

[Federal Register: October 15, 2007 (Volume 72, Number 198)]
[Proposed Rules]               
[Page 58377-58445]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15oc07-16]                         


[[Page 58377]]

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Part II





Environmental Protection Agency





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40 CFR Part 112



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


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8479-7]
RIN 2050-AG16

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
proposing to amend the Spill Prevention, Control, and Countermeasure 
(SPCC) rule in order to provide increased clarity, to tailor 
requirements to particular industry sectors, and to streamline certain 
requirements for a facility owner or operator subject to the rule. 
Specifically, EPA is proposing to: Exempt hot-mix asphalt; exempt 
pesticide application equipment and related mix containers used at 
farms; exempt heating oil containers at single-family residences; amend 
the facility diagram requirement to provide additional flexibility for 
all facilities; amend the definition of ``facility'' to clarify the 
flexibility associated with describing a facility's boundaries; define 
``loading/unloading rack'' to clarify the equipment subject to the 
provisions for facility tank car and tank truck loading/unloading 
racks; provide streamlined requirements for a subset of qualified 
facilities; amend the general secondary containment requirement to 
provide more clarity; amend the security requirements for all 
facilities; amend the integrity testing requirements to allow a greater 
amount of flexibility in the use of industry standards at all 
facilities; amend the integrity testing requirements for containers 
that store animal fat or vegetable oil and meet certain criteria; 
streamline a number of requirements for oil production facilities; and 
exempt completely buried oil storage tanks at nuclear power generation 
facilities. These changes tailor requirements to particular industries 
for easier and increased compliance, resulting in greater protection of 
human health and the environment. EPA is also providing clarification 
in the preamble to this proposed rule on additional issues raised by 
the regulated community.

DATES: Comments must be received on or before December 14, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2007-0584, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 

instructions for submitting comments.
     Mail: EPA Docket, Environmental Protection Agency, Mail 
code: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. 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-
2007-0584. 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 or e-mail. 

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 send an e-
mail comment directly to EPA without going through http://www.regulations.gov, 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your 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. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.

    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 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 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
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: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Proposed Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
    A. Hot-Mix Asphalt
    1. Proposed Exemption for Hot-Mix Asphalt
    2. Alternative Options Considered
    B. Farms
    1. Exemption for Pesticide Application Equipment and Related Mix 
Containers
    2. Applicability of Mobile Refueler Requirements to Farm Nurse 
Tanks
    3. Alternative Options Considered
    C. Residential Heating Oil Containers
    1. Exemption for Residential Heating Oil Containers
    2. Alternative Option Considered: Exemption for Residential 
Heating Oil Containers Only at Farms
    D. Definition of Facility
    1. Proposed Revisions to the Definition of Facility
    2. Determining the Components of a Facility: Examples of 
Aggregation or Separation
    3. Alternative Options Considered
    E. Facility Diagram
    1. Proposed Revision to the Facility Diagram Requirement
    2. Indicating Complicated Areas of Piping or Oil-Filled 
Equipment on a Facility Diagram
    F. Loading/Unloading Racks
    1. Proposed Loading/Unloading Rack Definition

[[Page 58379]]

    2. Requirements for Loading/Unloading Racks
    3. Exclusions
    4. Alternative Option Considered: No Action
    G. Tier I Qualified Facilities
    1. Eligibility Criteria
    2. Provisions for Tier I Qualified Facilities
    3. SPCC Plan Template
    4. Self-Certification and Plan Amendments
    5. Tier II Qualified Facility Requirements
    6. Alternative Options Considered: No Action
    H. General Secondary Containment
    1. Proposed Revisions to the General Secondary Containment 
Requirement
    2. Alternative Option Considered: No Action
    3. General Secondary Containment for Non-Transportation-Related 
Tank Trucks
    I. Security
    1. Proposed Revisions to the Security Requirements
    2. Alternative Option Considered: No Action
    J. Integrity Testing
    1. Proposed Amendments to Integrity Testing Requirements
    2. Alternative Option Considered: No Action
    K. Animal Fats and Vegetable Oils
    1. Differentiation Criteria
    2. Required Recordkeeping
    L. Oil Production Facilities
    1. Definition of Production Facility
    2. SPCC Plan Preparation and Implementation
    3. Flowlines and Intra-facility Gathering Lines
    4. Flow-Through Process Vessels
    5. Small Oil Production Facilities
    6. Produced Water Storage Containers
    7. Clarification of the Definition of Permanently Closed 
Containers
    8. Oil and Natural Gas Pipeline Facilities
    M. Man-Made Structures
    1. Secondary Containment
    2. Integrity Testing
    N. Underground Emergency Diesel Generator Tanks at Nuclear Power 
Stations
    O. Wind Turbines
    P. Technical Corrections
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

