RESPONSE TO COMMENTS DOCUMENT FOR THE 1997 SPILL PREVENTION, CONTROL,
AND COUNTERMEASURE PLAN RULEMAKING

Oil Program Center

Office of Emergency and Remedial Response

U.S. Environmental Protection Agency

Table of Contents

Response to Comments Document for the 1997 Proposed 

Spill Prevention, Control, and Countermeasure Plan Requirements

Section											  Page

Introduction	2

 TOC \f 

1.	Applicability - Oil Used Operationally	4

2.	New Comments for Old Proposals. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .   8                    

Information for Future Rulemaking	13

4.	Threshold Issues - §112.1(d)(2)(i) and (ii)	15

5.	§§112.2 and 112.7 Introduction - Alternative Plan Formats 	25

6.	Information Submitted After Certain Discharges - §112.4(a)	34

7.	Five-Year Plan Review and Certification - §112.5(b)	40

8.	Use of Business Records - §§112.7(e), 112.8(c)(3)(iv), and
112.9(b)(1)	46

9.	Capacity of Facilities Storing Process Water/Wastewater for Response
Plan                   	Purposes - proposed §112.20(f)(4)	54

10.	Facility Response Plan Format - §112.20(h)	55

11.	Supporting Analyses	57

12.	Miscellaneous Comments	61

 

INTRODUCTION

Purpose of this Document

The purpose of this document is to respond to comments received on the
1997 proposed rule (62 FR 63812, December 2, 1997) to revise the Oil
Pollution Prevention and Response rule, also known as the Spill
Prevention, Control, and Countermeasure (SPCC) rule (40 CFR part 112),
promulgated under the Clean Water Act.  The proposed revisions are in
addition to revisions previously proposed to part 112 in 1991 and 1993. 
We proposed the 1997 revisions primarily to reduce the information
collection burden of the SPCC Plan requirements.

Background of this Rulemaking

Part 112 of 40 CFR outlines requirements for both prevention of and
response to oil spills.  The prevention aspect of the rule requires the
preparation and implementation of SPCC plans.  This rulemaking affects
mainly SPCC requirements.  Response requirements are largely unchanged
at this time, except for a proposal that clarifies acceptability of
alternative response plan formats.  The SPCC requirements were
originally promulgated on December 11, 1973 (38 FR 34164) under the
authority of section 311(j)(1)(C) of the Clean Water Act (CWA or the
Act).  Regulated facilities are also limited to those that, because of
their location could reasonably be expected to discharge oil in
quantities that may be harmful into the navigable waters of the United
States or adjoining shorelines, or that affect certain natural
resources.  

The SPCC requirements have been amended a number of times.  On October
22, 1991, the Agency proposed certain changes to 40 CFR 112.7.  The
October 1991 proposed revisions involved changes in the applicability of
the regulation and the required procedures for the completion of SPCC
plans, as well as the addition of a facility  provision.  The proposed
rule also reflected changes in the jurisdiction of section 311 of the
Act made by amendments to the Act in 1977 and 1978.  Those proposed
revisions, as modified, are finalized in this rule.

On February 17, 1993, the Agency again proposed clarifications of and
technical changes to the SPCC rule, and facility response requirements
to implement OPA.  58 FR 8824.  The proposed changes to the SPCC
prevention requirements included clarifications of certain requirements,
contingency plans for facilities without secondary containment,
prevention training, and methods of determining whether a tank would be
subject to brittle fracture.  The facility response plan requirements of
the 1993 proposal were promulgated on July 1, 1994 (59 FR 47384) and
codified at 40 CFR 112.20-21.  The prevention requirements, as modified,
are finalized in this rule.

In 1996, we concluded a survey of SPCC facilities.  We used the results
of that survey to develop the December 2, 1997 proposed rule (62 FR
63812).  The survey results are part of the administrative record for
this rulemaking.

The purpose of the 1997 proposal was to reduce the information
collection burden now imposed by the prevention requirements in the SPCC
rule without creating an adverse impact on public health or the
environment.  We also proposed changes in information collection
requirements for facility response plans, but withdraw them in this
rulemaking.  The 1997 SPCC proposals, as modified, are finalized in this
rule.

  

Organization of this Comment Response Document

To develop this document, we first carefully reviewed the letters
received by the public docket and identified relevant issues raised by
the commenters based on the content of the proposed rule.  We then
grouped the issues according to categories and subcategories.  We
address the major points made in the comments and respond to them.  We
include several comment excerpts and responses pertaining to each issue.
 In most cases, we do not include comment excerpts that simply state
support for our proposed revisions.  Instead, we list the letter number
of each general supporting comment in the Comments section for each
category.  The letter numbers were assigned to each letter in accordance
with when the letter was received by the public docket. 

The comment excerpts that are included in this document are taken
verbatim from the comment letters received by the public docket.  In
some cases, multiple commenters submitted the same comment.  We indicate
this by including the multiple commenter numbers with the excerpt.  We
group the comments that make similar statements and provide one response
for the group.  We respond to the remaining comments individually.

  

1.  Applicability - Oil Used Operationally tc \l1 "1.  Applicability -
Oil Used Operationally 

Background:  In the 1991 preamble, we addressed the fact that certain
facilities may have equipment, such as electrical transformers, that
contain significant quantities of oil for operational purposes rather
than for storage.  We stated that such oil-filled equipment is not be
subject to the bulk storage container provisions in proposed §112.8(c)
and §112.9(c) because the primary purpose of this equipment is not the
storage of oil in bulk.  However, we also stated that oil-filled
equipment must meet other applicable SPCC requirements, including the
general requirements of §112.7.  We also indicated that the oil storage
capacity of the equipment must be included in calculating the total oil
storage capacity of the facility to determine whether the facility is
subject to the SPCC rule.  In 1991, we also asked commenters to identify
 possible operational uses of oil, other than electrical transformers,
that may not currently use secondary containment as a common industry
practice, and that should not be subject to bulk storage provisions.

Comments: Integrity testing.  It is inappropriate to require facilities
to integrity test electrical devices.  (18, 65)   Because “...
electrical devices are drained, opened (and in some cases, physically
entered) and inspected during scheduled preventative maintenance.  The
purpose of this inspection is to ensure that the internal electrical
components deliver the required efficiencies in voltage/amperage
conversion or circuit protection.  When the dielectric fluid is replaced
in the device, it is processed using a vacuum and filter press procedure
to ensure that all entrained moisture is removed from the oil.  This
enhances the dielectric properties of the oil and removes any traces of
water that could become reactive when the device is energized.  An
additional benefit of this process is to virtually eliminate the
potential for moisture-induced corrosion of the interior of the device. 
Oil samples are collected from substation equipment at specified time
intervals and evaluated for moisture and dissolved gas content.”  (18)
 “Integrity testing for electrical equipment should not be required
because there is no established integrity test that is appropriate for
such equipment.  Moreover, performing an integrity test would require
taking the equipment out of service, which could create a disruption in
the supply of electricity.  In addition, integrity testing of electrical
equipment serves no useful purpose.  Unlike tanks, where regular filling
and emptying can mask the presence of a leak, dielectric fluid is rarely
added to electrical equipment.  Therefore, any leak would soon manifest
itself as a drop in the level of dielectric fluid in the unit.  Finally,
integrity testing would serve little purpose because the use of
electrical equipment is equivalent to continuous integrity testing; a
leak will lead to equipment failure.  Because any significant loss of
fluid interrupts the flow of electricity, any significant fluid loss is
detected quickly.”  (65)

Response plans - electrical equipment.  “There is also no reason to
apply all of the requirements of an OPA response plan to electrical
equipment when secondary containment is impractical for Facilities
subject to the SPCC program.  The OPA regulations are designed to apply
to Facilities containing millions of gallons of oil, and it makes little
sense to apply these requirements to facilities orders of magnitude
smaller.  Preparation of an OPA plan is a detailed and costly endeavor
requiring the determination of a worst case discharge, a hazard and
vulnerability analysis, tiered planning scenarios, and compliance with
complicated requirements regarding the location and testing of response
equipment, response times and personnel qualification and training. 
Last, the OPA rules require that covered facilities must have response
equipment under contract for a worst case discharge.  Because the number
of certified response organizations is small, having one on retainer can
be extremely costly.  These measures are simply not appropriate for
electrical distribution systems, which do not pose the same risk as oil
transfer and storage facilities and which are already being adequately
addressed by the utilities' current response plans.”  (65)

Risk-based approach to applicability. “NMPC currently addresses such
facilities on a risk-prioritized basis such that those deemed to have a
high risk of discharging oil to navigable waters have a specific SPCC
plan, but those deemed to have medium or low risk are addressed more
generically.  The majority of substations are considered to be of medium
to low risk. “ (19)  “The equipment containing significant oil can
be inspected for its adjacency to traffic.  If the risk of vehicular
impact is high, traffic barriers can be constructed to prevent
collisions.  This process will vastly reduce the most common cause of a
release.  During the above inspections, a determination can be made to
decide if some equipment should be protected with secondary containment.

Also during the inspections, the equipment can be checked for any areas
of concern.  Should a problem be identified, measures can be taken to
mitigate the problem.

A general spill prevention response procedure can be written for
distribution equipment, and-corresponding training be given, so
employees can take measures to prevent spills and can respond
appropriately to a spill. (Note: SPCC training is already given to these
employees for substation equipment.)   Also note that distribution
equipment is currently labeled with an emergency call number should a
passerby note anything peculiar.”  (32)

Secondary containment - impracticability.  “(T)he demonstration of
this impracticability is primarily based upon the fire pool hazard that
would be created by containing oil at the base of an electrical device,
and the electrical hazard created by pooling rainwater around an
energized device.  However, another consideration is the access
restrictions to essential equipment that would be imposed by the
installation of spill containment structures.  The overhead work
clearances at the majority of substations are severely restricted due to
the low electrical busses that conduct current to and from the
electrical devices.  Therefore, the larger substation equipment is
mounted on sledge runners to enable the device to be skidded under the
overhead bus if necessary.  Installation of a containment basin around a
device would require that the device be lifted clear of the basin wall
prior to removal or installation.  This would pose an electrical safety
hazard to the individual operating the crane, as well other individuals
in the vicinity.”   We should allow facilities to substitute absorbent
in lieu of secondary containment or spill diversionary structures.  (18)
  “Because electrical equipment is electrified, water must be able to
drain away from the equipment to avoid shock and fire hazards.  This
makes secondary containment impracticable at many electrical equipment
locations. “ (65)

State rules.  “AST’s containing mineral oil are exempt under
Colorado AST regulations.”  (32)   “The State (Michigan) recognizes
the distinction between the use of operating fluid in electrical
equipment and the storage of oil in tanks or other containers.  EPA
should likewise exclude this equipment from inclusion into the SPCC
regulations based on the industry’s excellent safety record and the
fact that the use of dielectric fluid in electrical equipment does not
constitute "storage" or "consumption" of oil.”  (76)

Use of oil.  We lack jurisdiction to regulate the operational use of
oil, especially in electrical transformers, substations, and other
equipment.  The regulation is meant to apply only to facilities that
have the potential to cause catastrophic harm to the environment in the
event of an oil spill, which would not include any spill event resulting
from oil used in electrical equipment.  (18,19, 20, 31, 32, 35, 57, 60,
65, 69, 70, 76, L1)

Response:  Integrity testing.  We have distinguished the bulk storage of
oil from the operational use of oil.  We define “bulk storage
container” in the final rule to mean any container used to store oil. 
The storage of oil may be prior to use, while being used, or prior to
further distribution in commerce.  For clarity, we have specifically
excluded oil-filled electrical, operating, or manufacturing equipment
from the definition.  In both §§112.7(d) and 112.8(c)(6), integrity
testing requirements apply only to bulk storage containers.  Therefore,
oil-filled electrical, operating, or manufacturing equipment is not
subject to the integrity testing requirement.

Response plans - electrical equipment.  We agree with the commenter that
most SPCC facilities should not have to prepare response plans nor
should electrical facilities be subject to the requirements for bulk
storage facilities.  Section 112.7(d) of the final rule does not require
preparation of a facility response plan when a facility lacks secondary
containment.  A contingency plan following the provisions of 40 CFR part
109 and compliance with the other provisions of §112.7(d) is
sufficient.

Risk-based approach to applicability.  A facility with oil-filled
equipment might reasonably be expected to discharge oil as described in
§112.1(b).  Therefore, the prevention of discharges from such facility
falls within the scope of the statute.  The discharge prevention
measures employed at such a facility will be dictated by good
engineering practice.

Secondary containment - impracticability.  Facilities that use oil
operationally include electrical substations, facilities containing
electrical transformers, and certain hydraulic or manufacturing
equipment.  The requirements for bulk storage containers may not always
apply to these facilities since the primary purpose of this equipment is
not the storage of oil in bulk.  Facilities with equipment containing
oil for ancillary purposes are not required to provide the secondary
containment required for bulk storage facilities (§112.8(c)) nor for
onshore production facilities (§112.9(c)) for this equipment, nor
implement the other provisions of §112.8(c) or §112.9(c).  Oil-filled
equipment must meet other SPCC requirements, for example, the general
requirements and the requirements of §112.7, including §112.7(c), to
provide appropriate containment and/or diversionary structures to
prevent discharged oil from reaching a navigable watercourse.  The
general requirement for secondary containment, which can be provided by
various means including drainage systems, spill diversion ponds, etc.,
will provide for safety and also the needs of section 311(j)(1)(C) of
the CWA.     

State rules.  State laws may have different applicability standards than
the SPCC rule.  Dielectric fluid (along with any other oil based fluid
found in electrical equipment) is regulated under the SPCC program based
on the SPCC definition of oil, which includes oil of any kind or in any
form.  Our rule includes the “use” and “consumption” of oil as a
basis for applicability. 

Use of oil.  We disagree that operational equipment is not subject to
the SPCC rule.  We have amended §112.1(b) to clarify that using oil,
for example operationally, may subject a facility to SPCC jurisdiction
as long as the other applicability criteria apply, for example, oil
storage capacity, or location.  Such a facility might reasonably be
expected to discharge oil as described in §112.1(b).  Therefore, the
prevention of discharges from such facility falls within the scope of
the statute.

In addition, a facility may deviate from any inapplicable or
inappropriate SPCC requirements, or from most applicable requirements,
if the owner or operator explains his reasons for nonconformance and
provides equivalent environmental protection by some other means.  See
§112.7(a)(2).  See also §112.7(d).

2.    New Comments for Old Proposals tc \l1 "2.    New Comments for Old
Proposals 

Background:  In the 1997 proposal, we stated that we would finalize the
1991 and 1993 proposals without seeking additional comments on those
proposals. 

Comments:  Support for additional comments or reproposal.   (6, 7, 11,
17, 24, 26, 37, 41, 49, 50, 52, 58, 61, 70, 74, 77).

 

Burden.  The 1991 proposal “...would increase the burdens on small
tank batteries and other facilities - arguably, to a greater degree than
the current proposal reduces the burdens.  At this point, the Agency
might consider republishing the whole spill prevention rule so that the
public can view the proposed changes in a comprehensive manner.”  (64)

Industry standards.   “...(M)uch has changed since the 1991 proposal
was issued.  Many API standards and recommended practices applicable to
aboveground storage tank operation have been revised since that time.
These revisions have further strengthen the industry's goal of
environmental protection.” (37)  ”Standards, specifications, and
recommended practices for aboveground tank operations, terminals, and
exploration and production tank operations have been revised and updated
by the American Petroleum Institute.  Because of the time that has
elapsed, the changes in operational procedures of the oil and gas
industry which have improved the degree of environmental protection, and
the new information EPA obtained from their tank survey, RMOGA urges EPA
to re-publish the spill prevention rule 40 CFR 112 in its entirety
incorporating all proposed changes as a draft for comment.”  (49)  We
should repropose the changes  because of the following industry
standards that have been developed since the 1991 proposal: Std 620,
Design and Construction of Large, Welded, Low-Pressure Storage Tanks,
9th, ed, 1996; Std 650, Welded Steel Tanks for Oil Storage, 9th ed,
1993; Std 653, Tank Inspection, Repair, Alteration, and Reconstruction,
2nd ed, 1995; Std 2000, Venting Atmospheric and Low-Pressure Storage
Tanks; Nonrefrigerated and Refrigerated, 4th ed, 1992; Std 2015, Safe
Entry and Cleaning of Petroleum Storage Tanks, 5th ed, 1994; and,
Recommended Practice 2350, Overfill Protection for Petroleum Storage
Tanks, 2nd ed, 1996;  In addition, API Standard 2610, Design,
Construction, Operation, Maintenance and Inspection of Terminal and Tank
Facilities, first published in 1994, provides a comprehensive guide to
the best industry practices for terminal design, construction,
inspection, maintenance, repair, and environmental protection. 
Similarly, specifications and recommended practices for exploration and
production tanks have been revised during the six-year period,
including:  Spec. 12B, Specification for Bolted Tanks for Storage of
Production Liquids, 14th ed, 1995;  Spec. 12D, Specification for Field
Welded Tanks for Storage of Production Liquids, 10th ed, 1994;  Spec.
12F, Specification for Shop Welded Tanks for Storage of Production
Liquids, 11th ed, 1994; Spec. 12P, Specification for Fiberglass
Reinforced Plastic Tanks, 2nd ed, 1995; and, Recommended Practice 12R1,
Recommended Practice for Setting, Maintenance, Inspection, Operation and
Repair of Tanks in Production Service, 5th  ed, 1997.”  (58)

More recent events.  Hopes that EPA  “...considers the oil and gas
industry and standard industry operating practices have changed
significantly since 1913 and that a prescriptive regulation is not
necessary.  (6)

  

1995 Survey, Liner Study, Cooperative Program.  Commenters felt that
additional comments should be allowed on the 1991 and 1993 proposals
before finalization because of changes and developments in our policy
and information since the time of proposal.  (17, 24, 26, 41, 50, 58,
61,  77)  These events include ”...over six years of additional [EPA]
experience with the basic SPCC program, new studies (e.g. EPA's 1996
"Liner Study" report to Congress), revisions and additions to applicable
industry initiatives and standards (e.g. API’s Standard 653 and
Recommended Practice 2350), and significant maturing of the Facility
Response Plan Program.”  (24, 50)   “The 1997 proposed rules
indicate that significant information was obtained from a recently
completed industry SPCC survey.  This information should be presented to
industry if it includes justification for the previously proposed rule
revisions.”  (77)

“The EPA should republish those provisions from the 1991 proposal it
plans to adopt along with its conclusions from the 1995 survey and allow
the affected industry sectors to evaluate those conclusions. For
example, the survey results appear to suggest that the current SPCC plan
program is effective in reducing spills, spill volumes, and offsite
migration of oil.   MEDC doubts that such results support adding
high-cost burdens to low-risk operations.  MEDC is also concerned that
the survey understates the number of small exploration and production
facilities, a factor which could distort economic analysis of the effect
of a rule.”  (17)   “...EPA owes the parties potentially affected by
adoption of the 1991 proposals the chance to review the survey results
along with any analysis EPA has performed of those results to justify
rules from the 1991 proposal.”   This is important because the current
proposal provides regulatory relief to large facilities and not the more
numerous smaller facilities, which the survey may have mischaracterized.
(26)

Personnel changes.  Objects to our plan to finalize the 1991 and 1993
SPCC plan rule proposals without additional comment because of industry
personnel changes and new personnel, new companies, changes in spill
prevention standards, equipment, practices and procedures, and the need
to plan, budget and arrange for the financing of compliance.  Identifies
two significant developments since the 1991 and 1993 proposals:

“A.    New companies have entered the industry since 1993 and 1991. 
Since a significant number of facilities affected by these rules may not
have been in existence at the time they were released, they should not
be subjected to the imposition of costly new requirements without the
opportunity for notice and comment.

