles and carts full trailers, tank semitrailers, etc.) that navigable waters or adjoining
shall be positioned so that a clear path are used to fuel or defuel aircraft at shorelines. Active containment
of egress from the aircraft for fuel airports. measures are those that require
servicing vehicles shall be maintained deployment or other specific action by
[5.12.1]. Further, in NFPA 415, the code 2. Proposed Amended Requirements the owner or operator. These measures
specifically states that in no case shall This proposed amendment would may be deployed either before an
the design of a drainage system of any revise § 112.8(c)(2) and (11) to activity involving the handling of oil
aircraft fueling ramp allow fuel to specifically exempt airport mobile starts, or in reaction to a discharge so
collect on the aircraft fueling ramp or refuelers, as defined above, from these long as the active measure is designed
adjacent ground surfaces where it provisions. Since airport mobile and can reasonably be implemented to
constitutes a fire hazard [5.1.4]. As such, refuelers are mobile or portable bulk prevent an oil spill from reaching
EPA believes that subjecting mobile storage containers, the other provisions navigable water or adjoining shorelines.
airport refuelers to the specifically sized of § 112.8(c) would still apply. Passive measures are permanent
installations and do not require 415 to all airport facilities. promulgated the identical requirements
deployment or action by the owner/ Consequently, EPA did not propose this for facilities storing or using all classes
operator. The efficacy of active approach. EPA welcomes comment on of oil in the final rule. As a result,
containment measures to prevent a this issue. certain requirements, including
discharge depends on their technical The Agency seeks comments on the requirements for types of facilities that
effectiveness (e.g., mode of operation, proposed definition for ‘‘airport mobile only exist in the petroleum sector, also
absorption rate), placement and refuelers,’’ the adequacy of general apply to facilities handling animal fats
quantity, and timely deployment prior secondary containment requirements for and vegetable oils.2
to, or following a discharge. For preventing discharges as described in In today’s proposal, the Agency
discharges that occur only during § 112.1(b) from airport mobile refuelers, proposes to amend Subpart C of part
manned activities, such as those whether the proposed regulatory relief 112 by removing § 112.13 (requirements
occurring during transfers, an active satisfies the concerns of airport owners for onshore oil production facilities),
measure (e.g, sock, mat, other portable and/or operators, and the ability to § 112.14 (requirements for onshore oil
barrier, or land-based response apply active measures as described in drilling and workover facilities), and
capability) may be appropriate, § 112.7(c). Additionally, the Agency § 112.15 (requirements for offshore oil
provided that the measure is capable of seeks comments on whether the relief drilling, production, or workover
containing the oil discharge volume and provided specific to § 112.8(c)(2) and facilities). As members of the regulated
rate, and is timely and properly (11) should be more broadly applied to community pointed out, facilities that
constructed/deployed. The Agency also other types of mobile refuelers or process, store, use, or transport animal
believes that these active measures may railcars that are subject to § 112.8(c)(2) fats and/or vegetable oils (AFVO) do not
be appropriately applied to other and (11) and § 112.12(c)(2) and (11). engage in production, drilling or
situations (e.g., when the refueler is not Any alternative approaches presented workover. EPA agrees that these
engaged in transfer operations or must include an appropriate rationale sections should not be included in part
moving around the facility). and supporting data in order for the 112, subpart C and therefore proposes to
EPA believes that the general Agency to be able to consider them for remove them from the rule. The Agency
provisions for secondary containment final action. seeks comment on the proposal to
address the most likely spill scenarios remove and reserve these sections of
E. Animal Fats and Vegetable Oils
associated with this equipment (i.e., Subpart C of the regulation.
transfers from the refuelers to the In 1995, Congress enacted the Edible The Agency has not developed a
aircraft). Section 112.7(c) does not Oil Regulatory Reform Act (EORRA), 33 proposal following the 1999 Advanced
prescribe a size for a secondary U.S.C. 2720. That statute requires most Notice of Proposed Rulemaking
containment structure but does require Federal agencies to differentiate regarding differentiation of AFVO from
appropriate containment and/or between, and establish separate classes petroleum and other oils in the SPCC
diversionary structures or equipment to for, various types of oil, specifically, rule (64 FR 17227). To assist the Agency
prevent a discharge as described in animal fats and oils and greases, and in its ongoing consideration of this
§ 112.1(b). These proposed revisions fish and marine mammal oils, and for issue, EPA requests suggestions for
would maintain environmental oils of vegetable origin, including oils additional amendments that would
protection, while still allowing the from seeds, nuts, and kernels; and other differentiate AFVOs from other classes
necessary flexibility for compliance oils and greases, including petroleum. of oils in the SPCC rule and scientific
with the general secondary containment EORRA also requires affected agencies support for those amendments. In
requirements of the rule. to apply standards to the different particular, EPA is seeking information
Alternatively, EPA considered classes, based on considerations of that specifically addresses the criteria
whether the general secondary differences in the physical, chemical, for differentiation set forth in EORRA,
containment requirements of § 112.7(c) biological, and other properties of these 33 U.S.C. 2720(b); that is, differences in
should be applied to airport mobile oils and on the environmental effects of the physical, chemical, biological, and
refuelers only during any fuel transfer the oils. other properties, as well as the
activity and not while the refueler is In the July 17, 2002 final SPCC rule, environmental effects, of various types
moving or out of service (e.g. parked or the Agency promulgated general of oil, in order for the Agency to support
idle) provided that the facility is in requirements in § 112.7 for SPCC Plans a rationale for differentiation of oil spill
compliance with current NFPA 407 and for all facilities and all types of oil, as prevention requirements. The Agency
NFPA 415 requirements and any well as additional requirements tailored will continue to examine these issues to
applicable FAA requirements that to specific types of facilities in §§ 112.8 determine the appropriateness of
govern fuel handling. If a facility is not through 112.15. At that time, in amendments to the regulatory scheme
in compliance with NFPA 407, and 415 response to EORRA, EPA established which differentiate the SPCC
and FAA requirements, then it must separate subparts in the rule for requirements for AFVO from the
comply with the general secondary facilities storing or using the various requirements for petroleum and other
containment requirements at all times. classes of oil listed in that act. Subpart oils.
The Agency did not propose this C (§§ 112.12 through 112.15) sets out the
approach because NFPA 407 and NFPA requirements for facilities with animal VI. Proposed Extension of Compliance
415 are designed for fire protection fats and oils and greases, and fish and Dates for Farms
rather than environmental protection; a marine mammal oils; and for oils of The agricultural community has
properly designed drainage system that vegetable origin, including oils from provided EPA with additional
meets the intent of NFPA 407 and NFPA seeds, nuts, fruits, and kernels
415 might not adequately prevent fuel (hereinafter ‘‘animal fats and vegetable 2 The Agency also responded to a petition it
from being discharged in quantities that oils’’ or ‘‘AFVO’’). Subpart B (§§ 112.8 received on August 12, 1994 to treat facilities that
may be harmful. In addition, EPA has through 112.11) sets out the handle, store or transport animal fats and/or
vegetable oils differently from those facilities that
no information on the degree of requirements for facilities with store petroleum based oil. EPA denied that petition,
compliance with, alternatives to, or petroleum oils and non-petroleum oils and published the denial in a Federal Register
applicability of, NFPA 407 and NFPA other than AFVO. The Agency notice (see 62 FR 54508, October 20, 1997).
information and data which suggests This same 10,000-gallon threshold production of crops or raising of
that the universe of farms subject to the discharge volume is also one factor used animals, including fish. The preamble to
SPCC rule may be much larger than EPA in identifying facilities that must the UST rule explains that the term
estimated in the preparation of the 2002 prepare and submit a Facility Response ‘‘farm’’ includes fish hatcheries,
SPCC rule revisions. EPA believes that Plan (FRP) under § 112.20(f)(1). In rangeland, and nurseries with growing
the unique characteristics of farms pose addition, 10,000 gallons is a common operations, but does not include
particular challenges to SPCC storage capacity and such a threshold laboratories where animals are raised,
compliance and that further would extend the compliance dates for land used to grow timber, and pesticide
consideration of the requirements as a significant portion of the farm sector. aviation operations. This term also does
they relate to farms is warranted. We are Data provided by the agricultural not include retail stores or garden
particularly concerned that many of industry and the U.S. Department of centers where the product of nursery
these farms are small and that subjecting Agriculture indicate that the average farms is marketed, but not produced,
them to these requirements may not be aggregated aboveground oil storage nor does EPA interpret the term ‘‘farm’’
necessary. Therefore, EPA intends to capacity at farms surveyed in 2005 was to include golf courses or other places
review the impact of the SPCC 5,550 gallons; approximately 83 percent dedicated primarily to recreational,
requirements on farms and will take of surveyed farms have aggregated oil aesthetic, or other non-agricultural
action in a future rulemaking. storage below 10,000 gallons. Farms activities. (See 53 FR 37082, 37117,
While determining if the agriculture with less than 1,000 acres had an September 23, 1988.)
