

[Federal Register: December 12, 2005 (Volume 70, Number 237)]
[Proposed Rules]               
[Page 73523-73552]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12de05-27]                         


[[Page 73523]]

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Part III





Environmental Protection Agency





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40 CFR Part 112



Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure 
Plan Requirements--Amendments; Proposed Rule


[[Page 73524]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2005-0001; FRL-8007-2]
RIN 2050-AG23

 
Oil Pollution Prevention; Spill Prevention, Control, and 
Countermeasure Plan Requirements--Amendments

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
today proposing to amend the Spill Prevention, Control, and 
Countermeasure (SPCC) Plan requirements to reduce the regulatory burden 
for certain facilities by: Providing an option that would allow owners/
operators of facilities that store less than 10,000 gallons of oil and 
meet other qualifying criteria to self-certify their SPCC Plans, in 
lieu of review and certification by a Professional Engineer; providing 
an alternative to the secondary containment requirement, without 
requiring a determination of impracticability, for facilities that have 
certain types of oil-filled equipment; defining and providing an 
exemption for motive power containers; and exempting airport mobile 
refuelers from the specifically sized secondary containment 
requirements for bulk storage containers. In addition, the Agency also 
proposes to remove and reserve certain SPCC requirements for animal 
fats and vegetable oils and proposes a separate extension of the 
compliance dates for farms. In proposing these changes, EPA is 
significantly reducing the burden imposed on the regulated community in 
complying with the SPCC requirements, while maintaining protection of 
human health and the environment. Further, the Agency requests comments 
on the potential scope of future rulemaking. In a separate document in 
today's Federal Register, the Agency is proposing to extend the 
compliance dates for all facilities.

DATES: Comments must be received on or before February 10, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2005-0001 by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. Follow the 

on-line instructions for submitting comments.
     Mail: The mailing address of the docket for this 
rulemaking is EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-
2005-0001, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand Delivery: Such deliveries are only accepted during 
the Docket's normal hours of operation, and special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2005-0001. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov. The 

http://www.regulations.gov Web site is an ``anonymous access'' system, which 

means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of the comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. Comments and suggestions regarding the scope of any future 
rulemaking should be clearly differentiated from comments specific to 
today's proposal (e.g., label Suggestions for Future Rulemaking and 
Comments on Current Proposal).
    Docket: All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by a statute. Certain other material, 
such as copyrighted material, will be publicly available only in hard 
copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the EPA 

Docket, EPA/DC, EPA West, Room B102, 1303 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is 202-566-1744, and the telephone 
number to make an appointment to view the docket is 202-566-0276.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
Superfund, TRI, EPCRA, RMP and Oil Information Center at 800-424-9346 
or TDD 800-553-7672 (hearing impaired). In the Washington, DC 
metropolitan area, call 703-412-9810 or TDD 703-412-3323. For more 
detailed information on specific aspects of this proposed rule, contact 
either Vanessa E. Rodriguez at 202-564-7913 
rodriguez.vanessa@epa.gov), or Mark W. Howard at 202-564-1964 
howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC, 20460-0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION: This proposed rule would amend the 
requirements for Spill Prevention, Control, and Countermeasure (SPCC) 
Plans in 40 CFR part 112. First, the proposal would provide an 
alternative option for the owner/operator of a facility that meets 
specific qualifying criteria (hereafter referred to as a ``qualified 
facility'') to self-certify that the facility's SPCC Plan complies with 
40 CFR part 112, in lieu of the requirement for a Professional 
Engineer's (PE) review and certification. Second, the proposal would 
provide an alternative option for the owner/operator of a facility with 
oil-filled operational equipment that meets specific qualifying 
criterion (hereafter referred to as ``qualified oil-filled operational 
equipment'') to establish and document an inspection or monitoring 
program, prepare a contingency plan, and provide a written commitment 
of manpower, equipment and materials in lieu of secondary containment 
for qualified oil-filled operational equipment without being required 
to make an individual impracticability determination. Third, the 
proposal would define and provide an exemption for motive power 
containers. Fourth, the proposal would exempt airport mobile refuelers 
from specifically sized secondary containment requirements for bulk 
storage containers. Fifth, the proposal removes and reserves certain 
SPCC requirements for animal fats and vegetable oils. Finally, the 
proposal provides a separate extension of the compliance dates for 
farms and, in a separate notice in today's Federal Register, the Agency 
is proposing to extend the compliance dates for all facilities. The 
contents of this preamble are:

I. General Information

[[Page 73525]]

II. Entities Potentially Affected by This Proposed Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. Today's Action
    A. Qualified Facilities
    1. Eligibility Criteria
    a. Total Facility Oil Storage Capacity Threshold
    b. Reportable Discharge History
    2. Proposed Requirements for Qualified Facilities
    a. Self-Certification and Plan Amendments
    b. Environmental Equivalence and Impracticability Determinations
    c. SPCC Plan Exceptions
    3. Alternative Options Considered
    a. Extension/Suspension Options
    b. Multi-tiered Structure
    c. One-time Notification
    B. Qualified Oil-filled Operational Equipment
    1. Proposed Oil-Filled Operational Equipment Definition
    2. Eligibility Criteria--Reportable Discharge History
    3. Proposed Requirements for Qualified Oil-Filled Operational 
Equipment In Lieu of Secondary Containment
    a. Contingency Plans and a Written Commitment of Manpower, 
Equipment and Materials
    b. Inspections or Monitoring Program
    4. Alternative Options Considered
    a. Capacity Threshold Qualifier
    b. Multi-Tiered Structure
    c. Extension/Suspension Options
    5. Qualified Facilities and Qualified Oil-Filled Operational 
Equipment Overlap
    C. Motive Power
    1. Definition of Motive Power
    2. Proposed Exemption
    3. Alternative Options Considered
    a. Equipment-Based Motive Power Exemption
    b. Threshold-Based Motive Power Exemption
    c. Exclusion From Storage Capacity Calculation
    D. Airport Mobile Refuelers
    1. Definition of Airport Mobile Refueler
    2. Proposed Amended Requirements
    E. Animal Fats and Vegetable Oils
VI. Proposed Extension of Compliance Dates for Farms
    A. Eligibility Criteria
    B. Proposed Compliance Date Extension for Farms
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

    To reduce regulatory burden for qualified facilities and to address 
several concerns involving oil-filled operational equipment, motive 
power containers, airport mobile refuelers, and provisions specific to 
animal fats and vegetable oils, EPA proposes to amend the SPCC Plan 
requirements in 40 CFR part 112. The Agency also proposes a separate 
extension of the compliance dates for farms. Specifically:
     EPA proposes an alternative option for the owner/operator 
of a qualified facility to self-certify his/her SPCC Plan, prepared in 
accordance with 40 CFR part 112, in lieu of review and certification by 
a Professional Engineer (PE). A qualified facility is a facility 
subject to the SPCC requirements that (1) has a maximum total facility 
oil storage capacity of 10,000 gallons or less; and (2) had no 
reportable oil discharge as described in Sec.  112.1(b) during the ten 
years prior to self-certification or, since becoming subject to the 
SPCC requirements if the facility has been in operation for less than 
ten years. Under this proposed approach, facility owners/operators of 
qualified facilities choosing to self-certify their SPCC Plans may not 
deviate from any requirement of the SPCC rule under Sec.  112.7(a)(2) 
(with two exceptions) and may not make impracticability determinations 
in their SPCC Plans as described under Sec.  112.7(d). The two 
exceptions are that facility owners/operators of qualified facilities 
choosing to self-certify their SPCC Plans would have flexibility with 
respect to the security requirements and container integrity testing.
     EPA proposes a definition for oil-filled operational 
equipment and proposes that owners and operators of facilities where 
qualified oil-filled operational equipment is located have the 
alternative of preparing an oil spill contingency plan and a written 
commitment of manpower, equipment and materials, without having to 
determine that secondary containment is impracticable on an individual 
equipment basis (make an individual impracticability determination as 
required in Sec.  112.7(d)); and establish and document an inspection 
or monitoring program for this equipment to detect equipment failure 
and/or a discharge in lieu of providing secondary containment for 
qualified oil-filled operational equipment. Today's proposal would 
eliminate the current requirement for an individual impracticability 
determination for oil-filled operational equipment at a facility that 
has had no discharges as described in Sec.  112.1(b) from any oil-
filled operational equipment during the ten years prior to the Plan 
certification date or, since becoming subject to the SPCC requirements 
if the facility has been in operation for less than ten years.
     EPA proposes to exempt from the SPCC rule certain motive 
power containers. Motive power containers are onboard bulk storage 
containers used solely to power the movement of a motor vehicle (i.e., 
fuel tanks), or ancillary onboard oil-filled operational equipment 
(i.e., hydraulics and lubrication systems) used solely to facilitate 
its operation. This exemption would not apply to transfers of fuel or 
other oil into motive power containers at an otherwise regulated 
facility. This exemption would not apply to a bulk storage container 
mounted on a vehicle for any purpose other than powering the vehicle 
itself, for example, a tanker truck or mobile refueler. Additionally, 
this exemption would not apply to oil drilling or workover equipment, 
including rigs.
     EPA proposes to exempt airport mobile refuelers from the 
specifically sized secondary containment requirements for bulk storage 
containers under Sec.  112.8(c)(2) and (11) of the SPCC rule. Airport 
mobile refuelers are vehicles found at airports that have onboard bulk 
storage containers designed for, or used to, store and transport fuel 
for transfer into or from an aircraft or ground service equipment. The 
remaining provisions of Sec.  112.8(c) and the general secondary 
containment requirements of Sec.  112.7(c) would still apply to the 
onboard bulk storage containers on airport mobile refuelers and the 
transfers associated with this equipment.
     The Agency proposes to amend the requirements for animal 
fats and vegetable oils in Subpart C of Part 112 by removing Sec.  
112.13 (requirements for onshore oil production facilities), Sec.  
112.14 (requirements for onshore oil drilling and workover facilities), 
and Sec.  112.15 (requirements for offshore oil drilling, production, 
or workover facilities) because these sections do not apply to 
facilities that handle, store, or transport animal fats and vegetable 
oils.
     EPA proposes to extend the compliance dates for farms, 
while the Agency considers whether the unique nature of this sector 
warrants differentiated requirements under the SPCC rule.
     Under the current regulations in Sec.  112.3(a), (b) and 
(c), a facility that was in operation on or before August 16, 2002 must 
make any necessary amendments to its SPCC Plan by February 17, 2006, 
and fully implement

[[Page 73526]]

its SPCC Plan by August 18, 2006. A facility that came into operation 
after August 16, 2002 but before August 18, 2006, must prepare and 
fully implement an SPCC Plan on or before August 18, 2006. The owner or 
operator of an onshore or offshore mobile facility must maintain their 
Plan, but must amend and implement it, if necessary to ensure 
compliance with this part, on or before August 18, 2006. In a separate 
notice in today's Federal Register, the Agency is proposing to extend 
the compliance dates for all facilities to October 31, 2007. Reviewers 
should refer to that notice for a complete discussion of the proposed 
extension. Regarding modifications of the SPCC regulations, to the 
extent practicable, EPA will establish deadlines for compliance 
implementation that commence one year after promulgating the regulatory 
revisions.

         II. Entities Potentially Affected by This Proposed Rule
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            Industry category                        NAICS code
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Crop and Animal Production...............                        111-112
Crude Petroleum and Natural Gas                                      211
 Extraction..............................
Coal Mining, Non-Metallic Mineral Mining         2121/2123/213114/213116
 and Quarrying...........................
Electric Power Generation, Transmission,                            2211
 and Distribution........................
Heavy Construction.......................                            234
Petroleum and Coal Products Manufacturing                            324
Other Manufacturing (including animal                              31-33
 fats and vegetable oil manufacturing)...
Petroleum Bulk Stations and Terminals....                          42271
Automotive Rental and Leasing............                           5321
Gasoline Service Stations................                            447
Fuel Oil Dealers.........................                           4543
Waste Management and Remediation.........                            562
Other Commercial Facilities (including               44-45, 51-55, 56172
 Retail Stores, Apartment Buildings,
 Wholesalers and Janitorial Services)....
Transportation (including Pipelines and       482-486/488112-48819/4883/
 Airports), Warehousing, and Marinas.....            48849/492-493/71393
Elementary and Secondary Schools,                                    611
 Colleges................................
Federal, State, Local Government and                                  92
 Military Installations..................
Hospitals/Nursing and Residential Care                           621-623
 Facilities..............................
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    The list of potentially affected entities in the above table may 
not be exhaustive. The Agency's aim is to provide a guide for readers 
regarding those entities that potentially could be affected by this 
action. However, this action may affect other entities not listed in 
this table. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding section entitled FOR FURTHER INFORMATION CONTACT.

III. Statutory Authority and Delegation of Authority

    Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33 
U.S.C. 1321(j)(1)(C), requires the President to issue regulations 
establishing procedures, methods, equipment, and other requirements to 
prevent discharges of oil from vessels and facilities and to contain 
such discharges. The President delegated the authority to regulate non-
transportation-related onshore facilities to the EPA in Executive Order 
11548 (35 FR 11677, July 22, 1970), which has been replaced by 
Executive Order 12777 (56 FR 54757, October 22, 1991). A Memorandum of 
Understanding (MOU) between the U.S. Department of Transportation (DOT) 
and EPA (36 FR 24080, November 24, 1971) established the definitions of 
transportation- and non-transportation-related facilities. An MOU among 
EPA, the U.S. Department of Interior (DOI), and DOT, effective February 
3, 1994, has redelegated the responsibility to regulate certain 
offshore facilities from DOI to EPA.

IV. Background

    On July 17, 2002, EPA published a final rule amending the Oil 
Pollution Prevention regulation (40 CFR part 112) promulgated under the 
authority of section 311(j) of the CWA. This revised rule included 
requirements for SPCC Plans and for Facility Response Plans (FRPs). It 
also included new subparts outlining the requirements for various 
classes of oil; revised the applicability of the regulation; amended 
the requirements for completing SPCC Plans; and made other 
modifications (67 FR 47042). The revised rule became effective on 
August 16, 2002. After publication of this rule, several members of the 
regulated community filed legal challenges to certain aspects of the 
rule. Most of the issues raised in the litigation have been settled, 
following which EPA published clarifications in the Federal Register to 
several aspects of the revised rule (69 FR 29728, May 25, 2004).\1\
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    \1\ American Petroleum Institute v. Leavitt, No. 1:102CV02247 
PLF and consolidated cases (D.D.C. filed Nov. 14, 2002). The 
remaining issue to be decided concerns the definition of ``navigable 
waters'' in Sec.  112.1.
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    EPA has extended the dates for revising and implementing revised 
SPCC Plans in 40 CFR 112.3(a) and (b) several times, and has extended 
the compliance date for 40 CFR 112.3(c) (see 69 FR 48794 (August 11, 
2004) for further discussion on the extensions). This action was taken 
by EPA in order to provide the regulated community with sufficient time 
to comply with the 2002 revised rule and to allow the regulated 
community time to understand the 2004 clarifications and be able to 
incorporate them in their updated SPCC Plans. The current deadline for 
the preparation and certification of revised SPCC Plans for facilities 
maintaining their current SPCC Plan is February 17, 2006. Plans must be 
implemented by August 18, 2006. Facilities that became subject to the 
SPCC rule after August 16, 2002 are currently required to develop and 
implement their Plans by August 18, 2006.
    On September 20, 2004, EPA published two Notices of Data 
Availability (NODAs). The first NODA made available and solicited 
comments on submissions to EPA suggesting more focused requirements for 
facilities subject to the SPCC rule that handle oil below a certain 
threshold amount, referred to as ``certain facilities'' (69 FR 56182). 
Streamlined approaches for facilities with oil capacities below a 
certain threshold were discussed in the NODA documents. The second NODA 
made available and solicited comments

[[Page 73527]]

on whether alternate regulatory requirements would be appropriate for 
facilities with oil-filled and process equipment (69 FR 56184). EPA has 
reviewed the public comments and data submitted in response to the 
NODAs in developing today's proposal.
    In addition, the Agency considered regulatory relief for airport 
mobile refuelers in response to concerns raised by the aviation sector. 
Airport mobile refuelers are vehicles that are used on an airport 
facility to refuel aircraft and ground service equipment (such as belt 
loaders, tractors, luggage transport vehicles, deicing equipment, and 
lifts) used at airports. The onboard bulk storage containers on airport 
mobile refuelers that are used to transport and transfer fuel into or 
from aircraft and ground service equipment are considered mobile or 
portable bulk storage containers under the SPCC rule because they are 
used to store oil prior to further distribution and use. As such, they 
are subject to all applicable SPCC rule provisions, including the sized 
secondary containment provisions of Sec.  112.8(c)(2) and (11). These 
provisions require the secondary containment, such as a dike or 
catchment basin, to be sufficient to contain the capacity of the 
largest single compartment or container and include sufficient 
freeboard to contain precipitation.
    Regulated community members in the aviation sector have expressed 
concern that requiring such sized secondary containment for airport 
mobile refuelers is not practicable for safety and security reasons. 
(Included in the Docket for today's proposal are the letters that have 
been submitted to EPA regarding this matter.) Specifically, it has been 
argued that to require these refuelers to park in specially designed 
secondary containment areas located within an airport's aircraft 
operations area could create a safety and security hazard because it 
would require grouping of the vehicles or place impediments in the 
operations area. Additionally, requiring mobile refuelers to return to 
containment areas located within the airport's tank farm between 
refueling operations may increase the risk of accidents (and therefore 
accidental oil discharge), as the vehicles would travel with increased 
frequency through the busy aircraft operations area. EPA acknowledges 
these concerns and seeks to provide relief for airport mobile refuelers 
from the specifically sized secondary containment requirements for bulk 
storage containers, while protecting the environment from refueler 
spills, particularly those associated with transfers. Consequently, 
these refuelers remain subject to the other bulk storage container 
requirements under Sec.  112.8(c) and the general secondary containment 
requirements under Sec.  112.7(c) which also applies to the transfers 
of oil associated with airport mobile refuelers.
    In contrast to a mobile or portable bulk storage container such as 
a mobile refueler, a ``motive power container'' is an integral part of 
a motor vehicle (including aircraft), providing fuel for propulsion or 
providing some other operational function, such as lubrication of 
moving parts or for operation of onboard hydraulic equipment. Motive 
power containers on vehicles used solely at non-transportation related 
facilities fall under EPA jurisdiction and are subject to the SPCC 
regulation. Examples of motive power vehicles include, but are not 
limited to: buses; recreational vehicles; some sport utility vehicles; 
construction vehicles; aircraft; farm equipment; and earthmoving 
equipment (e.g., such as at a drilling or workover facility). Examples 
of facilities or locations that may be covered by the SPCC requirements 
solely because of the presence of motive power containers include, but 
are not limited to, heavy equipment dealers, commercial truck dealers, 
and parking lots.
    While the concept of ``motive power'' is not directly addressed in 
the SPCC regulation, such vehicle fuel containers may fall under the 
definition of ``bulk storage container'' in Sec.  112.2, while the 
onboard lubrication system may be considered oil-filled operational 
equipment. Therefore, motive power containers which store oil used for 
the propulsion of a vehicle are subject to all the requirements under 
Sec.  112.8(c) if they have a capacity of 55 gallons or more. These 
requirements include specifically sized secondary containment for bulk 
storage containers, integrity testing (visual plus non-destructive 
testing), and a requirement to engineer containers to avoid discharges 
(such as an overfill alarm). Additionally, any oil-filled operational 
equipment with a capacity of 55 gallons or more mounted on a vehicle 
are subject to the general secondary containment requirements listed in 
Sec.  112.7(c).
    EPA recognizes that, in most cases, the requirements of Sec.  
112.8(c), including specifically sized secondary containment and the 
general secondary containment requirements under Sec.  112.7(c), are 
not practicable for motive power containers. It has never been EPA's 
intent to regulate motive power containers. Therefore, EPA is proposing 
to exempt such motive power containers from the SPCC regulation.
    In the July 17, 2002 final SPCC rule, the Agency promulgated 
general requirements for SPCC Plans for all facilities and all types of 
oil in Sec.  112.7. In response to the Edible Oil Regulatory Reform Act 
(EORRA), EPA promulgated separate subparts in part 112 for facilities 
storing or using various classes of oil, but the requirements in each 
subpart are the same. EORRA required most Federal agencies to 
differentiate between and establish separate classes for various types 
of oil, specifically, between animal fats and oils and greases, and 
fish and marine mammal oils and oils of vegetable origin, including 
oils from seeds, nuts, and kernels; and other oils and greases, 
including petroleum. The result of this approach was that the new 
Subpart C included requirements for animal fat and vegetable oil (AFVO) 
facilities--onshore facilities (excluding production facilities) (Sec.  
112.12), onshore oil production facilities, (Sec.  112.14) onshore oil 
drilling and workover facilities (Sec.  112.13), and requirements for 
offshore oil drilling, production, or workover facilities (Sec.  
112.15). While the Agency recognized that some of these requirements 
are not applicable to facilities that handle, store or transport AFVO, 
these sections were promulgated because the Agency had not proposed 
differentiated SPCC requirements for public notice and comment. As a 
result, the current requirements for petroleum oils were also applied 
to animal fats and vegetable oils. EPA is today proposing to remove 
those sections from the SPCC requirements that are not applicable or 
appropriate to animal fats and vegetable oils.
    Additionally, EPA has issued the SPCC Guidance for Regional 
Inspectors. The guidance document is intended to assist regional 
inspectors in reviewing a facility's implementation of the SPCC rule. 
The document is designed to facilitate an understanding of the rule's 
applicability, to help clarify the role of the inspector in the review 
and evaluation of the performance-based SPCC requirements, and to 
provide a consistent national policy on several SPCC-related issues. 
The guidance is also available to both the owners and operators of 
facilities that may be subject to the requirements of the SPCC rule and 
to the general public on the Agency's website at http://www.epa.gov/oilspill. 