    The Environmental Protection Agency (EPA or the Agency) is 
proposing several amendments to the Spill Prevention, Control, and 
Countermeasure (SPCC) rule to address a number of issues that have been 
raised by the regulated community. These proposed amendments are 
intended to increase clarity, tailor, and streamline certain 
requirements for a facility owner or operator who is required to 
prepare an SPCC Plan. Specifically:
     EPA proposes to exempt hot-mix asphalt (HMA) from the SPCC 
requirements. EPA believes it is unnecessary to apply the SPCC 
requirements to HMA. EPA would continue to regulate asphalt cement, 
asphalt emulsions, and cutbacks, which are not hot-mix asphalt, but is 
describing in this notice the flexibility contained in the SPCC rule 
regarding these materials.
     EPA proposes certain tailored requirements benefiting 
farms. Specifically, EPA proposes to exempt pesticide application 
equipment and related mix containers used at farms, that may currently 
be subject to the SPCC rule when crop oil or adjuvant oil are added to 
formulations. In addition, EPA seeks to clarify that the amendment 
related to mobile refuelers, as promulgated in the December 2006 rule 
amendments (71 FR 77266, December 26, 2006), can be used by farmers to 
address oil spill prevention requirements for fuel nurse tanks.
     EPA proposes to exempt residential heating oil containers, 
i.e., those used solely at single-family residences, from the SPCC 
requirements. This exemption would apply to aboveground containers, as 
well as completely buried heating oil tanks at single-family 
residences, including those located at farms.
     EPA proposes to modify the definition of ``facility'' to 
clarify that contiguous or non-contiguous buildings, properties, 
parcels, leases, structures, installations, pipes, or pipelines may be 
considered separate facilities, and to specify that the ``facility'' 
definition governs the applicability of 40 CFR part 112. These proposed 
revisions would allow an owner or operator to separate or aggregate 
containers to determine the facility boundaries, based on such factors 
as ownership or operation of the buildings, structures, containers, and 
equipment on the site, the activities being conducted, property 
boundaries, and other relevant considerations.
     EPA proposes to revise the facility diagram requirement at 
Sec.  112.7(a)(3) to clarify how containers, fixed and mobile, are 
identified on the facility diagram. Where facility diagrams become 
complicated due to the presence of multiple fixed oil storage 
containers or complex piping/transfer areas at a facility, the owner or 
operator would be able to include that information separately in the 
SPCC Plan in an accompanying table or key. For any mobile or portable 
containers located in a certain area of the facility, an owner or 
operator would be able to mark that area on the diagram where such 
containers are stored. If the total number of mobile or portable 
containers changes on a frequent basis, the owner or operator would be 
able to indicate the potential range in number of containers and the 
anticipated contents and capacities of the mobile or portable 
containers maintained at the facility in the Plan.
     EPA proposes to define the term ``loading/unloading rack'' 
and specify that this definition would govern the applicability of the 
provision at Sec.  112.7(h), Facility tank car and tank truck loading/
unloading rack. This amendment would provide clarity to the regulated 
community over whether this provision applies to a facility. 
Furthermore, EPA is proposing to specifically exclude oil production 
facilities and farms from the requirements at Sec.  112.7(h), because 
loading/unloading racks are not typically found at these facilities 
(loading/unloading activities at these facilities will remain subject 
to the general secondary containment requirements of Sec.  112.7(c)). 
EPA also proposes editorial revisions to the provision at Sec.  
112.7(h) for clarity.
     EPA proposes to streamline and tailor the SPCC 
requirements for a subset of qualified facilities. Qualified facilities 
were addressed in a recent amendment to the SPCC rule (71 FR 77266, 
December 26, 2006). The owner or operator of such a facility was 
provided an option to self-certify his SPCC Plan and comply with other 
streamlined requirements. This proposed rule further defines a subset 
of qualified facilities (``Tier I qualified facilities'') as those that 
meet the current qualified facilities eligibility criteria and that 
have no oil storage containers with an individual storage capacity 
greater than 5,000 gallons. A Tier I qualified facility would have the 
option to complete a self-certified SPCC Plan template (proposed as 
Appendix G to 40 CFR part 112) in lieu of a full SPCC Plan. By 
completing the SPCC Plan template, an owner or operator of a Tier I 
qualified facility would certify that the facility complies with a set 
of streamlined SPCC rule requirements. All other qualified facilities 
will be designated ``Tier II qualified facilities''.
     EPA proposes to amend the general secondary containment 
requirement at Sec.  112.7(c) to make clear that the scope of secondary 
containment takes into