B.   There have been significant personnel changes in industry positions
responsible for facility spill prevention operations.  Industry
representatives began working with EPA on the proposed SPCC Plan revised
regulations in 1987.  Since that time, most of the industry personnel
involved in that effort, or in reviewing drafts for their companies,
have retired or moved to other positions.  There have been tremendous
reductions in company personnel throughout the industry. (Note: Since
1984, more than 475,000 persons have left their employment in the
petroleum industry.)”

New personnel at petroleum facilities need the opportunity to review and
understand the proposed 1991 and 1993 regulations and evaluate their
impact, financial and otherwise, on the companies they work for, on the
operations for which they have responsibility, and on the budgets they
must obtain to comply.  (52)

Regulatory changes.  We should solicit additional comments before
finalizing the proposals because of changes in regulatory and statutory
issues since 1991 and 1993.  (17, 26, 41, 50, 58, 61, 77)

FRP rule.  Some commenters believed that the implementation of the
Facility Response Plan (FRP) rule alone requires us to solicit
additional comments concerning the SPCC proposals.  “The current
regulatory reduction proposals acknowledge the relationship between SPCC
plans and FRPs.  MEDC believes that in writing and implementing FRPs
many large, high-risk facilities have made improvements in their spill
prevention and control plans. The FRP program has changed materially the
oil spill risk posed by oil storage tanks and its impact should be taken
into account.” (17)   We should acknowledge developments in compliance
provisions since 1991 before promulgating the new SPCC rules.   (26, 77)
 “Since 1991 EPA has proposed and adopted rules identifying
higher-risk facilities and requiring them to develop and implement FRPs
under the Oil Pollution Act of 1990.  The current proposal recognizes
the close relationship between SPCC plans and FRPs by allowing facility
operators to use one plan for both, either an integrated contingency
plan or an equivalent state plan.  IPAA believes that in writing and
implementing FRPs, many operators of large, high-risk facilities have
had to implement improvements in spill prevention and control.  Those
facility changes require EPA to reconsider the basis for its 1991 SPCC
plan proposals because the universe of regulated facilities has changed
significantly.”  (26)  Because of the Oil Pollution Act amendments and
significant maturing of the Facility Response Plan program, review and
comment are needed before the promulgation of the 1991 and 1993
proposals.  (41, 50, 58)   Requirements from the FRP program and planned
regulations under the SPCC proposal are redundant, may be unnecessary
and need further evaluation.  (41, 58)   “The current proposal,
allowing integrated contingency plans (ICPs) or other state plans,
acknowledges the close relationship between the SPCC plan and FRP
programs.  Even though one program addresses spill prevention and the
other addresses spill response, the facility analysis for the FRP also
serves the needs of spill prevention by identifying risks.  We believe
that the process of implementing FRPs at the highest risk facilities
has, as part of the process, also helped improve spill prevention
efforts.” (58)

Response plan requirement.  Promulgation of the 1991 and 1993 proposals
may require small facilities to adopt OPA response plans.  “Before
imposing such requirements on the industry, it would be appropriate to
determine what number of releases to navigable water take place as a
result of a lack of response planning at small, non-OPA facilities that
may have a SPCC plan with secondary containment in place but not the
appropriate spill response equipment or trained personnel.”  (6)

Time lapse.  Other Agency events necessitate additional public comments.
 (41, 58, 61)  “The significant time lapse since (the 1991 and 1993)
proposals -- along with amendments to the Oil Pollution Act and EPA's
recommendation to Congress in 1996 to establish the Oil Cooperative
Program -- strongly suggested that EPA had abandoned its intent to
finalize the 1991 and 1993 proposals.  We believe that actions (EPA's
intent to establish an Oil Cooperative Program; the data collected by
EPA's facility survey; changes made to regulatory requirements; and
revisions to industry standards) taken since these proposals mandate
that EPA review the need for additional changes to the program.  We
strongly recommend that EPA not finalize the earlier proposals without
first allowing further review and comment, especially since many of the
proposed changes may no longer be necessary.”  (58)  “...(T)he
passage of time and intervening events, in particular, the President’s
directive on burden reduction and the Agency’s own 1995 SPCC
Survey.” (70) 

Response:  Additional comments or reproposal.  It is not necessary to
repropose the 1991 and 1993 proposals because of mere passage of time.  
We received numerous comments on every side of most issues.  In
developing this final rule, we have considered changes that have taken
place in the oil industry, industry standards, and regulations that may
affect the SPCC rule.  We have also considered changes in the various
industries which comprise the universe of SPCC facilities which have
occurred since our original proposals.  We encourage the use of industry
standards to implement the rule, without incorporating any particular
standard into the rule, thereby averting possible obsolescence of those
standards.  We used the results of our 1995 SPCC facility survey to
develop our 1997 proposed rule.  These results are also part of the
administrative record for this rulemaking.  We have also considered and
responded to all of the comments received in 1991 and 1993 in their
respective Comment Response Documents or in the preamble to today’s
final rule.  

The Oil Cooperative Program does not affect the substantive provisions
of the rule, but merely encourages facilities to go beyond the rule in
effecting environmental enhancements. 

FRP rule.  Only a small subset of facilities regulated under the SPCC
program, i.e., approximately 6,000 facilities, are also subject to FRP
requirements.  Recognizing the impact of FRPs, we have exempted those
facilities from some of the requirements of the SPCC rule, for example,
information on emergency procedures (§112.7(a)(4) and (5)).

We also recognize the impact of other rules, for example State rules,
the Federal rules governing solid waste (i.e., the RCRA rules), and
rules governing permitted discharges into waters of the United States
(National Pollutant Discharge Elimination System or NPDES).  We permit
facilities to use as SPCC Plans, in whole or in part, plans that were
drafted to satisfy the requirements of these and other authorities.
Those plans must meet all Federal requirements or be supplemented so
that they do, and cross-referenced to the applicable Federal
requirement.  As a result, we do not believe it is necessary to
repropose the 1991 and 1993 SPCC proposals for additional public comment
regarding recent regulatory issues. 

Personnel changes.  In developing this final rule, as noted above, we
have considered changes that have taken place in the oil industry,
industry standards, and regulations that may affect the SPCC rule.  For
the past 26 years, owners and operators of regulated facilities have
been responsible for training their personnel in applicable regulations,
such as 40 CFR part 112.  Such responsibility is in effect now, and will
continue under the revised rule.  New companies and new personnel of
those companies are on notice as to applicable rules and proposals. 
They have also had the opportunity to comment on the 1997 proposal. 
Furthermore, we have considered cost implications for all three
proposals which we are finalizing today. 

Response plan requirements.  We have no plans to require SPCC facilities
for which secondary containment is not practicable to develop response
plans.  Therefore we have withdrawn §112.7(d) as proposed in 1993. 
Only a contingency plan following the provisions of 40 CFR part 109 and
compliance with other provisions of §112.7(d) is necessary when
secondary containment is impracticable.  Only onshore facilities that
meet the criteria of substantial harm and/or significant and substantial
harm facilities need to comply with the FRP requirements in 40 CFR
112.20-21.

3.	Information for Future Rulemaking tc \l1 "3.	Information for Future
Rulemaking 

Background:  In our 1997 proposal, we requested comments on new
standards, technologies, or approaches that have been developed since
the enactment of OPA which would reduce the burden of other SPCC rule
requirements, without compromising environmental protection.  We
requested these comments in order to discover additional ways to reduce
the information collection burden of the rule.  In addition, we
requested comments on measures not required by the SPCC rule that would
enhance the environmental protection that the rule provides.  Our
purpose for requesting these comments was to secure information for
developing possible future rules or policies, not developing this final
rule.

Comments:   Cathodic protection.  Cathodic protection should be required
for all new steel tank bottoms and piping in contact with the soil or
other backfill material.  (39)

Double-walled or vaulted tanks.  Technological improvements in AST
design standards, particularly in the standards for smaller ASTs, have
greatly reduced or totally eliminated the potential for environmental
contamination the SPCC requirements were designed to address. 
Technological advancements include concrete encased doubled–walled
tanks, secondary containment, overfill and spill prevention devices,
flow restriction and fuel shut-off equipment, Early Warning Fire
Detection equipment, and interstitial monitoring.  (36)

Integrity testing - robotic inspection.  We should amend the rule to
require that all aboveground bulk oil storage tanks should be subject to
periodic integrity inspection and testing at a minimum of once every
five years and should use such techniques as internal in-service robotic
inspection of tank bottoms.  (54)

Secondary containment.  “Given that API Bulletin 16D has been
implemented throughout the oil and gas industry since 1974 and the vast
majority of oil and gas production facilities ... are protected by
diking or secondary containment it is unnecessary for EPA to propose
such far reaching and extremely expensive administrative
requirements.”  (6)

Tank manufacturers.  The involvement of the Underwriters Laboratories,
Inc (UL) and Underwriters Laboratories of Canada (ULC) would appear to
be logical inclusions in the objectives of implementing the entire OPA
objectives.  “A specific example of a proposed requirement that would
immediately enhance the environmental protection the SPCC rule provides
without generating any Agency burden would be to stipulate that every
tank manufacturer is required to notify existing and prospective
end-users of the need to comply with the program.  This can easily be
done via the point-of-sale invoice generated by the tank manufacturer
which can be submitted to the Agency as a source document for auditing
purposes.“  (73)

Response:  We appreciate these comments and will consider them for
future rulemaking.  Today’s final rule encourages facilities to use
industry practices, standards, and procedures.  We also encourage the
use of innovative technology that meets rule requirements.   

Cathodic protection.   Cathodic protection or coatings is already
required for all new completely buried steel tank bottoms
(§112.8(c)4)).   New or replaced buried piping installations must also
be protected with a protective wrapping and coating (§112.8(d)(1)).

Tank manufacturers.  While we believe it may be desirable for tank
manufacturers to advise purchasers of their equipment of the need to
comply with SPCC rules, it is the responsibility of the facility owner
or operator to comply, whether the manufacturer notifies him or not.  As
noted above, such a requirement would increase the information
collection burden of the rule.

 

4.	Threshold Issues tc \l1 "4.	Threshold Issues  - §112.1(d)(2)(i) and
(ii)

Background:  In 1997, we asked for comments as to whether any change in
the level of storage capacity which subjects a facility to this rule is
justified.  We noted that we were considering eliminating the provision
that requires a facility having a container with a storage capacity in
excess of 660 gallons to prepare a Plan, as long as the total capacity
of the facility remained at 1,320 gallons or less.  The effect of such a
change would be to raise the threshold for regulation to an aggregate
aboveground storage capacity greater than 1,320 gallons.  We did not at
that time suggest or propose any underground storage tank threshold
change.

Comments:  Support for current threshold.   The revision would 
“...reduce the burden of reporting for facilities storing as few as 25
55-gallon drums and not increase risks to the environment.  It is our
understanding that the intent of the volume restrictions is based on
what volume would cause a "significant" environmental impact.  It is
highly improbable that numerous individual 55-gallon drums (or similar
capacity containers) would fail simultaneously causing a significant
environmental impact. “ (41, 47, 61, 77)

Support for proposal.

Clarity and consistency.  The change would create consistency in the
rule by applying one standard of applicability (i.e. total capacity). 
(14)  It would clarify the requirements of the rule.  (30)

Cost.  Supports elimination of the 660 gallon provision due to the
relatively high cost to prepare and implement a Plan as well as the
relatively small risk posed by such containers.  The 660 gallon
provision is a burden on small businesses that must design an SPCC plan
for their storage tanks.  (2, 5, 6, 7, 9, 10, 13, 15, 28, 29, 30, 32,
36, 38, 42, 43, 45, 46, 48, 49, 53, 58, 64, 66, 71, 74, 75, L2 )

  

Farms.  “...(T)he proposed increase in storage capacity for a single
container size to 1320 gallons from 660 gallons is a move in the right
direction for our member cooperatives and their patrons.  We feel that
in most if not all cases that this increase in the size of tanks will
have no negative effect on the safety of the environment.”  (71)

Fewer measures necessary.  Supports a higher threshold because “...oil
spills from containers of less than 660 gallons can generally be
controlled with less extensive spill prevention procedures, methods, and
equipment than are required under 40 CFR part 112.”  (46)

Less environmental risk.   ”...(T)he costs of preparing extensive
SPCC Plans (including the cost of hiring a registered professional
engineer) may at times be an unnecessary burden for such facilities,
given the quantities of oil actually stored.  HC&S believes that the
requirement to maintain an SPCC Plan should be based on the
environmental risk posed by the facility rather than being strictly
based upon the total storage capacity available.”  (46)  “The $2500
average cost to US WEST for a single SPCC plan far outweighs the true
risk to the environment since the likelihood of a spill is so
improbable.”  Outlines the various safety devices equipped on such
tanks, declaring that these devices provide excellent spill prevention. 
(48)  The present 660 gallon criterion promotes the installation of
tanks smaller than 660 gallons.  This results in increased deliveries to
keep the tanks filled, which therefore increases the probability of
spills associated with delivery and filling events.  (59)  “(T)he
current provision discourages pollution prevention and efficient
material management.  EPA pollution prevention guidance recommends the
use of larger containers to reduce waste generation and reduce
possibility of stormwater contamination from possible spills and leaks. 
This will also benefit used oil recycling by encouraging the use of
larger containers for accumulation storage, by not having to worry about
being required to prepare a written SPCC Plan.”  (L4)

Other programs.  The proposed rule change would not result in a decrease
in environmental protection because of other existing oil spill
prevention programs or plans.   (29, 32, 79, 83, L1)

Hazardous material disclosure.  The proposed change is justifiable due
to local hazardous material disclosure laws that require facilities with
certain thresholds of chemicals to prepare a Plan that includes an
emergency response procedure.  (L1)

NPDES.  “(W)ith the national storm water program fully in place and
actively being implemented by either EPA or the states, oil-containing
tanks are now generally subject to storm water pollution prevention best
management practices designed to prevent releases to storm water and the
environment.”  (83)

Reduced duplication.  The rule change would reduce “duplication with
other federal and local regulations aimed at preventing and preparing
for a release or spill of oil.”  (L1)

Small business.  “We believe a number of small businesses, both
petroleum marketers and non-marketers, would benefit from the proposal
and be given reasonable regulatory relief.  For example, there are
countless numbers of small, temporary storage tanks at construction
sites which are there for a short duration of time that, we believe,
should not be required to carry out a SPCC Plan.”  (78)

Technological improvements.  “...(T)echnological improvements in
aboveground storage tank (AST) design standards and the mandates of
state/county fire codes and state or local environmental agencies
already provide sufficient spill prevention and control for small ASTs. 
(36)   “...(T)echnological improvements in AST design standards,
particularly for smaller ASTs, have outpaced the SPCC plan requirement
and caused it to become superfluous.  The majority of technological
improvements in AST system design over the past twenty-five years have
been prompted by fire safety interests, and include secondary
containment, overfill spill-prevention equipment, insulation, inventory
control, and release detection equipment.  These improvements, although
aimed at preventing the spread of fire by containing any released oil,
have the dual benefit of preventing spills or releases and subsequent
environmental contamination.  Whereas in the past ASTs equipped with
these improvements were not commonly available, today ASTs smaller than
1,300 gallons are being manufactured with these technological
improvements.  In addition, smaller ASTs are ‘shop built’ or factory
fabricated rather than field-erected, resulting in an increased quality
of construction and a reduced likelihood of tank failure.”  (75)

Alternative threshold suggestions.  

2,001 gallons.  ”...(T)he total capacity threshold of 1,320 gallons
should be increased.  Many agricultural retailers operate with two
1,000-gallon tanks.  However, these tanks are only in use for that part
of the year in season.  If the agency is serious about providing relief
to small businesses, it would also provide agricultural service and
input providers -- as well as farmers themselves -- a total capacity
threshold of 2001 gallons.”  (53)

2,500 gallons.  ”With the increasing size of farm equipment, larger
tank sizes are necessary for efficiencies and we concur with the need
for increased tank size.  We would propose that this upper limit be
increased to 2500 gallons.  Larger tanks would require less frequent
fueling and handling, and could actually be safer by reducing the number
of times a tank needs to be filled.”  (71)

10,000 gallons.  “...(E)xclude all facilities where individual
oil-containing units have a capacity of 10,000 gallons or less.  This is
based on the Agency’s own survey of facilities potentially subject to
the SPCC regulations ("Analysis of the Relationship Between Facility
Characteristics and Oil Spill Risk"), and the electric utility
industry’s record of infrequent discharges of dielectric fluid to
navigable waters.  EPA’s survey categorizes facilities storing less
than 10,000 gallons of oil as ‘small’.  The summary of the
regression analysis in Exhibit 2 begins at 10,000 gallons implying that
those units are not of regulatory concern.  The annual number of
discharges to navigable waters from the oil storage facilities exceeds
by orders of magnitude the extremely low number of comparable discharges
from electrical equipment.  These data are a clear indication that
"small" capacity tanks and containers (10,000 gallons and less) do not
pose a risk that justifies regulation and inclusion within the SPCC
program.”  (70, 76)  

Electrical equipment.  

15,000 gallons.  (27, 31, 35, 69, 70)  “...(T)he number of spills from
electrical equipment is negligible.  Furthermore, spills that have
occurred from this equipment are not a significant threat to the
environment.  In addition, electrical equipment sites typically have a
gravel pit, which help absorb and contain any spill that may occur.  In
general, electrical equipment tanks and containers of this nature do not
pose significant risks to the environment sufficient to warrant being
included in the SPCC program.”  (27)  “Oil-filled equipment has
stringent construction requirements resulting in very low spill rates. 
EPA  recognized the insignificance of this equipment in its survey of
Characteristics and Oil Spill Risk" (1996, p. 1).  The Agency concluded
‘that facilities with larger storage capacity are likely to have a
greater number of oil spills, larger volumes of oil spilled, and greater
cleanup costs.’” (35)   EPA should  “...adopt a general tank
threshold of 10,000 gallons (for non-electrical equipment) and a single
unit threshold of 15,000 gallons for electrical equipment.  Considerable
EPA data supports this change.  EPA has concluded from the survey data
"that facilities with larger storage capacity are likely to have a
greater number of oil spills, larger volumes of oil spilled, and greater
cleanup costs.“ (65)   

Lower threshold.   