sector warrants specific consideration average oil storage capacity of less than EPA also considered defining a farm
under the SPCC rule, EPA proposes to 2,500 gallons; farms with over 1,000 by listing the appropriate North
extend the compliance dates for acres had an average oil storage capacity American Industry Classification
preparing or amending and of almost 8,000 gallons. (See ‘‘Fuel/Oil System (NAICS) codes, but we believe
implementing SPCC Plans for farms that Storage and Delivery for Farmers and that the definition proposed today in
have a total storage capacity of less than Cooperatives,’’ USDA, March 2005, in § 112.2, along with the 10,000 gallon
10,000 gallons. Our basis for taking this the docket for today’s proposal.) threshold quantity, more effectively
action is several fold. First, there are The Agency seeks comments on identifies the sector to which the
factors concerning the physical layout of whether this threshold appropriately extension would appropriately apply.
a farm that make this sector unique addresses the concerns of farms with Potentially affected entities that fall
within the universe of SPCC-regulated relatively smaller volumes of oil, while within certain NAICS codes, including
facilities. For example, farms vary maintaining the environmental 111 (Crop Production) and 112 (Animal
considerably in design and size (less protection intended by the regulation. If Production), are likely to fall within the
than an acre to many thousand acres). commenters suggest alternative volume proposed definition of farm and should
Further, the environment in which thresholds, it will be important for the consider the definition and eligibility
farms operate varies considerably from comments to also include a justification criteria further to determine if the
other industries. Farmers often own for such alternative volume thresholds proposed extension applies.
and/or farm land that are in order for the Agency to adequately EPA utilized elements of the UST
noncontiguous, and may be separated consider the comments submitted. This definition of farm, in combination with
by roads and other obstacles. Oil is data would be useful in final rule the Census definition, in developing
generally not centrally stored and oil deliberations. today’s proposal. By combining
containers may be widely dispersed. The Agency considers a farm as a elements of both of these approaches,
Certain SPCC requirements (such as specific type of facility under the SPCC the Agency believes the proposed
fencing, lighting, etc.) may be rule and proposes a specific definition definition more specifically targets the
disproportionately difficult and for farm under today’s proposal. For this intended universe for the extension.
expensive for farmers to implement, and proposed extension, EPA would define EPA seeks comment on the proposed
provide little environmental benefit. ‘‘farm,’’ in part, by adapting the definition for farms, and whether an
Also, because farms are often residential definition used by the National alternate definition of ‘‘farm’’ may be
properties, under the existing rule, Agricultural Statistics Service (NASS) in more appropriate. Comments may also
home heating oil tanks may be required its Census of Agriculture. NASS defines address the proposed 10,000 gallon
to be covered by the farm’s SPCC Plan. a farm as any place from which $1,000 threshold for qualifying for the
Other rule provisions, including or more of agricultural products were extension, and whether an alternative
security, would also affect the produced and sold, or normally would threshold may be more appropriate. Any
residential portions of a farm. For these have been sold, during the census year. alternative approaches presented must
reasons, we are proposing an extension Operations receiving $1,000 or more in include an appropriate rationale and
of the compliance date for farms with a Federal government payments are supporting data in order for the Agency
total storage capacity of less than 10,000 counted as farms, even if they have no to be able to consider them for final
gallons. See Section B below, for details. sales and otherwise lack the potential to action.
have $1,000 or more in sales.
A. Eligibility Criteria EPA also considered the definition it B. Proposed Compliance Date Extension
EPA proposes the 10,000-gallon uses to exempt farm tanks under the for Farms
threshold for farms to be consistent with Underground Storage Tank (UST) With today’s action, EPA proposes to
the threshold quantity used in the NCP regulations at 40 CFR part 280. The extend the compliance dates for the
to classify oil discharges to inland Resource Conservation and Recovery owner or operator of a farm, as defined
waters as ‘‘major’’ (40 CFR 300.5). Thus, Act (RCRA) as amended, section in proposed § 112.2, that has a total
a facility storing less than 10,000 gallons 9001(1)(A), exempts farm and storage capacity of 10,000 gallons or
of oil could not be involved in a major residential USTs storing less than 1,100 less, to prepare or amend and
discharge based on the NCP quantitative gallons of motor fuel for implement the farm’s SPCC Plan. The
criterion alone, although use of this ‘‘noncommercial’’ purposes. As defined Agency proposes to extend the farm
numerical criteria is not meant to imply in 40 CFR 280.12, a farm tank is a tank compliance dates until EPA completes
that smaller discharges are not harmful. located on a tract of land devoted to the information collection and analysis to
determine if differentiated SPCC (3) Materially alter the budgetary of the SPCC Proposed Rule are as
requirements may be appropriate for impact of entitlements, grants, user fees, follows:
farms. If the Agency determines that or loan programs or the rights and Develop the baseline universe of
differentiated requirements for farms are obligations of recipients thereof; or SPCC-regulated facilities and unit cost
warranted, the Agency will publish a (4) Raise novel legal or policy issues of compliance estimates for the analysis;
notice in the Federal Register proposing arising out of legal mandates, the • Estimate the number of facilities
new compliance dates for eligible farms. President’s priorities, or the principles affected by each of the proposed
In working to determine how to set forth in the Executive Order. options;
properly address farms under the SPCC Under the terms of Executive Order • Estimate unit compliance costs for
regulation, EPA will be partnering with 12866, this action has been judged as a all elements of the proposed options;
‘‘significant regulatory action’’ because • Estimate compliance cost savings to
USDA to acquire information to
it will have an annual effect on the potentially affected facilities; and
determine if differentiation may be • Annualize compliance cost savings
appropriate. EPA believes that, at this economy of $100 million or more or
over a ten-year period and discount the
time, an extension is appropriate adversely affect in a material way the
estimates to the current year.
because of the large scope of the economy, a sector of the economy, EPA also considered the potential
agricultural community that may be productivity, competition, jobs, the impacts of the proposed rule and
subject to the SPCC requirements, the environment, public health or safety, or alternative options on the risk of oil
fact that many farms are small, and the State, local, or tribal governments or discharges, which could lead to harmful
time needed to determine how the SPCC communities. Therefore, this action was environmental, human health, and
requirements should apply if at all, and submitted to OMB for review and the welfare consequences. Because of the
the effect of today’s proposal on the Agency has prepared a regulatory lack of data on regulated entities and
farm sector. We are also considering as analysis in support of today’s action, their likely response to the regulatory
an alternative approach to exempt farms titled, ‘‘Regulatory Analysis of the Spill options, the magnitude of such risks is
below a set oil storage capacity Prevention, Control, and highly uncertain. Therefore, EPA
threshold (such as 10,000 or 20,000 Countermeasure Proposed Rule’’ examined the general nature of the
gallons) from the SPCC regulation. (November 2005). Changes made in proposed and alternative changes to
EPA seeks comment on whether the response to OMB suggestions or assess possible effects on risk.
proposed extension is warranted, or if a recommendations will be documented
specific time period would be more in the public record. EPA requests b. Baseline for the Analysis
appropriate than the proposed comments from the public on the costs The impacts of the proposed
indefinite extension. EPA also requests and benefits of any of the possible regulation depend on the assumed
comment on whether it is more regulatory changes discussed in this baseline of industry behavior in the
appropriate to exempt all farms having proposed rulemaking, as well as on absence of a new rulemaking. EPA
less than a certain oil storage capacity appropriate methodologies for assessing developed a baseline for the regulatory
threshold (such as 10,000 or 20,000 them. analysis to assess the change in
gallons) from all SPCC requirements. 1. Summary of Regulatory Analysis regulatory compliance costs associated
Any alternative approaches presented with each of the proposed options,
must include an appropriate rationale The regulatory analysis developed in mutually exclusive of each other. The
and supporting data in order for the support of today’s action considers baseline provides the benchmark from
Agency to be able to consider them for changes in regulatory compliance costs which changes in regulatory behavior,
final action. for affected facility owners and caused by the proposed options, are
operators, changes in paperwork measured.