This guidance is a living document and will be revised, as necessary, 
to reflect any relevant future regulatory amendments in a timely 
manner. Accordingly, EPA welcomes comments from the regulated community 
and the public on the guidance document within 60 days of this NPRM, as 
described on the website.

[[Page 73528]]

The guidance document is a separate effort from this rulemaking. EPA 
does not plan to address comments on the guidance document when taking 
final action on this rule. Comments on the guidance document should not 
be submitted to the docket for this rulemaking. Refer to the website 
http://www.epa.gov/oilspill for the text of the guidance document and for 

instructions for providing suggestions on the guidance document. The 
EPA urges readers to review the guidance document for assistance in 
understanding the SPCC rule and today's proposal. Pursuant to today's 
proposal, EPA anticipates issuing an updated guidance document in 2006 
to reflect finalization of this rulemaking such that inspectors and the 
regulated community have accurate and timely information on SPCC 
requirements.
    Although the scope of today's proposal was originally intended to 
address only certain targeted areas of the SPCC requirements, the 
Agency is including several additional proposed modifications to 
address a number of issues and concerns raised by the regulated 
community. As highlighted in the EPA Regulatory Agenda and the 2005 OMB 
report on ``Regulatory Reform of the U.S. Manufacturing Sector,'' there 
are other issues under consideration for possible future rulemaking 
action. The modifications proposed today do not preclude a future 
rulemaking on other issues not addressed in today's proposal. Rather, 
EPA is working to identify additional areas where regulatory reform may 
be appropriate. For these additional areas, the Agency expects to issue 
a proposed rule in 2007. Additionally, EPA in conjunction with DOE will 
be conducting an energy impact analysis of the SPCC requirements, and 
will consider the results of this analysis to inform the Agency's 
deliberations over any future rulemaking. EPA is interested in whether 
there are other aspects of the SPCC regulatory requirements, beyond 
those that are addressed in today's proposal, that should be the focus 
of future rulemaking. The Agency also requests that commenters who 
provide suggestions regarding future rulemaking clearly differentiate 
them from comments submitted on today's proposal (e.g., label 
Suggestions for Future Rulemaking and Comments on Current Proposal). 
The Agency will not address these suggestions when taking final action 
on this proposed rule, but will take them into consideration in future 
rulemaking decisions.

V. Today's Action

A. Qualified Facilities

    EPA proposes to amend the Oil Pollution Prevention regulation (40 
CFR part 112) to provide an option to allow the owner or operator of a 
facility that meets the qualifying criteria (hereafter referred to as a 
``qualified facility'') to self-certify the facility's SPCC Plan in 
lieu of certification by a licensed professional engineer (PE). EPA 
proposes to amend Sec.  112.3 to describe the SPCC eligibility criteria 
that a regulated facility must meet in order to be considered a 
qualified facility. A qualified facility would be a facility subject to 
the SPCC rule that (1) has an aggregate facility oil storage capacity 
of 10,000 gallons or less; and (2) had no discharges as described in 
Sec.  112.1(b) during the ten years prior to self-certification or 
since becoming subject to the SPCC requirements if less than ten years. 
Facilities that have been subject to SPCC for less than ten years, 
including new facilities, would need to demonstrate no discharges as 
described in Sec.  112.1(b) only for the period of time they have been 
subject to the SPCC rule. Self-certified Plans would not be allowed to 
include ``environmentally equivalent'' alternatives to required Plan 
elements as provided in Sec.  112.7(a)(2) or to claim impracticability 
with respect to any secondary containment requirements as provided in 
Sec.  112.7(d). The two exceptions for which the owner and operator 
would still be allowed to use environmentally equivalent measures are 
with respect to security and integrity testing. Facilities with 
complicated operations and lower capacities may find that the current 
rule offers a more cost-effective method of achieving compliance than 
the proposed option. Therefore, a qualified facility could choose to 
follow the current SPCC requirements (including the PE certification) 
to take advantage of the flexibility offered by PE-certified 
impracticality determinations and environmentally equivalent measures.
1. Eligibility Criteria
a. Total Facility Oil Storage Capacity Threshold
    EPA proposes to limit qualified facilities to a total maximum 
storage capacity of 10,000 gallons of oil. EPA considered many 
different factors before selecting this storage capacity. First, EPA 
has established 10,000 gallons as a threshold in several other rules 
relating to oil discharges. This threshold quantity is used in the 
National Oil and Hazardous Substances Pollution Contingency Plan 
(National Contingency Plan or NCP) to classify oil discharges based on 
the location and size of the discharge (see 40 CFR 300.5). The NCP 
refers to discharges greater than 10,000 gallons to inland waters as 
``major,'' while other thresholds are used to classify ``minor'' and 
``medium'' discharges. The classes are provided as guidance to the On-
Scene Coordinator (OSC), and serve as criteria for the actions 
delineated in the NCP. It is important to note, however, that the NCP 
quantitative thresholds are only provided to help the OSC determine 
response action, and do not imply associated degrees of hazard to the 
public health or welfare, or environmental damage. The NCP size classes 
nevertheless define an oil discharge to inland waters exceeding 10,000 
gallons as a major discharge.
    A discharge of 10,000 gallons or more is also one of the factors 
used in identifying facilities that must prepare and submit a Facility 
Response Plan (FRP) under Sec.  112.20(f)(1). The FRP rule applies to 
facilities that could reasonably be expected to cause substantial harm 
to the environment due to a discharge to waters of the U.S. and 
adjoining shorelines.
    Second, state regulations also provide support for the use of a 
10,000-gallon threshold. A number of states differentiate regulatory 
requirements based on a facility's total storage capacity, with some 
states specifying a 10,000-gallon threshold. For example, Maryland 
requires that all commercial facilities storing more than 10,000 
gallons of oil obtain an oil operations permit; Minnesota requires 
facilities storing between 10,000 and 1,000,000 gallons of oil to 
prepare a prevention and response plan; and Oregon places special 
requirements on marine facilities storing more than 10,000 gallons of 
oil. The 10,000-gallon threshold is also frequently used in setting 
requirements for certain storage tanks. For example, New York requires 
a ``secondary containment system'' around all aboveground storage tanks 
(ASTs) with a storage capacity greater than or equal to 10,000 gallons, 
and Wisconsin caps the size of ASTs that can be used for fueling 
vehicles at 10,000 gallons.
    Finally, 10,000 gallons is a common storage tank size, and EPA 
believes that setting a maximum capacity at 10,000 gallons would 
address the concerns that smaller facilities have raised. In fact, the 
Small Business Administration Office of Advocacy suggested that a 
10,000-gallon threshold is a reasonable volume to address the concerns 
of facilities with relatively smaller volumes of oil. The Agency seeks 
comments on whether this

[[Page 73529]]

threshold appropriately addresses the concerns of facilities with 
relatively smaller volumes of oil, while maintaining the environmental 
protection intended by the regulation. If commenters suggest 
alternative volume thresholds, it will be important for the comments to 
also include a justification for such alternative volume thresholds in 
order for the Agency to adequately consider the comments submitted. 
This data would be useful in final rule deliberations.
    While EPA recognizes that a discharge of less than 10,000 gallons 
can be harmful, regardless of how the NCP defines ``major discharge,'' 
EPA believes that it is reasonable to allow facilities with a capacity 
of no more than 10,000 gallons to prepare and implement a Plan that 
complies with the SPCC rule requirements and provides adequate 
protection against discharges without the involvement of a PE. These 
facilities generally have less complex operations and petroleum system 
configurations, and smaller oil storage capacities than other types of 
facilities subject to the SPCC requirements. Thus, the Agency believes 
that a responsible owner or operator at these facilities should be able 
to comply with the SPCC rule provisions without review and 
certification of the SPCC Plan by a PE, and that simplifying the rule 
will result in greater environmental protection by improving 
compliance.
b. Reportable Discharge History
    EPA proposes that a qualified facility subject to the SPCC 
requirements must have no reportable oil discharges as described in 
Sec.  112.1(b) during the ten years prior to self-certification or 
since becoming subject to the SPCC requirements, whichever is less. 
Facilities that have been subject to SPCC for less than ten years, 
including new facilities, would need to demonstrate no discharges as 
described in Sec.  112.1(b) only for the period they have been subject 
to SPCC. This criterion is based on a proposal regarding oil-filled 
electrical equipment submitted by the Utility Solid Waste Activities 
Group (USWAG), as described in the documents supplementing the 
September 20, 2004 NODA at 69 FR 56184. In its proposal, USWAG 
recognized that facilities that pose a risk, in terms of oil discharges 
in quantities that are harmful (reportable under 40 CFR part 110), 
should not be granted relief. USWAG specifically proposed a ten-year 
spill history as a potential criterion to be eligible for relief. In 
general, NODA commenters expressed strong support for the USWAG 
proposal. As in the case of oil-filled operational equipment, the 
Agency believes that a clean spill history is a suitable criterion for 
demonstrating eligibility for Plan self-certification, while still 
effectively maintaining good prevention practices.
    Part 110 defines a discharge of oil in such quantities that may be 
harmful to the public health, welfare, or the environment of the United 
States as a discharge of oil that violates applicable water quality 
standards; a discharge of oil that causes a film or sheen upon the 
surface of the water or on adjoining shorelines; or a discharge of oil 
that causes a sludge or emulsion to be deposited beneath the surface of 
the water or adjoining shorelines (40 CFR 110.3). The Agency refers to 
such discharges in Sec.  112.1(b) of the rule. Any person in charge of 
a facility must report any such discharge of oil from the facility to 
the National Response Center (NRC) at 1-800-424-8802 immediately. While 
EPA recognizes that past release history does not necessarily translate 
into a predictor of future performance, the Agency believes that 
discharge history is a reasonable indicator of a facility owner or 
operator's ability to develop an SPCC Plan for the facility without the 
involvement of a PE. Hence, EPA proposes to use a facility's discharge 
history as a qualification criterion indicating the facility's ability 
to effectively develop and implement its SPCC Plan. By establishing a 
good oil spill prevention history, a facility qualifies for the self-
certification option offered in this proposal.
    The Agency requests comments on the appropriateness of a reportable 
discharge history criterion for determining the qualification of a 
facility for the self-certification option, whether it is necessary, 
and whether there are other indicators of a facility's effective 
implementation of the oil pollution prevention requirements under part 
112 that should be considered. In addition, the Agency also 
specifically requests comments on the proposed ten-year period for 
which facilities would be required to have had no reportable discharges 
in order to meet this qualification. The Agency requests that any 
alternative criterion or time period suggested include an appropriate 
rationale and supporting data to assist the Agency in considering them 
for final action. The Agency is also aware that events such as natural 
disasters, acts of war or terrorism, sabotage, or other calamities, 
beyond the control or planning ability of the facility owner or 
operator, may cause a reportable oil discharge. The Agency therefore 
requests comments on how to account for such occurrences in the 
discharge history criterion.
2. Proposed Requirements for Qualified Facilities
a. Self-Certification and Plan Amendments
    Some in the regulated community, particularly facilities with 
relatively smaller volumes of oil, identified the cost of the PE 
certification of SPCC Plans as one of its major concerns. This view was 
echoed in the comments submitted in response to the NODAs. The Agency 
has reviewed the requirements in light of the information provided and 
today proposes to allow for self-certification of SPCC Plans by owners 
and operators of qualified facilities. With this proposal, the Agency 
is responding to those concerns. The elements of the proposed self-
certification requirement are very similar in scope to those of the PE 
certification: owners and operators that choose to self-certify their 
Plans must certify that they are familiar with the requirements of the 
SPCC rule; they have visited and examined the facility; the Plan has 
been prepared in accordance with accepted and sound industry practices 
and standards; procedures for required inspections and testing have 
been established; the Plan is being fully implemented; the facility 
meets the qualification criteria set forth under Sec.  112.3(g)(1); the 
Plan does not include any environmental equivalence measures as 
described in Sec.  112.7(a)(2); the Plan contains no determinations of 
impracticability under Sec.  112.7(d); and the Plan and the 
individual(s) responsible for implementing the Plan have the full 
approval of management and the facility has committed the necessary 
resources to fully implement the Plan. The self-certification provision 
would be optional. Under today's proposal, an owner or operator of a 
qualified facility could choose to comply with the current requirements 
under part 112 if that is more suitable to his/her particular 
situation.
    Qualified facilities that choose to self-certify would not 
automatically lose eligibility for a self-certified Plan and be 
required to obtain PE certification in the event of a discharge as 
described in Sec.  112.1(b). EPA has the authority to require SPCC Plan 
amendments under Sec.  112.4. Section 112.4(a) requires a facility that 
has discharged more than 1,000 gallons of oil in a single discharge as 
described in 40 CFR part 110, or that has discharged more than 42 
gallons of oil in each of two discharges as described in 40 CFR part 
110 in any 12-month period, to submit information to

[[Page 73530]]

the EPA Regional Administrator (RA) within 60 days of the date of the 
discharge. As per Sec.  112.4(d), the RA may require the facility to 
amend its SPCC Plan in order to prevent and contain discharges, and the 
RA could require a facility to obtain PE-certification of its SPCC 
Plan. In addition, a discharge of oil ``in such quantities as may be 
harmful'', as defined in 40 CFR 110.3 that does not trigger the 
reporting requirements of Sec.  112.4(a) must still be reported to the 
National Response Center. Criminal action can be taken against an owner 
or operator of a facility if discharges are not reported. EPA also 
receives copies of the NRC reports and has the authority under Sec.  
112.1(f) to require a facility to prepare and implement an SPCC Plan or 
any applicable part of a Plan. The time frame for this review and 
amendment process is described in Sec.  112.4. The facility may choose 
to appeal the RA's decision to require a Plan amendment under Sec.  
112.4. The RA also has authority to require preparation and 
implementation of a Plan or applicable part of a Plan under Sec.  
112.1(f).
    The Agency requests comment on the appropriateness of using the 
existing authorities under the SPCC regulations rather than 
establishing a separate process that would automatically require a 
facility to obtain PE review and certification of the facility's SPCC 
Plan in the event of a reportable discharge. The Agency requests that 
any alternative approaches presented include an appropriate rationale 
and supporting data in order for the Agency to be able to consider them 
for final action.
    Under Sec.  112.5 of the SPCC rule, an owner or operator must 
review and amend the SPCC Plan following any change in facility design, 
construction, operation or maintenance that materially affects its 
potential for a discharge as described in Sec.  112.1(b). A PE must 
then certify any and all of these technical amendments to the SPCC 
Plan, as currently required under Sec.  112.3(d). Under today's 
proposal, technical amendments to SPCC Plans of qualified facilities 
would not be required to be certified by a PE. Instead, an owner or 
operator would be allowed to self-certify technical amendments to the 
Plan under the proposed Sec.  112.3(g)(2) provision, and facilities 
with PE-certified Plans which qualify for self-certification would be 
allowed to choose to self-certify future technical amendments rather 
than hire a professional engineer to certify the technical amendment. 
Facilities would be required to document the self-certification of a 
technical amendment in the SPCC Plan in accordance with Sec.  
112.3(g)(2).
b. Environmental Equivalence and Impracticability Determinations
    Under Sec.  112.7, facility owners and operators have the 
flexibility to deviate from specific rule provisions if the Plan states 
the reason for nonconformance and if equivalent environmental 
protection is provided by some other means of spill prevention, control 
or countermeasure. These ``environmentally equivalent'' measures must 
be described in the SPCC Plan, including how the equivalent 
environmental protection will be achieved based on good engineering 
practice. Allowance for ``environmentally equivalent'' deviations is 
provided in Sec.  112.7(a)(2) and are only available for requirements 
not related to secondary containment, such as fencing and other 
security measures, preventing catastrophic tank failure due to brittle 
fracture, integrity testing, and liquid level alarms. As part of the 
SPCC Plan, any environmentally equivalent measures are also required to 
be certified by a PE. The PE's SPCC Plan certification requirements 
include consideration of industry standards for the Plan, which would 
include equivalent environmental protection measures.
    The SPCC rule also provides flexibility for owners/operators who 
determine that the general secondary containment requirements in Sec.  
112.7(c) or any of the applicable additional requirements for secondary 
containment in subparts B and C are impracticable. Where 
impracticability is demonstrated, the SPCC rule allows facility owners 
and operators the flexibility to instead develop a contingency plan and 
comply with additional requirements as described in Sec.  112.7(d). The 
SPCC Plan must explain why containment measures are not practicable, 
provide an oil spill contingency plan that follows the provisions of 40 
CFR part 109 (Criteria for State, Local and Regional Oil Removal 
Contingency Plans), and provide a written commitment of manpower, 
equipment, and materials required to expeditiously control and remove 
any quantity of oil discharged that may be harmful as described in 40 
CFR part 110. A PE must certify any impracticability determinations, as 
well as the contingency plan and additional measures implemented in 
lieu of containment. Because of the expertise that a PE has in 
evaluating whether particular measures provide equivalent environmental 
protection and in knowing how to effectively implement such measures, 
EPA believes that the flexibility in these performance-based provisions 
is best suited to SPCC Plans that are reviewed and certified by a PE.
    Today's proposed amendment would allow qualified facilities to opt 
out of the PE certification, but would not allow facilities that take 
advantage of this option to include environmentally equivalent measures 
in their SPCC Plans pursuant to Sec.  112.7(a)(2). EPA is proposing 
this limitation on qualified facilities because EPA believes that in 
general, without the advantage of the expertise and knowledge that a PE 
brings to the development of an SPCC Plan, deviations based on 
environmental equivalence may not be adequate. However, as discussed 
below, EPA believes that allowing certain deviations may be appropriate 
for at least some owners of qualified facilities, without employing PE 
expertise. Therefore, EPA is proposing to allow certain deviations with 
respect to facility security and integrity testing of bulk storage 
containers.
    EPA is also proposing that qualified facilities be precluded from 
claiming impracticability and using contingency planning in lieu of 
secondary containment. EPA believes that a PE's knowledge and expertise 
is needed for appropriate contingency planning and other measures that 
must be put in place in the absence of secondary containment. Thus, 
requiring qualified facilities that opt out of PE certification to 
adhere to the current set of requirements would maintain the same 
standard of environmental protection provided in the existing rule.
    Today's proposal would not preclude a qualified facility from 
choosing environmentally equivalent measures or from demonstrating 
impracticability with respect to secondary containment requirements, 
although the qualified facility would need to comply with the current 
SPCC requirements (including the PE certification) in order to utilize 
the flexibility offered by PE-developed impracticability determinations 
and environmentally equivalent measures. In some circumstances, it may 
be more cost effective for a PE to prepare an SPCC Plan which utilizes 
environmentally equivalent measures or contingency planning, than for 
the owner/operator to comply with the SPCC provisions as outlined in 
today's proposal. Also, facilities with unconventional operations which 
qualify for this alternative may find that the current rule requirement 
for PE certification offers a more cost-effective method of achieving 
compliance because it provides additional flexibility through 
performance-based provisions. The Agency requests comments on the