110 gallons. “DOT consistency dictates setting the threshold capacity
at 110 gallons i.e., 2-55 gallon drums.  This change would bring EPA
into consistency with DOT.  Additionally, E&P facilities include small
containers e.g., 110 gallons when the plan threshold is attained. 
Further, as indicated in 40 CFR part 110, oil spills even causing a
sheen are devastating.  Thus, sheens from home heating oil tanks are
every bit as important as sheens from crude oil tanks.  We recommend
reducing the threshold of applicability to 110 gallons of oil.”  (8)

250 gallons.  “The current thresholds should remain and the only
alteration should be the modification of the "navigable waterway to be
inclusive rather than exclusive; therefore, the new rule would state: "a
facility with a single container of 250 gallons (rather than 660
gallons), an aggregate of 1,320 gallons OR is considered potentially
harmful to the navigable OR ground/drinking water resources as
determined by the appropriate authority, must prepare and implement a
certified SPCC Plan."  (73)

No aggregate threshold, container threshold only.  The threshold should
be “changed from a facility basis to a tank basis and that the
threshold be set at 660 gallons per tank. ...   First, determination of
SPCC plan applicability is simpler if a per-tank limit is established,
as the need to calculate an aggregate oil volume is eliminated.  This
makes applicability of the rule easier to understand and is particularly
important for smaller facilities.  Secondly, small tanks pose less risk
to the environment because of their limited volume.  Experience
demonstrates that it is highly unlikely that multiple tanks will fail
simultaneously.  Therefore, we believe this threshold change would not
reduce the effectiveness of the SPCC plans.”  (41, 47, 61)

Completely buried tanks - 63,000-gallon threshold.  “Many service
stations exceed this capacity, as they commonly store three grades of
gasoline in underground storage tanks (USTs) of 15,000 gallons each.  A
separate regulatory program for USTs, established by the Resource
Conservation and Recovery Act (RCRA) Subtitle I and fully implemented as
of December 1998, makes application of the SPCC rule unnecessary. 
Additionally, we believe that the SPCC requirements were not intended to
address service stations.  Thus, increasing the threshold to
approximately 63,000 gallons or 1,500 barrels would be appropriate.” 
(41)

Exemption - electrical equipment.  OPA rules are “designed to apply to
facilities containing millions of gallons of oil, and it make little
sense to apply these requirements to facilities orders of magnitude
smaller.”  (31)  Urges a complete exclusion of electrical equipment
from the SPCC program.  (69)

Minimum container size.   De minimis container sizes should exist and
these containers should be excluded from calculating aggregate on-site
storage capacity.  Suggestions for a minimum container size ranged from
55 gallons to 25,000 gallons.  The majority of these commenters favored
either a greater than 55 gallon or greater than 660 gallon threshold. 
(38, 41, 47, 51, 58, 61, 77)

Less than 55 gallons.  We should establish a de minimis volume that
would allow containers with a storage capacity of less than 55 gallons
to be exempted from the calculation of total facility storage capacity. 
”...(T)his would eliminate the burden of quantifying oil and oil
mixtures in small containers such as pails and carboys.  In addition,
guidance should be provided with regard to which oil-containing machines
and systems within facilities are to be counted in calculating total
facility storage capacity.  A de minimis threshold should be considered
in this case as well.”  (51)

660 gallons.   Aggregate storage capacity determinations for SPCC plan
requirements should not exist and any container below 660 gallons should
be considered de minimis.  “Containerization is a key factor in
limiting spills and that individual container size rather than the
aggregate size of all oil containers is an appropriate indicator of
spill potential.  Small containers, such as those less than 660 gallons,
pose less environmental risk than large containers in the event of a
discharge.  It is also unlikely that multiple small containers will fail
simultaneously; therefore, EPA is not reducing the effectiveness of SPCC
plans by changing the volume threshold.”  (47, 61)

Greater than 660 gallons.  “...(T)he lack of a size limitation raised
the question of whether individual, small containers (e.g., 55-gallon
drums) had to be addressed in a SPCC plan.  API continues to believe
that such small containers need not be addressed, and it reiterates its
recommendation that the bulk storage tanks be defined as those with a
capacity greater than 660 gallons.”  (41, 58)

Other factors.  “Other factors should also be considered, such as in
the FRP applicability - owner history of, spills, proximity to surface
waters, type of oil, etc.”  (40)

Permanently connected containers.  “Clarification is needed as to
whether small containers that are not permanently connected to any user,
such as 55 gallon drums, are to be included in the total plant capacity.
  We have been lead to believe, by a representative from your Agency,
that drums and small containers that are not "hard piped" do not have to
be included in the SPCC Plan.  For example, transitory drums, whose
inventory is variable, would not be considered as part of the storage
capacity.  In other words, only tanks and other immobile containers that
are a permanent part of the facility would be subject to the capacity
determination and have to be covered by the SPCC Plan.”  (38)

Risk-based approach.  Urges a risk-based approach instead of a storage
capacity approach to SPCC regulation.   (40, 46, 73, L3)  “...(A)
facility may exceed the 1,320-gallon threshold, yet may represent a
comparatively low environmental risk due to the amount of time such
storage capacity is actually in use (according to the Agricultural
Retailers Association, oil storage capacity at many agricultural
operations may be in use for less than half of the year).  Other
facilities may have storage capacity for more than 1,320 gallons of oil,
but may utilize only a fraction of that capacity for inventory control
purposes (e.g., an operator may choose to use only 500 gallons of
storage capacity in a 1,500-gallon gasoline tank to ensure that the
stored gasoline is used before it ‘goes bad’; the actual volume of
storage capacity in use at any time can be easily monitored based on
inventory records).  Facilities near the 660-gallon and/or 1,320-gallon
thresholds are generally smaller businesses with limited resources (for
example, small farmers), and the costs of preparing extensive SPCC Plans
(including the cost of hiring a registered professional engineer) may at
times be an unnecessary burden for such facilities, given the quantities
of oil actually stored.  HC&S believes that the requirement to maintain
an SPCC Plan should be based on the environmental risk posed by the
facility rather than being strictly based upon the total storage
capacity available.”  (46)   “Numerous attempts have been made by
the AST industry and end-users who wish to avoid the burdens of properly
preparing a site, primarily due to economic reasons, to simply state the
‘site is exempt.’ Numerous manufacturers now produce fuel containers
of 650 gallons designed to avoid compliance, whether the site is
adjacent to a navigable waterway or not.  Furthermore, the recent
revelation in the December 7-11, 1997 UFC hearings in Tucson, Arizona
where an insurance carrier complained about 350 national
pollution/property damage sites for a single AST manufacturer indicate
that the problem is epidemic, not isolated!  Most name-brand tank
manufacturers produce a ‘listed’ tank of 250 gallons; naturally, six
of these 250-gallon assemblies would exceed the 1,320-gallon threshold
currently proposed.  However, five of the 250-gallon assemblies would
not qualify for the threshold and yet the risk would be nearly identical
dependent upon the design of the tank.”  (73)

Response:  Exemption - electrical equipment.  We disagree that
operational equipment is not subject to the SPCC rule.  We have amended
§112.1(b) to clarify that using oil, for example operationally, may
subject a facility to SPCC jurisdiction as long as the other
applicability criteria apply, for example, oil storage capacity, or
location.  Such a facility might reasonably be expected to discharge oil
as described in §112.1(b).  Therefore, the prevention of discharges
from such facility falls within the scope of CWA section 311.  The
definition of “facility” in OPA section 1001(9) does not apply to
this rule.

However, we have distinguished the bulk storage of oil from the
operational use of oil.  We define “bulk storage container” in the
final rule to mean any container used to store oil.  The storage of oil
may be prior to use, while being used, or prior to further distribution
in commerce.  For clarity, we have specifically excluded oil-filled
electrical, operating, or manufacturing equipment from the definition.

Facilities that use oil operationally include electrical substations,
facilities containing electrical transformers, and certain hydraulic or
manufacturing equipment.  The requirements for bulk storage containers
may not always apply to these facilities since the primary purpose of
this equipment is not the storage of oil in bulk.  Facilities with
equipment containing oil for ancillary purposes are not required to
provide the secondary containment required for bulk storage facilities
(§112.8(c)) and onshore production facilities (§112.9(c)), nor
implement the other provisions of §112.8(c) or §112.9(c).  Oil-filled
equipment must meet other SPCC requirements, for example, the general
requirements of this part, including §112.7(c), to provide appropriate
containment and/or diversionary structures to prevent discharged oil
from reaching a navigable watercourse.  The general requirement for
secondary containment, which can be provided by various means including
drainage systems, spill diversion ponds, etc., will provide for safety
and also the needs of section 311(j)(1)(C) of the CWA.     

In addition, a facility may deviate from any inapplicable or
inappropriate SPCC requirements, or from most applicable requirements,
if the owner or operator explains his reasons for nonconformance and
provides equivalent environmental protection by some other means.  See
§112.7(a)(2).  See also §112.7(d).

Minimum container size.  In response to comments, we are introducing a
minimum container size to use for calculation of the capacity of
aboveground storage tanks or completely buried containers.  The 55
gallon container is the most widely used commercial bulk container, and
these containers are easily counted.  Containers below 55 gallons in
capacity are typically end-use consumer containers.  Fifty-five gallon
containers are also the lowest size bulk container that can be handled
by a human.  Containers above that size typically require equipment for
movement and handling.  We considered a minimum container size of one
barrel.  However, a barrel or 42 gallons is a common volumetric
measurement size for oil, but is not a common container size. 
Therefore, it would not be appropriate to institute a 42 gallon minimum
container size.

You need only count containers of 55 gallons or greater in the
calculation of the regulatory threshold.  You need not count containers,
like pints, quarts, and small pails, which have a storage capacity of
less than 55 gallons.  Some SPCC facilities might therefore drop out of
the regulated universe of facilities.  You should note, however, that
EPA retains authority to require any facility subject to its
jurisdiction under section 311(j) of the CWA to prepare and implement an
SPCC Plan, or applicable part, to carry out the purposes of the Act.

While some commenters had suggested a higher threshold level, we believe
that inclusion of containers of 55 gallons or greater within the
calculation for the regulatory threshold is necessary to ensure
environmental protection.  If we finalized a higher minimum size, the
result in some cases would be large amounts of aggregate capacity that
would not be counted for SPCC purposes, and would therefore be
unregulated, posing a threat to the environment.  We believe that it is
not necessary to apply SPCC or FRP rules requiring measures like
secondary containment, inspections, or integrity testing, to containers
smaller than 55 gallons storing oil because a discharge from these
containers generally poses a smaller risk to the environment. 
Furthermore, compliance with the rules for these containers could be
extremely burdensome for an owner or operator and could upset
manufacturing operations, while providing little or no significant
increase in protection of human health or the environment.  Many of
these smaller containers are constantly being emptied, replaced, and
relocated so that serious corrosion will likely soon be detected and
undetected leaks become highly unlikely.  While we realize that small
discharges may harm the environment, depending on where and when the
discharge occurs, we believe that this measure will allow facilities to
concentrate on the prevention and containment of discharges of oil from
those sources most likely to present a more significant risk to human
health and the environment.

Effect on Facility Response Plan facilities.  The exemption for
containers of less than 55 gallons applies to the calculations of
storage capacity both for SPCC purposes and for FRP purposes because the
exemption applies to all of part 112.  Therefore, a few FRP facilities
might no longer be required to have FRPs.  The calculations for planning
levels for worst case discharges would also be affected.  

Permanently connected containers.  It is irrelevant for storage
capacity calculations whether the container is permanently connected by
piping or otherwise.  Mobile containers or fixed containers both pose
the same risk of a discharge as described in §112.1(b).

Regulatory thresholds.  We have decided to raise the current regulatory
threshold, as discussed in the 1997 preamble, to an aggregate threshold
of over 1,320 gallons.  We believe that raising the regulatory threshold
is justified because our Survey of Oil Storage Facilities (published in
July 1996, and available on our web site at www.epa.gov/oilspill) points
to the conclusion that several facility characteristics can affect the
chances of a discharge.  First, the Survey showed that as the total
storage capacity increases, so does the propensity to discharge, the
severity of the discharge, and the costs of cleanup.  Likewise, the
Survey also pointed out that as the number of tanks increases, so does
the propensity to discharge, the severity of the discharge, and the
costs of cleanup.  Finally, the Survey showed that as annual throughput
increases, so does the propensity to discharge, the severity of the
discharge, and, to a lesser extent, the costs of the cleanup.  

The threshold change will have several benefits.  The threshold increase
will result in a substantial reduction in information collection.  Some
smaller facilities will no longer have to bear the costs of an SPCC
Plan.   EPA will be better able to focus its regulatory oversight on
facilities that pose a greater likelihood of a discharge as described in
§112.1(b), and a greater potential for injury to the environment if a
discharge as described in §112.1(b) results.  

We raise the regulatory threshold realizing that discharges as described
in §112.1(b) from small facilities may be harmful, depending on the
surrounding environment.  Among the factors remaining to mitigate any
potential disasters are that small facilities no longer required to have
SPCC Plans are still liable for cleanup costs and damages from
discharges as described in §112.1(b).  We encourage those facilities
exempted from today’s rule to maintain SPCC Plans.  Likewise, we
encourage new facilities which are exempted from the rule to develop
Plans.  We believe that SPCC Plans have utility and benefit for both the
facility and the environment.  But, we will no longer by regulation
require Plans from exempted facilities.

While we believe that the Federal oil program is best focused on larger
risks, State, local, or tribal governments may still decide that smaller
facilities warrant regulation under their own authorities.  In accord
with this philosophy, we note that this Federal exemption may not
relieve all exempted facilities from Plan requirements because some
States, local, or tribal governments may still require such facilities
to have Plans.  While we are aware that some States, local, or tribal
governments have laws or policies allowing them to set requirements no
more stringent than Federal requirements, we encourage States, local, or
tribal governments to maintain or lower regulatory thresholds to include
facilities no longer covered by Federal rules where their own laws or
policies allow.  We believe CWA section 311(o) authorizes States to
establish their own oil spill prevention programs which can be more
stringent than EPA’s program.   

Alternative thresholds.   We continue to believe that a facility with a
storage or use capacity greater than 1,320 gallons should be subject to
the SPCC rule and be required to prepare and implement a prevention
plan.  We believe that SPCC Plans help to prevent discharges as
described in §112.1(b) and resulting clean-ups.  We disagree with the
commenter that our presentation of survey results was intended to imply
that storage capacity below 10,000 gallons is not of regulatory concern.
 The Survey shows that the predicted relationship between total tank
capacity and annual spill volume remains the same for facilities storing
less than 10,000 gallons as those storing more.  Because we believe that
the same preventive measures are applicable for most facilities, we
apply those measures to all regulated SPCC facilities.  Where those
measures are not applicable, the owner or operator may deviate from the
requirement if he provides reasons for nonconformance and provides
equivalent environmental protection.  40 CFR 112.7(a)(2).

Completely buried tanks - threshold.  We proposed no changes in the
threshold for completely buried tanks.  We note, however, that such
tanks that are subject to all of the technical requirements of 40 CFR
part 280 or a State program approved under 40 CFR part 281 are no longer
subject to part 112.

Regulatory safeguard.  When a particular facility that is below
today’s threshold becomes a hazard to the environment because of its
practices, or for other reasons to effectuate the Clean Water Act, the
Regional Administrator may, under a new rule provision, require that
facility to prepare and implement an SPCC Plan.  See §112.1(f).   This
provision acts as a safeguard to an environmental threat from any
exempted facility.

Risk-based approach, other factors.  We believe that a program based on
potential storage capacity is necessary, rather than a risk-based
approach, because the potential storage capacity may be changed, at the
owner’s or operator’s option.  A facility with a storage capacity
above the threshold amount poses sufficient risk to the environment to
warrant an SPCC Plan due to the amount of oil which could be discharged.
 The SPCC rules adopt a risk-based approach in that they seek to prevent
threats to the environment based on the risk of a potential discharge as
described in §112.1(b).  If any requirement is inappropriate for any
facility, the owner or operator may explain his reasons for
nonconformance and provide equivalent environmental protection.

5.   §§112.2 and 112.7 Introduction - Alternative Plan Formats  tc
\l1 "5.   §§112.2 and 112.7 Introduction - Alternative Plan Formats  

Background:  In 1991, we proposed a definition for “SPCC plan or
Plan.”  In 1997, we withdrew the 1991 proposed definition in favor of
a revised definition.  The revised definition would describe an SPCC
plan and would allow any alternative format acceptable to the Regional
Administrator if it: (1) meets all regulatory requirements in the SPCC
rule; and (2) is cross-referenced by SPCC rule provision to the
equivalent requirement in the other plan.  We proposed to amend both
§112.2 and the introduction to §112.7 to effect this change. 

Comments:  Support for proposal.  “Reynolds wholeheartedly supports
EPA’s proposal to allow alternative plans to meet SPCC Plan
requirements.  Use of plans such as the Integrated Contingency Plan or
equivalent State plans which meet the requirements of 40 CFR 112 will
satisfy the goals and objectives of the SPCC program and facilitate
safe, efficient incident prevention and response activities.”  (10,
11, 14, 17, 22, 23, 26, 28, 32, 34, 37, 38, 41, 42, 45, 51, 55, 56, 58,
65, 66, 67, 71, 73, 74, 79, 80, 82, 83, 84, L1, L5).   

Opposition to proposal.  

 	Substantive requirements.  “The last two sentences in the proposed
definition of SPCC plan in section 112.2 contain substantive
requirements and should therefore be deleted and relocated to section
112.7 which is there in reference.  (3)  “In the past an SPCC plan was
a written description of physical measures taken to prevent the
discharge of oil, the release of which could possibly impact a navigable
water; or as in 112.5(a) a plan amendment is required if changes are
made to ‘Facility design, construction, operation and maintenance
which materially affects the facility's potential for the discharge of
oil into or upon the navigable waters of the United States.’  The
definition proposed today is far reaching, requiring ‘details of
equipment, manpower, procedures and steps to prevent, control and
provide adequate countermeasures to an oil spill.’ “ (6)

Other problems.  “It is my opinion that the ICP concept is over-rated.
... How is an Engineer to certify an ICP? ... Sequential
cross-referencing could be a nightmare.  The EPA requires that they
review and approve state plans for USTs; are they not requiring approval
of each State Plan for oil spills?“  (40)

API D16 format.  “While being able to use an ICP or a State Plan will
help consolidate plans and eliminate duplication, we are concerned that
the proposal unduly constrains the plan formats by restricting it to ICP
format or State Plans.  Since 1974, E&) operations have successfully
implemented the API format (API Bulletin D16). ...  RMOGA encourages EPA
to allow the continued use of the API D16 format for small, non-OPA-90
facilities....”  (8, 49)

Cross-referencing.     

Support for cross-referencing.  “The requirement to sequentially
cross-reference the alternative plan ensures that it is substantively
equivalent to the guidelines prescribed in Section 112.7. Any further
requirement to obtain the Regional Administrator's approval of a
sequentially cross--referenced plan would be an exercise in redundancy
at odds with the purpose of this proposal to reduce the information
collection burden of the SPCC rule.”  (21)

Opposition to cross-referencing.  “With no requirement to submit SPCC
Plans to the Agency for review and/or approval, the cross-referencing
creates an additional administrative burden with no recognizable
benefit.  As long as the single comprehensive plan contains elements
which comply with the § 112.7 regulations, there should be no need for
a cross-referencing requirement.  The burden should be, and is, on the
regulated entity to comply with the regulations through the preparation
of SPCC Plans as appropriate.”  (43)

 should be ‘...be cross-referenced..., since it is not clear which
sequence in which plan is being referred to. The ICP guidance refers to
‘matrices, which is a slightly different approach than
cross-referencing.”  (16)

Level of cross-referencing.  “At what level is a cross-reference
required? 112.7 or 112.7(a); 112.7(c) or 112.7(c)(1) or 112.7(c)(1)(I)? 
What if, at the lowest level, the cross-reference is at two or more
locations in the other format? (e.g, 112.7(e)(1)(ii) - Existing plant
drainage may be discussed in one section of the ICP but the
responsibility to review proposed construction of new catchment basins
may be located in another section of the ICP? “ (40)

EPA approval of format.  