VII. Statutory and Executive Order burden, and impacts on small EPA is aware of industry concerns
Reviews businesses. In addition, EPA examined regarding potential non-compliance
A. Executive Order 12866—Regulatory qualitatively the potential impacts of the among certain facility sizes or sectors,
Planning and Review regulatory options on oil discharge risk. although no reliable empirical evidence
EPA intends to continue to update its exists to assess the scope and magnitude
Under Executive Order 12866 (58 FR estimates and assumptions for use in the of such non-compliance. EPA explicitly
51735, October 4, 1993), the Agency analysis supporting the final rule. considered whether to incorporate non-
must determine whether a regulatory compliance in its regulatory analysis of
action is ‘‘significant’’ and therefore a. General Approach
the 2002 revised rule: ‘‘It is possible that
subject to Office of Management and This analysis develops benefit and some facilities have misinterpreted the
Budget (OMB) review and the cost estimates for the proposed actions existing regulation and are not currently
requirements of the Executive Order. in the four major components of the in full compliance with existing
The order defines ‘‘significant proposed rule: requirements, but there is no practical
regulatory action’’ as one that is likely Qualified facilities with smaller way to measure the level of non-
to result in a rule that may: storage capacities; compliance. Moreover, the costs of
(1) Have an annual effect on the • Oil-filled operational equipment; coming into compliance with the
economy of $100 million or more or • Motive power; clarified requirements are not properly
adversely affect in a material way the • Airport mobile refuelers. attributed to this final regulation.’’
economy, a sector of the economy, The analysis then assesses the This rule does not impact any
productivity, competition, jobs, the impacts of the alternative regulatory facilities that are not already required to
environment, public health or safety, or options that EPA considered. meet the standards of the SPCC rule.
State, local, or tribal governments or For each of the components, the The costs of SPCC requirements were
communities; benefits consist of reductions in social already imposed on the regulated
(2) Create a serious inconsistency or costs accruing from reductions in community by prior rulemaking in 1973
otherwise interfere with an action taken compliance costs. The main steps used and 2002. For the benefit-cost analysis,
or planned by another agency; to estimate the compliance cost impacts therefore, EPA is treating these costs as
liabilities the regulated entities 2. Qualified Facilities from discussions with several
currently have—whether or not they engineering firms.
have actually made the capital Today, EPA is proposing to provide The unit cost of integrity testing was
expenditures to comply. In this an option for qualified facilities to estimated based on interviews with
analytical construct, these firms are eliminate the requirement for PE several tank inspectors. EPA calculated
simply delaying the expenditures for the certification, and to provide flexibility the total cost of integrity testing per
costs they already carry. Therefore, EPA with respect to security measures and facility by multiplying for a single tank
used as its baseline the requirements integrity testing for these facilities. This by the number of tanks per facility.3
under 40 CFR part 112 (‘‘SPCC rule’’), proposed option would provide the EPA multiplied burden hour
as amended in 2002 (67 FR 47042). EPA greatest relief to owners and operators of estimates by the hourly wage rates for
does recognize, however, that there is new facilities that are preparing their specific labor categories to determine
non-compliance with the SPCC first SPCC Plan, as well as cost savings the per-facility costs associated with the
requirements by some portion of the for owners and operators of existing proposed rule’s paperwork
regulated community. facilities that make substantive changes requirements. The labor wage rates for
to their Plans in the future. private industry were derived from the
c. Description of SPCC-Regulated March 2005 U.S. Department of Labor’s
Universe a. Universe of Affected Facilities
Employment Cost Indexes and Levels.4
This section describes the universe of As noted above, EPA estimates that EPA estimates that if 50 percent of the
facilities subject to current and approximately 322,000 facilities with facilities complied with the alternative
proposed SPCC regulations. Calculating storage capacities below 10,000 gallons proposed today for qualified facilities
the number of regulated entities is not are subject to the SPCC requirements in that this option could reduce
straightforward. The SPCC rule does not the first year. Over the next ten years, compliance costs by $22.5 million and
include a notification requirement and, approximately 335,000 facilities with $18.4 million per year, discounted at 3
with certain exceptions, owners and storage capacities below 10,000 gallons percent and 7 percent, respectively. EPA
operators do not submit their SPCC would be subject to SPCC on average. assumed that the proposed flexibility for
Plans to EPA. The Agency has invested As with all of the regulatory options integrity testing would reduce the unit
considerable resources into estimating considered in developing today’s cost of testing by 50 percent. If 25
the number of entities affected by the proposed rule, facilities would have the percent of facilities under 10,000
SPCC rule. choice of complying with the existing gallons qualified for this option,
EPA has updated its previous compliance costs would decrease by
SPCC rule (as amended in 2002) or
estimates of the number of regulated $11.2 million and $9.19 million per
taking advantage of the proposed
facilities. The Agency used data from year, discounted at 3 percent and 7
change. EPA assumes that facilities
the 2002 Economic Census, the Census percent, respectively. If 75 percent of
would likely choose an alternative
of Agriculture, and a variety of other facilities under 10,000 gallons qualified
requirement if (a) they met the criteria,
governmental and non-governmental for this option, compliance costs would
and (b) it was less costly or otherwise
sources to estimate the number of be reduced by $33.7 million and $27.6
offered greater benefits than the existing
regulated facilities in a large set of million per year, discounted at 3
requirement. As with the other options
percent and 7 percent, respectively.
industrial and commercial sectors. being considered today, EPA does not
Since data were not available for all know how many facilities would meet 3. Oil-Filled Operational Equipment
states, the basic estimation procedure the criteria and choose to avail Today, EPA is proposing to allow
involved extrapolating from eight state themselves of the ‘‘Qualified Facility’’ owners and operators of facilities
databases using information from the options. Therefore, EPA examined the featuring certain kinds of oil-filled
U.S. Census Bureau. The estimates of impact of the ‘‘Qualified Facility’’ operational equipment to establish and
the SPCC universe were developed for options under three scenarios: 25 document an inspection or monitoring
31 industry sectors. Full documentation percent, 50 percent, and 75 percent of program, prepare an oil spill
of the estimates appears in the Category I facilities would likely meet contingency plan and provide a written
Regulatory Analysis document ‘‘Qualified Facility’’ status and decide to commitment of manpower, equipment,
accompanying this proposal. implement this approach. EPA and materials in lieu of providing
In total, EPA estimates that 618,000 estimated that the 84,000 facilities secondary containment without making
facilities are currently regulated under would choose to take advantage of this an individual impracticability
the SPCC rule. Oil production facilities option under the 25-percent scenario; determination. The option is limited to
(28 percent), farms (25 percent) and 167,000 facilities under the 50-percent facilities that have had no discharges as
electric utility plants (8 percent) scenario, and 251,000 facilities under described in § 112.1(b) from any oil-
account for most of the SPCC-regulated the 75 percent scenario. filled operational equipment in the ten
facilities. Following is a table that years prior to the SPCC Plan
summarizes the estimated number of b. Compliance Cost Savings
certification date, or since becoming
regulated facilities, by size category: The main assumptions affecting all subject to 40 CFR part 112 if the facility
regulatory options were based on has been in operation for less than ten
Aggregate Number of years.
Category capacity facilities updated assumptions from the analyses
conducted for the 2002 final rule. For a. Universe of Affected Facilities
I ............ 1,320 to 10,000 322,000 example, EPA revised the cost estimate
gallons. for obtaining Professional Engineer (PE) The proposed changes for qualified
II ........... 10,001 to 42,000 216,000 certification of a new SPCC Plan. The oil-filled operational equipment could
gallons. estimate increased from $1,120 to
III .......... 42,001 to 1 mil- 77,000 $2,000 for a PE to certify a new Plan and 3 The number of tanks per facility was calculated
lion gallons. using state oil tank databases.