[[Page 73531]]

appropriateness of restricting the use of impracticability 
determinations and environmentally equivalent measures by those 
qualified facilities that choose the option of self-certification in 
order to ensure an adequate level of environmental protection. Any 
alternative approach presented must include an appropriate rationale 
and supporting data in order for the Agency to be able to consider it 
for final action.
c. SPCC Plan Exceptions
    Today's proposal for self-certification of qualified facilities 
would restrict the use of alternative environmentally equivalent 
measures for qualified facilities that elect to develop their SPCC Plan 
without the services of a PE. The Agency's concern is that these 
facilities would no longer have a trained professional, with knowledge 
to make site-specific equivalence determinations, reviewing and 
certifying their Plan. However, EPA recognizes that some of the 
prescriptive provisions in the current regulatory requirements may 
prove difficult for some qualified facilities to meet.
    While the Agency still believes that generally allowing use of 
environmentally equivalent measures in self-certified Plans is not 
appropriate, some degree of flexibility in two areas may be appropriate 
for qualified facilities. The Agency believes that it can allow 
qualified facilities to comply with a streamlined set of basic security 
measures and integrity testing requirements. The flexibility in these 
proposed exceptions would be analogous to the flexibility provided 
under Sec.  112.7(a)(2), which allows for deviations from Sec.  
112.7(g) (security) and Sec.  112.8(c)(6) (integrity testing) that 
would not be available for these facilities under today's proposal.
    EPA recognizes that there is no one single approach to ensure 
proper facility security. For example, the security requirements of 
fencing and lighting may not always be appropriate for sites such as a 
national, state or local park subject to SPCC, where the site layout 
may be too extensive to fence, and where perhaps the lighting of a 
solitary field tank would invite, rather than deter, would-be 
intruders. Qualified facilities, in lieu of the requirements under 
Sec.  112.7(g) of this part, would be allowed to prepare a security 
plan that describes how the facility controls access to the oil 
handling, processing and storage areas; secures master flow and drain 
valves; prevents unauthorized access to starter controls on oil pumps; 
secures out-of-service and loading/unloading connections of oil 
pipelines; prevents acts of vandalism; and assists in the discovery of 
oil discharges. (Note that the security requirements in Sec.  112.7(g) 
do not apply to production facilities.)
    Today's proposal would allow a qualified facility to develop a 
general security plan that provides equivalent environmental protection 
to the requirements in Sec.  112.7(g). The Agency recognizes that these 
security provisions can be approached differently by the variety of 
facilities that would qualify for self-certification under today's 
proposal. It should be noted that this is an option and a qualified 
facility in compliance with the current requirements under Sec.  
112.7(g) would not be required to develop a security plan under the 
proposed Sec.  112.3(g).
    The security plan would be required to address how the owner or 
operator will:
     Secure all bulk storage containers, piping and oil-filled 
equipment from unauthorized access or acts of vandalism which could 
result in a discharge of oil;
     Secure appurtenances (valves and/or drains) in the closed 
position to prevent the flow of the contents of the container which 
could result in a discharge of oil;
     Secure pump controls in the ``off'' position when not in 
use and locate facility pump controls to prevent unauthorized access;
     Secure all loading or unloading transfer connections for 
facility piping; and
     Address whether security lighting is appropriate to both 
ensuring the discovery of oil discharges, and deter vandalism.
    This security plan would be required to be documented in the 
qualified facility's SPCC Plan, and would include a discussion of how 
the security plan will be implemented and the required training/
inspections/maintenance for security related equipment and activities. 
The Agency recognizes the unique nature of many of the facilities that 
would qualify for Plan self-certification, and as such, some 
flexibility is appropriate so these facilities can achieve compliance 
with the security provisions of the current SPCC rule. The application 
of the SPCC security measures is often determined by the facility's 
geographical/spatial factors and there is no ``one-size-fits-all'' 
answer to this serious compliance requirement. For example, facilities 
such as farms or national parks may have unique characteristics that 
make compliance with the current security measures, such as potentially 
fencing the entire facility footprint, inappropriate.
    The Agency is also proposing to provide flexibility in the area of 
integrity testing for qualified facilities. The Agency continues to 
believe that owners and operators should rely on the appropriate use of 
industry standards for the integrity testing requirements. As EPA 
stated in its May 2004 letter to the Petroleum Marketers Association of 
America (available at http://www.epa.gov/oilspill/pdfs/PMAA_letter.pdf
), the Agency recognizes that in certain site-specific 

circumstances, visual inspection may be appropriate and sufficient for 
compliance with the integrity testing requirement. The Agency expects 
that the selection of particular testing methods to comply with the 
integrity testing requirements in the current rule and today's proposal 
would be based on industry inspection standards such as the Steel Tank 
Institute (STI) SP-001, American Petroleum Institute (API) Standard 653 
and API Recommended Practice 12-R1. These industry standards address 
the qualifications of the tank inspector and the scope/frequency of the 
testing/inspections. Thus, in effect, the Agency is proposing to allow 
owners and operators of qualified facilities to consult and rely on 
industry standards or qualified container inspectors/testing personnel 
to determine the appropriate qualifications for tank inspectors/testing 
personnel and the type/frequency of integrity testing required for a 
particular container size and configuration. The Agency is proposing to 
allow qualified facilities to make this determination in accordance 
with industry standards without the need to develop a PE-approved 
environmentally equivalent deviation, as is currently required under 
Sec.  112.7(a)(2). The Agency believes that allowing this flexibility 
for qualified facilities would increase compliance and thus 
environmental protection.
    The U.S. Small Business Administration (SBA) Office of Advocacy has 
suggested an additional alternative approach for allowing flexibility 
for integrity testing of small shop-built tanks that is based on the 
current SP001 standard. The current SP001 standard allows periodic 
visual inspections for shop-fabricated aboveground storage tanks with a 
total capacity of 5,000 gallons, and for which there is spill control 
and a continuous release detection method (i.e., Category 1 tanks). SBA 
Office of Advocacy has suggested that EPA allow periodic visual 
inspections for shop-fabricated aboveground storage tanks at qualified 
facilities, in accordance with this SP001 standard, but broaden the 
applicability

[[Page 73532]]

to include shop-fabricated aboveground storage tanks that have an oil 
capacity of between 5,000 and 10,000 gallons. In all other respects, 
the SP001 standard would apply. In the SBA's view, due to the presence 
of spill control and a continuous release detection method (in 
accordance with the SP001 standard), there appears to be little 
likelihood for a discharge into navigable waters. The SBA Office of 
Advocacy also believes this additional option would make the visual 
inspection option available to all, and not a subset of, qualified 
facilities and it would benefit those qualified facilities having one 
tank above 5,000 gallons.
    EPA is not proposing the SBA additional approach for several 
reasons. First the SBA approach would deviate from the industry 
standards noted above. Second, the Agency is unaware of a technical 
basis to justify this deviation. EPA must justify divergence from 
accepted industry standards under the National Technology Transfer and 
Advancement Act (NTTAA) (see section VII (I) for a description of 
NTTAA). Third, industry standards are periodically updated and revised 
to account for changes in technology and to remain consistent with good 
engineering practice while this approach would need to be revised 
through rulemaking. Finally, EPA believes that by allowing for a 
deviation from existing industry standards, compliance would become 
more complex as facilities try to understand the circumstances under 
which this additional approach can be employed. The Agency welcomes 
comment on this additional approach as well as on the proposed approach 
for integrity testing for qualified facilities. In addition, once the 
modifications proposed today are promulgated, the Agency is willing to 
continue to work with industry tank inspection standard setting 
organizations to update applicable industry standards. Commenters who 
have information on the scope and criteria associated with the industry 
visual inspection standards should provide it to the standards setting 
organizations and their national experts for consideration.
    At this time, EPA is aware that a number of industry standards are 
changing. Nevertheless, the Agency believes that it may be appropriate 
to allow the flexibility of alternative integrity testing methods for 
these qualified facilities to be consistent with relevant industry 
standards. For example, visual inspections may be appropriate for the 
lower volume shop-built containers in certain configurations that are 
likely to be present at most of these qualified facilities. In the 
absence of an environmental equivalency provision that would allow an 
alternative integrity testing method for qualified facilities, the 
owner or operator would be required to perform visual inspections plus 
non-destructive testing on all classes of containers, regardless of 
size and configuration. Qualified facilities would have to bear the 
cost and burden of conducting non-destructive testing that may not be 
necessary under industry standards. The Agency continues to strongly 
recommend that facilities, qualified for self-certification or 
otherwise, utilize industry standards that are appropriate to their 
particular tank configurations in developing and conducting tank 
inspection and testing programs and when determining inspector/testing 
personnel qualifications.
    The Agency requests comments on whether the proposed requirements 
for security and integrity testing for qualified facilities provide 
appropriate flexibility, while maintaining environmental protection. 
Any alternative approach presented must include an appropriate 
rationale and supporting data in order for the Agency to be able to 
consider it for final action.
3. Alternative Options Considered
    EPA considered other options for this proposal. These options 
included (1) providing an indefinite extension of deadlines or a 
suspension of all SPCC requirements; and (2) a multi-tiered structure 
of requirements based on a facility's total regulated storage based on 
the SBA proposal described in the Certain Facilities NODA published 
last year. The Agency also considered requiring qualified facilities to 
make a one-time notification to EPA they have been in operation or 
subject to the SPCC requirements for a period less than ten years from 
the time of Plan certification, and therefore could not show a ten-year 
clean spill history as a qualifier. All of these options would apply to 
a defined set of ``qualified facilities''.
a. Extension/Suspension Options
    Two additional options were considered: An indefinite compliance 
date extension and a suspension of all requirements. Both options would 
apply to a defined universe of ``qualified'' SPCC-regulated facilities. 
An indefinite extension would provide an undetermined future date for 
compliance with the rule. As in past extensions, all facilities that 
should have had a Plan as of August 16, 2002 would be required to be in 
compliance with the pre-2002 SPCC requirements during the interim 
period, including those that could potentially take advantage of 
today's qualified facilities proposal. A suspension of requirements for 
qualified facilities would provide relief for the affected universe 
until EPA takes further action.
    Both of these options would allow EPA more time to decide how to 
regulate qualified facilities without delaying compliance for the 
entire universe of SPCC-regulated facilities. In contrast, the proposed 
option would set forth explicit requirements for qualified facilities 
that reduce compliance costs within the current compliance date 
schedule. Because these options would only postpone the rule's 
requirements for qualified facilities and because the Agency believes 
that the modifications proposed today address the major concerns raised 
by facilities that store lower volumes of oil, EPA believes it 
appropriate to go forward with today's proposal.
b. Multi-Tiered Structure
    A multi-tiered structure option was developed in response to 
comments EPA received following publication of the NODA for facilities 
that handle oil below a certain threshold amount (69 FR 56182, 
September 20, 2004) and is based on a previous analysis prepared for 
the SBA Office of Advocacy (Jack Faucett Associates, 2004) (hereafter 
``SBA proposal''). This revised regulatory structure would not only 
relax requirements for PE certification, but also requirements for 
preparing an SPCC Plan itself, although under this approach, the 
facility would still be responsible for complying with the substantive 
requirements of the SPCC rule. It includes a tiered system based on the 
total storage capacity of a facility, as follows:
     Tier I would include facilities that handle between 1,321 
and 5,000 gallons of oil (total storage capacity). These facilities 
would not need a written SPCC Plan (and therefore no PE certification 
would be needed), but would have to adhere to all other SPCC 
requirements.
     Tier II would include facilities handling between 5,001 
and 10,000 gallons of oil (total storage capacity). These facilities 
would be required to have a written SPCC Plan, but the Plan would not 
need to be certified by a PE, and a PE site visit would not be 
required. Standardized plans could be adopted by a facility conforming 
to standard design and operating procedures, without requiring PE 
certification.
     Tier III would include the remaining SPCC-regulated 
facilities (total storage capacity greater than

[[Page 73533]]

10,000 gallons). These facilities would be required to have a written 
SPCC Plan certified by a PE, as currently required by the 2002 revised 
SPCC rule.
    SBA also suggested that EPA promulgate an interim final rule that 
excludes small facilities with storage of less than 10,000 gallons (the 
first two tiers of their three-tier approach) from SPCC Plan 
requirements, pending completion of the full notice and comment 
rulemaking for small facilities to develop the aforementioned tiered 
requirements. In order to provide environmental protection in the 
interim period, SBA recommended that EPA require: (1) Regular visual 
inspections of containers, (2) replacement or retirement of leaking 
tanks, and (3) compliance with the part 109 contingency plan 
requirements or their equivalent. In this manner (according to SBA), 
the EPA could address the reality of the extremely low SPCC compliance 
rate among small facilities, and would work toward creating a rule that 
small facilities would be likely to comply with. SBA stated that such a 
move would enhance, rather than detract from, environmental protection.
    This approach would provide different levels of regulatory relief 
based on total oil storage capacity alone, basing degree of risk on the 
surrogate measure facility size. Many commenters on the NODA supported 
this approach, which would reduce compliance costs by eliminating the 
PE certification requirement for facilities under 10,000 gallons. 
However, EPA believes that such an approach poses significant 
implementation problems both for the regulated community and the 
regulators. In particular, the Agency believes that without the owner/
operator developing a Plan or documentation on how the facility will 
comply or expects to comply with the SPCC requirements, it will be 
challenging for the facility to both meet the substantive requirements 
(for example, spill notification, response and preparedness planning, 
equipment maintenance, inspection and training, secondary containment), 
as well as provide documentation to the regulators that the facility is 
in compliance. Additionally, EPA inspectors conducting site visits 
would have no written Plan or documentation to assess the facility's 
effectiveness in implementing its spill prevention strategy.
    Although EPA received general comments supporting this option on a 
conceptual level, neither the information presented in the NODA nor the 
comments addressed the practical application of this alternative. The 
Agency welcomes comments on this approach, as well as on the proposed 
approach, the practical application of the proposal and the rationale 
for its adoption.
c. One-Time Notification
    The Agency recognizes that some facilities otherwise qualifying for 
owner/operator self-certification will have been in existence for fewer 
than ten years and will consequently be unable to demonstrate ten years 
without a discharge as described in Sec.  112.1(b). Some of these 
facilities will have come into existence after August 16, 2002, and 
will not have been subject to SPCC regulation until August 18, 2006; 
some will be new facilities beginning operation after that date. EPA 
agrees with the USWAG comments that a compliant discharge history of 
ten years or more provides a higher degree of assurance of continuing 
compliance than a history of ten years or less. This is particularly 
true when comparing ten-year compliant facilities to otherwise 
qualified facilities which began operations after August 16, 2002, and 
whose owners or operators, to date, have not been subject to the 
requirements of the SPCC program, as well as start-up facilities 
without any operating history. EPA considered whether owners or 
operators of newer facilities that do not have ten years of compliance 
and operation without a discharge should be required to provide a one-
time notification to the Agency. This notification would be submitted 
to the Administrator within 30 days of self-certifying a facility's 
SPCC Plan and would include the following information: (1) Name of the 
facility owner/operator; (2) mailing address of the facility owner/
operator; (3) type of business conducted at the facility that is 
subject to the requirements of this part; (4) above-ground capacity of 
the facility; (5) location of the facility by street address or, if 
there is no street address, by longitude and latitude; and (6) year the 
facility began operations. These notices could be provided by either 
regular or electronic mail. The Agency would have the opportunity to 
provide some basic SPCC outreach and educational support to these 
owners and operators who, while otherwise demonstrating the 
prerequisites for self-certification, are unable to demonstrate ten 
years without a discharge as described in Sec.  112.1(b). This one-time 
notification requirement, if adopted, would modify today's proposed 
qualified facilities option by increasing its burden for some 
facilities. EPA decided not to pursue this option because it does not 
differ substantively from the proposed action and the additional burden 
of a notification requirement was not considered necessary.
    The Agency welcomes comments on these or other alternatives that 
could serve to reduce the burden to smaller oil-handling facilities in 
particular, while at the same time maintaining appropriate levels of 
environmental protection by preventing discharges of oil. Any 
alternative approach presented must include an appropriate rationale 
and supporting data in order for the Agency to be able to consider it 
for final action.

B. Qualified Oil-Filled Operational Equipment

    EPA proposes to amend the Oil Pollution Prevention regulation (40 
CFR part 112) to provide a definition of oil-filled operational 
equipment and an optional alternative to the general secondary 
containment requirements for oil-filled operational equipment that 
meets the qualifying criterion (hereafter referred to as ``qualified 
oil-filled operational equipment''). The proposal would allow owners 
and operators of facilities with qualified oil-filled operational 
equipment to have the alternative of preparing an oil spill contingency 
plan and a written commitment of manpower, equipment and materials to 
expeditiously control and remove any oil discharged that may be 
harmful, without having to make an individual impracticability 
determination as required in Sec.  112.7(d). The owner or operator 
would also be required to establish and document an inspection or 
monitoring program for this qualified oil-filled operational equipment 
to detect equipment failure and/or a discharge, in lieu of providing 
secondary containment.
    EPA proposes to add Sec.  112.7(k) to define the SPCC eligibility 
criterion that qualified oil-filled operational equipment must meet in 
order to be considered qualified oil-filled operational equipment. 
Eligibility of a facility with oil-filled operational equipment would 
be determined by considering the reportable discharge history from any 
oil-filled operational equipment. The qualified oil-filled operational 
equipment criterion specifically requires that the facility had no 
discharges as described in Sec.  112.1(b) from any oil-filled 
operational equipment in the ten years prior to the SPCC Plan 
certification date, or since becoming subject to 40 CFR part 112 if the 
facility has been in operation for less than ten years.
    This proposed action would provide an alternative means of SPCC 
compliance for this equipment;