Should not be required.   Equivalent formats that are consistent with 40
CFR 112.7 requirements are acceptable SPCC plans that should not require
the approval of the Regional Administrator.  The rule as it is presently
written does not properly reflect this sentiment, and therefore we
should clarify it.   (21, 41, 47, 52, 58, 61, 77)

Editorial suggestion - compliance.  “The plan is required to comply
with the regulation, but is not a written document of compliance. 
Compliance is determined by comparing the contents of the plan with the
regulations.”  (47, 61)

Integrated Contingency Plans (ICPs).  Supports proposal to include the
ICP as an example of an acceptable SPCC plan format.   (3, 7, 21, 40,
41, 48, 51, 52, 58)  Use of a single plan in situations where a single
entity operates a number of facilities that are similar in design would
substantially reduce the paperwork burden on the owner or operator of
the facilities while maintaining the same level of environmental
protection.  Using a single plan would reduce the burdens associated
with plan maintenance without any reduction in environmental protection.
 (31)   Burden would not be reduced.   “... (T)he ICP concept is
over-rated.  If operators want to prepare a consolidated training plan
and a consolidated response plan, they have always had the right to do
so.”  (7, 40)  .

Extent of integration.  “In the event one selects the Integrated
Contingency Plan format, will it be required to include all related
plans at a facility or will partial integration at the selection of the
facility be acceptable? The proposal appears to be silent on this point.
 Michelin suggests that the rules be written to state that facilities
will have the flexibility of partial integration to avoid the potential
reservations a preparer may have for undertaking the much greater task
of producing a totally unified plan in one project.”  (3)

Information collection burden.  “EPA does not contemplate that the use
of an ICP or other format would reduce the information collection
burden, but it would simplify compliance with multiple applicable
statutes and rules.  Unfortunately, “information collection” (and
updating, verification, validation, display, organization, structure,
presentation, analysis, storage and archiving of the massive amount of
information after collection) is ninety-nine percent of the burden
(especially costs) of compliance; actual spill emergencies occupy the
remaining one percent. The statement conflicts with another statement on
page 1: ‘...the proposal would maintain the same standards of
environmental protection while reducing its information collection
burden.’” (16)

Multi-facility plans (electric utilities and other operational users of
oil.   Supports our approval of a facility area response plan format as
an alternative to site-specific SPCC plans.  (18, 20, 31, 35, 57, 60,
61, 65, 69, 70)   In order to avoid misinterpretation at the EPA regions
and state levels, the regulation should specifically mention the
allowance of system-wide response plans for electrical equipment.  (57)

Electrical equipment (area-wide response plans).  The EERP is ”...a
document that describes the utility's procedures for responding to
releases of dielectric fluid from electrical equipment. This type of
plan would describe the positioning of response crews and equipment,
identify procedures for contacting response contractors if needed, and
describe the procedures that spill responders would use to contain a
spill and summon additional assistance if necessary.  The scope of the
proposed EERP would not address every aspect of an SPCC plan or an OPA
response plan because those programs were designed to apply to oil
storage and transfer facilities.  However, as we have described in the
past, the risks posed by electrical equipment are de minimis, when the
totally enclosed nature and structural strength of the equipment, its
operational characteristics, and its spill history are properly taken
into account.”  (20, 31)



The following characteristics of electrical equipment require that such
equipment be subject to different SPCC requirements, documented in area
response plans in lieu of site-specific SPCC plans:

 SEQ 1,_2,_3, \* Arabic \r 1 1 .	Electrical equipment is built to more
stringent standards than typical tanks.

 SEQ 1,_2,_3, \* Arabic \n 2 .	Most units are effectively
self-monitoring because the release of dielectric fluid results in an
interruption in the transmission of electric power.

 SEQ 1,_2,_3, \* Arabic \n 3 .	Dielectric fluid is infrequently added to
or removed from electrical equipment, practically eliminating
transfer-related releases.

 SEQ 1,_2,_3, \* Arabic \n 4 .	The mineral oil contained in electrical
equipment has substantially lower toxicity than fuel oils.  Also, there
are very few soluble components in mineral oil, minimizing its potential
to damage aquatic ecosystems.

 SEQ 1,_2,_3, \* Arabic \n 5 .	All utilities with electric distribution
systems have mobile crews that are trained and equipped to respond to
releases from electrical equipment.  When a release is reported or
detected through inspection or alarm, a crew is dispatched to the
facility.

 SEQ 1,_2,_3, \* Arabic \n 6 .	Many utilities not only have these
systems in place, but also have them documented in the form of policies,
response plans, or response manuals.  (31)

“The equipment containing significant oil can be inspected for its
adjacency to traffic.  If the risk of vehicular impact is high, traffic
barriers can be constructed to prevent collisions.  This process will
vastly reduce the most common cause of a release.  During the above
inspections, a determination can be made to decide if some equipment
should be protected with secondary containment.  Also during the
inspections, the equipment can be checked for any areas of concern. 
Should a problem be identified, measures can be taken to mitigate the
problem.  A general spill prevention response procedure can be written
for distribution equipment, and corresponding training be given, so
employees can take measures to prevent spills and can respond
appropriately to a spill. (Note: SPCC training is already given to these
employees for substation equipment.)  Also note that distribution
equipment is currently labeled with an emergency call number should a
passerby note anything peculiar.”  (32)

“The plan is recommended to include: (1) Identification of all
facilities containing electrical equipment subject to the Plan; (2) The
location of available equipment to respond to releases of dielectric
fluid for electrical equipment (the equipment may be located at the
facilities, in mobile response units, or in one or more central
locations); (3) The training of employees to identify, characterize, and
respond to releases of dielectric fluid; (4) The identification of
equipment, personnel, and/or contractors to respond to releases of
dielectric fluid; and, (5) Procedures for notification, internal and
where applicable, the National Response Center, state and local
authorities.’  (60)

Paperwork reduction.   “Significant reductions in the paperwork
requirements of the SPCC regulation could be made if EPA allowed the use
of response plans for electrical equipment, which electric utilities
already have in place, in lieu of site-specific SPCC plans.”  (31, 35)

Other formats.  Asks for clarification concerning whether we would allow
different formats, in addition to the ICP, to be acceptable for SPCC
purposes.  (3, 8, 21, 30, 31, 41, 42, 47, 48, 49, 52, 58, 61)   Any
alternate formats should be allowed so long as these formats are
consistent with the requirements outlined in 40 CFR 112.7.  (42, 47, 61)

State plans.  “In an effort to comply with the President’s
regulatory reform directive, the Company urges the Agency to allow
alternative spill plan formats and the Integrated Contingency Plan to be
used to fulfill the requirements of the SPCC regulations.  Michigan law
requires facilities to prepare and implement a spill control plan if
they meet the applicability requirements of the Michigan Natural
Resources and Environmental Protection Act, Part 5, Spillage of
Polluting Materials.  The applicability requirements are similar to
those of the SPCC regulations.  Requiring facilities to prepare an
additional plan would not be justified under the President’s
regulatory reform directive nor the paperwork reduction requirements of
the SPCC regulation.  (76)

EPA approval.  “The EPA requires that they review and approve state
plans for USTs; are they not requiring approval of each State Plan for
oil spills?  How about a list of States with such plans or approved
plans?”  (40)

SWPPP.  Commenters urge “the Agency to consider the applicability of a
 NPDES Storm Water Pollution Prevention Plan (SWPPP) as an acceptable
format since spill prevention and response is an integral, and critical
part of a SWPPP.”  (30, 42)

Tank manufacturers.   “Section 112.2 Definitions  “Spill
Prevention, Control, and Countermeasure Plan; SPCC Plan; or Plan means
the document..... The Plan is a written document...... It is prepared in
writing and in accordance with the format specified..... If a tank
manufacturer or owner or operator of a facility chooses to prepare a
plan using either the Integrated Contingency Plan format or a State
format or any other format acceptable to the Regional Administrator,
such plan must meet all of the requirements in section 112.7, and be
sequentially cross-referenced from the requirement in section 112.7 to
the page(s) of the equivalent requirement in the other plan.  Rationale.
  As previously submitted by SPC Corp, a key component in implementing a
cost-effective, easily-audited national Oil Pollution Prevention program
is the participation of the tank manufacturing community; this would
immeasurably increase the US EPA’s database while correctly linking
tank purchase, installation and owner/operator maintenance to achieve
the goals of the program.  Non-compliance discovery/corrective action
could be expedited under this format as well.”   Suggests a
modification of the rule to place the initial responsibility for
information upon the tank manufacturer much like the requirement in UST
regulations.  This would “...remove the confusion of who must comply
by generating a database for the Agency which will place all existing
and new owner/operators on notice to inquire about compliance. Simply
put, at the point of sale, the tank manufacturer will reference on
his/her invoice the need to contact the appropriate federal, state
and/or local agency and REGISTER the tank with site specific information
such as gallonage, type of tank construction (singlewall/bare steel
versus protected tank, e.g.)  In addition, the tank manufacturers will
independently provide the Agency with an historical data base with the
pertinent information as previously outlined so that the Agency may
notify end-users of the need to implement an SPCC or FRP Plan.”  (73)

Written plans.  “First, on page 18 in the above document, §112.2
Definitions, ‘written description’ should be further annotated as
meaning ‘text, graphs, charts, maps, photos, and tables, on whatever
media, including floppy, CD, hard drive, and tape storage that allows
the document to be easily accessed, comprehended, distributed, viewed,
updated and printed...’  This phraseology supports the various
initiatives underway to automate plans in electronic format. (This
phrasing should also be applied to the Integrated Contingency Plan, the
Facility Response Plan, and any other plan to be subsumed within an
ICP.)” (16)

Response:  Support for proposal.  We appreciate commenter support.

Substantive requirements.  We have transferred all of the proposed
substantive requirements in the 1997 proposed definition of “SPCC
Plan” to the introduction of this section.  We did this because we
agree with commenters (see the comments on the definition of“SPCC
Plan” in §112.2) that definitions should not contain substantive
requirements.

Acceptable formats.  We agree that any equivalent prevention plan
acceptable to the Regional Administrator qualifies as an SPCC Plan as
long as it meets all Federal requirements (including certification by a
Professional Engineer), and is cross-referenced from the requirement in
part 112 to the page of the equivalent plan.  We do not agree that we
should specify acceptable formats.  We will give examples of those
acceptable formats, but those examples are not meant to be exhaustive.  

Examples of an “equivalent prevention plan” might be, for instance,
an Integrated Contingency Plan, a State plan, a Best Management Practice
Plan (which is a component of the Storm Water Pollution Prevention
Plan), or other plan that meets all the requirements of part 112 and is
supplemented by a cross-reference section identifying the location of
elements in part 112 to the equivalent requirement in the other plan. 
If the equivalent prevention plan has no requirement that a Professional
Engineer certify it, it will be necessary to secure proper certification
from the Professional Engineer to comply with the SPCC rule.

Another example of an equivalent plan might include a multi-facility
plan for operating equipment.  This type of plan is intended for
electrical utility transmission systems, electrical cable systems, and
similar facilities which might aggregate equipment located in diverse
areas into one plan.  Examples of operating equipment containing oil
include electrical equipment such as substations, transformers,
capacitors, buried cable equipment, and oil circuit breakers.

A general, multi-facility plan for operational equipment used in various
manufacturing processes containing over the threshold amount of oil
might also be acceptable as an SPCC Plan.  Examples of operating
equipment used in manufacturing that contains oil include small lube oil
systems, fat traps, hydraulic power presses, hydraulic pumps, injection
molding machines, auto boosters, certain metalworking machinery and
associated fluid transfer systems, and oil based heaters.  Whenever you
add or remove operating equipment in your Plan that materially affects
the potential for a discharge as described in §112.1(b), you must amend
your Plan.  40 CFR 112.5(a).

Multi-facility plans would include all elements required for individual
plans.  Site-specific information would be required for all equipment
included in each plan.   However, the site-specific information might be
maintained in a separate location, such as a central office, or an
electronic data base, as long as such information was immediately
accessible to responders and inspectors.  If you keep the information in
an electronic data base, you must also keep a paper or other backup that
is immediately accessible for emergency response purposes, or for EPA
inspectors, in case the computer is not functioning.  Where you place
that site-specific information would be a question of allowable
formatting, as is the question of what is an “equivalent” plan; an
issue subject to RA discretion.  

Still another example of an equivalent plan might be a Best Management
Practice Plan (BMP) plan prepared under an NPDES permit, if the plan
provides protections equivalent to SPCC Plans.  Not all BMP plans will
qualify, as some BMP plans might not provide equivalent protection. 
NPDES permits without BMP plans would not qualify. 

BMP plans are additional conditions which may supplement effluent
limitations in NPDES permits.  Under section 402(a)(1) of the CWA, BMP
plans may be imposed when the Administrator determines that such
conditions are necessary to carry out the provisions of the Act.  See 40
CFR 122.44(k).  CWA section 304(e) authorizes EPA to promulgate BMP
plans as effluent limitations guidelines.  NPDES rules provide for BMP
plans when: authorized under section 304(e) of the CWA for the control
of toxic pollutants and hazardous substances; numeric limitations are
infeasible; or, the practices are reasonably necessary to achieve
effluent limitations and standards to carry out the purposes of the CWA.

Cross-referencing.  We agree that the term “sequential”
cross-referencing may be confusing, and have therefore deleted it in
favor of a requirement to provide cross-referencing.  We disagree that
cross-referencing provides no benefit.  With the wide variation now
allowed in differing formats, we need cross-referencing so that an
inspector can tell whether the Plan meets Federal requirements, and
whether it is complete.  In addition, in order for an owner or operator
to do his own check to ensure that his facility meets all SPCC
requirements, he must go through the exercise of comparing his Plan to
each SPCC requirement.  Cross-referencing in the context of the rule
means indicating the relationship of a requirement in the new format to
an SPCC requirement.  The cross-referencing must identify the Federal
section and paragraph for each section of the new format it fulfills,
for example, §112.8(c)(3).  Note the cross-referencing table we have
provided for your convenience in section II.A of today’s preamble.

An equivalent Plan might be a Plan following the SPCC sequence in effect
before this final rule became effective.  If you choose to use the
sequence of the rule currently in effect, you may do so, but you must
cross-reference the requirements in the revised rule to the sequence
used in your Plan.  We have provided a table in section IV.A of
today’s preamble to help you cross-reference the requirements more
easily.  If the only change you make is the addition of
cross-referencing, you need not have a Professional Engineer certify
that change.

EPA approval of format.  Any format that contains all the required
elements of an SPCC Plan and provides equivalent environmental
protection would be presumptively acceptable.  The final decision on
what is an “equivalent” plan, however, would be at the discretion of
the Regional Administrator.  “Equivalence” would not mean that an
alternate format would be the mirror image of an SPCC Plan, but it would
have to contain all the required elements of an SPCC Plan.  Required
elements include, but are not limited to, provisions for a written plan,
secondary containment or a contingency plan following 40 CFR part 109,
equivalent inspections and tests, security, personnel training, and
certification of the plan by a Professional Engineer.  Acceptance of an
equivalent plan does not, however, imply any type of approval or
submission process.  As before, SPCC Plans are generally not submitted
to the Regional Administrator.  The Regional Administrator could accept
an equivalent prevention plan if it: (1) meets all regulatory
requirements in the SPCC rule; and (2) is supplemented by a
cross-reference section identifying requirements listed in part 112 to
the equivalent requirements in the other prevention plan.  Partial use
of other equivalent prevention plans is also acceptable, if the plan is
supplemented by elements that meet the remainder of the EPA requirements
contained in part 112. 

Editorial suggestion - compliance.  We agree that the Plan does not
document compliance, but merely spill prevention measures and have
deleted the sentence noting that the Plan documents compliance with the
rules.  Compliance is determined by comparing the contents of the Plan
with the regulations.

Integrated Contingency Plans (ICPs).  If an owner or operator uses the
ICP format, total or partial integration of other Plans is acceptable,
at the owner’s or operator’s option.   We never said that use of the
ICP would reduce the information collection burden, but that it would
simplify compliance with multiple applicable statutes and rules.  The
Professional Engineer (PE) must certify the SPCC portion of the ICP.  PE
certification of other parts of the ICP is only necessary if required by
some other authority. 

Response Plan.  We disagree that the proposed definition constitutes a
“response plan.”  The definition results in no substantive changes
in response planning requirements.

State plans.  We do not maintain a list of States with oil discharge
prevention programs.  It is the responsibility of the owner or operator
to inform himself of State requirements.  However, the Office of
Underground Storage Tanks maintains a list of States with programs
approved pursuant to 40 CFR part 281. 

Tank manufacturers.  We decline to make the requested change because the
owner or operator of the facility, not the tank manufacturer, is
responsible for the preparation and implementation of a Plan.

Written plans.  We agree that a “written” Plan might also include
texts, graphs, charts, maps, photos, and tables, on whatever media,
including floppy disk, CD, hard drive, and tape storage, that allows the
document to be easily accessed, comprehended, distributed, viewed,
updated, and printed.  Whatever medium you use, however, must be readily
accessible to response personnel in an emergency.  If it is produced in
a medium that is not readily accessible in an emergency, it must be also
available in a medium that is.  For example, a Plan might be
electronically produced, but computers fail and may not be operable in
an emergency.  For an electronic Plan, therefore, a backup copy must be
readily available in another medium.  At least one version of the Plan
should be written in English so that it will be readily understood by an
EPA inspector.    

6.  Information Submitted After Certain Discharges tc \l1 "6. 
Information Submitted After Certain Discharges  - §112.4(a)

Background:  In 1991, we proposed to require more information than is
currently required in the rule for reporting certain discharges.  If
your facility discharged more than 1,000 gallons in a discharge as
described in §112.1(b), or discharged oil in quantities that may be
harmful in more than two discharges as described in §112.1(b) within
any consecutive twelve month period, you would have been required to
submit certain information to the Regional Administrator.  

In 1993, we proposed a modification to §112.4(d)(1) which would allow
the Regional Administrator to require the submission of the listed
information in §112.4(a)(1) at any time, whether or not there had been
a discharge as described in §112.1(b). 

In 1997, we proposed a reduction of the amount of information currently
required by §112.4(a).  We proposed to eliminate the following
information, unless the Regional Administrator specifically requested
it: (1) the date and year of initial facility operation; (2) maximum
storage or handling capacity of the facility and normal daily
throughput; and, (3) a complete copy of the SPCC Plan with any
amendments.

Comments:   Support for proposal.  (10, 14, 23, 30, 34, 37, 41, 42, 43,
52, 55, 57, 58, 67, 71, 80, 82, 84, L1, L5)  “In the case of the first
two items, the agency may already have this data, which is useless for
responding to the environmental threat.  In the case of the SPCC plan
submittal, this action will reduce the amount of paperwork that the
agency may try to plow through in the initial phase of containment or
cleanup.  The relevant data of the SPCC is required to be sent to EPA
separately so there is no need to duplicate this information by sending
the SPCC plan.”  (42)  “The reporting requirements that EPA has
proposed to eliminate are not necessary as part of a post-spill report
to accurately assess the spill, In addition, ...the Regional
Administrator has authority to request additional information pertinent
to a spill event, as needed, and so retains authority to access the
information which USEPA is proposing for elimination from the rules.” 
(43)  “...(M)uch of the information required in reporting a release
according to the SPCC guidelines is not necessary.  Insignificant items
such as date and year of initial operation, and daily throughputs
provide little help in analyzing a spill event and may delay facility
response time.  We agree that it should be left to the regulators
discretion whether they need to see an SPCC plan with an amendment after
a release.”  (56)

Opposition to proposal.  