from $560 to $750 for a PE to certify a 4 United States Department of Labor, Bureau of
IV .......... greater than 1 3,000
million gallons.
technical change to an existing Plan. Labor Statistics, Employer Costs for Employee
The estimates are based on findings Compensation, June 2005.
address such items as hydraulic EPA acknowledges that some fraction motor vehicle, or ancillary onboard oil-
systems, lubricating systems (e.g., those of new facilities would, according to the filled operational equipment used solely
for pumps, compressors, pumpjacks, current SPCC rule requirements, to facilitate its operation. Although EPA
and other rotating equipment including provide an impracticability has no empirical data on the amount of
pumpjack lubrication systems), gear determination and provide a such storage at facilities regulated by the
boxes, machining coolant systems, heat contingency plan and a written SPCC rule, EPA does not expect that
transfer systems, transformers, circuit commitment of manpower, equipment many facility owners and operators have
breakers, electrical switches, and other and materials, rather than pursue included motive power in their oil
systems containing oil to enable secondary containment. In these cases, storage capacity calculations and SPCC
operation of the devices. Due to data the proposed action’s cost savings Plans. For those who have considered
and time limitations, EPA focused its would be lower, since owners and motive power storage, EPA assumes that
economic analysis on the electric utility operators would only be avoiding an the volume that would be exempt under
sector. Consequently, the analysis likely impracticability determination rather the proposed rule would not represent
underestimates the total cost savings than secondary containment. EPA does a large fraction of the facility’s aggregate
from the proposed ‘‘qualified oil-filled not know what fraction of facilities falls capacity.
operational equipment’’ action and the into this situation, and has decided not
a. Universe of Affected Facilities
alternative options. to incorporate the scenario in the
analysis. As a result, EPA’s analysis To identify industries that are
Specifically, EPA used data on the
likely overestimates the cost savings to potentially affected by motive power
number of substations listed by each
facilities in the electric utility industry exemptions, EPA started with
major utility reporting to the Federal
from the proposed action. information from industry comments to
Energy Regulatory Commission (FERC).5 the 2002 SPCC rule. Commenters from
However, EPA believes that the
A national estimate was extrapolated the crop production, forestry/logging,
overall assessment of cost savings from
from these data using the ratio of the and utilities industries indicated they
this component of the rule may be
megawatt hours sold by utilities to the had motive power equipment. EPA
significantly underestimated. This is
estimated total retail megawatt hours of identified additional industry groups by
due to the omission of potential cost
electricity sold nationwide according to examining industries targeted by the
savings that would accrue to all other
the EIA. major motive power equipment
industries outside of electrical utilities.
EPA estimated that the total number manufacturers. Caterpillar, Deere &
of new facilities with total oil-filled b. Compliance Cost Savings Company, Kubota Corporation, Joy
operational equipment would be EPA estimates that this component of Global Inc., CNH Global NV, and Terex
approximately 2,040 in the first year. the proposal could reduce compliance Corporation are some of the largest
Over the next ten years, approximately costs by as much as $56.7 million and motive power equipment
2,450 new facilities are expected to be $45.9 million per year, discounted at 3 manufacturers. Each company lists the
added annually on average. This percent and 7 percent, respectively. EPA industries targeted by their products.
number underestimates the universe of calculated cost savings based on the EPA used these listings as the basis for
facilities affected by the proposed assumption that new facilities with classifying industries likely to have
change, since it does not include oil- qualified oil-filled operational motive power containers.
filled operational equipment from other equipment would save the difference EPA has no empirical data on the
industries. Facilities with qualified oil- between the cost of secondary number of facilities with motive power
filled operational equipment are containment and the cost of preparing a containers with oil storage of 55 gallons
expected to use a contingency plan with contingency plan and a written or greater. To estimate the number of
a written commitment of manpower, commitment of manpower, equipment facilities affected by the ‘‘Motive
equipment and materials and have an and materials. EPA estimated annual Power’’ proposed rule, EPA examined
established inspections/monitoring per-facility cost savings of $9,000 to three scenarios: 10 percent, 25 percent,
program. $61,000 for new facilities, depending on and 50 percent of the facilities in sectors
EPA assumed that existing SPCC- a facility’s size and other characteristics. with motive power may be affected by
regulated facilities with qualified oil- The Agency recognizes, that at some the proposed regulatory option. EPA
filled operational equipment would facilities, owners or operators with PE- estimated that 29,000 facilities have
already have secondary containment or certified SPCC Plans have made a ‘‘motive power’’ oil storage under the
a determination of impracticability of determination that secondary 10-percent scenario; 71,600 facilities
secondary containment with a containment is impracticable, and have under the 25-percent scenario; and
contingency plan and a written implemented contingency plans and a 143,000 facilities under the 50-percent
commitment of manpower, equipment written commitment of manpower, scenario.
and materials in accordance with equipment and materials for the non-
b. Compliance Cost Savings
§ 112.7(d). In such cases, facilities qualified oil-filled operational
would not benefit from this option. EPA equipment. Such facilities would not EPA assumed that ten percent of the
has provided an economic impact see significant cost savings from this facilities in industries identified as
analysis (Appendix A to the Regulatory component of the current rule. The having motive power containers might
Analysis), which examines avoided analysis of cost savings underestimate take advantage of the proposed
facility expenditures. the number of facilities with qualified exemption. Other facilities could also
oil-filled operational equipment, but have motive power containers, however
5 Major regulated utilities must file FERC Form overestimates the cost savings for EPA expects that they have not
No. 1, on which utilities report information on their facilities that have been counted. considered such storage as part of their
substations and electrical equipment. ‘‘Major’’ is compliance with the SPCC rule. Because
defined as having (1) one million megawatt hours 4. Motive Power EPA expects most facilities with motive
or more; (2) 100 megawatt hours of annual sales for
resale; (3) 500 megawatt hours of annual power
It is not EPA’s intent to regulate power containers to meet the SPCC
exchange delivered; or (4) 500 megawatt hours of onboard bulk storage containers used rule’s oil storage thresholds, regardless
annual wheeling for others (deliveries plus losses). solely to power the movement of a of motive power, EPA assumes that the
cost savings from the proposed with § 112.8(c)(2) and (11) for airport NODAs published on September 20,
exemption will be modest, with the mobile refuelers. Therefore, the 2004. Following are summaries of the
possibility of saving small amounts of estimated annual cost savings consist of changes in compliance costs estimated
compliance costs, principally for the potential expenditures avoided of for each alternative option (for qualified
secondary containment for these motive providing secondary containment for facilities and qualified oil-filled
power containers. EPA estimates that new airport mobile refuelers. operational equipment), as well as
the proposed option will reduce The Agency estimated the total EPA’s rationale for rejecting the
compliance costs by $0.92 million and number of new airports at 479 in the alternative option.
$0.75 million per year, discounted at 3 first year. Over the next ten years,
a. Qualified Facilities
percent and 7 percent, respectively. The approximately 535 new airports are
main benefit of the proposed option expected to be added annually on As an alternative option, EPA
would be to provide greater clarity of average. EPA assumed one to three considered a notification requirement
EPA’s regulatory intent. mobile refuelers per airport,7 or for qualified facilities that have been
EPA also examined two other approximately two per airport on operating for less than ten years, along
scenarios: 25 percent and 50 percent of average. EPA estimates that this with eliminating the requirement for PE
facilities in industries identified as component of the proposal could reduce certification and providing flexibility for
having motive power containers might compliance costs by $6.43 million and integrity testing and security for all
take advantage of the proposed $5.23 million per year, discounted at 3 qualified facilities. EPA estimates that
exemption. Under the 25-percent percent and 7 percent, respectively. The the alternative option could reduce
scenario, compliance costs would be derivation of these estimates is compliance costs by $22.3 million and
reduced by $2.29 million and $1.87 explained in Chapter 8 of the Regulatory $18.4 million per year, discounted at 3
million per year, discounted at 3 Analysis. percent and 7 percent, respectively. To
percent and 7 percent, respectively. arrive at these figures, EPA assumed
6. Projected Impacts on Human Health, that 50 percent of facilities under 10,000
Under the 50-percent scenario,
Welfare, and the Environment gallons would qualify for this option.
compliance costs would be reduced by
$4.58 million and $3.74 million, The main benefit of the proposed rule EPA also assumed that the proposed
discounted at 3 percent and 7 percent, is lower compliance costs for certain flexibility for integrity testing would
respectively. types of facilities and equipment. EPA reduce the unit cost of testing by 50
expects these reduced expenditures to percent. EPA assumed that the total
5. Airport Mobile Refuelers translate to net social benefits. These burden of notification for a facility
EPA proposes to exempt airport benefits may be partially offset by would be three hours: one hour of
mobile refuelers from the specifically potential increases in risk of oil managerial time, one hour of technical
sized bulk storage secondary discharges, due to less stringent time, and one hour of clerical time. If 25
containment requirements of requirements compared to the existing percent of facilities under 10,000
§ 112.8(c)(2) and (11). EPA defines an SPCC rule. gallons qualified for this option,
airport mobile refueler as a ‘‘vehicle However, EPA has designed the compliance costs would decrease by
with an onboard bulk storage container proposed rule to minimize increases in $11.2 million and $9.13 million per
designed for, or used to, store and environmental risk. For example, EPA is year, discounted at 3 percent and 7
transport fuel for transfer into or from providing an option to avoid percent, respectively. If 75 percent of
aircraft or ground service equipment.’’ Professional Engineer certification for facilities under 10,000 gallons qualified
The general secondary containment qualified facilities that have no history for this option, compliance costs would
requirements of § 112.7(c) would still of reportable discharges. Any decision be reduced by $33.5 million and $27.4
apply to these airport mobile refuelers to apply environmental equivalence or million per year, discounted at 3
and to the transfers associated with this pursue an impracticability percent and 7 percent, respectively. EPA
equipment. Since airport mobile determination would still require PE decided not to pursue this option
refuelers are mobile or portable bulk certification, except for security and because it does not differ substantively
storage containers, the other provisions integrity testing. For the other relief from the proposed option; an additional
of § 112.8(c) would still apply. offered in the proposal, most facilities notification burden was not considered
The Agency researched regulatory will have general secondary necessary.