[[Page 73534]]

therefore, an owner/operator could choose to follow the current SPCC 
requirements to provide secondary containment for each piece of 
qualified oil-filled operational equipment in accordance with Sec.  
112.7(c) if desired. For example, oil-filled operational equipment at 
electrical substations is often surrounded by a gravel bed, which 
serves as a passive fire quench system and support for the facility 
grounding network and can provide a restriction to movement of any oil 
that may be released. Gravel beds, if designed to prevent a discharge 
as described in Sec.  112.1(b) (i.e., drainage systems that do not 
serve as a conduit to surface waters) may meet the general secondary 
containment requirements of Sec.  112.7(c). EPA further notes that 
facilities with oil-filled operational equipment located within 
buildings with limited drainage, which prevents a discharge as 
described in Sec.  112.1(b), may already meet the requirements for 
general secondary containment of Sec.  112.7(c). If so, a contingency 
plan for this equipment is not necessary. Ultimately, this would be a 
decision by the owner and/or operator.
1. Proposed Oil-Filled Operational Equipment Definition
    In July 2002, EPA clarified that oil-filled equipment (i.e., oil-
filled electrical, operating, and manufacturing equipment) are not bulk 
storage containers and therefore are not subject to the bulk storage 
container provisions in Sec.  112.8(c), including specifically sized 
secondary containment for bulk storage containers and integrity 
testing. However, as EPA stated in the preamble to the July 2002 
amendments, oil-filled equipment is subject to general secondary 
containment requirements described in Sec.  112.7(c), which can be 
provided by various means including drainage systems, spill diversion 
ponds, etc. EPA believes these measures provide for safety and also 
meet the needs of section 311(j)(1)(C) of the CWA.
    Though there are times when general secondary containment is 
practicable for oil-filled operational equipment, the Agency agreed to 
continue to evaluate whether the general secondary containment 
requirements found in Sec.  112.7(c) should be modified for small 
electrical and other types of equipment which use oil for operating 
purposes. On September 20, 2004, EPA published a NODA which made 
available and solicited comments on submissions to EPA suggesting that 
alternate regulatory requirements for facilities with oil-filled and 
process equipment would be appropriate (69 FR 56184). EPA has reviewed 
the public comments and data submitted in response to this NODA and 
presents today's proposal in accordance with our intention to consider 
alternative containment options for electrical and operational 
equipment.
    Today's proposal defines oil-filled operational equipment as 
``equipment which includes an oil storage container (or multiple 
containers) in which the oil is present solely to support the function 
of the apparatus or the device. Oil-filled operational equipment is not 
considered a bulk storage container, and does not include oil-filled 
manufacturing equipment (flow-through process).'' Examples of oil-
filled operational equipment include, but are not limited to, hydraulic 
systems, lubricating systems (e.g., those for pumps, compressors and 
other rotating equipment, including pumpjack lubrication systems), gear 
boxes, machining coolant systems, heat transfer systems, transformers, 
circuit breakers, electrical switches, and other systems containing oil 
to enable the operation of the devices.
    Oil-filled operational equipment differs from bulk storage 
containers in several ways. Oil-filled operational equipment typically 
has minimal oil throughput because such equipment does not require 
frequent transfers of oil. Further, the oil contained in oil-filled 
operational equipment, such as cooling or lubricating oil, is intrinsic 
to the operation of the device and facilitates the function of the 
equipment. A leak of oil from some oil-filled operational equipment can 
be detected by low-level alarms and remote monitoring of the 
performance of the equipment. For example, the loss of oil from 
electrical equipment will result in the equipment ceasing to operate, 
which will result in a power outage. Utilities have strong economic 
incentives to prevent power outages, to discover and respond to an 
outage, and to correct the conditions that produced the outage as 
quickly as possible. In addition, oil-filled operational equipment is 
often subject to routine maintenance and inspections to ensure proper 
operation. Finally, oil-filled operational equipment is designed, 
constructed, and maintained according to specifications for its 
particular operation and construction materials are corrosion-
resistant.
    However, the oil storage capacity of oil-filled operational 
equipment still counts towards the total oil storage capacity of the 
facility. The SPCC regulation defines storage capacity of a container 
as the shell capacity of the container. This definition applies to all 
oil storage containers including bulk storage containers and all oil-
filled equipment. In order to determine the storage capacity of an 
individual piece of oil-filled operational equipment, the owner/
operator would consider the total storage capacity of the piece of 
equipment (i.e., add together the capacity of multiple compartments or 
reservoirs of oil storage). The owner or operator must include the 
storage capacity of oil-filled operational equipment in order to 
determine applicability of the SPCC regulation to the facility.
    As proposed today, oil-filled manufacturing equipment (which 
involves a flow-through process) would not qualify for this 
alternative. Under the current rule, oil-filled manufacturing equipment 
(which is a subset of oil-filled equipment) is not defined as a bulk 
storage container. Oil-filled manufacturing equipment includes, for 
example, process vessels, conveyances such as piping associated with a 
process, and equipment used in the alteration, processing or refining 
of crude oil and other non-petroleum oils, including animal fats and 
vegetable oils Oil-filled manufacturing equipment is inherently more 
complicated than oil-filled operational equipment because it typically 
involves a flow-through process and is commonly interconnected through 
piping. For example, oil-filled manufacturing equipment receives a 
continuous source of oil, in contrast to the static capacity of other, 
non-flow-through oil-filled equipment.
    Today's proposal would not change any requirements for oil-filled 
manufacturing equipment. Oil-filled manufacturing equipment remains 
subject to the general SPCC requirements under Sec.  112.7, including a 
demonstration of impracticability under Sec.  112.7(d) if the SPCC Plan 
does not provide for secondary containment as required by Sec.  
112.7(c). The containers associated with storage of raw products, or 
the finished oil products are bulk storage containers and are not 
considered oil-filled manufacturing equipment or oil-filled operational 
equipment. Additionally, piping systems not associated with the 
alteration, processing or refining of crude oil and other non-petroleum 
oils, including animal fats and vegetable oils are not considered oil-
filled manufacturing equipment. EPA expects the owner/operator to 
delineate bulk storage containers from the oil-filled manufacturing 
equipment in the facility SPCC Plan (e.g., on the facility diagram and 
in discussion of compliance with inspection requirements of the rule). 
Additionally, while oil-filled manufacturing equipment is not a bulk

[[Page 73535]]

storage container and is therefore not subject to the frequent visual 
inspection requirement for bulk storage containers under Sec.  
112.8(c)(6), EPA believes that it is good engineering practice to have 
some form of visual inspection or monitoring for oil-filled 
manufacturing equipment in order to prevent discharges as described in 
Sec.  112.1(b). Furthermore, it is a challenge to comply with several 
of the SPCC provisions (for example, requirements for security under 
Sec.  112.7(g) and for countermeasures for discharge discovery under 
Sec.  112.7(a)(3)(iv)) without some form of inspection or monitoring 
program.
2. Eligibility Criteria--Reportable Discharge History
    Under today's proposal, the alternative to secondary containment 
for qualified oil-filled operational equipment would not be available 
to facilities that have had a reportable discharge from any oil-filled 
operational equipment in the ten years prior to the SPCC Plan 
certification date, or since becoming subject to 40 CFR part 112 if the 
facility has been in operation for less than ten years. This criterion 
is based on a proposal submitted by USWAG, as described in the 
documents supplementing the September 20, 2004 NODA at 69 FR 56184. In 
its proposal, USWAG recognized that facilities that pose a risk, in the 
form of discharges of oil in quantities that are harmful (reportable 
under 40 CFR part 110), should not be granted regulatory relief. In 
general, NODA commenters expressed strong support for the USWAG 
proposal.
    40 CFR 110.3 defines a discharge of oil ``in such quantities that 
may be harmful to the public health, welfare, or the environment of the 
United States as a discharge of oil that violates applicable water 
quality standards; a discharge of oil that causes a film or sheen upon 
the surface of the water or adjoining shorelines; or a discharge of oil 
that causes a sludge or emulsion to be deposited beneath the surface of 
the water or adjoining shorelines. The Agency refers to such discharges 
in Sec.  112.1(b) of the rule. Any person in charge of a facility must 
report any such discharge of oil from the facility to the National 
Response Center (NRC) at 1-800-424-8802 immediately. While EPA 
recognizes that past discharge history does not necessarily predict 
future performance, the Agency believes that discharge history can be 
used as a surrogate measure for a facility's ability to appropriately 
manage its oil. Hence, as with the ``qualified facilities'' proposal, 
EPA proposes to use this discharge history criterion to identify a 
facility's ability to effectively implement its SPCC Plan and prevent 
discharges in quantities that may be harmful. In establishing a good 
oil spill prevention history, a facility then qualifies for the oil 
spill contingency plan option offered in this proposal. Because the 
Agency is proposing to extend this relief to all oil-filled operational 
equipment, regardless of the oil storage capacity of the equipment, 
this criterion is critical in establishing an appropriate balance 
between environmental protection and burden relief by identifying those 
facilities which have demonstrated good spill prevention practices in 
the past.
    The Agency requests comments on the appropriateness of a reportable 
discharge history criterion for determining the qualifications of a 
facility with oil-filled operational equipment for this alternative, 
whether it is necessary, and whether there are other measures of a 
facility's effective implementation of the oil pollution prevention 
requirements for oil-filled operational equipment under 40 CFR part 112 
that should be considered. In addition, the Agency also specifically 
requests comments on the proposed ten-year period by which facilities 
can meet the discharge history criterion. Any alternative time periods 
suggested must include an appropriate rationale and supporting data in 
order for the Agency to be able to consider them for final action. The 
Agency is also aware that events such as natural disasters, acts of war 
or terrorism, sabotage, or other calamities, beyond the control or 
planning ability of the facility owner or operator, may cause a 
reportable oil discharge. The Agency therefore requests comments on how 
to account for such occurrences in the discharge history criterion.
3. Proposed Requirements for Qualified Oil-Filled Operational Equipment 
in Lieu of Secondary Containment
a. Contingency Plans and a Written Commitment of Manpower, Equipment 
and Materials
    The regulated community, particularly electrical facilities, 
identified secondary containment for oil-filled operational equipment 
as one of its major cost concerns. This sentiment was echoed in the 
comments submitted in response to the NODAs. With this proposal, the 
Agency is responding to those concerns by providing targeted relief 
without compromising on environmental protection. EPA believes that 
secondary containment may be often impracticable for oil-filled 
operational equipment due to inherent design and safety considerations, 
as well as site configuration. The oil associated with oil-filled 
operational equipment remains inside the equipment and transfers do not 
occur regularly; for oil-filled electrical equipment (e.g., 
transformers) transfers may occur infrequently, if at all. Operational 
equipment is designed, constructed, and maintained according to 
specifications for its particular operation and construction materials 
are corrosion-resistant. The complexity of the equipment and the nature 
of the use of this equipment may not lend itself to traditional bulk 
storage containment methods and thus flexibility is appropriate in this 
area and may improve compliance with oil pollution prevention measures. 
The proposed amendments to Sec.  112.7 would give a facility with 
qualified oil-filled operational equipment the option of implementing 
an oil spill contingency plan and written commitment of manpower, 
equipment, and materials required to expeditiously control and remove 
any quantity of oil discharged that may be harmful in lieu of secondary 
containment for this equipment, without having to make an 
impracticability determination for each piece of equipment. It should 
be noted that the use of a contingency plan does not relieve the owner/
operator of liability associated with an oil discharge to navigable 
waters or adjoining shorelines that violates the provisions of 40 CFR 
part 110.
    In the preamble to the 2002 amendments, EPA discusses how any 
facility which makes a determination of impracticability and has 
submitted a Facility Response Plan (FRP) under Sec.  112.20 is exempt 
from the contingency planning requirement because such a response plan 
is more comprehensive than a contingency plan following 40 CFR part 
109. The Agency believes that this should also apply to a facility with 
qualified oil-filled operational equipment which would choose to 
utilize contingency planning in lieu of secondary containment in 
accordance with today's proposal. If such a facility has already 
developed an FRP to comply with Sec.  112.20, then it would not need to 
also develop a contingency plan in accordance with 40 CFR part 109 for 
the qualified oil-filled operational equipment.
    Since, by definition, oil-filled operational equipment is not 
considered a bulk storage container, the facility owner or operator is 
not required to comply with the bulk storage requirements under Sec.  
112.8(c) or to conduct both periodic integrity testing of the 
containers and periodic integrity

[[Page 73536]]

and leak testing of the valves and piping as described under Sec.  
112.7(d). However, EPA believes that inspections or monitoring are 
important when there is no secondary containment in place. Therefore, 
EPA is proposing to require facilities with qualified oil-filled 
operational equipment choosing the proposed alternative to secondary 
containment to develop and implement an inspection or monitoring 
program, as further discussed in section B.3.b. of this section of the 
preamble. Since this proposal for qualified oil-filled operational 
equipment would provide an optional method of SPCC compliance, a 
facility with such equipment could choose to follow the current SPCC 
requirements and provide general secondary containment in accordance 
with Sec.  112.7(c) for this equipment if desired. Ultimately, this 
would be a decision of the owner and/or operator.
    Facilities with qualified oil-filled operational equipment that 
choose the proposed alternative to secondary containment and that 
subsequently experience a discharge would not automatically lose 
eligibility for today's proposed relief. Owners/operators of facilities 
which discharge oil in quantities that may be harmful from oil-filled 
operational equipment should re-evaluate the effectiveness of the SPCC 
Plan (specifically the contingency plan, written commitment of 
resources and inspections/monitoring alternative discussed in today's 
proposal) and determine the need for secondary containment measures in 
lieu of contingency planning. Additionally, the Regional Administrator 
(RA) may determine that a facility is no longer eligible to have a 
contingency plan in lieu of secondary containment without making an 
impracticability determination, and such facilities may be required to 
amend their Plans to provide secondary containment for their oil-filled 
operational equipment. The RA has the authority to require SPCC Plan 
amendments under Sec.  112.4. Section 112.4(a) requires a facility that 
has discharged more than 1,000 gallons of oil in a single discharge as 
described in 40 CFR part 110, or that discharged more than 42 gallons 
of oil in each of two discharges as described in 40 CFR part 110 in any 
12-month period to submit information to the RA within 60 days of the 
date of the discharge. As per Sec.  112.4(d), the RA has the authority 
to require the facility to amend its SPCC Plan in order to prevent and 
contain discharges; e.g., the RA may require a facility to install 
secondary containment for oil-filled operational equipment. In 
addition, a discharge of oil under 40 CFR part 110 that does not 
trigger the reporting requirements of Sec.  112.4(a) must still be 
reported to the National Response Center. EPA also receives copies of 
the NRC reports and has the authority under Sec.  112.1(f) to require a 
facility to prepare and implement an SPCC Plan or any applicable part 
of a Plan. Thus, the RA may require a Plan, partial Plan, or amendments 
to the Plan to achieve full compliance with the rule, as deemed 
appropriate to prevent further discharges in quantities that may be 
harmful.
b. Inspections or Monitoring Program
    Facility owners or operators that wish to take advantage of this 
proposed alternative would be required to develop an appropriate set of 
procedures for inspections or a monitoring program for qualified oil-
filled operational equipment. For facilities that rely on contingency 
planning in lieu of secondary containment for qualified oil-filled 
operational equipment, discharge discovery by inspection or monitoring 
is of paramount importance for effective and timely implementation of 
the contingency plan. An inspection or a monitoring program would 
ensure that facilities are alerted quickly of equipment failures and/or 
discharges. A written description of the inspection or monitoring 
program would be required to be included in the SPCC Plan. Under the 
existing requirement in Sec.  112.7(e), the owner or operator would be 
required to keep a record of inspections and tests, signed by the 
appropriate supervisor or inspector, for a period of three years. 
Records of inspections and tests kept under usual and customary 
business practices suffice (e.g., 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).
    While oil-filled operational equipment is not a bulk storage 
container and is therefore not subject to the frequent visual 
inspection requirement for bulk storage containers under Sec.  
112.8(c)(6), EPA believes that it is good engineering practice to have 
some form of visual inspection or monitoring for oil-filled operational 
equipment in order to prevent discharges as described in Sec.  
112.1(b). Additionally, it is a challenge to comply with several of the 
SPCC provisions (for example, requirements for security under Sec.  
112.7(g) and for countermeasures for discharge discovery under Sec.  
112.7(a)(3)(iv)) without some form of inspection or monitoring program.
    A facility owner/operator must be able to quickly detect a 
discharge from qualified oil-filled operational equipment in order for 
a contingency plan to be effective. Oil-filled operational equipment 
may be frequently monitored by employees tending to the operation, and 
in such a case, discharges of oil would be noticed quickly. For many 
types of operational equipment, particularly oil-filled electrical 
equipment, releases of oil rapidly decrease the functionality of the 
equipment--for oil-filled electrical equipment, loss of dielectric 
fluid leads to equipment failure and an interruption of electric power 
transmission. The need for equipment reliability assures prompt 
detection of releases of oil, enhancing the probability of a prompt 
response action. Therefore, in lieu of secondary containment, today's 
proposal for qualified oil-filled operational equipment includes the 
requirement for a facility owner/operator to establish and document an 
inspection or monitoring program, in addition to the preparation of a 
contingency plan, and a written commitment of manpower, equipment, and 
materials to expeditiously control and remove oil discharged.
    The Agency requests comments on the appropriateness of this 
requirement as a qualification for this alternative, and whether there 
are other measures that a facility could take to ensure that a 
contingency plan is activated in a timely manner upon equipment failure 
or discharge. The Agency also requests comments on whether there are 
other requirements that should be added for facilities with oil-filled 
operational equipment to be able to establish and document an 
inspection or monitoring program, use a contingency plan, and provide a 
written commitment of manpower, equipment and materials in lieu of 
secondary containment for qualified oil-filled operational equipment. 
Any alternative approach presented must include an appropriate 
rationale and supporting data in order for the Agency to be able to 
consider it for final action.

Alternative Options Considered

    EPA considered alternative approaches to address streamlined 
requirements for small oil-filled operational equipment. One option was 
similar to the qualified facilities proposal, in which eligibility of a 
facility with oil-filled operational equipment would be determined by 
considering capacity thresholds and reportable discharge history from 
any

[[Page 73537]]

oil-filled operational equipment. Another option would call for a 
tiered set of requirements for electrical and other oil-filled 
operational equipment. EPA also considered options similar to those 
presented for the qualified facilities proposal: (1) providing an 
indefinite extension of the Plan revision and implementation dates for 
certain types of oil-filled operational equipment; and (2) suspending 
all SPCC requirements for certain types of oil-filled operational 
equipment.
a. Capacity Threshold Qualifier
    The Agency considered an alternative approach based on various 
levels of aggregate oil storage capacity at a facility for determining 
which facilities would be eligible for reduced burden as qualified oil-
filled operational equipment. EPA considered limiting the proposed 
option by including two alternative storage capacity thresholds from 
which the owner/operator may determine the equipment or facility's 
eligibility: (1) The storage capacity of an individual piece of oil-
filled operational equipment is 1,320 gallons or less, regardless of 
the facility's total oil-filled operational equipment aggregate 
capacity; or (2) the aggregate oil-filled operational equipment storage 
capacity at the facility is 10,000 gallons or less. EPA also considered 
an alternative range of thresholds for both an individual piece of oil-
filled operational equipment (ranging from 2,640 to 5,000 gallons) and 
for the facility aggregate capacity of 20,000 gallons in order to 
provide a greater degree of burden reduction than the alternative 
thresholds considered by EPA. In determining potential threshold 
capacities, EPA considered current thresholds in the rule, as well as 
proposals by industry. This was intended to limit this relief to small 
pieces of oil-filled operational equipment or to facilities storing 
smaller aggregate volumes of oil in oil-filled operational equipment. 
The total facility oil-filled operational equipment storage capacity 
threshold addresses the co-location of oil-filled operational equipment 
within a facility.
    The Agency decided not to propose a threshold criterion because we 
believe this equipment is unique and different from bulk storage 
containers and manufacturing equipment (flow-through process) such that 
the spill history alone suffices as a qualifying criterion to determine 
eligibility. The Agency was also concerned with the limited amount of 
information provided in response to the NODA. The data submitted in 
response to the NODA was primarily from the electrical industry and the 
Agency has no information describing the types of oil-filled 
operational equipment, capacities and distribution for other 
industries. Additionally, we have limited specific information on the 
various sizes of oil-filled electrical equipment to assist in 
establishing a threshold for an individual piece of equipment.
    The Agency seeks comments on whether eligibility for qualified oil-
filled operational equipment status should be based on a specific level 
of aggregate oil-filled operational equipment storage capacity at a 
given facility. The Agency seeks comments on whether a threshold 
criterion achieves an appropriate balance of facility burden and 
environmental protection for oil-filled operational equipment. Any 
available data specific to either the capacity, location, or size 
distribution of oil-filled operational equipment within a facility or 
within a specific industry sector would be useful in Agency 
deliberations for final rulemaking. Comments specific to establishing a 
threshold criterion for oil-filled operational equipment should include 
supporting data that: (1) Demonstrates why the suggested volume 
threshold is preferred; and (2) estimates the number (or percentage) of 
facilities that would be eligible for qualified oil-filled operational 
equipment status. Any alternative approach presented should include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider it for final action.
b. Multi-Tiered Structure
    The tiered structure option was considered in response to comments 
EPA received following publication of a Notice of Data Availability for 
oil-filled equipment (69 FR 56184, September 20, 2004) and is based on 
a previous proposal put forth by USWAG that focused on electrical 
equipment. A central element of this option would allow the facility 
owner or operator to define each discrete unit of this type of oil-
filled equipment as a facility. This option would also establish three 
tiers for regulated onshore oil-filled operational equipment based on 
the storage capacity of the equipment. Individual pieces of oil-filled 
operational equipment with an oil storage capacity of 1,320 gallons or 
less (Tier 1) would have been exempt from all SPCC requirements. For 
individual pieces of oil-filled operational equipment with a capacity 
greater than 1,320 but less than 20,000 gallons and which meet 
additional qualifying criteria (Tier II), facility owners and operators 
would have the option of preparing a contingency plan in lieu of an 
SPCC Plan. Such an approach would have exempted a significant portion 
of the regulated universe with oil-filled operational equipment from 
the development of an SPCC Plan entirely and instead would only need to 
develop a contingency plan and a written commitment of manpower, 
equipment and materials in the event of a discharge. Tier III would 
require that all other oil-filled operational equipment with capacities 
greater than 20,000 gallons for an individual piece of equipment be 
required to comply with the current SPCC rule.
    Although the Agency agrees that some regulatory modifications are 
appropriate for facilities containing oil-filled operational equipment, 
there is still a reasonable potential for discharge from this equipment 
and coverage by some type of SPCC Plan is warranted. The Agency 
believes this is true even for facilities composed entirely of oil-
filled operational equipment. EPA also has concerns about the 
suggestion to allow facility owners and operators to define each piece 
of oil-filled equipment as a separate facility because of the potential 
for greater rule complexity, implementation questions and confusion 
across the wide variety of facilities covered by the SPCC rule. For 
example, the Agency may have to define and develop criteria that would 
be used by the facility owner or operator to determine which equipment 
is a separate facility, which is not, and how the elements of a 
facility plan would address these differences. Uncertainty and 
confusion about the definition of a facility could lead to a greater 
lack of compliance and the potential for greater environmental harm.
c. Extension/Suspension Options
    EPA could propose an indefinite extension to the compliance dates, 
similar to the previous extensions already granted, that would apply to 
oil-filled operational equipment. This action would allow EPA more time 
to decide how to regulate oil-filled operational equipment without 
delaying compliance for the entire universe of SPCC-regulated 
facilities and equipment. However, the extension would be for a yet-to-
be-determined length of time, and for an unspecified set of 
requirements. Since so many facilities have oil-filled operational 
equipment, if changes to these requirements are delayed, a significant 
number of facilities might have to modify their existing Plans more 
than once to accommodate future rule changes. As with past extensions, 
EPA would continue to require that oil-filled operational equipment 
comply with pre-

[[Page 73538]]

2002 SPCC requirements during the interim period at facilities that 
should have had an SPCC Plan as of August 16, 2002, providing no 
immediate relief.
    A suspension of all requirements for oil-filled operational 
equipment would provide immediate relief until further notice and 
provided EPA with more time to decide how to regulate this equipment. 
The Agency is concerned that this option provides no environmental 
protection during the time that new requirements are developed.
    EPA welcomes comments on these or other alternatives that could 
reduce the burden at facilities with oil-filled operational equipment, 
while maintaining appropriate levels of environmental protection. The 
Agency is also interested in comments related to the application of the 
USWAG proposal to other types of oil-filled operational equipment. Any 
alternative approaches presented must include an appropriate rationale 
and supporting data in order for the Agency to be able to consider them 
for final action.