Duplicative information.  We should  “...take a more significant step
to eliminate the paperwork burden by deleting this duplicative reporting
requirement in its entirety.  Spill reports must be made for these same
spills under various other EPA programs, such as the Clean Water Act and
the Emergency Planning and Community Right-to-Know-Act.  If burden
reduction without diminishing environmental protection is the goal, the
deletion of the spill reporting requirement will provide the regulated
community with a substantial measure of relief.”   (31)  “... (T)he
regulations should not require persons to review their SPCC plan and
report (to the state and EPA) after any two spills to navigable water in
a 12-month time frame.  This requirement entails production of much
paper (flow diagrams, topographical maps, failure analyses, descriptions
of corrective action measures, repairs, and additional preventive
measures, and a complete copy of the SPCC plan) and is in two senses
duplicative.  First, spill reports must be made for these same spills
under various other EPA programs, such as the Clean Water Act and
Emergency Planning Community Right to Know Act.  Second, EPA often
already has some of these documents (e.g. the SPCC plan).  Further, even
if EPA drops the 12-month requirement, the agency will still receive
information under the SPCC program of significant releases (releases
over 1000 gallons).”  (65) 

Entire Plan needed.  “Elimination of the need to submit a copy of the
SPCC Plan after a substantial release is, with all due respect, just
plain stupid.  How could the EPA possibly evaluate the REAL cause of a
spill if you do not have the most vital piece of information? This is
silly.  At least require that they certify that they have a SPCC Plan;
that they were, or were not, in full compliance with the Plan at the
time of the release; and the name of the certifying engineer.”  (40)

Little consequence.  “These post-60 day spill reports to Regional
Administrators do not appear to have been done in the past.  A query in
the past to Regional Offices was unable to ascertain where such reports
should be sent.  Increased staffing of Regional Offices since then may
have made such reporting useful.  In any case, the reduced reporting is
acceptable although of little consequence.”  (7)

Proposal a “sham.”  “The proposed rule provides for the Regional
Administrator [RA] to request the three items for elimination.  Based on
long experience with the Agency, we know the RA will request the data. 
Accordingly, the proposal is a sham.  Recommendation:  Do not modify the
current SPCC plan rule.”  (8)

Calculation of time for discharge reports required by §112.4(a).  

“Block” basis.  Support for block basis.  (21, 31, 70, 76).  Urges
that ”...(T)he reporting provision be revised to specify the block
count.  Notification must still be provided to the National Response
Center (NRC) for all spill events.  The use of a ‘block’ basis
reduces the reporting burden without compromising EPA's ability to
obtain timely information.”  (21)  “EPA's intent in the current
rulemaking to clarify the standards and reduce the regulatory burden
without adversely affecting human health or the environment would be
further implemented if EPA makes clear that the oil spill reporting
requirement specified in section 112.4(a) is based on consecutive annual
periods, rather than a rolling basis...The use of the “block” basis
reduces the reporting burden without compromising EPA’s receipt of
timely information.  All spill events, whenever they occur, still must
be reported to the NRC and the use of “block” reporting avoids
needless duplication.  (31)    

Discharge threshold - each discharge.  

25 gallons - each discharge, offsite category.   Urges  “(S)etting a
25-gallon threshold for the multiple spill reporting requirement; Create
an ‘off-site report’ category (in which off-site reports would not
count towards the two-spills quota; Relax the reporting requirements for
very minor releases of petroleum products to storm drains, or other
man-made structures; Implement a retraction feature if the sheen
dissipates within 24 hours.”  (65)

42 gallons - each discharge.  Written reports should only be required if
the spills exceed an aggregate volume of 42 gallons.  (60, 70, 76) 
“We have had several occasions where our power plants released very
small amounts of oil, less than one pint, twice within 12 months which
initiated the written reporting requirement.  In no case has the reason
for the spills been a recurring problem with a storage system, but
normally a release of a small amount of oil from a lube pipe leak, oil
level sight glass crack, etc.  Since the volume of a single spill which
triggers the reporting requirement indicates that mainly large spills
are of concern to the agency, these small spills create a reporting
burden on the regulated community and a monitoring burden on the Agency.
 While we continue to support the verbal reporting of all spills to
navigable water to the National Response Center and the applicable state
and local authorities, the provision to provide written follow-up when
the aggregate volume of the two spills is very small is unnecessary.  We
propose that written follow-up be provided when the aggregate volume of
two spills within a twelve month period exceeds 1 barrel (42 gallons).
“ (60)

Discharge threshold - 1,000 gallon discharges.

  

55 gallons.   “...(A)ny discharge in excess of 55 gallons [should] be
considered a reportable incident. This will create a database which
accurately reflects the cause of the discharge, the corrective action,
and any liabilities or need for ongoing supervision. To suggest to the
fuel storage owner/operator community that thresholds are being raised
to exempt current carelessness will, most probably result in an
interpretation that the Agency does not have concerns for discharges of
less than 1,000 gallons!   As most surveys have demonstrated over 90% of
discharges are less than 1,000 gallons.”    (73)

Maps, flow diagrams, and charts.  Opposes mandatory submission of maps,
flow diagrams and charts.  (31, 60, 70, 76)   “(T)his information will
be of no additional benefit to the Agency.  The majority of spills which
have been reported by AEP are normally less than one (1) gallon and in
most cases less than one (1) pint.  Submitting maps, diagrams and charts
adds bulk to the report without added substance.  We recommend that the
owner or operator have the option to submit the maps, diagrams and
charts as needed to completely describe the spill or actions taken.” 
(60)

Response:  Support for proposal.   We appreciate commenter support. 

Additional information.  If the Regional Administrator requires other
information, for example, concerning the spill pathway, or any response
measures taken, this request is authorized under renumbered
§112.4(a)(9), current §112.4(a)(11).

Adjoining shorelines, natural resources, affected natural resources. 
Discharges into navigable waters are not the only discharges reportable
for purposes of this section.  We note that any discharge as described
in §112.1(b) is also within the scope of this section’s reportable
discharges.

Calculation of time for discharge reports required by §112.4(a).  We
believe a “rolling” basis is the appropriate method to calculate a
discharge as described in §112.1(b) for purposes of the rule because
discharges as described in §112.1(b) that are closer in time are more
likely to be related in cause.  Discharges that are more proximate in
time may indicate a problem that needs to be remedied.  A “rolling
basis” means that each discharge as described in §112.1(b) triggers
the start of a new twelve month period.  For example, if  discharge #1
occurred on January 1, and if discharge #2 occurred on June 2, discharge
#2 would trigger the regulatory submission and would start a new twelve
month period.  If discharge #3 occurred on the following February 3, it
would again trigger a submission, because discharge #3 would be within
12 months of discharge #2.  While the “rolling basis” would trigger
more regulatory submissions than the “block basis,” we believe that
it would enhance environmental protection because it would call
potential problems to the attention of the Regional Administrator
sooner, and allow them to be remedied sooner by a Plan amendment where
necessary.  

“Block” basis.  The other approach would be to use a “block”
period.  Under this type of calculation, each third discharge as
described in §112.1(b) would not trigger a submission if it occurred
within 12 months of discharge #2, but it would start the beginning of a
new 12 month period.  For example, if discharge #1 occurred on January
1, and discharge #2 on June 2, discharge #2 would trigger a submission. 
Discharge #3 on the following February 3 would not trigger a submission,
but would start a new 12 month period.  The principal justification for
block reporting is also that discharges more closely related in time are
more likely to be related.  Our concern with this method is that if the
February 3 discharge (i.e., discharge #3) is within twelve months of
discharge #2, this situation could indicate that there is a problem that
has not been remedied, so the February 3 discharge should trigger a
reporting submission.	

Declaration of compliance.  We also disagree that a declaration of
compliance by the owner or operator is necessary.  In many cases such a
declaration would only be self-serving.  Ultimately, whether a facility
is in compliance with the rule is a determination for the RA to make.

Discharge threshold.  42 gallons.  We agree that a higher threshold of
reporting discharges is justifiable because we believe that only larger
discharges should trigger an EPA obligation to review a facility’s
prevention efforts.  We also agree that a higher threshold should
trigger a facility’s obligation to submit information and possibly
have to take further prevention measures.  Therefore, we have changed
the threshold for reporting after two discharges as described in
§112.1(b).  Under the revised rule, if you are the owner or operator of
a facility subject to this part, you must only submit the required
information when in any twelve month period there have been two
discharges as described in §112.1(b), in each of which more than 42
U.S. gallons, or one barrel, has been discharged.  We adopted the 42
gallon threshold on a commenter’s suggestion.  We believe that a 42
gallon threshold is the appropriate one to trigger a facility’s
information and possibly to have to take further prevention measures. 
When multiple discharges occur at a facility subject to the SPCC
program, such as a generating station, they often involve the discharge
of very small amounts of oil, and these discharges tend to come randomly
from a lube pipe, an oil level sight glass crack, or some other
apparatus, and do not normally indicate a recurring problem with the
container.  Having two or more of these small discharges does not
indicate that the facility’s SPCC Plan requires revision.  The other
reporting threshold of 1,000 gallons in any a single discharge as
described in §112.1(b) remains the same.  Facility owners or operators
must continue to report to the National Response Center discharges of
oil that cause a sheen or are in other ways harmful, as specified in 40
CFR part 110.  See the discussion below under “Sheen” rule.

We disagree that a sheen caused by a discharge as described in
§112.1(b) over the threshold amount that disappears within 24 hours
should not require submission of information.  The discharge itself may
indicate a serious problem at the facility which needs to be corrected. 
The discharge report may give us the information necessary to require
specific correction measures.

Inapplicable information.  If a particular information request is
inapplicable, you may omit it, but must explain why it is inapplicable. 

Information submission at any time.  We agree with the commenter that
the 1993 proposal to give the Regional Administrator authority to
require submission of the requested information in this section at any
time is vague, and have therefore withdrawn that part of the proposal. 
We will only require such information after the discharges specified in
this section. 

Maps, flow diagrams, and charts.  In response to comments which
questioned the usefulness of such information, we have modified the
provision regarding maps, flow diagrams, topographical maps (now
required by paragraph (a)(6) of the current rule) to clarify that only
the information necessary to adequately describe the facility and
discharge, such as maps, flow diagrams, or topographical maps is
necessary - not necessarily all of the information listed in the
paragraph.  To effect this change, we added the words “as necessary”
after “topographical maps.”   “As necessary” means as determined
by the owner or operator, subject to the obligations of this rule,
unless the RA requests more information.  There might be circumstances
in which the owner or operator would submit only a brief description of
the facility or a map, for example, because flow diagrams and
topographical maps were unnecessary to describe the discharge, and would
not help the RA to determine whether any amendment to the Plan was
necessary to prevent future discharges as described in §112.1(b).

Maximum storage or handling capacity.  In 1997, we proposed deletion of
current paragraph (5) (renumbered as paragraph (4) in today’s final
rule), concerning the maximum storage or handling capacity of the
facility and normal daily throughput.  We have reconsidered this
proposal and decided to withdraw it because the referenced information
is necessary information.  We have therefore retained the language in
the rule.  Storage capacity and normal daily throughput are important
indicators of the impact of a potential discharge as described in
§112.1(b).

Off-site category.  There is no necessity for an “off-site” category
of discharges as described in §112.1(b) because only a discharge as
described in §112.1(b) that originates in a facility subject to this
part counts for purposes of §112.4(a). 

“Sheen” rule.  The duty imposed by the CWA to report to the National
Response Center all discharges that may be harmful, further described by
40 CFR 110.3, is unchanged.  Those discharges include discharges that
violate applicable water quality standards; or, cause a film or sheen
upon or discoloration of the surface of the water or adjoining
shorelines or cause a sludge or emulsion to be deposited beneath the
surface of the water or upon adjoining shorelines.

Submission of entire Plan.  CWA section 311(m) provides EPA with the
authority to require an owner or operator of a facility subject to
section 311 to make reports and provide information to carry out the
objectives of section 311; and CWA section 308(a) provides us with
authority to require the owner or operator of any “point source” to
make such reports as the Administrator may reasonably require. 
Therefore, we disagree that submission of the entire Plan is always
necessary when reporting discharges under §112.4(a).  We believe the
information now required to be submitted is adequate to assess the cause
of discharge and the ability of the facility to prevent future
discharges.  If the RA believes that the entire Plan has utility, he can
request it.  However, we disagree that RAs will always require
submission of the Plan, or other information not required, as a matter
of course.  RAs may use their administrative discretion not to require
the submission of a Plan or other additional information.  

7.	Five Year Plan Review and Certification tc \l1 "7.	Five Year Plan
Review and Certification  - §112.5(b)

Background:  Current §112.5(b) requires that an owner or operator of a
facility subject to §112.3(a), (b), or (c) complete a review and
evaluation of the SPCC Plan at least once every three years from the
date the facility becomes SPCC regulated.  At the time of review, the
owner or operator must amend the SPCC plan if more effective control and
prevention technology would significantly reduce the likelihood of a
spill and if the technology has been field-proven at that time.  In
1997, we proposed to extend this review period from at least once every
three years to at least once every five years.  Also in 1997, we
proposed that the owner or operator must certify completion of the
review and evaluation.  The certification would include a signed and
dated statement that indicates that the review has taken place and
whether or not amendment of the Plan is required.  The statement would
be part of the Plan or in a log or an appendix to the Plan.  

Comments:  Support for proposal.  “Reynolds supports changing the
review and evaluation cycle for SPCC Plans from once every three years
to once every five years. Because of the existing requirement to modify
the plan when substantive facility changes occur, the increased 5 year
review will not decrease the accuracy and validity of the plan
information.  In addition, the 5 year cycle is consistent with certain
state review cycles (e.g., Virginia’s Oil Discharge Contingency
Plan).”  (2, 3, 4, 5, 7,14, 17, 21, 22, 23, 26, 27, 28, 29, 30, 32,
34, 37, 38, 42, 43, 45, 46, 48, 49, 51, 52, 55, 57, 58, 59, 65, 66, 67,
68, 70,  74, 76, 79, 80, 82, 84, L1, L5).  

Changes in technology.  “Changes in the regulations or technology are
not so rapid that a 3-year review period is required, especially for
small facilities which have storage capacities of only several thousand
gallons.”  (14)

Cost.  Because his facility required few alterations and is already in
compliance, “the need for a review is minimal at best.”  (4)
“Implementation of the proposed five year review schedule would save
time and money by reducing a facility’s recordkeeping burden.”  (5)

Other amendments.  “...(A)mendments to a facility’s SPCC Plan are
far more likely to be initiated due to changes in facility design,
construction, operation, or maintenance than by periodic evaluation of
the plan; the existing requirement to amend the plan following such
changes, coupled with a periodic review at five year intervals, should
therefore continue to provide adequate protection against discharges.”
 (46)

Reduced recordkeeping.   The proposal would reduce the record keeping
burden for facilities subject to the rule while causing no additional
harm to the environment because the SPCC plans must be amended when a
change in facility design or operation occurs.  (10, 14, 17, 22, 27, 28,
32, 42, 46, 55, 74, 79, L1)  “This action would alleviate an
unnecessary burden for industry while concentrating the agency's efforts
for the most environmental benefit.  In many medium-sized trucking
facilities, one full-time position is required to properly maintain
environmental records, and for that reason we would urge the agency to
finalize this change. “ (42)

Response cycle coordination.  Supports the proposed change because the
five year review cycle could then be coordinated with other permits and
response plans that are also on 5-year review cycles.  (14, 28, 34, 74)
“...(M)any facilities have both SPCC and OPA response plans.  Having a
five-year renewal period for both of these related plans will make
coordination between the plans much easier.  As part of this same
rulemaking, EPA is allowing the preparation of combined SPCC, OPA and/or
state response plans.  Having a consistent renewal period between at
least the SPCC and OPA plans will help this coordination effort.” 
(74)

Tank warranties.  “Most current tank manufacturers warranty their fuel
storage tanks from 1 to 30 years with 20 years being the typical
warranty.  Therefore, the longevity of the warranty should probably be
the determining factor on the frequency of review.  If a site includes a
tank with a one-year warranty, it should be reviewed annually; if a site
includes tanks(s) with a warranty of 30 years, the five-year benchmark
would appear to be a logical frequency.”  (73)

Opposition to proposal.

No benefit to operator.  “...SPCC plans are revised almost yearly
because as production decreases, the properties are sold or combined
with other facilities.  Lengthening the review period is no benefit to
the operator.”  (8)

 

No changes.  Questions “...the benefit to either the environment or
public health to be gained by reviewing the SPCC Plan on any schedule
for facilities where no changes are made, or are anticipated to be made,
to "...facility design, construction, operation or maintenance..." that
might affect its potential to discharge oil.  Suggests that we should
amend the rule to require periodic reviews only when such aforementioned
changes are made.  (2)   Asks us to “...clarify whether the
certification referenced in proposed Section 112.5 (b) addresses the
circumstance in which a Plan is reviewed and evaluated but does not
require revision.  If the Plan is revised, it will be certified by a
Professional Engineer pursuant to Section 112.3 (d) and a separate
certification that the review and evaluation has taken place would be
redundant.  The final rule should avoid redundant certifications.” 
(3)   The proposed certification language is confusing.   (3, 38, 47,
51, 60, 61, 65)

Personnel turnover.  “If the EPA is serious about ensuring, and not
just having something to hit O/O over the head with if there is a spill,
then the time frame for reviews should be shortened, not lengthened. 
Some of these guys aren't even at the same plant for two years or
more.”  (40)

Reduced maintenance.  “...(C)hanging the review period from 3 to 5
years may lower the level of facility ‘maintenance’ of the SPCC
plan.  This is particularly true in the absence of any information about
requirements for a facility to ensure personnel are familiar with
planning goals and proposed response actions and to address personnel
rotations.”  (72)

Completion of review.  

Support for proposal.  (46, 67, 84)  ”...(T)he proposal to require an
owner or operator to certify completion of the review and evaluation in
order to provide written proof that the operator has complied with the
rule.  We believe that prudent operators will document such reviews even
without a specific requirement to do so, since it is difficult to prove
compliance otherwise.”  (46)

Opposition to proposal.   (8, 14, 30, 42, 80, L4, L5).