compliance of airports with SPCC containment that would help prevent As an alternative option, EPA
requirements for secondary discharges as described in § 112.1(b). In considered establishing three facility-
containment, and found that some summary, although the magnitude of size tiers according to SBA’s
airports do not have sized secondary recommendations based on facility’s
any increase in risk under each of the
containment in place. EPA found that total oil storage capacity (Jack Faucett
proposed options is unclear, EPA does
secondary containment for mobile Associates, 2004). EPA estimates that
not believe that these changes in spill
refuelers is not a common practice and this alternative option could reduce
risk are significant.
that mobile refuelers rarely have a To the extent that lower compliance compliance costs by $42.9 million and
designated area to park. Factors such as costs encourage greater overall $35.0 million per year, discounted at 3
the land value at many commercial compliance, the proposed rule may percent and 7 percent, respectively. To
airports prohibits a single, designated actually prevent discharges from arrive at these estimates, EPA assumed
parking area for mobile refuelers.6 EPA currently non-compliant facilities that that all SPCC-regulated facilities with
would occur in its absence. oil storage capacity between 1,320 and
analyzed potential cost savings to the
5,000 gallons would take advantage of
industry using an assumption that new
7. Alternative Regulatory Options the option, eliminating the cost of
facilities would have to provide
EPA considered other options for preparing and maintaining a written
secondary containment in accordance
addressing public comments to the SPCC Plan. Additionally, EPA assumed
6 For detail, see ‘‘Results of Research Project on that all SPCC-regulated facilities with
Airport Engineering and Construction Firms’’, Abt 7 Based on Federal Aviation Administration oil storage capacity between 5,001 and
Associates Inc. memorandum, 2004. estimates (http://www.faa.gov/data—statistics/). 10,000 gallons would take advantage of
the option and eliminate the cost of PE this alternative option could reduce Approaches to compliance will
certification. compliance costs by $17.6 million and depend on site-specific circumstances.
The cost savings associated with the $14.2 million per year, discounted at 3 For example, compliance costs vary not
three-tier plans, however, come at the percent and 7 percent, respectively. only on the volume of oil stored and
expense of losses in environmental EPA also considered two handled, but also on the types of oil at
protection. Although EPA agrees that a administrative options to provide relief a site, the number of tanks (and their
reduction in burden may be appropriate to oil-filled operational equipment: a volume), and the locations of the tanks
for facilities handling smaller quantities compliance date extension and a across a site. Given the wide range of
of oils, smaller facilities still pose risks suspension of all requirements. These industries and facility sizes affected by
to the environment given the nature of options would not have an impact on the SPCC rule—as well as geographical
the product. Therefore, some type of compliance costs, but would only delay and climatic conditions—it is difficult
Plan or documentation is warranted expenditures at affected facilities. EPA to specify a realistic baseline against
even for these smaller facilities. The decided against these options because which regulatory changes can be
tiered option also raises significant facility owners or operators would measured. Therefore, it is also difficult
implementation issues. For example, remain uncertain about the timing and to estimate the changes that could occur
certain facilities would require nature of requirements that eventually under various regulatory options.
compliance with the SPCC rule without would apply to them. Since many Finally, many of the cost assumptions
a written SPCC Plan. EPA believes that facilities have oil-filled operational used in the regulatory analysis are based
a facility would not be able to properly equipment, delaying changes to these on interviews with a limited number of
implement oil spill prevention requirements could lead to a significant PEs. It is very difficult to simply assess
measures—including notification, number of facilities needing to modify ‘‘typical’’ costs when the costs of
equipment maintenance, inspection and their existing Plans more than once to compliance are closely related to site-
training—without written accommodate future rule changes. A specific factors. Ideally, future analyses
documentation to inform the owner or suspension would increase the risk of
could explicitly account for such
operator of his/her responsibilities. variability in costs.
discharge at facilities with qualified oil-
Additionally, EPA inspectors
filled operational equipment during the 9. Conclusions
conducting on-site visits would have no
interim period, due to the delayed Applying both a 3 percent and a 7
written Plan or documentation to assess
implementation of preventive measures. percent discount rate, the proposed
the facility’s effectiveness in
implementing their spill prevention 8. Key Limitations of the Analysis regulatory changes could yield
strategy. Even with model plans, owners compliance cost savings of $22.5
or operators of larger facilities may not One of the main limitations of the million and $18.4 million for the
have the expertise to create their own regulatory analysis is EPA’s lack of data ‘‘qualified facility’’ option; $56.7
SPCC Plan without input from a PE. on facilities regulated under the SPCC million and $45.9 million for the
EPA also considered two additional rule. As mentioned earlier, the rule does ‘‘qualified oil-filled operational
options to provide relief to qualified not include (and never included) a equipment’’ option; $0.92 million and
facilities: a compliance date extension notification requirement and, with $0.75 million for ‘‘motive power’’
and a suspension of all requirements. certain exceptions, regulated entities do exemption; and $6.43 million and $5.23
These options would not have an not need to submit their SPCC Plans to million for airports with mobile
impact on compliance costs, but would EPA. Without conducting a statistically refuelers, respectively. Costs of these
only delay expenditures at affected valid survey, EPA is limited to data components are not summed, since
facilities. EPA decided against these already collected by state or federal simple addition would overstate cost
options because owners or operators of agencies or by proprietary sources. Such savings by not accounting for
qualified facilities would remain data are collected for diverse purposes interactions between the impacts of the
uncertain about the timing and type of and are not necessarily ideal for different components. EPA does not
future requirements that would apply to evaluating regulatory options, because believe that these cost reductions would
them. The preferred option would set they often omit portions of the regulated be offset by any significant losses in
forth explicit requirements for qualified universe or lack sufficient detail to environmental protection.
facilities that reduce compliance costs ascertain the impacts of changes in
within the current compliance date certain requirements. The type of B. Paperwork Reduction Act
schedule. The extension/suspension information collected also varies among The information collection
options also would pose additional the different sources. Data provided by requirements in this proposed rule have
problems related to implementation and industry organizations or individual been submitted for approval to the
environmental protection. businesses are often anecdotal or based Office of Management and Budget
on surveys that are not statistically (OMB) under the Paperwork Reduction
b. Oil-Filled Equipment valid, and cannot be reliably Act, 44 U.S.C. 3501 et seq. The
EPA explored a three-tiered structure extrapolated to a larger universe. As a Information Collection Request (ICR)
option in response to comments on the result of this limitation of data on document prepared by EPA has been
Notice of Data Availability (NODA) for regulated facilities, EPA has had to rely assigned EPA ICR number 0328.12.
oil-filled operational equipment (69 FR on updated figures from 1996 for most EPA does not collect the information
56184, September 20, 2004). The option industry sectors, as well as federal and required by SPCC rule on a routine
is based on a proposal put forth by the proprietary sources for a small number basis. SPCC Plans ordinarily need not be
Utility Solid Waste Activities Group of other sectors. Because none of these submitted to EPA, but must generally be
(USWAG). The option would allow an sources give adequate detail to evaluate maintained at the facility. Preparation,
owner or operator to define discrete the potential impacts of individual implementation, and maintenance of an
units of equipment as individual regulatory options, EPA has chosen to SPCC Plan by the facility helps prevent
facilities and reduce requirements examine various scenarios for each oil discharges, and mitigates the
imposed on units with capacities less option to bound the range of cost environmental damage caused by such
than 20,000 gallons. EPA estimates that savings that could occur. discharges. Therefore, the primary user
of the data is the facility. While EPA percent average reduction. The comments on the information collection
may, from time to time, request estimated average annual public requirements contained in this proposal.