Qualified Facilities and Qualified Oil-Filled Operational Equipment 
Overlap

    Some facilities would meet the criteria for both qualified 
facilities and qualified oil-filled operational equipment. Such 
facilities would be able to benefit from both of the burden-reduction 
options proposed under today's action. The owner or operator could 
choose to develop a contingency plan and a written commitment of 
manpower, equipment and materials in lieu of secondary containment for 
qualified oil-filled operational equipment. Since no impracticability 
determination would be required for qualified oil-filled operational 
equipment, the owner or operator could self-certify his/her SPCC Plan 
and would not be required to have a PE develop and certify the 
contingency plan for the qualified oil-filled operational equipment. 
The responsibility of preparing a contingency plan and identifying the 
necessary equipment, materials and manpower to implement the 
contingency plan would fall on the owner or operator of the qualified 
facility.

C. Motive Power

    There are some motive power containers already exempt from the SPCC 
requirements based on the rule exemption for containers with an oil 
storage capacity of less than 55 gallons. However, there are certain 
motor vehicles (including aircraft) that contain oil in capacities 
greater than or equal to 55 gallons solely for the purpose of providing 
fuel for propulsion, or solely to facilitate the operation of the 
vehicle. The concept of ``motive power'' is not addressed in the SPCC 
regulations, but the EPA-DOT MOU in Appendix A to 40 CFR part 112 
specifically refers to the transportation of oil, not to transportation 
in the general sense. As a result, oil storage containers with a 
capacity greater than 55 gallons used for motive power fall under the 
SPCC rule and secondary containment and other SPCC requirements apply. 
However, EPA never intended to regulate motive power containers on 
buses, sport utility vehicles, small construction vehicles, aircraft 
and farm equipment, or facilities or locations such as heavy equipment 
dealers, commercial truck dealers, or certain parking lots that may be 
subject to the SPCC requirements (including bulk storage containment, 
inspection, and overfill protection) solely because of the presence of 
motive power containers. Nor does EPA intend to require facilities 
otherwise subject to the SPCC rule to include motive power containers 
in their Plans.
1. Definition of Motive Power
    EPA proposes to amend the Oil Pollution Prevention regulation (40 
CFR part 112) to exempt motive power containers, defined as ``onboard 
bulk storage containers used solely to power the movement of a motor 
vehicle, or ancillary onboard oil-filled operational equipment used 
solely to facilitate its operation.'' This definition is intended to 
describe containers such as the fuel tanks that are used solely to 
provide fuel for a motor vehicle's movement or the hydraulic and 
lubrication operational oil-filled containers used solely for other 
ancillary functions of a motor vehicle. This definition would not 
include transfers of fuel or other oil into motive power containers at 
an otherwise regulated facility, or a bulk storage container mounted on 
a vehicle for any purpose other than powering the vehicle itself, for 
example, a tanker truck or refueler. The definition of motive power 
containers would not include oil drilling or workover equipment. 
Specifically, it would not apply to the drilling or workover rigs 
themselves; however, other earthmoving equipment (such as a bulldozer, 
trucks, or earth-moving equipment) located at a drilling or workover 
facility would be included in the scope of the definition. Similarly, 
seismic exploration vehicles located at, for example, oil and gas 
drilling, workover and production facilities, would be included in the 
scope of the definition of motive power.
    The Agency is seeking comments on the proposed definition of motive 
power containers or if there are any other definitions for ``motive 
power'' that would be more suitable. Any alternative approach presented 
must include an appropriate rationale and supporting data in order for 
the Agency to be able to consider it for final action.
2. Proposed Exemption
    This proposed rule amendment would exempt motive power containers, 
as defined above, from SPCC rule applicability through a proposed 
additional paragraph under the general applicability section, Sec.  
112.1(d). Furthermore, these storage containers would not be counted 
toward facility capacity under Sec.  112.1(d)(2). EPA recognizes that 
there is a potential for an oil discharge as described in Sec.  
112.1(b) from motive power containers, such as from a breach in the 
fuel storage container, from an overfill event, or from a rupture of 
oil-filled operational equipment such as a hydraulic line on heavy 
construction equipment. EPA has the authority, under 311(j)(1)(C) of 
the CWA, to impose requirements to prevent oil discharges from motive 
power containers. The Regional Administrator has the option under Sec.  
112.1(f) to require facilities with motive power containers to prepare 
and implement an SPCC Plan or any applicable part, if a determination 
is made that it is necessary in order to prevent a discharge of oil 
into waters of the United States.
    EPA notes that although this proposal provides the fuel tanks and 
ancillary oil-filled operational equipment on motor vehicles with an 
exemption from SPCC requirements, oil transfer activities occurring 
within an SPCC covered facility would continue to be regulated. An 
example of such an activity would be the transfer from an onsite tank 
via a dispenser to motive power containers. This transfer activity is 
subject to the general secondary containment requirements of Sec.  
112.7(c), but is not subject to the requirements of Sec.  112.7(h), 
because it does not occur across a loading/unloading rack. Regulating a 
transfer between unregulated motive power containers and a regulated 
tank is required by Sec.  112.1(b), which requires that the SPCC rule 
apply to owners or operators of facilities that transfer oil and oil 
products. Another example would be an airport mobile refueler at an 
SPCC-regulated airport that transfers oil to motive power containers or 
to an aircraft. That transfer activity would again be subject to the 
general secondary containment requirements of Sec.  112.7(c), but not 
subject to the

[[Page 73539]]

requirements of Sec.  112.7(h), again because it does not generally 
occur across a loading/unloading rack.
    An onboard bulk storage container that supplies oil for the 
movement of a vehicle or operation of onboard equipment, and at the 
same time is used for the distribution or storage of this oil is not 
subject to this proposed exemption. For example, a mobile refueler that 
has an onboard bulk storage container used to distribute fuel to other 
vehicles on a site may also draw its engine fuel (for propulsion) from 
that container. Because EPA continues to consider bulk storage 
containers mounted on vehicles or towed by a vehicle (such as a typical 
cargo tanker truck) subject to certain transfer-related SPCC 
requirements, these containers are not subject to today's proposed 
exemption. As noted above, the exemption applies only to onboard bulk 
storage containers used solely to provide motive power or to facilitate 
the operation of the vehicle.
    EPA is not extending the exemption for motive power containers to 
oil drilling and workover equipment, including rigs. The Agency 
believes that due to the unique nature of oil drilling and workover rig 
operations and the large amounts and high flow rates of oil associated 
with these activities, it would not be appropriate or environmentally 
sound to exempt them from the SPCC requirements, and thus they should 
remain subject to 40 CFR part 112. The purpose of offering the 
exemption is to offer relief for a particular set of equipment (e.g., 
automobiles) that may be present at an otherwise regulated SPCC 
facility, and not to offer relief for facilities that may be mobile and 
move from place to place as in the case of a drilling or workover rig. 
Although drilling and workover equipment, including rigs, are not 
exempt, other motive power equipment located at drilling or workover 
facilities (e.g., trucks, automobiles, bulldozers, seismic exploration 
vehicles or other earth-moving equipment) would be exempted. The agency 
believes that the general protection and the spill response and 
planning activities provided at an otherwise regulated SPCC facility 
will help the facility to address the spills associated with these 
motive power containers. However, the specific provisions (such as 
blowout prevention) which are present in the current rule for drilling 
or workover rigs, need to be preserved to maintain an adequate level of 
environmental protection for these unique activities. Therefore, an 
exemption for drilling and workover equipment, including rigs, is 
inappropriate.
3. Alternative Options Considered
    EPA considered other options to address motive power containers 
greater than 55 gallons in size. These options included: (1) Exemption 
of all motive power containers, except motive power containers on 
aircraft and mining equipment, which would be subject to the general 
requirements under Sec.  112.7; (2) exemption of all motive power 
containers below a certain gallon threshold, with containers above this 
threshold remaining subject to the general requirements under Sec.  
112.7; and (3) exclusion of motive power containers only from the 
facility storage capacity calculation and bulk storage container 
requirements.
a. Equipment-Based Motive Power Exemption
    EPA could choose to exempt motive power containers, except 
containers on aircraft and mining equipment, from the requirements of 
40 CFR part 112. The majority of motive power containers would be 
exempt from the SPCC rule. EPA would require that the containers on 
aircraft and mining equipment be covered by the SPCC requirements 
because these containers typically have much larger volume than other 
motive power containers and potentially pose a greater threat to the 
environment in the event of a discharge as described in 112.1(b). 
However, in the context of motive power containers, there is no 
information on the degree of likelihood of a discharge from motive 
power containers of different oil storage capacities nor is there data 
available to EPA specific to mining and aircraft equipment discharges 
that would justify this option. Therefore, the Agency chose not to 
propose this option.
b. Threshold-Based Motive Power Exemption
    Another option considered was to exempt motive power containers 
with a capacity below a certain threshold, and requiring containers 
with a capacity above the established threshold to have appropriate 
containment under Sec.  112.7(c). Those motive power containers 
included in the rule would only be required to have general 
containment, and would be exempt from all other requirements in 
Sec. Sec.  112.7 and 112.8(c). However, EPA rejected this option 
because it has no basis for choosing an appropriate threshold for these 
containers and there is no data that clearly supports any specific 
quantity. In addition, it would still present implementation problems 
for those motive power containers that were subject to the regulation.
c. Exclusion From Storage Capacity Calculation
    EPA could exclude motive power containers from the storage capacity 
determination at a regulated facility and from the definition of bulk 
storage container to clarify that these containers are not counted 
towards the 1,320 gallon aboveground oil storage threshold for the 
regulation. Nevertheless, the facility would have to consider these 
containers in their overall facility SPCC Plan. Although motive power 
containers would not be considered bulk storage containers, they would 
be subject to the general requirements of the rule under Sec.  112.7, 
including the provision for secondary containment. The facility SPCC 
Plan would have to identify the presence of motive power containers on-
site, in addition to their reasonable potential for discharge as per 
Sec.  112.7(b). This option is more complex for the regulated community 
and is not a clear exemption of motive power containers.
    Each of these alternative options was rejected because they did not 
address the implementation issues with regulating motive power 
containers under the SPCC requirements. The Agency welcomes comments on 
these or other alternatives that could serve to reduce the burden for 
facilities with motive power containers, while at the same time 
maintaining appropriate levels of environmental protection. Any 
alternative approaches presented must include an appropriate rationale 
and supporting data in order for the Agency to be able to consider them 
for final action.

D. Airport Mobile Refuelers

    Airport mobile refuelers are vehicles that are used on an airport 
to refuel aircraft and ground service equipment. Their onboard bulk 
storage containers are used to transport and transfer fuel and are 
subject to the SPCC rule because they are containers used to store oil 
prior to use, while being used, or prior to further distribution in 
commerce. As such, they are subject to all applicable SPCC rule 
provisions, including the secondary containment provisions of Sec.  
112.8(c)(2) (applicable to all bulk storage containers) and Sec.  
112.8(c)(11) (applicable more specifically to mobile/portable bulk 
storage containers). These provisions require a secondary means of 
containment, such as a dike or catchment basin, sufficient to contain 
the capacity of the largest single compartment or container with 
sufficient freeboard to contain precipitation.

[[Page 73540]]

    Regulated community members in the aviation sector have expressed 
concern that requiring sized secondary containment for airport mobile 
refuelers is not practicable for safety and security reasons. They 
argue that requiring refuelers to park in specially designed secondary 
containment areas located within an airport's aircraft operations area 
could create a safety and security hazard because it entails grouping 
the vehicles or placing impediments in the operations area. In 
addition, they claim that requiring mobile refuelers to return to 
containment areas located within the airport's tank farm between 
refueling operations may increase the risk of accidents (and therefore 
accidental oil discharge), as the vehicles would travel with increased 
frequency through the busy aircraft operations area. They also claim 
that providing secondary containment for mobile refuelers during 
airport operations presents inherent difficulties and point to controls 
on design, inspection, maintenance and operation of mobile refuelers 
imposed by the Federal Aviation Administration's Advisory Circulars. 
For example, the storage containers on the mobile refuelers must be 
manufactured to U.S. DOT-406 specifications for pressure vessels (49 
CFR 178.346).
    EPA is aware that certain airports subject to FAA's regulations at 
14 CFR part 139 require certification by the FAA Administrator or his 
delegated agent. As part of this certification, the Agency understands 
that compliance with Uniform Fire Code requirements, among other 
requirements in 14 CFR part 139, must be detailed in the Airport 
Certification Manual to obtain FAA approval and thus an Airport 
Operating Certificate per part 139. The Agency understands that the 
applicable Uniform Fire Code includes National Fire Protection 
Association's (NFPA) 30, Flammable and Combustible Liquids Code, NFPA 
407, Standard for Aircraft Fuel Servicing and NFPA 415, Standard on 
Airport Terminal Buildings, Fueling Ramp Drainage, and Loading 
Walkways. In particular, NFPA 407 requires that aircraft fuel servicing 
vehicles and carts shall be positioned so that a clear path of egress 
from the aircraft for fuel servicing vehicles shall be maintained 
[5.12.1]. Further, in NFPA 415, the code specifically states that in no 
case shall the design of a drainage system of any aircraft fueling ramp 
allow fuel to collect on the aircraft fueling ramp or adjacent ground 
surfaces where it constitutes a fire hazard [5.1.4]. As such, EPA 
believes that subjecting mobile airport refuelers to the specifically 
sized secondary containment requirements at Sec.  112.8(c)(2) and (11) 
would directly conflict with the Uniform Fire Code applicable to fuel 
handling at airports. EPA believes, however, that these bulk storage 
containers should remain subject to the general secondary containment 
requirements at Sec.  112.7(c) as this provision affords sufficient 
flexibility to the owner/operator and certifying PE to select a spill 
prevention method that would not conflict with the applicable Uniform 
Fire Code. Thus, EPA is proposing to exempt airport mobile refuelers 
from the specifically sized secondary containment requirements for bulk 
storage containers in Sec.  112.8(c)(2) and (11). EPA believes that 
this exemption is appropriate for airport mobile refuelers, so as not 
to conflict with the specific Uniform Fire Code requirements for 
airport fueling activities, while preserving environmental protection 
(especially for fuel transfers associated with airport mobile 
refuelers), afforded by the spill prevention provisions outlined in 
Sec.  112.7(c). EPA also believes that this clarification for airport 
mobile refuelers applies to mobile refuelers operating at all airports, 
both those certified under 14 CFR part 139 and non-certified airports.
1. Definition of Airport Mobile Refueler
    EPA proposes to amend the Oil Pollution Prevention regulation (40 
CFR part 112) to exempt airport mobile refuelers from the requirements 
of Sec.  112.8(c)(2) and (11). In today's proposal, EPA defines an 
airport mobile refueler as ``a vehicle with an onboard bulk storage 
container designed for, or used to, store and transport fuel for 
transfer into or from an aircraft or ground service equipment.'' This 
definition is adapted from definitions in the U.S. DOT Federal Aviation 
Administration's Advisory Circular 150/5230-4 on Aircraft Fuel Storage, 
Handling, and Dispensing on Airports, and NFPA 407 for Aircraft Fuel 
Servicing. The definition is intended to describe vehicles of various 
sizes equipped with a bulk storage container such as a cargo tank (tank 
trucks, tank full trailers, tank semitrailers, etc.) that are used to 
fuel or defuel aircraft at airports.
2. Proposed Amended Requirements
    This proposed amendment would revise Sec.  112.8(c)(2) and (11) to 
specifically exempt airport mobile refuelers, as defined above, from 
these provisions. Since airport mobile refuelers are mobile or portable 
bulk storage containers, the other provisions of Sec.  112.8(c) would 
still apply. Secondary containment systems sufficient to contain the 
capacity of the largest single compartment or container with sufficient 
freeboard to contain precipitation would no longer be required. 
Notwithstanding, there is a potential for oil discharges as described 
in Sec.  112.1(b) from airport mobile refuelers. Indeed, there are 
documented cases of reportable discharges while fuel is transferred 
from storage into the mobile refuelers and during aircraft refueling 
activities. Fuel leaks have occurred while the mobile refueler is 
parked or idle. Therefore, the general secondary containment 
requirements of Sec.  112.7(c) would continue to apply to airport 
mobile refuelers under this proposal.
    Section 112.7(c) lists several appropriate containment methods a 
facility owner or operator can provide, including curbs, gutters, 
barriers, or sorbent materials. However, EPA recognizes that permanent 
containment structures such as curbs may not be appropriate in all 
cases. The Agency made informal contact with nine airport engineering 
and construction firms who indicated that providing sized secondary 
containment areas for airport mobile refuelers is not a common 
practice. We also learned that mobile refuelers are not involved in 
every airport fueling operation, and when refuelers are present, there 
is no standard method for ensuring sized secondary containment. EPA 
cautions that these results are drawn from only a small number of firms 
that provide construction and engineering support for the aviation 
industry rather than directly from the airport owners or operators.
    Appropriate containment and/or diversionary structures or equipment 
must be designed to prevent a discharge as described in Sec.  112.1(b). 
The Agency believes general secondary containment should be designed to 
address the most likely discharge from the primary containment system. 
Section Sec.  112.7(c) allows for the use of certain types of active 
containment measures (countermeasures or spill response capability) 
which prevent a discharge to navigable waters or adjoining shorelines. 
Active containment measures are those that require deployment or other 
specific action by the owner or operator. These measures may be 
deployed either before an activity involving the handling of oil 
starts, or in reaction to a discharge so long as the active measure is 
designed and can reasonably be implemented to prevent an oil spill from 
reaching navigable water or adjoining shorelines. Passive measures are 
permanent

[[Page 73541]]

installations and do not require deployment or action by the owner/
operator. The efficacy of active containment measures to prevent a 
discharge depends on their technical effectiveness (e.g., mode of 
operation, absorption rate), placement and quantity, and timely 
deployment prior to, or following a discharge. For discharges that 
occur only during manned activities, such as those occurring during 
transfers, an active measure (e.g, sock, mat, other portable barrier, 
or land-based response capability) may be appropriate, provided that 
the measure is capable of containing the oil discharge volume and rate, 
and is timely and properly constructed/deployed. The Agency also 
believes that these active measures may be appropriately applied to 
other situations (e.g., when the refueler is not engaged in transfer 
operations or moving around the facility).
    EPA believes that the general provisions for secondary containment 
address the most likely spill scenarios associated with this equipment 
(i.e., transfers from the refuelers to the aircraft). Section 112.7(c) 
does not prescribe a size for a secondary containment structure but 
does require appropriate containment and/or diversionary structures or 
equipment to prevent a discharge as described in Sec.  112.1(b). These 
proposed revisions would maintain environmental protection, while still 
allowing the necessary flexibility for compliance with the general 
secondary containment requirements of the rule.
    Alternatively, EPA considered whether the general secondary 
containment requirements of Sec.  112.7(c) should be applied to airport 
mobile refuelers only during any fuel transfer activity and not while 
the refueler is moving or out of service (e.g. parked or idle) provided 
that the facility is in compliance with current NFPA 407 and NFPA 415 
requirements and any applicable FAA requirements that govern fuel 
handling. If a facility is not in compliance with NFPA 407, and 415 and 
FAA requirements, then it must comply with the general secondary 
containment requirements at all times. The Agency did not propose this 
approach because NFPA 407 and NFPA 415 are designed for fire protection 
rather than environmental protection; a properly designed drainage 
system that meets the intent of NFPA 407 and NFPA 415 might not 
adequately prevent fuel from being discharged in quantities that may be 
harmful. In addition, EPA has no information on the degree of 
compliance with, alternatives to, or applicability of, NFPA 407 and 
NFPA 415 to all airport facilities. Consequently, EPA did not propose 
this approach. EPA welcomes comment on this issue.
    The Agency seeks comments on the proposed definition for ``airport 
mobile refuelers,'' the adequacy of general secondary containment 
requirements for preventing discharges as described in Sec.  112.1(b) 
from airport mobile refuelers, whether the proposed regulatory relief 
satisfies the concerns of airport owners and/or operators, and the 
ability to apply active measures as described in Sec.  112.7(c). 
Additionally, the Agency seeks comments on whether the relief provided 
specific to Sec.  112.8(c)(2) and (11) should be more broadly applied 
to other types of mobile refuelers or railcars that are subject to 
Sec.  112.8(c)(2) and (11) and Sec.  112.12(c)(2) and (11). Any 
alternative approaches presented must include an appropriate rationale 
and supporting data in order for the Agency to be able to consider them 
for final action.