Negative declarations.  “We recommend that regulations that require
‘negative declarations’ or certifications of non-applicability be
eliminated.  Such certifications are unnecessary record keeping and
their absence from facility files may be considered non-compliance.“ 
(L4)

No environmental benefit. “Our experience with the SPCC sent to the RA
as the result of a spill is the RA staff is overwhelmed by the volume of
work so there is not even an acknowledgment of the plan.  A certificate
sent to the RA will add to the paperwork burden and not improve
environmental protection.  Further, increasing the SPCC burden will
cause small operators to discontinue preparing and updating plans, so
the current working system will deteriorate.”  (8)  Certification
would only “...add another layer of paperwork to the plan that would
do nothing to prevent or clean up contamination.  A quick assessment of
some of our member's practices indicates that the plans are dated as of
each (currently) triennial review and during any updates to the plan
that occur because of physical changes to the facility.  The date
indicates the last time the plan was reviewed for accuracy.  ATA
believes that this practice should suffice instead of a separate
statement.”  (42)  Certification would only add to the recordkeeping
burden and would have no apparent positive effects on the environment. 
(30, 80, L5)

Unnecessary.  Certification is unnecessary because “...the 5-year
review will result in some modification or amendment of the SPCC Plan,
and it will be apparent that a review and evaluation were made. Since
the entire plan must be certified in accordance with 40 CFR 112.3(d), it
is unnecessarily burdensome and redundant to certify the review and
evaluation. The Agency may wish to recommend that a log sheet be added
as an appendix to each plan to document the date of the five-year review
and evaluation and to record the names of the persons responsible for
the review.”  (14)

Copy to RA.   We should consider a requirement for a copy of the
certification to be forwarded to the Regional Administrator.  (84)   We
should not require a copy to the RA.  (67)

PE certification instead.  ”...(C)ertification should not be required
at the owner/operator level (e.g., plant manager).  Environmental
engineers at our facilities review and update SPCC plans on a regular
basis and maintain documentation of the reviews.  GM believes that
certification at this level is sufficient, as the facility-level
engineers are most familiar with the plans and are responsible for
implementation.”  (51)

PE or company staff.  Either company staff or a professional engineer
should be allowed to perform certification.   (3, 47, 61, 65)  
“(S)elf review would be adequate to determine if new features or
changes have appeared in a facility which trigger revision of the
Plan.”   (3)  Requests confirmation to his understanding of the
proposal.    (38)  Requests clarification regarding who is eligible to
sign the proposed certification statement.  Supports the idea that a
responsible individual, other than a Professional Engineer, should be
allowed to certify that a Plan has been reviewed and updated.   (47, 51,
60, 61, 65)

Response:  Support for proposal.  We appreciate commenter support.

Completion of review.  We disagree that documentation of completion of
review has no environmental benefit.  Its benefit lies in the fact that
it shows that someone reviewed the Plan to determine if better
technology would benefit the facility and the Plan is current. 
Documentation of completion of review is necessary whether or not any
amendments are necessary in order to clearly show that the review was
done.  Mere dating of the Plan or of an amendment does not show that you
performed the required review.  Documentation of completion of review is
a function of the owner or operator, whereas certification of any
resulting technical amendment is a function of the PE.  We disagree that
documentation of completion should be forwarded to the Regional
Administrator because it would increase the information collection
burden without an environmental benefit.  It is sufficient that the
review be done.  When the Regional Administrator wishes to verify
completion of review, he may do so during an on-site inspection.

Calculation of time between reviews.  The change in the rule from
three-year to five-year reviews requires some explanation as to when a
review must be conducted.  For example, a facility became subject to the
rule on January 1, 1990.  The first three-year review should have been
conducted by January 1, 1993, the second by January 1, 1996, and the
third by January 1, 1999.   The next review must be conducted by January
1, 2004, due to the rule change.  In other words, an existing facility
must complete the review within 5 years of the date the last review must
have been completed.  A facility becoming operable on or after the
effective date of the rule will begin a five-year cycle at the date it
becomes subject to part 112.

Editorial change.  We have changed the word “certification” to a
requirement to document completion of the review to avoid the legal
effect a certification may have.  The intent of the certification
proposal was merely to show that an owner or operator performed a review
of the Plan every five years.  62 FR 63814, December 2, 1997.  A false
documentation of completion of review of the Plan is a deficiency in the
Plan and may be cited as a violation of these rules.

Five-year review.  We agree that a five-year review period will make
coordination of review of related plans, such as facility response plans
required by part 112, easier.  We disagree that a five-year review
period will lead to reduced maintenance or increased environmental harm.
 Amendment of a Plan will still be necessary when a material change is
made affecting the facility’s potential to discharge oil, perhaps
after certain discharges as required by the RA under §112.4(a), and
perhaps after on-site review of a Plan (see §112.4(d)).  Plus the Plan
must be implemented at all times.  These opportunities ensure that Plans
will be current.  We also disagree that the length of the tank warranty
should be the determining factor for a technological review.  Technology
changes enough within a five-year period to warrant required review
within such time period whether or not other changes occur.  Amendments
other than the five-year review amendments may not be based on the need
to learn of improved technology.  Those amendments might result from
deficiencies in the Plan, on the need to make repairs, or to remedy the
cause of a discharge.

Changes of personnel   Changes of personnel at a facility do not affect
the responsibility to perform the requirements of this section.  

How to document completion of review.  You must add documentation of
completion of review either at the beginning or the end of the Plan, or
maintain such documentation in a log book appended to the Plan or other
appendix to the Plan.  You may document completion in one of two ways. 
If amendment of the Plan is necessary, then you must state as much, and
that review is complete.  This statement is necessary because Plan
amendments may result either from five-year review or from material
changes at the facility affecting its potential for discharge, or from
on-site review of the Plan.  There is no way to know which circumstance
causes the amendment without some explanation.  If no amendments are
necessary, you must document completion of review by merely signing a
statement that you have completed the review and no amendments are
necessary.  You may use the words suggested in the rule to document
completion, or make any similar statement to the same effect.  

Time line for amendment implementation.  We agree with commenters (see
comments on proposed §112.5(a)) that the preparation and implementation
of Plan amendments require more time than proposed.  The same rationale
applies to the preparation and implementation of amendments required due
to five-year reviews.  Therefore, we will require adherence to the time
lines laid down in §112.5(b) for amendments.  Currently, §112.5(b)
requires that Plan amendments be prepared within six months.  It is
silent as to timelines for implementation.  Therefore, we have revised
the rule to clarify that amendments must be implemented as soon as
possible, but within the next six months.  This is the current standard
for implementation of certain other amendments.  See, for example,
§§112.3(a) and 112.4(e).  We note that §112.3(f) allows you to
request an extension of time to prepare and implement an amendment. 

Who documents review.  The owner or operator of the facility, or a
person at a  management level with sufficient authority to commit the
necessary resources, must document completion of review.

8.  Use of Business Records  - §§112.7(e), 112.8(c)(3)(iv), and
112.9(b)(1)

Background:  In 1997, we proposed to amend §112.7(e)(8) (redesignated
as §112.7(e) in the final rule) to provide that records of inspections
maintained pursuant to usual and customary business practices would
suffice for purposes of the rule.  We also proposed to amend two
particular sections (current §§112.7(e)(2)(iii)(D) and
112.7(e)(2)(vi).  These written procedures and a record of inspections,
signed by the appropriate supervisor or inspector, must be maintained
for three years.

Section 112.7(e)(2)(vi) of the current rule (redesignated as
§112.8(c)(6) of the final rule) requires periodic integrity testing of
aboveground tanks, taking into account tank design and using such
techniques as hydrostatic testing, visual inspection, or a system of
non-destructive shell thickness testing.  It also requires the
maintenance of comparison records.  In 1997, we proposed to amend
§112.7(e)(2)(vi) to provide that usual and customary business records
would suffice to meet the record keeping requirements of the section.  

Current §112.7(e)(1) authorizes the drainage of rainwater from a diked
area into a storm drain or an effluent discharge that empties into an
open water course, lake, or pond, and bypasses the in-plant treatment
system if four conditions are met (see §112.7(e)(1)(i)-(iv)).  In 1997,
we proposed to amend §112.7(e)(2)(iii)(D) (redesignated in the new rule
as §112.8(c)(3)) to allow the use of records recording stormwater
bypass events kept under a National Pollutant Discharge Elimination
System (NPDES) permit.  In the NPDES regulations, “bypass” is
defined to mean the “intentional diversion of waste streams from any
portion of a treatment facility” (40 CFR 122.41(m)(1)(I)).  

The NPDES regulations set forth conditions that all NPDES permits must
contain (40 CFR 122.21).  One of these “standard conditions” allows
for excusable bypasses under certain conditions (40 CFR
122.41(m)(2)-(4)).  Specifically, 40 CFR 122.41(m)(3) and 40 CFR
122.41(j)(2) require that the NPDES permittee provide notice of the
bypass event and maintain records of all such bypass events for at least
three years from the date of report, respectively.  These NPDES permit
conditions for notification and record keeping serve the same objective
as the SPCC rule requirement in §112.3(c)(3), and the documentation is
therefore acceptable to satisfy the SPCC requirement.

Comments:   Support for proposal.  “Reynolds supports EPA’s proposal
to amend 40 CFR 112.7(e)(8) to allow the use of customary business
records, such as those maintained pursuant to API standards 653 and
2610, to satisfy recordkeeping and inspection requirements.  Reynolds
believes that the Agency has taken a sound approach in proposing
streamlined reporting/recordkeeping requirements for this important
program.”  (10, 14, 17, 21, 28, 37, 42, 55, 56, 57, 60, 76, 80, 82,
84, L1, and L5)   Support for final §112.8(c)(3)). (30, 41, 42, 52, 57,
67, 76, 80, L5)    

Confluence between API standards and CWA requirements.  “Current
regulations require that aboveground tanks be periodically inspected for
signs of damage or deterioration that could cause a spill or leak.  API
Standard 653 is considered the predominant standard for aboveground tank
inspection and API Standard 2610 concerns recordkeeping for inspections
and preventive maintenance.  CWA recordkeeping regulations require much
the same information as the API Standards provide, therefore a company
with records resulting from following the two API Standards already has
the information required under the CWA.”   (42)

Cost, duplication.  The proposed rule would eliminate the need for
facilities to keep duplicate records.  (37, 56, 57, 80, L5)   The
proposal would help larger facilities with both SPCC plan and FRP
obligations or a discharge permit for a wastewater treatment plant. 
(17)  The proposed change would provide some cost savings through the
elimination of redundant inspections.  (21)

  

Opposition to proposal.

API records inapplicable.  “...API standards are not applied to
Exploration and Production [E&P] tanks.  The majority of E&P tanks are
either bolted or welded steel tanks.  Some old fields still use redwood
stave tanks.“ (7)  ”Typically, E&P tanks are 200 to 1000 bbl
capacity.  They can be inspected under API Standard 653, however, that
is not done since in old fields, the cost could not be sustained.  The
economic life of the field would be shortened by at least 3 years. 
Additionally, there is no need to make such a rigorous inspection since
E&P tanks seldom sustain catastrophic failures.  Most oil spills from
E&P tanks are the result of storm damage or human error.  Spending
precious funds on wasteful inspections simply deprives the public of
domestic fuel and adds to the quantity transported by ship (which are
much more prone to spills).”  (8)   API Standards 653, 2610, 620 and
650 are  “...voluntary standards and many of the records discussed
concerning those standards are not commonly kept by smaller oil and gas
companies.  To remedy this problem, we suggest that those requirements
be changed to include the phrase, ‘when available’.” (26)

No consequence.  “I am aware of no requirement in Missouri nor of any
industry in Missouri which reports discharge of stormwaters from
secondary containment enclosure.  This provision, therefore, is of no
consequence in Missouri.”  (7)   

Redundancy.  “GLCC appreciates EPA recognizing the redundancy of the
SPCC requirements with current NPDES requirements.”  (56)

Form of records.  

API and other voluntary standards.  “...(A) note or comment should
follow 40 CFR §112.7(e)(8) stating that usual and customary business
records may include those maintained pursuant to appropriate API and/or
other voluntary consensus standards. The inclusion of such guidance will
make it easier, in years to come, for regulated entities to understand
the intent of the Agency with respect to the recordkeeping requirements
without the need to locate a copy of this Federal Register notice.  Ash
Grove also believes that the placement of such guidance in the rule
itself will better meet the apparent intent of the National Technology
Transfer Advancement Act (as described on page 63818 of the Proposed
Rule), whether or not the Act applies in this instance.”  (15)

NPDES records.  We should allow the use of records maintained pursuant
to NPDES permits to suffice for the requirements in §112.7(e)(8).  (4,
21, 30, 42, 56, 57, 67, 80, L5)

RCRA/SPCC confluence.  “(C)omparison of the requirements under
sections 112 and (40 CFR) 264/265 indicate that there is little
difference between the requirements of these sections.”  (81)

UL Standards.  Re integrity testing  “Therefore, the methods of
testing can be easily determined by referencing the method used by
Underwriters Laboratories to validate both the primary and secondary
containments of each assembly. The use of: pneumatic (pressure),
hydrostatic, vacuum, sonar, tracer gas, any combination of two of the
aforementioned methodologies or another method as determined by either
the listing authority or authority-having jurisdiction will be
considered acceptable for purposes of this section.” (73)

“...In addition to the aforementioned Standards, please accept those
standards for the storage of Flammable and Combustible Liquids developed
by Underwriters Laboratories, Inc. (UL) and Underwriters Laboratories of
Canada.  These will include standards for construction, design,
performance, testing, maintenance and all facets of storage of materials
in accordance with the Oil Pollution Act, including UL Standard 142  for
Bare Steel Aboveground Tanks, UL Subject 2080 for Fire-Resistant Tanks,
UL Standard 2085 for Protected Aboveground Storage Tanks and UL Subject
2245 for At/Below-Grade Aboveground Storage Tanks (Vaults).  The Agency
could easily canvass this proposal by participating in the UL IAG forum
previously mentioned.  Please note that inclusion of these Standards and
Subjects will include the use of an auditing mechanism that might
conceivably reduce the information-collection burden/historical
difficulties for the Agency.”  (73)

”In addition, a new controversy relative to the merits of a UL
Subject 2244, Systems Listing wherein both the storage tank and all its
accessories are evaluated and certified in the form of a listing label
would appear to be logically worth consideration by the US EPA.  While
regulatory authorities traditionally support the Systems Listing and
Industry opposes the Systems Listing, perhaps the involvement of US EPA
can Provide a significant input to resolving this new factor in
evaluating fuel storage.”  (73)

Use optional.  “As long as the tanks and secondary containments are
inspected and maintained, the format used to document these events is
not important.  Utilizing an existing document, such a departmental
maintenance log would be more than adequate to demonstrate that the
facility has compiled with the regulatory obligations.  Furthermore,
using an established plant procedure will be less confusing for the
individuals involved and more readily retrievable when requested.” 
(38)    ”...(I)t should be clarified that facilities are not required
to use the API Standards listed in the preamble.  Facilities should be
allowed to continue to use a format specifically designed for
documenting SPCC requirements.”  (51)

FRP record retention period.  “Since the record retention provision
pertaining to Facility Response Plans (FRP) is contained in the model
included in Appendix F (Section 1. 8. 1) and not in Section 112.20
itself, it is not clear whether the five year reference is a guideline
or a requirement.  Even assuming that the five year reference is a
requirement, it is unclear as to why FRP records should be retained for
a period two years longer than the SPCC records.  Retention of
inspection records allows EPA to review a facility's past records.  As
such, this retention period should not be a function of the size of the
facility.  The same retention period should apply to all facilities. 
TVA, therefore, recommends that the proposed rule clarify whether the
records retention requirement is intended to apply to records generated
as a result of inspections required in FRPs.  If so, a three year
retention period should apply to those records generated as a result of
facility self-inspections specified in Section 1.8.1 of Appendix F.” 
(21)

Maintenance with Plan.  Criticizes the provision that records must be
made a part of the Plan as burdensome and no benefit to the environment.
 (14, 21, 27, 35, 41, 52, 58, 61, 70, 84)   “PM records are much
better kept in a special PM notebook, which is often equipment-
specific.  It would be awkward and administratively burdensome for a
facility, particularly a small facility, to either file the PM report in
the SPCC Plan or to reproduce the PM report and physically insert it
into the SPCC Plan.  It would be far better to simply include in the
SPCC Plan a reference to the fact that PM inspections are performed,
that they are usual and customary, and include the location of the
completed records (e.g., maintenance supervisor's office).  This issue
is particularly critical for records demonstrating compliance with
employee training requirements at 40 CFR 112.7(e)(10).  The best
location for such records is in the employee personnel files, not an
SPCC Plan.”  (14)

NPDES rules.  Seeks clarification on proposed “adoption by
reference” of NPDES rules.   (23, 29, 31, 43, 47, 60, 61, 70, 83)

No SPCC regulation - NPDES instead.  “AFIA believes an exception
should be created for reporting and recording dike bypasses of
112.7(e)(2)(iii)(D) relating to animal and vegetable oil storage,
requiring such reporting and recording only if required by NPDES
stormwater permits.”  (23)   

No NPDES requirements either.  “Release of uncontaminated rainwater
from containment areas should not be subject to monitoring and
notification requirements of the NPDES program.”  (29)

NPDES rules sometimes inapplicable.   “...(T)he NPDES regulations
contain requirements which should not apply to SPCC facilities,
including the condition that the permittee must provide notice of a
bypass event.”  (43)

Receipt and understanding.  “...(A)s a matter of usual and customary
business records that the owner/operator of the SPCC Plan/FRP site be
required to sign a document acknowledging receipt and understanding of
the appropriate plan.  This would indicate that the site had been
properly reviewed, the owner/operator informed and that the liability to
maintain and supervise the site had been specifically acknowledged.  No
cause should be promoted that an SPCC Plan is certified, forwarded to
the site and placed on a shelf without review or acknowledgment.” 
(73)

 

Requirement or recommendation.  “EPA should clarify in the final rule
that references in the preamble to requirements for periodic integrity
testing of aboveground tanks and inspections are only voluntary
recommendations in the current regulation and are not required.  EPA
erroneously refers to periodic integrity testing of aboveground tanks
and inspections as required activities (see page 63815, middle column
under the heading "40 CFR 112.7(e)(2)(vi) and page 63815, right column
under the heading "40 CFR 112.7(e)(8)).”  (47, 61, 74)

States.  “If the states maintain the regulation as it currently
stands, it will only negate the Agency's current efforts in these
proposed revisions to the requirement.  The Company is concerned about
the regulatory burden this may create if each state maintains the
current regulation, or makes the decision to develop more stringent
regulations.”  (48)

Usual and customary business records.   Requests clarification regarding
the definition of “usual and customary business records” as written
in the proposed rule. (14, 15, 38, 51, 81)  

Response:  Support for proposal.   We appreciate commenter support.	

Applicability - §112.8(c)(3).  This paragraph applies to discharges of
rainwater from diked areas that may contain any type of oil, including
animal fats and vegetable oils.  The only purpose of this paragraph is
to offer a recordkeeping option so that you do not have to create a
duplicate set of records for SPCC purposes, when adequate records
created for NPDES purposes already exist.

Applicability - §112.9(b)(1).  We believe that this requirement must be
applicable to both large and small facilities to help prevent discharges
as described in §112.1(b).  The risk of such a discharge and the
accompanying environmental damage may be devastating whether it comes
from a large or small facility.  We disagree that the recordkeeping is
burdensome.  If you are an NPDES permittee, you may use the stormwater
drainage records required pursuant to 40 CFR 122.41(j)(2) and
122.41(m)(3) for SPCC purposes, thereby reducing the recordkeeping
burden.

Discharge records necessary - §112.8(c)(3).  Only records of discharges
“that may be harmful” as described in 40 CFR part 110 are required. 
A discharge “that may be harmful” includes a discharge that violates
applicable water quality standards, or which causes a film or sheen upon
or discoloration of the surface of the water or adjoining shorelines or
which causes a sludge or emulsion to be deposited beneath the surface of
the water or upon adjoining shorelines.

Engineering methods -  §112.9(b)(1).  “Equivalent” measures
referenced in the rule might, depending on good engineering practice,
include using structures such as stand pipes designed to handle
flow-through conditions at water flood oil production operations, where
large volumes of water may be directed to oil storage tanks if water
discharge lines on oil-water separators become plugged.   Any alternate
measures must provide environmental protection equivalent to the rule
requirement.