information under these regulations, reporting for individual facilities
C. Regulatory Flexibility Act
such requests are not routine. already regulated under the SPCC rule
Although the facility is the primary would range between 3.46 and 6.04 The Regulatory Flexibility Act
data user, EPA also uses the data in hours, while the burden for newly generally requires an agency to prepare
certain situations. EPA reviews SPCC regulated facilities would range between a regulatory flexibility analysis of any
Plans: (1) When it requests a facility to 37.2 and 64.1 hours as a result of this rule subject to notice and comment
submit a Plan after certain oil discharges proposal. The net annualized capital rulemaking requirements under the
or to evaluate an extension request; and, and start-up costs for the SPCC Administrative Procedure Act or any
(2) as part of EPA’s inspection program. information collection portion of the other statute unless the agency certifies
State and local governments also use the rule would average $0.32 million and that the rule will not have a significant
data, which are not necessarily available net annualized operation and economic impact on a substantial
elsewhere and can greatly assist local maintenance (O&M) costs are estimated number of small entities. Small entities
emergency preparedness efforts. to be $26 million for all of these include small businesses, small
Preparation of the information for facilities combined. organizations, and small governmental
affected facilities is required under Burden means the total time, effort, or jurisdictions. For purposes of assessing
section 311(j)(1) of the Act as financial resources expended by persons the impacts of today’s proposed rule on
implemented by 40 CFR part 112. to generate, maintain, retain, or disclose small entities, small entity is defined as:
In the absence of this proposed or provide information to or for a (1) A small business as defined in the
rulemaking, EPA estimates that Federal agency. This includes the time SBA’s regulations at 13 CFR 121.201—
approximately 618,000 facilities would needed to review instructions; develop, the SBA defines small businesses by
be subject to the SPCC rule in 2006 and acquire, install, and utilize technology category of business using North
have SPCC Plans. In addition, EPA and systems for the purposes of American Industry Classification
estimates that approximately 4,520 new collecting, validating, and verifying System (NAICS) codes, and in the case
facilities would become subject to SPCC information, processing and of farms and production facilities,
requirements annually. In the absence of maintaining information, and disclosing which constitute a large percentage of
this proposed rulemaking, EPA projects and providing information; adjust the the facilities affected by this proposed
that the average annual public reporting existing ways to comply with any rule, generally defines small businesses
and recordkeeping burden for this previously applicable instructions and as having less than $500,000 in
information collection would be requirements; train personnel to be able revenues or 500 employees,
1,980,000 hours. to respond to a collection of respectively; (2) a small governmental
Under today’s proposed rulemaking, information; search data sources; jurisdiction that is a government of a
qualified facilities would no longer need complete and review the collection of city, county, town, school district or
a licensed Professional Engineer to information; and transmit or otherwise special district with a population of less
certify their Plans. Facilities that store disclose the information. than 50,000; and (3) a small
oil solely in motive power containers An agency may not conduct or organization that is any not-for-profit
would no longer be regulated, while sponsor, and a person is not required to enterprise that is independently owned
other facilities with oil storage in respond to a collection of information and operated and is not dominant in its
addition to motive power containers unless it displays a currently valid OMB field.
may incur lower compliance costs. control number. The OMB control After considering the economic
Today’s proposal would also allow numbers for EPA’s regulations in 40 impacts of today’s proposed rule on
greater use of contingency plans and CFR are listed in 40 CFR part 9. small entities, the Agency certifies that
written commitment of manpower, To comment on the Agency’s need for this action would not have a significant
equipment and resources without this information, the accuracy of the economic impact on a substantial
requiring an impracticability burden estimates, and any suggested number of small entities. In determining
determination when combined with an methods for minimizing respondent whether a rule has a significant
inspection or monitoring program as an burden, including the use of automated economic impact on a substantial
alternative to secondary containment for collection techniques, EPA has number of small entities, the impact of
qualified oil-filled operational established a public docket for this rule, concern is any significant adverse
equipment. It would also allow airport which includes this ICR, under Docket economic impact on small entities,
mobile refuelers to fall under a facility’s ID number EPA–HQ–OPA–2005–0001. since the primary purpose of the
general secondary containment Submit any comments related to the ICR regulatory flexibility analyses is to
requirements, rather than require for this proposed rule to EPA and OMB. identify and address regulatory
specifically sized secondary See ADDRESSES section at the beginning alternatives ‘‘which minimize any
containment. of this notice for where to submit significant economic impact of the
Under the proposed rule, an estimated comments to EPA. Send comments to proposed rule on small entities.’’ 5
372,000 regulated facilities would OMB at the Office of Information and U.S.C. 603 and 604. Thus, an agency
annually be subject to the SPCC Regulatory Affairs, Office of may certify that a rule will not have a
information collection requirements of Management and Budget, 725 17th significant economic impact on a
this rule during the information Street, NW., Washington, DC 20503, substantial number of small entities if
collection period. This figure excludes Attention: Desk Office for EPA. Since the rule relieves regulatory burden, or
farms with oil storage capacity of 10,000 OMB is required to make a decision otherwise has a positive economic effect
gallons or less, to reflect the proposed concerning the ICR between 30 and 60 on all of the small entities subject to the
compliance extension. Under this days after December 12, 2005, a rule.
proposed rule, the estimated annual comment to OMB is best assured of This proposed rule would reduce
average burden over the next 3-year ICR having its full effect if OMB receives it regulatory burden on qualified facilities
period would be approximately by February 10, 2006. The final rule will and qualified oil-filled operational
1,490,000 hours, resulting in a 25 respond to any OMB or public equipment. Qualified facilities would
no longer need a licensed Professional effective or least burdensome alternative States, on the relationship between the
Engineer to certify their Plans. Facilities that achieves the objectives of the rule. national government and the States, or
that store oil solely in motive power The provisions of section 205 do not on the distribution of power and
containers would no longer be apply when they are inconsistent with responsibilities among the various
regulated, while other facilities with oil applicable law. Moreover, section 205 levels of government, as specified in
storage in addition to motive power allows EPA to adopt an alternative other Executive Order 13132. Under CWA
containers may incur lower compliance than the least costly, most-effective or section 311(o), States may impose
costs. Today’s proposal would also least burdensome alternative if the additional requirements, including more
allow greater use of contingency plans Administrator publishes with the final stringent requirements, relating to the
and a written commitment of rule an explanation why that alternative prevention of oil discharges to navigable
manpower, equipment and materials was not adopted. waters. EPA encourages States to
without requiring an impracticability Before EPA establishes any regulatory supplement the Federal SPCC program
determination as an alternative to requirements that may significantly or and recognizes that some States have
secondary containment for qualified oil- uniquely affect small governments, more stringent requirements. 56 FR
filled operational equipment when including tribal governments, it must 54612 (October 22, 1991). This proposed
combined with an established and have developed under section 203 of rule would not preempt State law or
documented inspection or monitoring UMRA a small government agency plan. regulations. Thus, Executive Order
program. It would also allow airport The plan must provide for notifying 13132 does not apply to this proposed
mobile refuelers to fall under a facility’s potentially affected small governments, rule.
general secondary containment enabling officials of affected small
governments to have meaningful and F. Executive Order 13175—Consultation
requirements rather than require
timely input in the development of EPA and Coordination With Indian Tribal
specifically sized secondary
regulatory proposals with significant Governments
containment. We have therefore
concluded that today’s proposed rule Federal intergovernmental mandates, On November 6, 2000, the President
would relieve regulatory burden for and informing, educating, and advising issued Executive Order 13175 (65 FR
small entities and welcome comments small governments on compliance with 67249) entitled, ‘‘Consultation and
on issues related to such impacts. the regulatory requirements. EPA has Coordination with Indian Tribal
Overall, EPA estimates that today’s determined that this proposed rule does Governments.’’ Executive Order 13175
proposal would reduce annual not contain a Federal mandate that may took effect on January 6, 2001, and
compliance costs by $81 million (net result in expenditures of $100 million or revokes Executive Order 13084 (Tribal
present value) using nominal dollars more for State, local, and tribal Consultation) as of that date.
and $98 million using annualized governments, in the aggregate, or the Today’s proposed rule would not
values with constant dollars. Small private sector in any one year. Today’s significantly or uniquely affect
facilities, in particular, would benefit. proposed rule would reduce burden and communities of Indian tribal
For example, EPA estimates that the costs on affected facilities by governments. Therefore, we have not
proposed rule would lower compliance approximately $81 million per year (net consulted with a representative
costs by $22.5 million and $18.4 million present value) using nominal dollars organization of tribal groups.
at 3 percent and 7 percent discount rate and $98 million per year using G. Executive Order 13045—Protection of
for facilities with less than 10,000 annualized values with constant dollars. Children From Environmental Health &
gallons of oil storage capacity. EPA has determined that this Safety Risks
After considering the economic proposed rule contains no regulatory
impacts of today’s proposed rule on requirements that might significantly or Executive Order 13045, ‘‘Protection of
small entities, I certify that this action uniquely affect small governments. As Children from Environmental Health
will not have a significant economic explained above, the effect of the Risks and Safety Risks’’ (62 FR 19885,
impact on a substantial number of small proposed rule would be to reduce April 23, 1997), applies to any rule that:
entities. burden and costs for qualified regulated (1) Is determined to be ‘‘economically
facilities, including certain small significant’’ as defined under Executive
D. Unfunded Mandates Reform Act Order 12866; and (2) concerns an
governments that are subject to the rule.