E. Animal Fats and Vegetable Oils

    In 1995, Congress enacted the Edible Oil Regulatory Reform Act 
(EORRA), 33 U.S.C. 2720. That statute requires most Federal agencies to 
differentiate between, and establish separate classes for, various 
types of oil, specifically, animal fats and oils and greases, and fish 
and marine mammal oils, and for oils of vegetable origin, including 
oils from seeds, nuts, and kernels; and other oils and greases, 
including petroleum. EORRA also requires affected agencies to apply 
standards to the different classes, based on considerations of 
differences in the physical, chemical, biological, and other properties 
of these oils and on the environmental effects of the oils.
    In the July 17, 2002 final SPCC rule, the Agency promulgated 
general requirements in Sec.  112.7 for SPCC Plans for all facilities 
and all types of oil, as well as additional requirements tailored to 
specific types of facilities in Sec. Sec.  112.8 through 112.15. At 
that time, in response to EORRA, EPA established separate subparts in 
the rule for facilities storing or using the various classes of oil 
listed in that act. Subpart C (Sec. Sec.  112.12 through 112.15) sets 
out the requirements for facilities with animal fats and oils and 
greases, and fish and marine mammal oils; and for oils of vegetable 
origin, including oils from seeds, nuts, fruits, and kernels 
(hereinafter ``animal fats and vegetable oils'' or ``AFVO''). Subpart B 
(Sec. Sec.  112.8 through 112.11) sets out the requirements for 
facilities with petroleum oils and non-petroleum oils other than AFVO. 
The Agency promulgated the identical requirements for facilities 
storing or using all classes of oil in the final rule. As a result, 
certain requirements, including requirements for types of facilities 
that only exist in the petroleum sector, also apply to facilities 
handling animal fats and vegetable oils.\2\
---------------------------------------------------------------------------

    \2\ The Agency also responded to a petition it received on 
August 12, 1994 to treat facilities that handle, store or transport 
animal fats and/or vegetable oils differently from those facilities 
that store petroleum based oil. EPA denied that petition, and 
published the denial in a Federal Register notice (see 62 FR 54508, 
October 20, 1997).
---------------------------------------------------------------------------

    In today's proposal, the Agency proposes to amend Subpart C of part 
112 by removing Sec.  112.13 (requirements for onshore oil production 
facilities), Sec.  112.14 (requirements for onshore oil drilling and 
workover facilities), and Sec.  112.15 (requirements for offshore oil 
drilling, production, or workover facilities). As members of the 
regulated community pointed out, facilities that process, store, use, 
or transport animal fats and/or vegetable oils (AFVO) do not engage in 
production, drilling or workover. EPA agrees that these sections should 
not be included in part 112, subpart C and therefore proposes to remove 
them from the rule. The Agency seeks comment on the proposal to remove 
and reserve these sections of Subpart C of the regulation.
    The Agency has not developed a proposal following the 1999 Advanced 
Notice of Proposed Rulemaking regarding differentiation of AFVO from 
petroleum and other oils in the SPCC rule (64 FR 17227). To assist the 
Agency in its ongoing consideration of this issue, EPA requests 
suggestions for additional amendments that would differentiate AFVOs 
from other classes of oils in the SPCC rule and scientific support for 
those amendments. In particular, EPA is seeking information that 
specifically addresses the criteria for differentiation set forth in 
EORRA, 33 U.S.C. 2720(b); that is, differences in the physical, 
chemical, biological, and other properties, as well as the 
environmental effects, of various types of oil, in order for the Agency 
to support a rationale for differentiation of oil spill prevention 
requirements. The Agency will continue to examine these issues to 
determine the appropriateness of amendments to the regulatory scheme 
which differentiate the SPCC requirements for AFVO from the 
requirements for petroleum and other oils.

VI. Proposed Extension of Compliance Dates for Farms

    The agricultural community has provided EPA with additional

[[Page 73542]]

information and data which suggests that the universe of farms subject 
to the SPCC rule may be much larger than EPA estimated in the 
preparation of the 2002 SPCC rule revisions. EPA believes that the 
unique characteristics of farms pose particular challenges to SPCC 
compliance and that further consideration of the requirements as they 
relate to farms is warranted. We are particularly concerned that many 
of these farms are small and that subjecting them to these requirements 
may not be necessary. Therefore, EPA intends to review the impact of 
the SPCC requirements on farms and will take action in a future 
rulemaking.
    While determining if the agriculture sector warrants specific 
consideration under the SPCC rule, EPA proposes to extend the 
compliance dates for preparing or amending and implementing SPCC Plans 
for farms that have a total storage capacity of less than 10,000 
gallons. Our basis for taking this action is several fold. First, there 
are factors concerning the physical layout of a farm that make this 
sector unique within the universe of SPCC-regulated facilities. For 
example, farms vary considerably in design and size (less than an acre 
to many thousand acres). Further, the environment in which farms 
operate varies considerably from other industries. Farmers often own 
and/or farm land that are noncontiguous, and may be separated by roads 
and other obstacles. Oil is generally not centrally stored and oil 
containers may be widely dispersed. Certain SPCC requirements (such as 
fencing, lighting, etc.) may be disproportionately difficult and 
expensive for farmers to implement, and provide little environmental 
benefit. Also, because farms are often residential properties, under 
the existing rule, home heating oil tanks may be required to be covered 
by the farm's SPCC Plan. Other rule provisions, including security, 
would also affect the residential portions of a farm. For these 
reasons, we are proposing an extension of the compliance date for farms 
with a total storage capacity of less than 10,000 gallons. See Section 
B below, for details.

A. Eligibility Criteria

    EPA proposes the 10,000-gallon threshold for farms to be consistent 
with the threshold quantity used in the NCP to classify oil discharges 
to inland waters as ``major'' (40 CFR 300.5). Thus, a facility storing 
less than 10,000 gallons of oil could not be involved in a major 
discharge based on the NCP quantitative criterion alone, although use 
of this numerical criteria is not meant to imply that smaller 
discharges are not harmful. This same 10,000-gallon threshold discharge 
volume is also one factor used in identifying facilities that must 
prepare and submit a Facility Response Plan (FRP) under Sec.  
112.20(f)(1). In addition, 10,000 gallons is a common storage capacity 
and such a threshold would extend the compliance dates for a 
significant portion of the farm sector. Data provided by the 
agricultural industry and the U.S. Department of Agriculture indicate 
that the average aggregated aboveground oil storage capacity at farms 
surveyed in 2005 was 5,550 gallons; approximately 83 percent of 
surveyed farms have aggregated oil storage below 10,000 gallons. Farms 
with less than 1,000 acres had an average oil storage capacity of less 
than 2,500 gallons; farms with over 1,000 acres had an average oil 
storage capacity of almost 8,000 gallons. (See ``Fuel/Oil Storage and 
Delivery for Farmers and Cooperatives,'' USDA, March 2005, in the 
docket for today's proposal.)
    The Agency seeks comments on whether this threshold appropriately 
addresses the concerns of farms with relatively smaller volumes of oil, 
while maintaining the environmental protection intended by the 
regulation. If commenters suggest alternative volume thresholds, it 
will be important for the comments to also include a justification for 
such alternative volume thresholds in order for the Agency to 
adequately consider the comments submitted. This data would be useful 
in final rule deliberations.
    The Agency considers a farm as a specific type of facility under 
the SPCC rule and proposes a specific definition for farm under today's 
proposal. For this proposed extension, EPA would define ``farm,'' in 
part, by adapting the definition used by the National Agricultural 
Statistics Service (NASS) in its Census of Agriculture. NASS defines a 
farm as any place from which $1,000 or more of agricultural products 
were produced and sold, or normally would have been sold, during the 
census year. Operations receiving $1,000 or more in Federal government 
payments are counted as farms, even if they have no sales and otherwise 
lack the potential to have $1,000 or more in sales.
    EPA also considered the definition it uses to exempt farm tanks 
under the Underground Storage Tank (UST) regulations at 40 CFR part 
280. The Resource Conservation and Recovery Act (RCRA) as amended, 
section 9001(1)(A), exempts farm and residential USTs storing less than 
1,100 gallons of motor fuel for ``noncommercial'' purposes. As defined 
in 40 CFR 280.12, a farm tank is a tank located on a tract of land 
devoted to the production of crops or raising of animals, including 
fish. The preamble to the UST rule explains that the term ``farm'' 
includes fish hatcheries, rangeland, and nurseries with growing 
operations, but does not include laboratories where animals are raised, 
land used to grow timber, and pesticide aviation operations. This term 
also does not include retail stores or garden centers where the product 
of nursery farms is marketed, but not produced, nor does EPA interpret 
the term ``farm'' to include golf courses or other places dedicated 
primarily to recreational, aesthetic, or other non-agricultural 
activities. (See 53 FR 37082, 37117, September 23, 1988.)
    EPA also considered defining a farm by listing the appropriate 
North American Industry Classification System (NAICS) codes, but we 
believe that the definition proposed today in Sec.  112.2, along with 
the 10,000 gallon threshold quantity, more effectively identifies the 
sector to which the extension would appropriately apply. Potentially 
affected entities that fall within certain NAICS codes, including 111 
(Crop Production) and 112 (Animal Production), are likely to fall 
within the proposed definition of farm and should consider the 
definition and eligibility criteria further to determine if the 
proposed extension applies.
    EPA utilized elements of the UST definition of farm, in combination 
with the Census definition, in developing today's proposal. By 
combining elements of both of these approaches, the Agency believes the 
proposed definition more specifically targets the intended universe for 
the extension. EPA seeks comment on the proposed definition for farms, 
and whether an alternate definition of ``farm'' may be more 
appropriate. Comments may also address the proposed 10,000 gallon 
threshold for qualifying for the extension, and whether an alternative 
threshold may be more appropriate. Any alternative approaches presented 
must include an appropriate rationale and supporting data in order for 
the Agency to be able to consider them for final action.

B. Proposed Compliance Date Extension for Farms

    With today's action, EPA proposes to extend the compliance dates 
for the owner or operator of a farm, as defined in proposed Sec.  
112.2, that has a total storage capacity of 10,000 gallons or less, to 
prepare or amend and implement the farm's SPCC Plan. The Agency 
proposes to extend the farm compliance dates until EPA completes 
information collection and analysis to

[[Page 73543]]

determine if differentiated SPCC requirements may be appropriate for 
farms. If the Agency determines that differentiated requirements for 
farms are warranted, the Agency will publish a notice in the Federal 
Register proposing new compliance dates for eligible farms.
    In working to determine how to properly address farms under the 
SPCC regulation, EPA will be partnering with USDA to acquire 
information to determine if differentiation may be appropriate. EPA 
believes that, at this time, an extension is appropriate because of the 
large scope of the agricultural community that may be subject to the 
SPCC requirements, the fact that many farms are small, and the time 
needed to determine how the SPCC requirements should apply if at all, 
and the effect of today's proposal on the farm sector. We are also 
considering as an alternative approach to exempt farms below a set oil 
storage capacity threshold (such as 10,000 or 20,000 gallons) from the 
SPCC regulation.
    EPA seeks comment on whether the proposed extension is warranted, 
or if a specific time period would be more appropriate than the 
proposed indefinite extension. EPA also requests comment on whether it 
is more appropriate to exempt all farms having less than a certain oil 
storage capacity threshold (such as 10,000 or 20,000 gallons) from all 
SPCC requirements. Any alternative approaches presented must include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider them for final action.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Under the terms of Executive Order 12866, this action has been 
judged as a ``significant regulatory action'' because it will have an 
annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities. 
Therefore, this action was submitted to OMB for review and the Agency 
has prepared a regulatory analysis in support of today's action, 
titled, ``Regulatory Analysis of the Spill Prevention, Control, and 
Countermeasure Proposed Rule'' (November 2005). Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record. EPA requests comments from the public on the costs 
and benefits of any of the possible regulatory changes discussed in 
this proposed rulemaking, as well as on appropriate methodologies for 
assessing them.
1. Summary of Regulatory Analysis
    The regulatory analysis developed in support of today's action 
considers changes in regulatory compliance costs for affected facility 
owners and operators, changes in paperwork burden, and impacts on small 
businesses. In addition, EPA examined qualitatively the potential 
impacts of the regulatory options on oil discharge risk. EPA intends to 
continue to update its estimates and assumptions for use in the 
analysis supporting the final rule.
a. General Approach
    This analysis develops benefit and cost estimates for the proposed 
actions in the four major components of the proposed rule:
    Qualified facilities with smaller storage capacities;
     Oil-filled operational equipment;
     Motive power;
     Airport mobile refuelers.
    The analysis then assesses the impacts of the alternative 
regulatory options that EPA considered.
    For each of the components, the benefits consist of reductions in 
social costs accruing from reductions in compliance costs. The main 
steps used to estimate the compliance cost impacts of the SPCC Proposed 
Rule are as follows:
    Develop the baseline universe of SPCC-regulated facilities and unit 
cost of compliance estimates for the analysis;
     Estimate the number of facilities affected by each of the 
proposed options;
     Estimate unit compliance costs for all elements of the 
proposed options;
     Estimate compliance cost savings to potentially affected 
facilities; and
     Annualize compliance cost savings over a ten-year period 
and discount the estimates to the current year.
    EPA also considered the potential impacts of the proposed rule and 
alternative options on the risk of oil discharges, which could lead to 
harmful environmental, human health, and welfare consequences. Because 
of the lack of data on regulated entities and their likely response to 
the regulatory options, the magnitude of such risks is highly 
uncertain. Therefore, EPA examined the general nature of the proposed 
and alternative changes to assess possible effects on risk.
b. Baseline for the Analysis
    The impacts of the proposed regulation depend on the assumed 
baseline of industry behavior in the absence of a new rulemaking. EPA 
developed a baseline for the regulatory analysis to assess the change 
in regulatory compliance costs associated with each of the proposed 
options, mutually exclusive of each other. The baseline provides the 
benchmark from which changes in regulatory behavior, caused by the 
proposed options, are measured.
    EPA is aware of industry concerns regarding potential non-
compliance among certain facility sizes or sectors, although no 
reliable empirical evidence exists to assess the scope and magnitude of 
such non-compliance. EPA explicitly considered whether to incorporate 
non-compliance in its regulatory analysis of the 2002 revised rule: 
``It is possible that some facilities have misinterpreted the existing 
regulation and are not currently in full compliance with existing 
requirements, but there is no practical way to measure the level of 
non-compliance. Moreover, the costs of coming into compliance with the 
clarified requirements are not properly attributed to this final 
regulation.''
    This rule does not impact any facilities that are not already 
required to meet the standards of the SPCC rule. The costs of SPCC 
requirements were already imposed on the regulated community by prior 
rulemaking in 1973 and 2002. For the benefit-cost analysis, therefore, 
EPA is treating these costs as

[[Page 73544]]

liabilities the regulated entities currently have--whether or not they 
have actually made the capital expenditures to comply. In this 
analytical construct, these firms are simply delaying the expenditures 
for the costs they already carry. Therefore, EPA used as its baseline 
the requirements under 40 CFR part 112 (``SPCC rule''), as amended in 
2002 (67 FR 47042). EPA does recognize, however, that there is non-
compliance with the SPCC requirements by some portion of the regulated 
community.
c. Description of SPCC-Regulated Universe
    This section describes the universe of facilities subject to 
current and proposed SPCC regulations. Calculating the number of 
regulated entities is not straightforward. The SPCC rule does not 
include a notification requirement and, with certain exceptions, owners 
and operators do not submit their SPCC Plans to EPA. The Agency has 
invested considerable resources into estimating the number of entities 
affected by the SPCC rule.
    EPA has updated its previous estimates of the number of regulated 
facilities. The Agency used data from the 2002 Economic Census, the 
Census of Agriculture, and a variety of other governmental and non-
governmental sources to estimate the number of regulated facilities in 
a large set of industrial and commercial sectors. Since data were not 
available for all states, the basic estimation procedure involved 
extrapolating from eight state databases using information from the 
U.S. Census Bureau. The estimates of the SPCC universe were developed 
for 31 industry sectors. Full documentation of the estimates appears in 
the Regulatory Analysis document accompanying this proposal.
    In total, EPA estimates that 618,000 facilities are currently 
regulated under the SPCC rule. Oil production facilities (28 percent), 
farms (25 percent) and electric utility plants (8 percent) account for 
most of the SPCC-regulated facilities. Following is a table that 
summarizes the estimated number of regulated facilities, by size 
category:

------------------------------------------------------------------------
                                                             Number of
             Category                Aggregate  capacity    facilities
------------------------------------------------------------------------
I.................................  1,320 to 10,000              322,000
                                     gallons.
II................................  10,001 to 42,000             216,000
                                     gallons.
III...............................  42,001 to 1 million           77,000
                                     gallons.
IV................................  greater than 1                 3,000
                                     million gallons.
------------------------------------------------------------------------

2. Qualified Facilities
    Today, EPA is proposing to provide an option for qualified 
facilities to eliminate the requirement for PE certification, and to 
provide flexibility with respect to security measures and integrity 
testing for these facilities. This proposed option would provide the 
greatest relief to owners and operators of new facilities that are 
preparing their first SPCC Plan, as well as cost savings for owners and 
operators of existing facilities that make substantive changes to their 
Plans in the future.
a. Universe of Affected Facilities
    As noted above, EPA estimates that approximately 322,000 facilities 
with storage capacities below 10,000 gallons are subject to the SPCC 
requirements in the first year. Over the next ten years, approximately 
335,000 facilities with storage capacities below 10,000 gallons would 
be subject to SPCC on average. As with all of the regulatory options 
considered in developing today's proposed rule, facilities would have 
the choice of complying with the existing SPCC rule (as amended in 
2002) or taking advantage of the proposed change. EPA assumes that 
facilities would likely choose an alternative requirement if (a) they 
met the criteria, and (b) it was less costly or otherwise offered 
greater benefits than the existing requirement. As with the other 
options being considered today, EPA does not know how many facilities 
would meet the criteria and choose to avail themselves of the 
``Qualified Facility'' options. Therefore, EPA examined the impact of 
the ``Qualified Facility'' options under three scenarios: 25 percent, 
50 percent, and 75 percent of Category I facilities would likely meet 
``Qualified Facility'' status and decide to implement this approach. 
EPA estimated that the 84,000 facilities would choose to take advantage 
of this option under the 25-percent scenario; 167,000 facilities under 
the 50-percent scenario, and 251,000 facilities under the 75 percent 
scenario.
b. Compliance Cost Savings
    The main assumptions affecting all regulatory options were based on 
updated assumptions from the analyses conducted for the 2002 final 
rule. For example, EPA revised the cost estimate for obtaining 
Professional Engineer (PE) certification of a new SPCC Plan. The 
estimate increased from $1,120 to $2,000 for a PE to certify a new Plan 
and from $560 to $750 for a PE to certify a technical change to an 
existing Plan. The estimates are based on findings from discussions 
with several engineering firms.
    The unit cost of integrity testing was estimated based on 
interviews with several tank inspectors. EPA calculated the total cost 
of integrity testing per facility by multiplying for a single tank by 
the number of tanks per facility.\3\
---------------------------------------------------------------------------