Form of records.  Records of inspections and tests required by this rule
may be maintained in electronic or any other format which is readily
accessible to the facility and to EPA personnel.  Usual and customary
business records may be those ordinarily used in the industry, including
those made under API standards, Underwriters’ Laboratories standards,
NPDES permits, a facility’s QS-9000 or ISO-14000 system, or any other
format acceptable to the Regional Administrator.  If you choose to use
records associated with compliance with industry standards, such as
Underwriters’ Laboratories standards, you must closely review the
inspection, testing, and record keeping requirements of this rule to
ensure that any records kept in accordance with industry standards meets
the intent of the rule.  Some standards have limited record keeping
requirements and may only address a particular aspect of container
fabrication, installation, inspection, and operation and maintenance. 
The intent of the rule is that you will not have to maintain duplicate
sets of records when one set has already been prepared under industry or
regulatory purposes that also fully suffices for SPCC purposes.  The use
of these alternative record formats is optional; you are not required to
use them, but you may use them.

FRP record retention period.  We recognize that the record retention
periods will differ under the revised rule for SPCC facilities as
opposed to response facilities.  We may consider a uniform record
retention period in the future for all types of facilities.

Maintenance with Plan.  We agree with commenters that it is not
necessary to maintain records as part of the Plan.  Therefore, today’s
rule allows “keeping” of the records “with” the Plan, but not as
part of it.  In the current rule, such records “should be made part of
the SPCC Plan....”   40 CFR 112.7(e)(8).  Because you continually
update these records, this change will eliminate the need to amend your
Plan each time you remove old records and add new ones.  You still
retain the option of making these records a part of the Plan if you
choose.

NPDES rules.  We are not adopting the NPDES rules for SPCC purposes, but
are only offering an alternative for recordkeeping.  The intent of the
rule is that you may, if you choose,  use the NPDES stormwater discharge
records in lieu of records specifically created for SPCC purposes.  We
are not incorporating the NPDES requirements into our rules by
reference.  

Receipt and understanding.  The owner or operator of a facility already
is responsible for Plan preparation and implementation.  The Plan must
have the full approval of management at a level of authority to commit
the necessary resources.  Such approval must be documented in the Plan
by signature of the owner or operator.

 

Records required.  The rule permits use of usual and customary business
records, and covers all of the inspections and tests required by this
part as well as any ancillary records.  “Inspections and tests”
include not only inspections and tests, but schedules, evaluations,
examinations, descriptions, and similar activities required by this
part.  After publication of this rule, we will list all of the
inspections and tests required by part 112 on our website
(www.epa.gov/oilspill).  The applicability of each inspection and test
will depend on the exercise of good engineering practice, because not
every one will be applicable to every facility.

Requirement or recommendation.   We have always interpreted and enforced
our rules as mandatory requirements.

 

States.   Both the States and EPA have authority to regulate containers
storing or using oil.  Some States have exercised that authority while
others have not.  We do not preempt State rules, and defer to State law
that is more stringent than part 112.

Time period.  We agree with commenters that maintenance of records for
three years is sufficient for SPCC purposes, since that period will
allow for meaningful comparisons of inspections and tests taken.  We
note, however, that certain industry standards, for example API
Standards 570 and 653, may specify record maintenance for more than
three years. 

Usual and customary business records.  Usual and customary business
records are those records normally used in commerce.

9.  Capacity of Facilities Storing Process Water/Wastewater for
Response Plan Purposes tc \l1 "9.  Capacity of Facilities Storing
Process Water/Wastewater for Response Plan Purposes  - proposed
§112.20(f)(4)

Background:  In 1997, we proposed to add a new paragraph to §112.20(f)
to provide a method for facility response plan purposes to calculate the
oil storage capacity of storage containers storing a mixture of process
water/wastewater with 10% or less of oil.  This proposal for certain
systems that treat process water/wastewater would be applicable at
certain facilities required to prepare a facility response plan.  It
would have no effect on facilities required to prepare response plans
because they transfer oil over water and have a total oil storage
capacity greater than or equal to 42,000 gallons.  Likewise, the
proposal would have no effect on the method of calculating capacity for
purposes of SPCC Plans.  Under the proposal, we would not count the
entire capacity of process water/wastewater containers with 10% or less
of oil in the capacity calculation to determine whether a facility must
prepare a facility response plan.  We only would count the oil portion
of that process water/wastewater contained in §112.20(f)(2), and
therefore response planning is not necessary.

Today, we are withdrawing the proposal because it is no longer
necessary.  It is unnecessary because we have exempted from part 112 any
facility or part thereof (except at oil production, oil recovery, and
oil recycling facilities) used exclusively for wastewater treatment and
not to satisfy any requirement of part 112.  See the discussion under
§112.1(d)(6).  The exemption in §112.1(d)(6) applies to the types of
facilities treating wastewater that would have been allowed to calculate
a reduced storage capacity if the percentage of oil in the mixture were
10 percent or less.

10.	Facility Response Plan Format tc \l1 "10.	Facility Response Plan
Format  - §112.20(h)

Background:  In 1997, we proposed to amend the requirements for
formatting of a facility response plan to clarify that an Integrated
Contingency Plan (ICP) or other plan format acceptable to the Regional
Administrator is allowable to serve as a facility response plan if it
meets all facility response plan requirements.  Our intent was to track
language in the SPCC rule allowing the Regional Administrator similar
authority to accept differing formats for SPCC Plans.  However, the
Regional Administrator already has the authority to accept differing
formats for response plans, and the existing facility response plan
requirements already provide for cross-referencing.  See §112.20(h). 
Therefore, new rule language was unnecessary, and the proposal tracked
current language.  Today, we have made only a minor editorial change in
rule language.

Comments:   Support for proposal.  “Similarly we support the
Agency’s proposal to allow the ICP as an FRP.”  (14, 41, 45, 47, 51,
56, 58, 61, 73).  

Any format.   Any equivalent format, not just the ICP format, should be
an acceptable format for a FRP  “...so long as the alternative format
meets all regulatory requirements and includes an appropriate
cross-reference.“  (14, 41, 47, 51, 58, 61)

ICP format beneficial.  This inclusion would simplify compliance with
the FRP rules because it would “consolidate plans and eliminate
duplication.”   (41)  “...(P)reparation and use of an ICP or other
format would not reduce the information collection burden of the FRP
rule, but would simplify compliance with multiple applicable statutes
and rules.”  (45)   Supports “...EPA’s intent for a FRP that is
equivalent to the existing requirements without requiring approval from
the EPA Regional Administrator.”   (47, 58, 61)   The use of the ICP
as an acceptable format for a FRP would reduce the burden on industry
while maintaining the same level of environmental protection.  (65)

No change.  The proposed rule language did not include any changes. 
(14, 21, 41, 47, 58, 61)

Acceptable formats.  “Because of earlier jurisdictional
interpretations by EPA regional offices, EPA should clarify that the use
of such an equivalent format for the SPCC Plan or FRP does not require
the approval of the EPA Regional Administrator.”  (47, 52, 58, 61)

Editorial suggestion.  “A response plan shall follow the format of the
model facility-specific response plan included in Appendix F to this
part, unless (i) an equivalent response plan has been prepared to meet
state or other Federal requirements, or (ii) an ICP has been prepared in
accordance with the notice published at 61 Fed. Reg. 28642, June 5,
1996.”  (21)

PE certification.   Suggests revised second sentence in 40 CFR 112.3(d)
to allow a PE “to more easily certify the SPCC portion of an
Integrated Contingency Plan (ICP).”  With these changes an ICP will
now “...discuss the preventive structures such as tanks, berms,
containments, and process systems of the SPCC plan, which a PE can
easily review, quantify, and certify in accordance with their license,
as well as the imprecise response theory for oil and hazardous materials
releases, fire fighting and other emergency plans which are not within
the scope of a PE certification.”  (63)  “As previously submitted
relative to SPCC Plans, SPC Corp suggests that Facility Response Plans
may be prepared by qualified individuals such as tank/equipment
representatives, licensed technicians, personnel with significant
experience in composition of SPCC and/or FRP Plans who submit their
draft plans to independent PE’s for certification in order to reduce
the financial burden to the owner/operator.  The existing interpretation
often requires a PE to physically inspect the site to the extent that
certification fees can outweigh the purchase price of innovative and
safe onsite equipment.  Certainly the Agency does not want to see these
“soft costs” discourage the implementation of a secure and safe
sight.”  (73)

Response:   Acceptable formats.  It is not necessary for the rule to
mention the ICP or any other format specifically because the rule
already allows the Regional Administrator flexibility to accept any
format that meets all Federal requirements.  Any format that contains
all the required elements of a response plan would be presumptively
acceptable.  See §112.20(h).  You may use the ICP, a State response
plan, or other format acceptable to the Regional Administrator, at your
option.  We do not require use of any alternative format, but merely
give you the option to do so.  

Editorial suggestion.  We added the words “acceptable to the Regional
Administrator” in the first sentence after the words “response
plan.”

No change.  The commenters are correct that the proposed rule is
identical to the current rule.  The current rule allows the submission
of an “equivalent response plan that has been prepared to meet State
or other Federal requirements.” 

Partially acceptable formats.  You have the option to integrate any or
all parts of an ICP with your response plan.  This gives you flexibility
in formatting.  Similar to SPCC Plans, the Regional Administrator may
accept partial use of alternative formats.

PE certification.  PE certification is only required for the SPCC
portion of any ICP.

11.	Supporting Analyses tc \l1 "11.	Supporting Analyses 

Background:   For the 1997 proposed rule, we performed supporting
regulatory analyses in accordance with Executive Order 12866, the
Regulatory Flexibility Act, the Paperwork Reduction Act, the Edible Oil
Regulatory Reform Act, the Unfunded Mandates Reform Act, and the
National Technology Transfer and Advancement Act.

Comments:  Costs.  Operates and maintains numerous aboveground storage
tanks, of which  “...approximately 20% have a storage capacity greater
than 660 gallons, but less than 1,320 gallons.  The majority of U S WEST
facilities only contain one AST at any particular site.  When these
tanks are constructed, they often remain intact for many years without a
construction disturbance or a need of any repair.  The average cost to
the Company to develop an SPCC plan for these tanks has been
approximately $2,500.  U S WEST corporate policy also makes responsible
environmental management a company priority.  In doing so, the Company
frequently inspects all tanks during operations reviews and audits.” 
(48)

Small facilities.  Costs do not vary significantly by size of facility. 
(31)  Questions the impact of the proposed rules on small entities.  
(7, 52)   We certified that the October 22, 1991 and the December 2,
1997 proposed rulemakings would not have a significant adverse impact on
a substantial number of small entities and that no regulatory
flexibility analysis was done.  (7)

Disagreements with economic analyses tc \l2 "Disagreements with economic
analyses .

Electrical equipment facilities.  EPA does not intend to regulate
substations because “...EPA has not included substations in its
calculations of burden imposed by SPCC regulations for the 1991, 1996,
as well as the December 19, 1997 submittal to the Office of Management
and Budget.”  (57)   We must recalculate the costs associated with
compliance because we have significantly underestimated the number of
electric utility facilities that would be subject to the rules if their
scope included electrical equipment.  (70)

Information collection - FRP rule.  “(T)he Agency has previously
estimated that it requires approximately 118 hours for facility
personnel in a "large, consumption facility" to comply with the annual
subsequent year reporting and recordkeeping requirements of the FRP rule
after adjusting for compliance with other Federal and State regulations.
 CasChem believes this estimate to be low.  CasChem is not a “large,
consumption facility”.  For CasChem, the FRP development and approval
process has been frustrating.  Over the years the facility has developed
a comprehensive DPCC/SPCC/DCR.BMP Plan to incorporate New
Jersey-specific and federal requirements. The Plan has been developed
and maintained primarily by one environmental engineer with heavy
reliance on outside consulting expertise. Our current FRP is being
revised at this time to improve formatting and to provide more details. 
This effort alone will take more than 118 hours to complete at a cost of
more than $50,000.  We anticipate future annual estimates for FRP
maintenance to require more than 118 hours.”  (84)

Requests for Differentiation.

Electrical equipment facilities.  “The data presented in this report
suggests that it would perhaps be more appropriate to consider mineral
oil dielectric fluids as more akin to food grade oils rather than to
petroleum-based fuels.  This argument is made based on comparisons of
PAH, metals and BTEX concentrations, as well as overall toxic effects
exhibited by the two classes of materials.  Consequently, a release of
dielectric fluid to the environment does not have the same types of
short-term or long-term impacts as less refined fuel-type oils.  This
claim has been substantiated through observations documented during and
after the response action to the August 1993 dielectric fluid release at
Entergy's Roland Road substation near Little Rock, Arkansas--one of the
two incidents alluded to in the introduction to these comments.”  (18)

Requests for Use of Other Sources in Analyses.

Animal fats and vegetable oils.  “It is important for EPA to recognize
animal fats and vegetable oil spills can not reasonably be expected to
cause substantial harm to the environment.  Documented spill records
indicate that animal fats and vegetable oils account for only 0.4
percent of the oil spill incidents in U.S. waters, and only 0.02 percent
of those involved releases of over 1,000 gallons.  EPA must agree the
animal fats and vegetable oils industry not only has an excellent safety
record, but is committed to prevention of oil spills and protecting the
environment.  ...  ...(T)he feed industry, SIC code 2048, is regulated
by EPA's stormwater runoff regulation.  Feed industry facilities already
administer management and engineering controls for the reduction and
prevention of pollutant loading in storm water.  Pollution prevention
plans detail spill prevention, clean up, housekeeping and maintenance
programs to safeguard stormwater becoming loaded with any pollutants
from the grounds of the facility.”  (23)  

Costs - electrical equipment facilities.  Has approximately 3,500
transmission and distribution electrical equipment installations
potentially subject to the 40 CFR Part 112 rule.  “Insofar as cost of
compliance, generation of site-specific oil spill prevention control and
countermeasure (SPCC) plans for these facilities has been estimated to
average $4000 per facility, for a total cost for plan generation of
approximately $14 million.  In addition, imposing the requirement for
secondary containment on Entergy's electrical equipment installations
would require expenditures estimated at $30,000 per installation, for a
total cost in excess of $100 million.  Costs of plan maintenance,
including the current triennial evaluation and possible professional
engineer recertification of the site-specific plans, are uncertain, but
would possibly approach $2 million per year.  In light of the extremely
low spill rates occurring from oil-filled electrical devices at Entergy
facilities; such costs, which would ultimately be shouldered by our
customers, are unjustified.  It should be noted that for the time period
encompassing years 1993 through 1997, oil releases at Entergy electrical
substations totaled seventy incidents.  Discounting spills of less than
one hundred gallons, this number drops to twenty-five.  Of these
releases, two incidents impacted waters of the United States.  These
numbers translate to two occurrences per 17,500 facility-years.“  (18)

Dielectric fluids.  We should  “...consider information contained
within the Electric Power Research lnstitute's Mineral Insulation Oil
Characterization Report.  This document was submitted with the USWAG
comments.  While Entergy is aware of the Agency's recently published
decision document regarding regulation of vegetable oils and animal fats
under the Part 112 rule, this technical information should not be
discounted when evaluating what constitutes a prudent course of action
for addressing releases of mineral oil dielectric fluid.  The EPRI study
provides an in-depth comparison of the chemical/physical characteristics
of mineral oil-based dielectric fluids compared with gasoline and diesel
oil.”  (18)  Our recognition that “...electrical equipment is
fundamentally different from other oil-storage equipment is an important
step in crafting regulations appropriate to this area.”  (65)

Response:  Costs.  We recognize that electrical equipment is not bulk
storage and do not regulate it as such.  However, electrical equipment
remains subject to the general requirements of the rule, including
secondary containment.  If secondary containment is not practicable, you
may instead provide a contingency plan.  The final rule also allows for
equivalent prevention plans, which might include a multi-facility plan,
that will enable certain firms to economize on the preparation of plans
for similar types of facilities.  We are also no longer going to
regulate facilities having a total oil storage capacity of 1,320 gallons
or less, but that have a single aboveground container in excess of 660
gallons.  We will have a regulatory threshold of greater than 1,320
gallons instead.  Nor will we regulate containers smaller than 55
gallons.  Therefore, the compliance burden for the smallest facilities
will end.  In summary, however, we estimate the burden of the rule using
a model facility approach, which differentiates compliance costs by
facility size.  We recognize that some facilities may actually incur
higher costs, while others incur lower costs, than estimated for each
model facility.  We did perform a small business analysis for our 1991
proposed rulemaking, which was included in our economic impact analysis
of the proposed rulemaking (January 1991).  The commenter is correct,
though, that we did not perform a formal regulatory flexibility analysis
for our 1997 proposed rulemaking because the proposed revisions were
deregulatory in nature and posed no significant impact on a substantial
number of small entities.

Electrical equipment facilities.  Substations are included in the scope
of the SPCC rule, and we have included them in our burden calculations
for the final rule.  Our 1996 SPCC renewal ICR adjusted upwards the
burden estimate for utilities for the number of SPCC-regulated
electrical equipment based on similar comments received during that
renewal period.

Information collection - FRP rule.  We acknowledge the final comment
concerning the information collection burden for response facilities,
but it is outside the scope of this final rulemaking because the
proposed revision to §112.20(f) has been withdrawn.  We will consider
your comment in future reviews of the Information Collection Request for
the FRP rule.

Requests for Differentiation.   Because at the present time EPA has not
proposed differentiated requirements for public notice and comment, the
requirements for facilities storing or using all classes of oil will
remain the same.  We have, however, established separate rule sections
for facilities storing animal fats and vegetable oils.  We also have
published an advance notice of proposed rulemaking seeking comments on
how we might differentiate requirements for facilities storing or using
the various classes of oil.  64 FR 17227, April 8, 1999.  After
considering these comments, if there is adequate justification for
differentiation, we will propose a rule.

Requests for Use of Other Sources in Analyses

Dielectric fluids.  We have reviewed the document mentioned.  We will
also consider it in our upcoming proposed rule to consider
differentiated requirements for facilities storing or using different
types of oils.   