Title II of the Unfunded Mandates environmental health or safety risk that
Reform Act of 1995 (UMRA), Public E. Executive Order 13132—Federalism EPA has reason to believe may have a
Law 104–4, establishes requirements for Executive Order 13132, entitled disproportionate effect on children. If
Federal agencies to assess the effects of ‘‘Federalism’’ (64 FR 43255, August 10, the regulatory action meets both criteria,
their regulatory actions on State, local, 1999), requires EPA to develop an the Agency must evaluate the
and tribal governments and the private accountable process to ensure environmental health or safety effects of
sector. Under section 202 of UMRA, ‘‘meaningful and timely input by State the planned rule on children, and
EPA generally must prepare a written and local officials in the development of explain why the planned regulation is
statement, including a cost-benefit regulatory policies that have federalism preferable to other potentially effective
analysis, for proposed and final rules implications.’’ ‘‘Policies that have and reasonably feasible alternatives
with ‘‘Federal mandates’’ that may federalism implications’’ is defined in considered by the Agency. EPA
result in expenditures to State, local, the Executive Order to include interprets Executive Order 13045 as
and tribal governments, in the aggregate, regulations that have ‘‘substantial direct applying only to those regulatory
or to the private sector, of $100 million effects on the States, on the relationship actions that are based on health or safety
or more in any one year. Before between the national government and risks, such that the analysis required
promulgating an EPA rule for which a the States, or on the distribution of under section 5–501 of the Order has
written statement is needed, section 205 power and responsibilities among the the potential to influence the regulation.
of UMRA generally requires EPA to various levels of government.’’ This proposed rule is not subject to
identify and consider a reasonable This proposed rule does not have Executive Order 13045 because the
number of regulatory alternatives and federalism implications. It would not Agency does not have reason to believe
adopt the least costly, most cost- have substantial direct effects on the the environmental health or safety risks
addressed by this action present a § 112.1 General applicability. include oil-filled manufacturing
disproportionate risk to children. * * * * * equipment (flow-through process).
H. Executive Order 13211—Actions (d) * * * * * * * *
That Significantly Affect Energy Supply, (2) * * * 4. Amend § 112.3 by designating the
Distribution, or Use (ii) The aggregate aboveground storage existing text of paragraph (a) as (a)(1)
capacity of the facility is 1,320 gallons and adding (a)(2), designating the
This proposed rule is not a existing text of paragraph (b) as (b)(1)
‘‘significant energy action’’ as defined in or less of oil. For the purposes of this
exemption, only containers with a and adding (b)(2), revising the
Executive Order 13211, ‘‘Actions introductory text of paragraph (d), and
Concerning Regulations That capacity of 55 gallons or greater are
counted. The aggregate aboveground adding paragraph (g) to read as follows:
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May storage capacity of a facility excludes § 112.3 Requirement to prepare and
22, 2001) because it is not likely to have the capacity of a container that is implement a Spill Prevention, Control, and
a significant adverse effect on the ‘‘permanently closed,’’ or a ‘‘motive Countermeasure Plan.
supply, distribution, or use of energy. power container’’ as defined in § 112.2. * * * * *
* * * * * (a)(1) * * *
I. National Technology Transfer and (2) If your farm has a total oil storage
(7) Any ‘‘motive power container,’’ as
Advancement Act capacity of 10,000 gallons or less, the
defined in § 112.2. The transfer of fuel
Section 12(d) of the National or other oil into a motive power compliance dates described in
Technology Transfer and Advancement container at an otherwise regulated paragraph (a)(1) of this section are
Act of 1995 (‘‘NTTAA’’), Public Law facility is not subject to this exemption. delayed indefinitely or until the Agency
104–113, section 12(d) (15 U.S.C. 272 publishes a final rule in the Federal
* * * * *
note) directs EPA to use voluntary Register establishing a new compliance
3. Amend § 112.2 by adding date.
consensus standards in its regulatory
definitions for ‘‘Airport mobile (b)(1) * * *
activities unless to do so would be
refueler’’, ‘‘Farm’’, ‘‘Motive power (2) If your farm has a total oil storage
inconsistent with applicable law or
container’’, and ‘‘Oil-filled operational capacity of 10,000 gallons or less, the
otherwise impractical. Voluntary
equipment’’ in alphabetical order to compliance dates described in
consensus standards are technical
read as follows: paragraph (b)(1) of this section are
standards such as materials
specifications, test methods, sampling § 112.2 Definitions.
delayed indefinitely or until the Agency
procedures, and business practices that publishes a final rule in the Federal
* * * * * Register establishing a new compliance
are developed or adopted by voluntary Airport mobile refueler means a
consensus standards bodies. The date.
vehicle with an onboard bulk storage * * * * *
NTTAA directs EPA to provide container designed, or used to store and
Congress, through OMB, explanations (d) Except as provided in paragraph
transport fuel for transfer into or from (g) of this section, a licensed
when the Agency decides not to use aircraft or ground service equipment.
available and applicable voluntary Professional Engineer must review and
consensus standards. * * * * * certify a Plan for it to be effective to
This proposed rule does not involve Farm means a facility on a tract of satisfy the requirements of this part.
technical standards. Therefore, NTTAA land devoted to the production of crops * * * * *
does not apply. or raising of animals, including fish, (g) Qualified Facilities. The owner or
which produced and sold, or normally operator of a facility that meets the
List of Subjects in 40 CFR Part 112 would have produced and sold, $1,000 qualification criteria in paragraph (g)(1)
Environmental protection, Oil or more of agricultural products during of this section may choose to self-certify
pollution, Penalties, Petroleum, a year. the facility’s SPCC Plan and any
Reporting and recordkeeping * * * * * technical amendments to the Plan in
requirements. Motive power container means any lieu of certification by a licensed
Dated: December 2, 2005. onboard bulk storage containers used Professional Engineer.
Stephen L. Johnson, solely to power the movement of a (1) Qualification Criteria. A facility is
motor vehicle, or ancillary onboard oil- qualified for owner or operator self-
Administrator.
filled operational equipment used solely certification of its SPCC Plan if it meets
For the reasons stated in the the following criteria:
to facilitate its operation. An onboard
preamble, the Environmental Protection (i) The aggregate aboveground storage
bulk storage container which is used to
Agency proposes to amend 40 CFR part capacity of the facility, as determined
store or transfer oil for further
112 as follows: according to § 112.1, is 10,000 gallons or
distribution is not a motive power
container. The definition of motive less; and
PART 112—OIL POLLUTION (ii) The facility either:
PREVENTION power equipment does not include oil
(A) Has been in operation for at least
drilling or workover equipment,
1. The authority citation for part 112 ten years immediately prior to the date
including rigs.
continues to read as follows: of self-certification and in the ten-year
* * * * * period immediately prior to self-
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. Oil-filled operational equipment certification had no discharges as
2720; and E.O. 12777 (October 18, 1991), 3 means equipment which includes an oil described in § 112.1(b); or
CFR, 1991 Comp., p. 351. storage container (or multiple (B) Is beginning operations or has
Subpart A [Amended] containers) in which the oil is present been in operation for fewer than ten
solely to support the function of the years without any discharges of oil as
2. Amend § 112.1 by revising apparatus or the device. Oil-filled described in § 112.1(b).
paragraph (d)(2)(ii) and adding operational equipment is not considered (2) Self-Certification. If you are the
paragraph (d)(7) to read as follows: a bulk storage container, and does not owner or operator of a qualified facility
and you choose to self-certify your Plan must determine, in accordance with requirements in paragraph (c) and (h)(1)
or technical amendments to your Plan, industry standards, the appropriate of this section, and §§ 112.8(c)(2),
you must certify in the Plan that: inspector/testing personnel 112.8(c)(11), 112.9(c)(2), 112.10(c),
(i) You are familiar with the qualifications, the frequency and type of 112.12(c)(2), and 112.12(c)(11), you
requirements of this part; testing/inspections which take into must state the reasons for
(ii) You or your agent have visited and account container size, configuration, nonconformance in your Plan and
examined the facility; and design (such as containers that are: describe in detail alternate methods and
(iii) The Plan has been prepared in equipped with a floating roof, shop how you will achieve equivalent
accordance with accepted and sound built, field erected, skid-mounted, environmental protection. If the
industry practices and standards, and elevated, equipped with a liner, double Regional Administrator determines that
with the requirements of this part; walled, or partially buried). Examples of the measures described in your Plan do
(iv) Procedures for required these integrity tests include, but are not not provide equivalent environmental
inspections and testing have been limited to: visual inspection, hydrostatic protection, he may require that you
established; testing, radiographic testing, ultrasonic amend your Plan, following the
(v) The Plan is being fully testing, acoustic emissions testing, or procedures in § 112.4(d) and (e).