    \3\ The number of tanks per facility was calculated using state 
oil tank databases.
---------------------------------------------------------------------------

    EPA multiplied burden hour estimates by the hourly wage rates for 
specific labor categories to determine the per-facility costs 
associated with the proposed rule's paperwork requirements. The labor 
wage rates for private industry were derived from the March 2005 U.S. 
Department of Labor's Employment Cost Indexes and Levels.\4\
---------------------------------------------------------------------------

    \4\ United States Department of Labor, Bureau of Labor 
Statistics, Employer Costs for Employee Compensation, June 2005.
---------------------------------------------------------------------------

    EPA estimates that if 50 percent of the facilities complied with 
the alternative proposed today for qualified facilities that this 
option could reduce compliance costs by $22.5 million and $18.4 million 
per year, discounted at 3 percent and 7 percent, respectively. EPA 
assumed that the proposed flexibility for integrity testing would 
reduce the unit cost of testing by 50 percent. If 25 percent of 
facilities under 10,000 gallons qualified for this option, compliance 
costs would decrease by $11.2 million and $9.19 million per year, 
discounted at 3 percent and 7 percent, respectively. If 75 percent of 
facilities under 10,000 gallons qualified for this option, compliance 
costs would be reduced by $33.7 million and $27.6 million per year, 
discounted at 3 percent and 7 percent, respectively.
3. Oil-Filled Operational Equipment
    Today, EPA is proposing to allow owners and operators of facilities 
featuring certain kinds of oil-filled operational equipment to 
establish and document an inspection or monitoring program, prepare an 
oil spill contingency plan and provide a written commitment of 
manpower, equipment, and materials in lieu of providing secondary 
containment without making an individual impracticability 
determination. The option is limited to facilities that have had no 
discharges as described in Sec.  112.1(b) from any oil-filled 
operational equipment in the ten years prior to the SPCC Plan 
certification date, or since becoming subject to 40 CFR part 112 if the 
facility has been in operation for less than ten years.
a. Universe of Affected Facilities
    The proposed changes for qualified oil-filled operational equipment 
could

[[Page 73545]]

address such items as hydraulic systems, lubricating systems (e.g., 
those for pumps, compressors, pumpjacks, and other rotating equipment 
including pumpjack lubrication systems), gear boxes, machining coolant 
systems, heat transfer systems, transformers, circuit breakers, 
electrical switches, and other systems containing oil to enable 
operation of the devices. Due to data and time limitations, EPA focused 
its economic analysis on the electric utility sector. Consequently, the 
analysis likely underestimates the total cost savings from the proposed 
``qualified oil-filled operational equipment'' action and the 
alternative options.
    Specifically, EPA used data on the number of substations listed by 
each major utility reporting to the Federal Energy Regulatory 
Commission (FERC).\5\ A national estimate was extrapolated from these 
data using the ratio of the megawatt hours sold by utilities to the 
estimated total retail megawatt hours of electricity sold nationwide 
according to the EIA.
---------------------------------------------------------------------------

    \5\ Major regulated utilities must file FERC Form No. 1, on 
which utilities report information on their substations and 
electrical equipment. ``Major'' is defined as having (1) one million 
megawatt hours or more; (2) 100 megawatt hours of annual sales for 
resale; (3) 500 megawatt hours of annual power exchange delivered; 
or (4) 500 megawatt hours of annual wheeling for others (deliveries 
plus losses).
---------------------------------------------------------------------------

    EPA estimated that the total number of new facilities with total 
oil-filled operational equipment would be approximately 2,040 in the 
first year. Over the next ten years, approximately 2,450 new facilities 
are expected to be added annually on average. This number 
underestimates the universe of facilities affected by the proposed 
change, since it does not include oil-filled operational equipment from 
other industries. Facilities with qualified oil-filled operational 
equipment are expected to use a contingency plan with a written 
commitment of manpower, equipment and materials and have an established 
inspections/monitoring program.
    EPA assumed that existing SPCC-regulated facilities with qualified 
oil-filled operational equipment would already have secondary 
containment or a determination of impracticability of secondary 
containment with a contingency plan and a written commitment of 
manpower, equipment and materials in accordance with Sec.  112.7(d). In 
such cases, facilities would not benefit from this option. EPA has 
provided an economic impact analysis (Appendix A to the Regulatory 
Analysis), which examines avoided facility expenditures.
    EPA acknowledges that some fraction of new facilities would, 
according to the current SPCC rule requirements, provide an 
impracticability determination and provide a contingency plan and a 
written commitment of manpower, equipment and materials, rather than 
pursue secondary containment. In these cases, the proposed action's 
cost savings would be lower, since owners and operators would only be 
avoiding an impracticability determination rather than secondary 
containment. EPA does not know what fraction of facilities falls into 
this situation, and has decided not to incorporate the scenario in the 
analysis. As a result, EPA's analysis likely overestimates the cost 
savings to facilities in the electric utility industry from the 
proposed action.
    However, EPA believes that the overall assessment of cost savings 
from this component of the rule may be significantly underestimated. 
This is due to the omission of potential cost savings that would accrue 
to all other industries outside of electrical utilities.
b. Compliance Cost Savings
    EPA estimates that this component of the proposal could reduce 
compliance costs by as much as $56.7 million and $45.9 million per 
year, discounted at 3 percent and 7 percent, respectively. EPA 
calculated cost savings based on the assumption that new facilities 
with qualified oil-filled operational equipment would save the 
difference between the cost of secondary containment and the cost of 
preparing a contingency plan and a written commitment of manpower, 
equipment and materials. EPA estimated annual per-facility cost savings 
of $9,000 to $61,000 for new facilities, depending on a facility's size 
and other characteristics.
    The Agency recognizes, that at some facilities, owners or operators 
with PE-certified SPCC Plans have made a determination that secondary 
containment is impracticable, and have implemented contingency plans 
and a written commitment of manpower, equipment and materials for the 
non-qualified oil-filled operational equipment. Such facilities would 
not see significant cost savings from this component of the current 
rule. The analysis of cost savings underestimate the number of 
facilities with qualified oil-filled operational equipment, but 
overestimates the cost savings for facilities that have been counted.
4. Motive Power
    It is not EPA's intent to regulate onboard bulk storage containers 
used solely to power the movement of a motor vehicle, or ancillary 
onboard oil-filled operational equipment used solely to facilitate its 
operation. Although EPA has no empirical data on the amount of such 
storage at facilities regulated by the SPCC rule, EPA does not expect 
that many facility owners and operators have included motive power in 
their oil storage capacity calculations and SPCC Plans. For those who 
have considered motive power storage, EPA assumes that the volume that 
would be exempt under the proposed rule would not represent a large 
fraction of the facility's aggregate capacity.
a. Universe of Affected Facilities
    To identify industries that are potentially affected by motive 
power exemptions, EPA started with information from industry comments 
to the 2002 SPCC rule. Commenters from the crop production, forestry/
logging, and utilities industries indicated they had motive power 
equipment. EPA identified additional industry groups by examining 
industries targeted by the major motive power equipment manufacturers. 
Caterpillar, Deere & Company, Kubota Corporation, Joy Global Inc., CNH 
Global NV, and Terex Corporation are some of the largest motive power 
equipment manufacturers. Each company lists the industries targeted by 
their products. EPA used these listings as the basis for classifying 
industries likely to have motive power containers.
    EPA has no empirical data on the number of facilities with motive 
power containers with oil storage of 55 gallons or greater. To estimate 
the number of facilities affected by the ``Motive Power'' proposed 
rule, EPA examined three scenarios: 10 percent, 25 percent, and 50 
percent of the facilities in sectors with motive power may be affected 
by the proposed regulatory option. EPA estimated that 29,000 facilities 
have ``motive power'' oil storage under the 10-percent scenario; 71,600 
facilities under the 25-percent scenario; and 143,000 facilities under 
the 50-percent scenario.
b. Compliance Cost Savings
    EPA assumed that ten percent of the facilities in industries 
identified as having motive power containers might take advantage of 
the proposed exemption. Other facilities could also have motive power 
containers, however EPA expects that they have not considered such 
storage as part of their compliance with the SPCC rule. Because EPA 
expects most facilities with motive power containers to meet the SPCC 
rule's oil storage thresholds, regardless of motive power, EPA assumes 
that the

[[Page 73546]]

cost savings from the proposed exemption will be modest, with the 
possibility of saving small amounts of compliance costs, principally 
for secondary containment for these motive power containers. EPA 
estimates that the proposed option will reduce compliance costs by 
$0.92 million and $0.75 million per year, discounted at 3 percent and 7 
percent, respectively. The main benefit of the proposed option would be 
to provide greater clarity of EPA's regulatory intent.
    EPA also examined two other scenarios: 25 percent and 50 percent of 
facilities in industries identified as having motive power containers 
might take advantage of the proposed exemption. Under the 25-percent 
scenario, compliance costs would be reduced by $2.29 million and $1.87 
million per year, discounted at 3 percent and 7 percent, respectively. 
Under the 50-percent scenario, compliance costs would be reduced by 
$4.58 million and $3.74 million, discounted at 3 percent and 7 percent, 
respectively.
5. Airport Mobile Refuelers
    EPA proposes to exempt airport mobile refuelers from the 
specifically sized bulk storage secondary containment requirements of 
Sec.  112.8(c)(2) and (11). EPA defines an airport mobile refueler as a 
``vehicle with an onboard bulk storage container designed for, or used 
to, store and transport fuel for transfer into or from aircraft or 
ground service equipment.'' The general secondary containment 
requirements of Sec.  112.7(c) would still apply to these airport 
mobile refuelers and to the transfers associated with this equipment. 
Since airport mobile refuelers are mobile or portable bulk storage 
containers, the other provisions of Sec.  112.8(c) would still apply.
    The Agency researched regulatory compliance of airports with SPCC 
requirements for secondary containment, and found that some airports do 
not have sized secondary containment in place. EPA found that secondary 
containment for mobile refuelers is not a common practice and that 
mobile refuelers rarely have a designated area to park. Factors such as 
the land value at many commercial airports prohibits a single, 
designated parking area for mobile refuelers.\6\ EPA analyzed potential 
cost savings to the industry using an assumption that new facilities 
would have to provide secondary containment in accordance with Sec.  
112.8(c)(2) and (11) for airport mobile refuelers. Therefore, the 
estimated annual cost savings consist of the potential expenditures 
avoided of providing secondary containment for new airport mobile 
refuelers.
---------------------------------------------------------------------------

    \6\ For detail, see ``Results of Research Project on Airport 
Engineering and Construction Firms'', Abt Associates Inc. 
memorandum, 2004.
---------------------------------------------------------------------------

    The Agency estimated the total number of new airports at 479 in the 
first year. Over the next ten years, approximately 535 new airports are 
expected to be added annually on average. EPA assumed one to three 
mobile refuelers per airport,\7\ or approximately two per airport on 
average. EPA estimates that this component of the proposal could reduce 
compliance costs by $6.43 million and $5.23 million per year, 
discounted at 3 percent and 7 percent, respectively. The derivation of 
these estimates is explained in Chapter 8 of the Regulatory Analysis.
---------------------------------------------------------------------------

    \7\ Based on Federal Aviation Administration estimates (http://www.faa.gov/data_statistics/
).

---------------------------------------------------------------------------

6. Projected Impacts on Human Health, Welfare, and the Environment
    The main benefit of the proposed rule is lower compliance costs for 
certain types of facilities and equipment. EPA expects these reduced 
expenditures to translate to net social benefits. These benefits may be 
partially offset by potential increases in risk of oil discharges, due 
to less stringent requirements compared to the existing SPCC rule.
    However, EPA has designed the proposed rule to minimize increases 
in environmental risk. For example, EPA is providing an option to avoid 
Professional Engineer certification for qualified facilities that have 
no history of reportable discharges. Any decision to apply 
environmental equivalence or pursue an impracticability determination 
would still require PE certification, except for security and integrity 
testing. For the other relief offered in the proposal, most facilities 
will have general secondary containment that would help prevent 
discharges as described in Sec.  112.1(b). In summary, although the 
magnitude of any increase in risk under each of the proposed options is 
unclear, EPA does not believe that these changes in spill risk are 
significant.
    To the extent that lower compliance costs encourage greater overall 
compliance, the proposed rule may actually prevent discharges from 
currently non-compliant facilities that would occur in its absence.
7. Alternative Regulatory Options
    EPA considered other options for addressing public comments to the 
NODAs published on September 20, 2004. Following are summaries of the 
changes in compliance costs estimated for each alternative option (for 
qualified facilities and qualified oil-filled operational equipment), 
as well as EPA's rationale for rejecting the alternative option.
a. Qualified Facilities
    As an alternative option, EPA considered a notification requirement 
for qualified facilities that have been operating for less than ten 
years, along with eliminating the requirement for PE certification and 
providing flexibility for integrity testing and security for all 
qualified facilities. EPA estimates that the alternative option could 
reduce compliance costs by $22.3 million and $18.4 million per year, 
discounted at 3 percent and 7 percent, respectively. To arrive at these 
figures, EPA assumed that 50 percent of facilities under 10,000 gallons 
would qualify for this option. EPA also assumed that the proposed 
flexibility for integrity testing would reduce the unit cost of testing 
by 50 percent. EPA assumed that the total burden of notification for a 
facility would be three hours: one hour of managerial time, one hour of 
technical time, and one hour of clerical time. If 25 percent of 
facilities under 10,000 gallons qualified for this option, compliance 
costs would decrease by $11.2 million and $9.13 million per year, 
discounted at 3 percent and 7 percent, respectively. If 75 percent of 
facilities under 10,000 gallons qualified for this option, compliance 
costs would be reduced by $33.5 million and $27.4 million per year, 
discounted at 3 percent and 7 percent, respectively. EPA decided not to 
pursue this option because it does not differ substantively from the 
proposed option; an additional notification burden was not considered 
necessary.
    As an alternative option, EPA considered establishing three 
facility-size tiers according to SBA's recommendations based on 
facility's total oil storage capacity (Jack Faucett Associates, 2004). 
EPA estimates that this alternative option could reduce compliance 
costs by $42.9 million and $35.0 million per year, discounted at 3 
percent and 7 percent, respectively. To arrive at these estimates, EPA 
assumed that all SPCC-regulated facilities with oil storage capacity 
between 1,320 and 5,000 gallons would take advantage of the option, 
eliminating the cost of preparing and maintaining a written SPCC Plan. 
Additionally, EPA assumed that all SPCC-regulated facilities with oil 
storage capacity between 5,001 and 10,000 gallons would take advantage 
of

[[Page 73547]]

the option and eliminate the cost of PE certification.
    The cost savings associated with the three-tier plans, however, 
come at the expense of losses in environmental protection. Although EPA 
agrees that a reduction in burden may be appropriate for facilities 
handling smaller quantities of oils, smaller facilities still pose 
risks to the environment given the nature of the product. Therefore, 
some type of Plan or documentation is warranted even for these smaller 
facilities. The tiered option also raises significant implementation 
issues. For example, certain facilities would require compliance with 
the SPCC rule without a written SPCC Plan. EPA believes that a facility 
would not be able to properly implement oil spill prevention measures--
including notification, equipment maintenance, inspection and 
training--without written documentation to inform the owner or operator 
of his/her responsibilities. Additionally, EPA inspectors conducting 
on-site visits would have no written Plan or documentation to assess 
the facility's effectiveness in implementing their spill prevention 
strategy. Even with model plans, owners or operators of larger 
facilities may not have the expertise to create their own SPCC Plan 
without input from a PE.
    EPA also considered two additional options to provide relief to 
qualified facilities: a compliance date extension and a suspension of 
all requirements. These options would not have an impact on compliance 
costs, but would only delay expenditures at affected facilities. EPA 
decided against these options because owners or operators of qualified 
facilities would remain uncertain about the timing and type of future 
requirements that would apply to them. The preferred option would set 
forth explicit requirements for qualified facilities that reduce 
compliance costs within the current compliance date schedule. The 
extension/suspension options also would pose additional problems 
related to implementation and environmental protection.
b. Oil-Filled Equipment
    EPA explored a three-tiered structure option in response to 
comments on the Notice of Data Availability (NODA) for oil-filled 
operational equipment (69 FR 56184, September 20, 2004). The option is 
based on a proposal put forth by the Utility Solid Waste Activities 
Group (USWAG). The option would allow an owner or operator to define 
discrete units of equipment as individual facilities and reduce 
requirements imposed on units with capacities less than 20,000 gallons. 
EPA estimates that this alternative option could reduce compliance 
costs by $17.6 million and $14.2 million per year, discounted at 3 
percent and 7 percent, respectively.
    EPA also considered two administrative options to provide relief to 
oil-filled operational equipment: a compliance date extension and a 
suspension of all requirements. These options would not have an impact 
on compliance costs, but would only delay expenditures at affected 
facilities. EPA decided against these options because facility owners 
or operators would remain uncertain about the timing and nature of 
requirements that eventually would apply to them. Since many facilities 
have oil-filled operational equipment, delaying changes to these 
requirements could lead to a significant number of facilities needing 
to modify their existing Plans more than once to accommodate future 
rule changes. A suspension would increase the risk of discharge at 
facilities with qualified oil-filled operational equipment during the 
interim period, due to the delayed implementation of preventive 
measures.
8. Key Limitations of the Analysis
    One of the main limitations of the regulatory analysis is EPA's 
lack of data on facilities regulated under the SPCC rule. As mentioned 
earlier, the rule does not include (and never included) a notification 
requirement and, with certain exceptions, regulated entities do not 
need to submit their SPCC Plans to EPA. Without conducting a 
statistically valid survey, EPA is limited to data already collected by 
state or federal agencies or by proprietary sources. Such data are 
collected for diverse purposes and are not necessarily ideal for 
evaluating regulatory options, because they often omit portions of the 
regulated universe or lack sufficient detail to ascertain the impacts 
of changes in certain requirements. The type of information collected 
also varies among the different sources. Data provided by industry 
organizations or individual businesses are often anecdotal or based on 
surveys that are not statistically valid, and cannot be reliably 
extrapolated to a larger universe. As a result of this limitation of 
data on regulated facilities, EPA has had to rely on updated figures 
from 1996 for most industry sectors, as well as federal and proprietary 
sources for a small number of other sectors. Because none of these 
sources give adequate detail to evaluate the potential impacts of 
individual regulatory options, EPA has chosen to examine various 
scenarios for each option to bound the range of cost savings that could 
occur.
    Approaches to compliance will depend on site-specific 
circumstances. For example, compliance costs vary not only on the 
volume of oil stored and handled, but also on the types of oil at a 
site, the number of tanks (and their volume), and the locations of the 
tanks across a site. Given the wide range of industries and facility 
sizes affected by the SPCC rule--as well as geographical and climatic 
conditions--it is difficult to specify a realistic baseline against 
which regulatory changes can be measured. Therefore, it is also 
difficult to estimate the changes that could occur under various 
regulatory options.
    Finally, many of the cost assumptions used in the regulatory 
analysis are based on interviews with a limited number of PEs. It is 
very difficult to simply assess ``typical'' costs when the costs of 
compliance are closely related to site-specific factors. Ideally, 
future analyses could explicitly account for such variability in costs.
9. Conclusions
    Applying both a 3 percent and a 7 percent discount rate, the 
proposed regulatory changes could yield compliance cost savings of 
$22.5 million and $18.4 million for the ``qualified facility'' option; 
$56.7 million and $45.9 million for the ``qualified oil-filled 
operational equipment'' option; $0.92 million and $0.75 million for 
``motive power'' exemption; and $6.43 million and $5.23 million for 
airports with mobile refuelers, respectively. Costs of these components 
are not summed, since simple addition would overstate cost savings by 
not accounting for interactions between the impacts of the different 
components. EPA does not believe that these cost reductions would be 
offset by any significant losses in environmental protection.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 0328.12.
    EPA does not collect the information required by SPCC rule on a 
routine basis. SPCC Plans ordinarily need not be submitted to EPA, but 
must generally be maintained at the facility. Preparation, 
implementation, and maintenance of an SPCC Plan by the facility helps 
prevent oil discharges, and mitigates the environmental damage caused 
by such discharges. Therefore, the primary user