12.	Miscellaneous Comments tc \l1 "12.	Miscellaneous Comments 

Applicability.    We should provide guidance to clarify the
applicability of SPCC plan regulations at 40 CFR 112.3(a).  “...(I)n
relation to ‘due to their location, could reasonably be expected to
discharge oil in harmful quantities into navigable waters or adjoining
shore lines.’ What does ‘due to location’ mean? What does
"reasonably expected” mean?”  (L4)

Applicable items.  Section 112.7, “Guidelines for the preparation and
implementation of a Spill Prevention Control and Countermeasure Plan,”
should read as follows:  “The complete SPCC plan shall follow the
sequence outline below, but listing only applicable items, unless it is
in another format acceptable to the Regional Administrator, such as
described in 112.2, and include a discussion of the facility's
conformance with the appropriate guidelines listed.”  “This change
is intended to clarify that SPCC plans are only required to contain a
citation of all 112.7 items that are applicable, rather than list all
non-applicable items too and explain why.  This will simplify SPCC plan
preparation and avoid violation notices about missing non-applicable
items.  (44)

Burden reduction.    “In the supplemental December 1997 proposal, EPA
has done so in certain respects by proposing a few amendments to the
SPCC and OPA rules.  While these efforts are certainly laudatory, they
fail to address the basic problem with the SPCC program, which is the
Agency's attempt to impose a "one-size-fits-all" regulatory program on
facilities that differ by orders of magnitude in size, characteristics,
method of operation, and risk to the environment.”  (31)  “Such
burdens can be reduced a lot more by having the SPCC Plan actually
written as a plan....  Simply put, a Plan should tell someone how to do
something, not how it is being done or what they should consider doing
or what they are not doing!”  (40)  

Certification by other environmental professionals. tc \l2
"Certification by other environmental professionals.   We should accept
other environmental professionals for Plan certification.  (33, 44, 62,
63, 64, 73)   “The Environmental Professional who provides
certification for review of and amendment to the SPCC Plan should be
familiar with 40 CFR 112, the facility, and the facility's operations. 
The DFW Airport Board anticipates that the Environmental Professional
responsible for implementing and maintaining the SWPPP would also be
responsible for implementing and maintaining the SPCC Plan.”  (33)  
“...(I)t is also timely to consider the addition of another
professional group (other than Professional Engineers) to sign-off on
the appropriate documentation.  Specifically, we are proposing the new
provisions state the inclusion of either a Professional Engineer or a
Master-Level Certified Hazardous Materials Manager as authorized
signators.”  The commenter continued to describe the qualifications of
a Master-Level CHMM as well as point out that other Federal agencies,
such as the DOE, DOT, Corps of Engineers and branches of the DOD, that
have recognized the benefits of CHMMs.   (62)   Endorses the eligibility
of other qualified individuals to certify a Plan.   If a facility
“...does not have a registered professional engineer for a particular
state, it must hire one, at some cost, to review the plans prepared by
internal, non-PE staff.  Questar believes that this cost is unnecessary
since good engineering practice, like best management practices in water
pollution control, are not the exclusive province of the engineer. 
Questar further believes that individuals who are familiar with
particular facilities and with the local meteorology, who understand the
operations of the facilities and who are familiar with the requirements
of 40 CFR 112, can (and should) develop spill prevention plans.  The
qualification of the PE, while valuable in many other respects, is
unnecessary for this pursuit.”  (64)   Suggests that the site
preparation of the SPCC plan be expanded to include “...qualified
individuals such as representatives of the tank manufacturer, licensed
technicians, personnel with significant experience in composition of
SPCC or FRP Plans who submit their draft plans to independent PE's for
certification in order to reduce the financial burden to the
owner/operator.  The existing interpretation often requires a PE to
physically inspect the site to the extent that certification fees can
outweigh the purchase price of innovative and safe equipment.  Certainly
the Agency does not want to see these "soft costs" discourage the
implementation of a secure and safe site.”  (73)

Completely buried tanks.  “Update portions dealing with underground
storage tanks as they are now covered by other regulations.”  (40) 
“The EPA includes underground storage tank (UST) capacity in the
applicability section and the bulk storage tank section of the rule. 40
CFR 112, implemented in 1973, is an above ground storage tank (AST) rule
while 40 CFR 280, implemented in 1988, is a UST rule.  The newer 40 CFR
280 rule very clearly establishes UST construction, spill prevention,
and release detection standards which are more detailed and more
stringent than the older SPCC rule.  FPC requests the EPA acknowledge
the replacement of the UST portions of the SPCC rule by 40 CFR 280 by
removing the duplicative and confusing sections of 40 CFR 112,
specifically, 40 CFR 112.1(d)(2)(I), 112.7(e)(2)(iv), and 112.7(e)(2)(v)
should be deleted.”  (63)

“Delegated” States.  We should urge delegated states to change their
corresponding regulations to match our regulations so that the benefits
of the proposed changes in the SPCC plan can be fully realized.  (67)

Endorsed comments.

API.  Supports proposed revisions, refers us to API comments submitted
on the 1997 proposal, which proposed additional revisions in regard to
underground storage tank thresholds.  (24, 50)

USWAG.  Utility Solid Waste Activities Group (USWAG) member endorses the
comments filed on its behalf under separate cover.  (35)   Supports
comments submitted by the USWAG, the Edison Electric Institute, the
American Public Power Association, and the National Rural Electric
Cooperative Association (collectively, “USWAG”), on the subject
proposed rule.  Reiterates support for the USWAG comments previously
submitted on the 1991 and 1993 SPCC proposals (56 Fed. Reg. 54612 and 58
Fed. Reg. 8824, respectively).  (69)

FRP applicability. “For Facility Response Plans, require that the
Plan identify those locations from which a release can be monitored, and
those locations where access to the river can be achieved for the
equipment necessary to contain and to recover a release.  That way the
response people/contractor knows where to go. These locations should be
identified by name, by directions from major streets (so that
information can be conveyed by telephone, by map, and by the ETA after a
release based on no less than three flow conditions (low flow, typical
flow, high-water flow).  I have developed a means to estimate the
center-of-stream flow rate at any point in time.  The width of selected
bridges downstream are measured and a chart prepared giving the flow
rate based on how long it takes an object to float under the bridge.  I
recommend 6-inch pieces of 2 by 4 painted fluorescent orange along with
a large flashlight and a watch with a second hand.”  (40)   Recommends
that 40 CFR 112.20(e), which requires facilities not otherwise subject
to facility response planning regulation to certify non-applicability,
be deleted.   (L4)

Inspection periods.  Asks that  “...this section of the regulatory
text describe in more specific terms the inspection periods to be once a
year.  This will aid in the elimination of collapsed AST’s in 2 or 3
years after the last integrity testing further reducing the threat or
potential of a threat of environmental impact subject to AST’s
collapsing.”  (1)

Integrity testing.  Suggests “1.  A maximum interval for testing of
tanks, etc. needs to be specified, such as not less than 5 years on
tanks 10 years old or older; 2.  It needs to be clarified if the visual
inspection means an internal inspection; and, 3.  It needs to be
clarified if these periodic inspections must be conducted by or under
the direction of a qualified professional engineer (especially when
structural and foundation inspections are a part of the work - that is
engineering work).”  (40)

Loading areas.  Disagrees with the proposed 40 CFR 112.7(h)(2). 
“(V)ery few facilities provide such containment.  Most facilities
depend on continuous attendance during loading/unloading and the use of
drip pans or buckets to prevent spills of any size at the truck or tank
car.  Requiring secondary containments for tank car and tank truck
loading areas is a very costly requirement especially for small
businesses which has very little payback in terms of spill prevention
beyond present practices.”   (7)

Points out two situations where the rule provisions on loading areas
poses a burden on facilities: (1)  An industrial facility has a 1,500
gallon aboveground storage tank for the collection of used oil generated
during equipment maintenance.  A 4,500 gallon single compartment tanker
truck comes three times a year to ship the used oil to a recycler. 
According to U.S. EPA interpretation, the facility would have to provide
4,500 gallons of containment for a bulk tanker truck for an aboveground
tank that is only 1,500 gallons in volume.; and, (2)  An industrial
facility has three 500 gallon tanks to provide diesel fuel at different
locations around the plant.  One 500 gallon tank provides fuel to a
diesel pump that is a back-up system for the plant's fire protection. 
The other two 500 gallon tanks are used to fuel plant vehicles.  Each of
the three tanks is filled approximately once or twice each year from a
4,500 gallon single compartment tanker truck.  According to U.S. EPA
interpretation, the facility would have to provide 4,500 gallons of
containment in three separate locations for three 500 gallon aboveground
tanks.  Installation of containment structures for tanker trucks is
costly, requires significant space, and typically raises issues of
handling collected storm water.  The current rules are burdensome for
these facilities where small volume transfers occur on an infrequent
basis.”  “A requirement for written procedure regarding
loading/unloading operations could be included in the SPCC Plan in lieu
of providing containment for the tanker truck ... Although this method
may create additional paperwork, the overall economic burden to the
facility is significantly reduced, yet a similar level of environmental
protection is provided.”  (12)

 “Clarify 112.7(e)(4) or define "Rack".  Most unloading and many
loading points are not an actual rack but a coupling outside the tank
containment area.  Many SPCC Plans [do] not address the potential of a
spill from such locations.”  (40)  “Also regarding racks, the use of
the largest compartment of the vehicle is reasonable for unloading, but
may fall way short for loading considerations - the potential spill
would be the capacity of the tank.  The containment required for both
instances should be based on the fact that such operations should be
attended and controlled.  The secondary containment should be a function
of flow rates, time to respond, and the fail-safe features of the
response action.”  (40)  Bulk petroleum loading/unloading at trucking
facilities are considered “in transport” and therefore are under
USDOT regulations, not SPCC.  Cities January 6, 1998 publication of the
List of Regulated Substances and Thresholds for Accidental Release
Prevention; Amendments (63 FR 640).  Explains that the volume of spills
from such unloading operations are small, and compliance under SPCC
requirements would involve enormous costs.  (42)  

“...(M)ember cooperatives, in addition to secondary containment for
these tanks, are required to install a containment system in loading and
unloading areas where there is no catchment basin, treatment facility,
or a quick drainage system to handle spills as per 112.7(e)(4)(ii). 
This means a concrete spill pad for company-use tanks such as two-1000
gallon tanks must have the capacity to hold whatever the maximum
capacity of the largest tank truck compartment (typically 600 gallons). 
Small tank sites are required to go through all the steps in developing
a SPCC plan as would a larger petroleum storage facility.  This simply
does not make sense and is highly resented by the smaller operators. 
There needs to be a more simple, less expensive way of doing this for
the small operator.”  (71)

More information.  “Enforce the Rule you've got! I can't drive 40
miles without seeing tanks without secondary containment.  Require the
O/O submit a letter to the EPA stating that they have a SPCC Plan for
each facility over the threshold, and state who is the certifying
engineer.  That list can be checked against registrations of above
ground tanks now required by at least some of the states.  Also, it is
one thing to ignore the rule, another to falsify information.”  (40)  

Oil, definition of.  We should publish a specific definition of oil to
reflect the method of calculating the storage capacity for tanks
containing oil/water mixtures for potential substantial harm facilities.
 Wants a revised definition in order to “...clarify what types of
substances actually qualify as oil under these rules.  The current
definition is broad and ambiguous.  Manufacturing facilities use many
kinds of solvents and machining fluids.  Many are derived from a
petroleum base.  Under the current definition, such solvents as napthas,
hexane, mineral spirits, toluene and xylene could be considered oil. 
General Motors believes that this is not the intent of the SPCC rules,
and that solvents should not be included in the definition of oil.” 
(51)

PE-related issues.  

Mandatory requirements, PEs.  Concerned that elements of the previous
proposed rules for the SPCC Program, such as the 1991 proposed rules,
are “...not consistent with this tenor of conciliation and
flexibility. E.g., making the guidance in 40 CFR 112.7 mandatory and
requiring third party professional engineers for certification is
proceeding in a direction opposite to that which the subject proposed
rule goes and, we emphasize, opposite to that which we should be
going.”  (14)  

PE notification. “Require that the certifying PE be notified when a
reportable spill occurs, when changes are made to the secondary
containment system, when a tank or loading/unloading point is added, or
when a tank is replaced with a larger tank.”  (40)

Secondary containment.  Surprised that the revised proposal did not
address 40 CFR 112.7(c), which requires secondary containment, including
the walls and floor, to be impervious to oil for 72 hours.  The
associated compliance costs for this proposed requirement well exceed
any possible benefit and it would be a detriment.  (32)

Accumulation of storm water.  “Specify what ‘an accumulation of
storm water means’.  The 1991 proposed rule noted the 25-year return,
24-hour duration storm.  This is on the order of 6 to 8 inches of rain
at many facilities in the midwest and southeast.  Many facilities only
have a 12 inch curb and cannot contain more than a 2 or 3 inch rainfall
without their secondary containment being insufficient for the largest
tank.”  (40)

Available secondary containment.  “Specify who is to calculate the
available containment, the plant operator or the certifying engineer. 
Plant operators often do not deduct for the footprint of other tanks
within the containment, or do not allow for precipitation off of roofs
or drainage onto the site.  One client installed a new culvert under
railroad tracks to triple the containment capacity.  The problem was
that the product was asphaltic cement that would have to flow through
any standing water in the pipes and equalize out before over-topping the
first containment area.  Also, the final free-board was only 1 inch.” 
(40)

Double-walled tanks. “ We have recently upgraded the storage tanks at
this facility.  Each of the four (4) buried tanks has been removed. 
Each system was more than 20 years old and represented a potential
source of contamination to the groundwater.  Four new above-ground
double walled storage vaults have been installed with all the extra
bells and whistles: leak detection systems, high and low level alarms,
and overspill protection.  The present situation is much more
environmentally friendly.  The potential for a spill is less today than
ever before.  HOWEVER, according to the proposed rule, the U.S. Army
will now be required to have a "PE certified” spill plan on hand.” 
(L3)

Impermeability.  “EPA should confirm that the term "impervious" to oil
for 72 hours means that the containment system ensures that oil is not
discharged to navigable waters within 72 hours, a determination to be
based on good engineering practice.”   (70)

Impracticability.  “The EPA should modify the proposal to eliminate
elements that are impracticable (i.e., secondary containment for
electrical equipment) or that impose undue costs compared with the
avoided risk (i.e., certification by an independent, rather than
in-house engineer; preparation of an OPA response plan where secondary
containment is impractical).”  (70)

Manmade structures.  “The EPA should modify the risk criteria to
ensure that only facilities that pose a real risk of harm to navigable
waters are covered by the program (i.e., the fact that oil may create a
sheen on the water is not the type of "harm" envisioned by the statute
and regulatory costs should not be imposed to avoid minimal or
theoretical risks; manmade structures that serve operational purposes
should be considered in evaluating the risk posed by a facility).” 
(70)

Secondary containment, changes in.  “Require that the plant operator
sign-off on a memo to the file whenever the capacity of the secondary
containment system is decreased either temporarily or permanently.  The
memo should list contingency plans, temporary containment measures or
mitigating measures (e.g., reduce tank volumes). This happens quite
often when some construction is going on inside the containment -
sometimes even to the point that no significant secondary containment
capacity remains in place.”  (40)

Sufficient freeboard.  “Specify a required freeboard.  Many people
check the capacity but fail to recognize that if the final freeboard is
only 1 or 2 inches then oil may be released.”  (40)

“Should to Shall to Must “Clarification.  “Ford believes that
absent ‘shall’, all ‘should’ language represents agency
preference and possibly, good practice.  There may be other ways to
accomplish the same thing.  Thus, only ‘shalls’ indicate regulatory
requirements and inflexibility.”  (44)  “Although there is some
merit to the agency's legal interpretation of this matter (in
interpreting should to mean shall because of the mandatory language of
112.3) we believe that changing this language to reflect all shalls
throughout the rule is unnecessary.  PNM believes that such a change
would eliminate the needed flexibility that implementation of this rule
demands due to the differences in facility age and design.”  (79)

Tank manufacturer liability.  “... (T)he tank manufacturer remains the
most knowledgeable entity in how his/her tank design complies with all
pertinent UST or AST requirements.  Therefore, failure to inform a
prospective client could naturally result in a subrogated liability
against the tank manufacturer.  Such a movement is already taking place
as demonstrated in the December 7-11, 1997 Uniform Fire Code Hearings in
Tucson, Arizona.”  (73)

Warning lights, etc.  We should reconsider 40 CFR 112.7(h)(2).  (7)

Response:  Applicability.  The issue of whether a facility can due to
its location reasonably be expected to discharge oil in harmful
quantities into navigable waters or adjoining shore lines is in the
first instance a judgment requiring application of good engineering
practice.  See §112.1(b).  If the RA disagrees with the facility’s
determination, he may require the preparation of either a total or
partial plan.  See §112.1(f).  

Applicable items.  For a discussion on applicable items in an SPCC Plan,
see §112.7(a)(2) in the preamble to today’s final rule and the 1991
Comment Response Document.  See also the discussion on good engineering
practice under §112.3(d).

Burden reduction.  We disagree that the rule does not do anything to
reduce the record keeping or the information collection burden.  Burden
is reduced by approximately 40% over the current rule.   We believe that
performance standards, rather than design standards, are preferable,
because they give a facility flexibility to accomplish prevention
requirements in the most efficient way.

Certification by other environmental professionals.   See the discussion
under §112.3(d) in the preamble to today’s final rule and the 1991
Comment Response Document.

Completely buried tanks.  For a discussion on the applicability of the
SPCC rule to completely buried tanks, see the discussion under
§112.1(d)(2)(i) in today’s final rule and the 1991 Comment Response
Document.

“Delegated” States.  We note that we do not delegate our authority
under the SPCC program to States.  For a discussion of State prevention
rules, see §112.7(j) of today’s final rule and the 1991 Comment
Response Document.

FRP applicability.  The issue concerning §112.20(e) is covered in the
Comment Response Document for the 1993 final rule.

Inspection periods.  For a discussion of the merits of prescribed
inspection frequencies or the use of industry standards, see section
IV.J of the preamble to today’s final rule and the 1991 Comment
Response Document.

Integrity testing.  We address integrity testing in the preamble to
today’s final rule and in the 1991 Comment Response Document.  See
§§112.7(d) and 112.8(c)(6).

Loading areas.   For a discussion on loading areas, see §112.7(h) in
today’s final rule and the 1991 Comment Response Document.  See also 
40 CFR part 112, Appendix A, section II.(I).

More information.   We disagree that we should require the owner or
operator to submit a letter to the EPA stating that he has an SPCC Plan
for each facility over the threshold, and stating who is the certifying
engineer.  This information may be ascertained by on-site inspection.

Oil, definition of.  Should you have any question about a specific
substance, you should contact the appropriate Regional SPCC program. 
See also the discussion concerning the definition under §112.2 in the
preamble to today’s final rule and the 1991 Comment Response Document.

PE-related issues.  See the discussion under section IV.D and §112.3(d)
of today’s preamble and the 1991 Comment Response Document.

Mandatory requirements, PEs.  We disagree that we are “going in the
wrong direction” by clarifying that the rules are mandatory.  We note
that we are not requiring a third party PE for certification.  See the
discussion under section IV.D and §112.3(d) of today’s preamble and
the 1991 Comment Response Document.

PE notification.  We address PE-related issues in the preamble to
today’s final rule under section IV.D and §112.3(d) and in the 1991
Comment Response Document.

Secondary containment.  We address secondary containment issues in the
preamble to today’s final rule and in the 1991 Comment Response
Document.  See §§112.7(c), 112.7(h)(1), 112.8(c)(2), 112.8(c)(11),
112.9(c)(2), and 112.10(c).

Accumulation of storm water.  Concerning "sufficient freeboard” see
the discussion under §112.8(c)(2) in today’s final rule and the 1991
Comment Response Document.  

Available secondary containment.   We address secondary containment
issues in the preamble to today’s final rule and in the 1991 Comment
Response Document.  See §§112.7(c), 112.7(h)(1), 112.8(c)(2),
112.8(c)(11), 112.9(c)(2), and 112.10(c).  See also the discussion
concerning the definition of “storage capacity” at §112.2 in the
preamble to today’s final rule and the 1991 Comment Response Document.

Impermeability.  See the discussion under §§112.7(c) and 112.8(c)(2)
in the preamble to today’s final rule and the 1991 Comment Response
Document.

Manmade structures.  See also the discussion under §112.1(d)(1)(i) in
the preamble to today’s final rule and the 1991 Comment Response
Document.

Sufficient freeboard.  Concerning "sufficient freeboard” see the
discussion under §112.8(c)(2) in today’s final rule and the 1991
Comment Response Document. 

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Warning lights, etc.  We address warning lights in the preamble to
today’s final rule and in the 1991 Comment Response Document.  See
§112.7(h)(2).

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