implemented; other systems of non-destructive testing. * * * * *
(vi) The facility meets the You must keep comparison records and (c) Provide appropriate containment
qualification criteria set forth under you must also inspect the container’s and/or diversionary structures or
§ 112.3(g)(1); supports and foundations. In addition, equipment to prevent a discharge as
(vii) The Plan does not utilize the you must frequently inspect the outside described in § 112.1(b), except as
environmental equivalence and of the container for signs of provided in paragraph (k) of this section
impracticability provisions under deterioration, discharges, or for qualified oil-filled operational
§ 112.7(a)(2) and 112.7(d), except as accumulation of oil inside diked areas. equipment. The entire containment
described in paragraph (g)(3) of this Records of inspections and tests kept system, including walls and floor, must
section; and under usual and customary business be capable of containing oil and must be
(viii) The Plan and individual(s) practices satisfy the recordkeeping constructed so that any discharge from
responsible for implementing the Plan requirements of this paragraph. a primary containment system, such as
have the full approval of management 5. Amend § 112.5 by revising a tank or pipe, will not escape the
and the facility has committed the paragraph (c) to read as follows: containment system before cleanup
necessary resources to fully implement
occurs. At a minimum, you must use
the Plan. § 112.5 Amendment of Spill Prevention,
(3) Self-Certified Plan Exceptions. Control, and Countermeasure Plan by
one of the following prevention systems
Except as provided in this owners or operators. or its equivalent:
subparagraph, a self-certified SPCC Plan * * * * * * * * * *
must comply with § 112.7 and the (c) Except as provided in § 112.3(g), (d) Provided your Plan is certified by
applicable requirements in subparts B have a Professional Engineer certify any a licensed Professional Engineer under
and C of this part: technical amendments to your Plan in § 112.3(d), if you determine that the
(i) Environmental Equivalence. The accordance with § 112.3(d). installation of any of the structures or
Plan may not include alternate methods 6. Amend § 112.7 by revising pieces of equipment listed in paragraphs
to the applicable requirements listed in paragraph (a)(2), (c) introductory text, (c) and (h)(1) of this section, and
§ 112.7(a)(2). (d) introductory text, and adding §§ 112.8(c)(2), 112.8(c)(11), 112.9(c)(2),
(ii) Impracticability. The Plan may not paragraph (k) to read as follows: 112.10(c), 112.12(c)(2) and 112.12(c)(11)
include any impracticability to prevent a discharge as described in
determinations as described under § 112.7 General requirements for Spill § 112.1(b) from any onshore or offshore
§ 112.7(d). Prevention, Control, and Countermeasure facility is not practicable, you must
(iii) Security (excluding oil Plans. clearly explain in your Plan why such
production facilities). The owner or * * * * * measures are not practicable; for bulk
operator must choose to either: (a) * * * storage containers, conduct both
(A) Comply with the requirements (2) Comply with all applicable periodic integrity testing of the
under § 112.7(g); or requirements listed in this part. Except containers and periodic integrity and
(B) Prepare a security plan that as provided in § 112.3(g), your Plan may leak testing of the valves and piping;
describes how the facility controls deviate from the requirements in and, unless you have submitted a
access to the oil handling, processing paragraphs (g), (h)(2) and (3), and (i) of response plan under § 112.20, provide
and storage areas; secures master flow this section and the requirements in in your Plan the following:
and drain valves; prevents unauthorized subparts B and C of this part, except the * * * * *
access to starter controls on oil pumps; secondary containment requirements in (k) Qualified Oil-Filled Operational
secures out-of-service and loading/ paragraphs (c) and (h)(1) of this section, Equipment. The owner or operator of a
unloading connections of oil pipelines; and §§ 112.8(c)(2), 112.8(c)(11), facility with oil-filled operational
addresses the appropriateness of 112.9(c)(2), 112.10(c), 112.12(c)(2), and equipment that meets the qualification
security lighting to both prevent acts of 112.12(c)(11), where applicable to a criteria in paragraph (k)(1) of this
vandalism and assist in the discovery of specific facility, if you provide section may choose to implement for
oil discharges. equivalent environmental protection by this qualified oil-filled operational
(iv) Bulk Storage Container some other means of spill prevention, equipment the alternate requirements as
Inspections. In lieu of the requirements control, or countermeasure. Where your described in paragraph (k)(2) of this
in §§ 112.8(c)(6) and 112.12(c)(6), an Plan does not conform to the applicable section in lieu of applying the general
owner/operator must test/inspect each requirements in paragraphs (g), (h)(2) secondary containment requirements of
aboveground container for integrity on a and (3), and (i) of this section, or the paragraph (c) of this section.
regular schedule and whenever material requirements of subparts B and C of this (1) Qualification Criteria—Reportable
repairs are made. The owner or operator part, except the secondary containment Discharge History: The facility where
the oil-filled operational equipment is remove any quantity of oil discharged (11) Position or locate mobile or
located either: that may be harmful. portable oil storage containers to
(i) Has been in operation for at least prevent a discharge as described in
ten years immediately prior to the date Subpart B—[Amended] § 112.1(b). Except in the cases of airport
of Plan certification and in the ten-year 7. Amend § 112.8 by revising mobile refuelers, you must furnish a
period immediately prior to the Plan paragraphs (c)(2) and (c)(11) to read as secondary means of containment, such
certification date had no discharges as follows: as a dike or catchment basin, sufficient
described in § 112.1(b) from any oil- to contain the capacity of the largest
filled operational equipment, or § 112.8 Spill Prevention, Control, and single compartment or container with
(ii) Is beginning operations or has Countermeasure Plan requirements for sufficient freeboard to contain
been in operation for fewer than ten onshore facilities (excluding production precipitation.
years without any discharges as facilities).
* * * * *
described in § 112.1(b) from any oil- * * * * *
filled operational equipment; (c) * * * Subpart C—[Amended]
(2) Alternative Requirements to (2) Construct all bulk storage tank
General Secondary Containment. The installations (except airport mobile § 112.12 Specific Spill Prevention, Control,
owner or operator of a facility with refuelers) so that you provide a and Countermeasure Plan requirements.
qualified oil-filled operational secondary means of containment for the 8. Amend § 112.12 by revising the
equipment must: entire capacity of the largest single
section heading to read as set forth
(i) Establish and document the facility container and sufficient freeboard to
above.
procedures for inspections or a contain precipitation. You must ensure
monitoring program to detect equipment that diked areas are sufficiently § 112.13 [Removed and Reserved]
failure and/or a discharge; and impervious to contain discharged oil.
Dikes, containment curbs, and pits are 9. Remove and reserve § 112.13.
(ii) Unless you have submitted a
response plan under § 112.20, provide commonly employed for this purpose. § 112.14 [Removed and Reserved]
in your Plan the following: You may also use an alternative system
consisting of a drainage trench 10. Remove and reserve § 112.14.
(A) An oil spill contingency plan
following the provisions of part 109 of enclosure that must be arranged so that § 112.15 [Removed and Reserved]
this chapter. any discharge will terminate and be
safely confined in a facility catchment 11. Remove and reserve § 112.15.
(B) A written commitment of
manpower, equipment, and materials basin or holding pond. [FR Doc. 05–23917 Filed 12–9–05; 8:45 am]
required to expeditiously control and * * * * * BILLING CODE 6560–50–P

Environmental Protection Agency: Monday, December 12, 2005

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Environmental Protection Agency: Monday, December 12, 2005

Încărcat de

Drepturi de autor:

Formate disponibile

Monday,

December 12, 2005

II. ENTITIES POTENTIALLY AFFECTED BY THIS PROPOSED RULE

Crop and Animal Production ................................................................................................................................... 111–112

lion gallons. using state oil tank databases.

S-ar putea să vă placă și