[[Page 73548]]

of the data is the facility. While EPA may, from time to time, request 
information under these regulations, such requests are not routine.
    Although the facility is the primary data user, EPA also uses the 
data in certain situations. EPA reviews SPCC Plans: (1) When it 
requests a facility to submit a Plan after certain oil discharges or to 
evaluate an extension request; and, (2) as part of EPA's inspection 
program. State and local governments also use the data, which are not 
necessarily available elsewhere and can greatly assist local emergency 
preparedness efforts. Preparation of the information for affected 
facilities is required under section 311(j)(1) of the Act as 
implemented by 40 CFR part 112.
    In the absence of this proposed rulemaking, EPA estimates that 
approximately 618,000 facilities would be subject to the SPCC rule in 
2006 and have SPCC Plans. In addition, EPA estimates that approximately 
4,520 new facilities would become subject to SPCC requirements 
annually. In the absence of this proposed rulemaking, EPA projects that 
the average annual public reporting and recordkeeping burden for this 
information collection would be 1,980,000 hours.
    Under today's proposed rulemaking, qualified facilities would no 
longer need a licensed Professional Engineer to certify their Plans. 
Facilities that store oil solely in motive power containers would no 
longer be regulated, while other facilities with oil storage in 
addition to motive power containers may incur lower compliance costs. 
Today's proposal would also allow greater use of contingency plans and 
written commitment of manpower, equipment and resources without 
requiring an impracticability determination when combined with an 
inspection or monitoring program as an alternative to secondary 
containment for qualified oil-filled operational equipment. It would 
also allow airport mobile refuelers to fall under a facility's general 
secondary containment requirements, rather than require specifically 
sized secondary containment.
    Under the proposed rule, an estimated 372,000 regulated facilities 
would annually be subject to the SPCC information collection 
requirements of this rule during the information collection period. 
This figure excludes farms with oil storage capacity of 10,000 gallons 
or less, to reflect the proposed compliance extension. Under this 
proposed rule, the estimated annual average burden over the next 3-year 
ICR period would be approximately 1,490,000 hours, resulting in a 25 
percent average reduction. The estimated average annual public 
reporting for individual facilities already regulated under the SPCC 
rule would range between 3.46 and 6.04 hours, while the burden for 
newly regulated facilities would range between 37.2 and 64.1 hours as a 
result of this proposal. The net annualized capital and start-up costs 
for the SPCC information collection portion of the rule would average 
$0.32 million and net annualized operation and maintenance (O&M) costs 
are estimated to be $26 million for all of these facilities combined.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the burden estimates, and any suggested methods for minimizing 
respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this rule, which 
includes this ICR, under Docket ID number EPA-HQ-OPA-2005-0001. Submit 
any comments related to the ICR for this proposed rule to EPA and OMB. 
See ADDRESSES section at the beginning of this notice for where to 
submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after December 12, 2005, a comment to OMB is 
best assured of having its full effect if OMB receives it by February 
10, 2006. The final rule will respond to any OMB or public comments on 
the information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions. For purposes of assessing the 
impacts of today's proposed rule on small entities, small entity is 
defined as: (1) A small business as defined in the SBA's regulations at 
13 CFR 121.201--the SBA defines small businesses by category of 
business using North American Industry Classification System (NAICS) 
codes, and in the case of farms and production facilities, which 
constitute a large percentage of the facilities affected by this 
proposed rule, generally defines small businesses as having less than 
$500,000 in revenues or 500 employees, respectively; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise that is independently owned and operated and is not dominant 
in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, the Agency certifies that this action would not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    This proposed rule would reduce regulatory burden on qualified 
facilities and qualified oil-filled operational equipment. Qualified 
facilities would

[[Page 73549]]

no longer need a licensed Professional Engineer to certify their Plans. 
Facilities that store oil solely in motive power containers would no 
longer be regulated, while other facilities with oil storage in 
addition to motive power containers may incur lower compliance costs. 
Today's proposal would also allow greater use of contingency plans and 
a written commitment of manpower, equipment and materials without 
requiring an impracticability determination as an alternative to 
secondary containment for qualified oil-filled operational equipment 
when combined with an established and documented inspection or 
monitoring program. It would also allow airport mobile refuelers to 
fall under a facility's general secondary containment requirements 
rather than require specifically sized secondary containment. We have 
therefore concluded that today's proposed rule would relieve regulatory 
burden for small entities and welcome comments on issues related to 
such impacts.
    Overall, EPA estimates that today's proposal would reduce annual 
compliance costs by $81 million (net present value) using nominal 
dollars and $98 million using annualized values with constant dollars. 
Small facilities, in particular, would benefit. For example, EPA 
estimates that the proposed rule would lower compliance costs by $22.5 
million and $18.4 million at 3 percent and 7 percent discount rate for 
facilities with less than 10,000 gallons of oil storage capacity.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements. EPA has determined that 
this proposed rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Today's proposed rule would reduce burden and costs on affected 
facilities by approximately $81 million per year (net present value) 
using nominal dollars and $98 million per year using annualized values 
with constant dollars.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As explained above, the effect of the proposed rule would 
be to reduce burden and costs for qualified regulated facilities, 
including certain small governments that are subject to the rule.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It would 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Under CWA section 311(o), States 
may impose additional requirements, including more stringent 
requirements, relating to the prevention of oil discharges to navigable 
waters. EPA encourages States to supplement the Federal SPCC program 
and recognizes that some States have more stringent requirements. 56 FR 
54612 (October 22, 1991). This proposed rule would not preempt State 
law or regulations. Thus, Executive Order 13132 does not apply to this 
proposed rule.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revokes Executive Order 13084 (Tribal Consultation) as of that 
date.
    Today's proposed rule would not significantly or uniquely affect 
communities of Indian tribal governments. Therefore, we have not 
consulted with a representative organization of tribal groups.

G. Executive Order 13045--Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866; and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. EPA 
interprets Executive Order 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This proposed rule is not subject to 
Executive Order 13045 because the Agency does not have reason to 
believe the environmental health or safety risks

[[Page 73550]]

addressed by this action present a disproportionate risk to children.

H. Executive Order 13211--Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards such as materials specifications, test methods, 
sampling procedures, and business practices that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rule does not involve technical standards. Therefore, 
NTTAA does not apply.

List of Subjects in 40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Petroleum, 
Reporting and recordkeeping requirements.

    Dated: December 2, 2005.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR part 112 as follows:

PART 112--OIL POLLUTION PREVENTION

    1. The authority citation for part 112 continues to read as 
follows:

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; and E.O. 
12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.

Subpart A [Amended]

    2. Amend Sec.  112.1 by revising paragraph (d)(2)(ii) and adding 
paragraph (d)(7) to read as follows:


Sec.  112.1  General applicability.

* * * * *
    (d) * * *
    (2) * * *
    (ii) The aggregate aboveground storage capacity of the facility is 
1,320 gallons or less of oil. For the purposes of this exemption, only 
containers with a capacity of 55 gallons or greater are counted. The 
aggregate aboveground storage capacity of a facility excludes the 
capacity of a container that is ``permanently closed,'' or a ``motive 
power container'' as defined in Sec.  112.2.
* * * * *
    (7) Any ``motive power container,'' as defined in Sec.  112.2. The 
transfer of fuel or other oil into a motive power container at an 
otherwise regulated facility is not subject to this exemption.
* * * * *
    3. Amend Sec.  112.2 by adding definitions for ``Airport mobile 
refueler'', ``Farm'', ``Motive power container'', and ``Oil-filled 
operational equipment'' in alphabetical order to read as follows:


Sec.  112.2  Definitions.

* * * * *
    Airport mobile refueler means a vehicle with an onboard bulk 
storage container designed, or used to store and transport fuel for 
transfer into or from aircraft or ground service equipment.
* * * * *
    Farm means a facility on a tract of land devoted to the production 
of crops or raising of animals, including fish, which produced and 
sold, or normally would have produced and sold, $1,000 or more of 
agricultural products during a year.
* * * * *
    Motive power container means any onboard bulk storage containers 
used solely to power the movement of a motor vehicle, or ancillary 
onboard oil-filled operational equipment used solely to facilitate its 
operation. An onboard bulk storage container which is used to store or 
transfer oil for further distribution is not a motive power container. 
The definition of motive power equipment does not include oil drilling 
or workover equipment, including rigs.
* * * * *
    Oil-filled operational equipment means equipment which includes an 
oil storage container (or multiple containers) in which the oil is 
present solely to support the function of the apparatus or the device. 
Oil-filled operational equipment is not considered a bulk storage 
container, and does not include oil-filled manufacturing equipment 
(flow-through process).
* * * * *
    4. Amend Sec.  112.3 by designating the existing text of paragraph 
(a) as (a)(1) and adding (a)(2), designating the existing text of 
paragraph (b) as (b)(1) and adding (b)(2), revising the introductory 
text of paragraph (d), and adding paragraph (g) to read as follows:


Sec.  112.3  Requirement to prepare and implement a Spill Prevention, 
Control, and Countermeasure Plan.

* * * * *
    (a)(1) * * *
    (2) If your farm has a total oil storage capacity of 10,000 gallons 
or less, the compliance dates described in paragraph (a)(1) of this 
section are delayed indefinitely or until the Agency publishes a final 
rule in the Federal Register establishing a new compliance date.
    (b)(1) * * *
    (2) If your farm has a total oil storage capacity of 10,000 gallons 
or less, the compliance dates described in paragraph (b)(1) of this 
section are delayed indefinitely or until the Agency publishes a final 
rule in the Federal Register establishing a new compliance date.
* * * * *
    (d) Except as provided in paragraph (g) of this section, a licensed 
Professional Engineer must review and certify a Plan for it to be 
effective to satisfy the requirements of this part.
* * * * *
    (g) Qualified Facilities. The owner or operator of a facility that 
meets the qualification criteria in paragraph (g)(1) of this section 
may choose to self-certify the facility's SPCC Plan and any technical 
amendments to the Plan in lieu of certification by a licensed 
Professional Engineer.
    (1) Qualification Criteria. A facility is qualified for owner or 
operator self-certification of its SPCC Plan if it meets the following 
criteria:
    (i) The aggregate aboveground storage capacity of the facility, as 
determined according to Sec.  112.1, is 10,000 gallons or less; and
    (ii) The facility either:
    (A) Has been in operation for at least ten years immediately prior 
to the date of self-certification and in the ten-year period 
immediately prior to self-certification had no discharges as described 
in Sec.  112.1(b); or
    (B) Is beginning operations or has been in operation for fewer than 
ten years without any discharges of oil as described in Sec.  112.1(b).
    (2) Self-Certification. If you are the owner or operator of a 
qualified facility

[[Page 73551]]

and you choose to self-certify your Plan or technical amendments to 
your Plan, you must certify in the Plan that:
    (i) You are familiar with the requirements of this part;
    (ii) You or your agent have visited and examined the facility;
    (iii) The Plan has been prepared in accordance with accepted and 
sound industry practices and standards, and with the requirements of 
this part;
    (iv) Procedures for required inspections and testing have been 
established;
    (v) The Plan is being fully implemented;
    (vi) The facility meets the qualification criteria set forth under 
Sec.  112.3(g)(1);
    (vii) The Plan does not utilize the environmental equivalence and 
impracticability provisions under Sec.  112.7(a)(2) and 112.7(d), 
except as described in paragraph (g)(3) of this section; and
    (viii) The Plan and individual(s) responsible for implementing the 
Plan have the full approval of management and the facility has 
committed the necessary resources to fully implement the Plan.
    (3) Self-Certified Plan Exceptions. Except as provided in this 
subparagraph, a self-certified SPCC Plan must comply with Sec.  112.7 
and the applicable requirements in subparts B and C of this part:
    (i) Environmental Equivalence. The Plan may not include alternate 
methods to the applicable requirements listed in Sec.  112.7(a)(2).
    (ii) Impracticability. The Plan may not include any 
impracticability determinations as described under Sec.  112.7(d).
    (iii) Security (excluding oil production facilities). The owner or 
operator must choose to either:
    (A) Comply with the requirements under Sec.  112.7(g); or
    (B) Prepare a security plan that describes how the facility 
controls access to the oil handling, processing and storage areas; 
secures master flow and drain valves; prevents unauthorized access to 
starter controls on oil pumps; secures out-of-service and loading/
unloading connections of oil pipelines; addresses the appropriateness 
of security lighting to both prevent acts of vandalism and assist in 
the discovery of oil discharges.
    (iv) Bulk Storage Container Inspections. In lieu of the 
requirements in Sec. Sec.  112.8(c)(6) and 112.12(c)(6), an owner/
operator must test/inspect each aboveground container for integrity on 
a regular schedule and whenever material repairs are made. The owner or 
operator must determine, in accordance with industry standards, the 
appropriate inspector/testing personnel qualifications, the frequency 
and type of testing/inspections which take into account container size, 
configuration, and design (such as containers that are: equipped with a 
floating roof, shop built, field erected, skid-mounted, elevated, 
equipped with a liner, double walled, or partially buried). Examples of 
these integrity tests include, but are not limited to: visual 
inspection, hydrostatic testing, radiographic testing, ultrasonic 
testing, acoustic emissions testing, or other systems of non-
destructive testing. You must keep comparison records and you must also 
inspect the container's supports and foundations. In addition, you must 
frequently inspect the outside of the container for signs of 
deterioration, discharges, or accumulation of oil inside diked areas. 
Records of inspections and tests kept under usual and customary 
business practices satisfy the recordkeeping requirements of this 
paragraph.
    5. Amend Sec.  112.5 by revising paragraph (c) to read as follows:


Sec.  112.5  Amendment of Spill Prevention, Control, and Countermeasure 
Plan by owners or operators.

* * * * *
    (c) Except as provided in Sec.  112.3(g), have a Professional 
Engineer certify any technical amendments to your Plan in accordance 
with Sec.  112.3(d).
    6. Amend Sec.  112.7 by revising paragraph (a)(2), (c) introductory 
text, (d) introductory text, and adding paragraph (k) to read as 
follows:


Sec.  112.7  General requirements for Spill Prevention, Control, and 
Countermeasure Plans.

* * * * *
    (a) * * *
    (2) Comply with all applicable requirements listed in this part. 
Except as provided in Sec.  112.3(g), your Plan may deviate from the 
requirements in paragraphs (g), (h)(2) and (3), and (i) of this section 
and the requirements in subparts B and C of this part, except the 
secondary containment requirements in paragraphs (c) and (h)(1) of this 
section, and Sec. Sec.  112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 
112.10(c), 112.12(c)(2), and 112.12(c)(11), where applicable to a 
specific facility, if you provide equivalent environmental protection 
by some other means of spill prevention, control, or countermeasure. 
Where your Plan does not conform to the applicable requirements in 
paragraphs (g), (h)(2) and (3), and (i) of this section, or the 
requirements of subparts B and C of this part, except the secondary 
containment requirements in paragraph (c) and (h)(1) of this section, 
and Sec. Sec.  112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 112.10(c), 
112.12(c)(2), and 112.12(c)(11), you must state the reasons for 
nonconformance in your Plan and describe in detail alternate methods 
and how you will achieve equivalent environmental protection. If the 
Regional Administrator determines that the measures described in your 
Plan do not provide equivalent environmental protection, he may require 
that you amend your Plan, following the procedures in Sec.  112.4(d) 
and (e).
* * * * *
    (c) Provide appropriate containment and/or diversionary structures 
or equipment to prevent a discharge as described in Sec.  112.1(b), 
except as provided in paragraph (k) of this section for qualified oil-
filled operational equipment. The entire containment system, including 
walls and floor, must be capable of containing oil and must be 
constructed so that any discharge from a primary containment system, 
such as a tank or pipe, will not escape the containment system before 
cleanup occurs. At a minimum, you must use one of the following 
prevention systems or its equivalent:
* * * * *
    (d) Provided your Plan is certified by a licensed Professional 
Engineer under Sec.  112.3(d), if you determine that the installation 
of any of the structures or pieces of equipment listed in paragraphs 
(c) and (h)(1) of this section, and Sec. Sec.  112.8(c)(2), 
112.8(c)(11), 112.9(c)(2), 112.10(c), 112.12(c)(2) and 112.12(c)(11) to 
prevent a discharge as described in Sec.  112.1(b) from any onshore or 
offshore facility is not practicable, you must clearly explain in your 
Plan why such measures are not practicable; for bulk storage 
containers, conduct both periodic integrity testing of the containers 
and periodic integrity and leak testing of the valves and piping; and, 
unless you have submitted a response plan under Sec.  112.20, provide 
in your Plan the following:
* * * * *
    (k) Qualified Oil-Filled Operational Equipment. The owner or 
operator of a facility with oil-filled operational equipment that meets 
the qualification criteria in paragraph (k)(1) of this section may 
choose to implement for this qualified oil-filled operational equipment 
the alternate requirements as described in paragraph (k)(2) of this 
section in lieu of applying the general secondary containment 
requirements of paragraph (c) of this section.
    (1) Qualification Criteria--Reportable Discharge History: The 
facility where

[[Page 73552]]

the oil-filled operational equipment is located either:
    (i) Has been in operation for at least ten years immediately prior 
to the date of Plan certification and in the ten-year period 
immediately prior to the Plan certification date had no discharges as 
described in Sec.  112.1(b) from any oil-filled operational equipment, 
or
    (ii) Is beginning operations or has been in operation for fewer 
than ten years without any discharges as described in Sec.  112.1(b) 
from any oil-filled operational equipment;
    (2) Alternative Requirements to General Secondary Containment. The 
owner or operator of a facility with qualified oil-filled operational 
equipment must:
    (i) Establish and document the facility procedures for inspections 
or a monitoring program to detect equipment failure and/or a discharge; 
and
    (ii) Unless you have submitted a response plan under Sec.  112.20, 
provide in your Plan the following:
    (A) An oil spill contingency plan following the provisions of part 
109 of this chapter.
    (B) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that may be harmful.

Subpart B--[Amended]

    7. Amend Sec.  112.8 by revising paragraphs (c)(2) and (c)(11) to 
read as follows:


Sec.  112.8  Spill Prevention, Control, and Countermeasure Plan 
requirements for onshore facilities (excluding production facilities).

* * * * *
    (c) * * *
    (2) Construct all bulk storage tank installations (except airport 
mobile refuelers) so that you provide a secondary means of containment 
for the entire capacity of the largest single container and sufficient 
freeboard to contain precipitation. You must ensure that diked areas 
are sufficiently impervious to contain discharged oil. Dikes, 
containment curbs, and pits are commonly employed for this purpose. You 
may also use an alternative system consisting of a drainage trench 
enclosure that must be arranged so that any discharge will terminate 
and be safely confined in a facility catchment basin or holding pond.
* * * * *
    (11) Position or locate mobile or portable oil storage containers 
to prevent a discharge as described in Sec.  112.1(b). Except in the 
cases of airport mobile refuelers, you must furnish a secondary means 
of containment, such as a dike or catchment basin, sufficient to 
contain the capacity of the largest single compartment or container 
with sufficient freeboard to contain precipitation.
* * * * *

Subpart C--[Amended]


Sec.  112.12  Specific Spill Prevention, Control, and Countermeasure 
Plan requirements.

    8. Amend Sec.  112.12 by revising the section heading to read as 
set forth above.


Sec.  112.13  [Removed and Reserved]

    9. Remove and reserve Sec.  112.13.


Sec.  112.14  [Removed and Reserved]

    10. Remove and reserve Sec.  112.14.


Sec.  112.15  [Removed and Reserved]

    11. Remove and reserve Sec.  112.15.

[FR Doc. 05-23917 Filed 12-9-05; 8:45 am]

BILLING CODE 6560-50-P