[[Page 58380]]

consideration the typical failure mode, and most likely quantity of oil 
that would be discharged, consistent with current Agency guidance. This 
proposed amendment would also provide additional examples of prevention 
systems for onshore facilities found at Sec.  112.7(c)(1).
     EPA proposes to amend the facility security requirements 
at Sec.  112.7(g) to allow an owner or operator to tailor his security 
measures to the facility's specific characteristics and location. A 
facility owner or operator would be required to describe in the SPCC 
Plan how he secures and controls access to the oil handling, 
processing, and storage areas; secures master flow and drain valves; 
prevents unauthorized access to starter controls on oil pumps; secures 
out-of-service and loading/unloading connections of oil pipelines; and 
addresses the appropriateness of security lighting to both prevent acts 
of vandalism and assist in the discovery of oil discharges. This 
proposed action would extend the streamlined security requirements that 
EPA provided to a qualified facility in the December 2006 final rule 
(71 FR 77266, December 26, 2006) to all facilities subject to the 
security requirements.
     EPA proposes to amend the requirements at Sec. Sec.  
112.8(c)(6) and 112.12(c)(6) to provide flexibility in complying with 
bulk storage container integrity testing requirements. Specifically, 
EPA is proposing to modify the current provision to allow an owner or 
operator to consult and rely on industry standards to determine the 
appropriate qualifications for tank inspectors/testing personnel and 
the type/frequency of integrity testing required for a particular 
container size and configuration. This proposed action would extend the 
streamlined bulk storage container inspection requirement that EPA 
provided to qualified facilities in the December 2006 final rule (71 FR 
77266, December 26, 2006) to all facilities subject to the integrity 
testing provision.
     EPA proposes to differentiate the integrity testing 
requirements at Sec.  112.12(c)(6) for an owner or operator of a 
facility that handles certain types of animal fats and vegetable oils. 
Specifically, EPA proposes to provide the PE or an owner/operator 
certifying an SPCC Plan with the flexibility to determine the scope of 
integrity testing that is appropriate for containers that store animal 
fats or vegetable oil and that meet other criteria.
     EPA proposes several amendments to tailor the requirements 
for oil production facilities to address a number of concerns that have 
been raised by representatives of this sector. Specifically, EPA is 
proposing to: Modify the definition of production facility, consistent 
with the proposed amendments to the definition of facility; extend the 
timeframe by which a new oil production facility must prepare and 
implement an SPCC Plan; exempt flow-through process vessels at oil 
production facilities from the sized secondary containment requirements 
while maintaining general secondary containment requirements and 
requiring additional oil spill prevention measures; exempt flowlines 
and intra-facility gathering lines at oil production facilities from 
all secondary containment requirements, while establishing more 
specific requirements for a flowline/intra-facility gathering line 
maintenance program and contingency planning; and clarify the 
definition of ``permanently closed'' as it applies to an oil production 
facility. EPA also describes approaches that would establish 
alternative criteria for an oil production facility to be eligible to 
self-certify an SPCC Plan as a qualified facility, and approaches to 
address produced water storage containers at oil production facilities.
     EPA proposes to exempt completely buried oil storage tanks 
at nuclear power generation facilities that are subject to design 
criteria under Nuclear Regulatory Commission regulations.
    In this notice, EPA is also clarifying a number of issues of 
concern to the regulated community, including: the consideration of 
man-made structures in determining how to comply with SPCC rule 
requirements; and the applicability of the rule to wind turbines that 
are used to produce electricity. EPA also proposes technical 
corrections to Sec. Sec.  112.3 and 112.12.

II. Entities Potentially Affected by This Proposed Rule

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               Industry sector                         NAICS code
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Oil Production...............................                     211111
Farms........................................                   111, 112
Electric Utility Plants......................                       2211
Petroleum Refining and Related Industries....                        324
Chemical Manufacturing.......................                        325
Food Manufacturing...........................                   311, 312
Manufacturing Facilities Using and Storing                      311, 325
 Animal Fats and Vegetable Oils..............
Metal Manufacturing..........................                   331, 332
Other Manufacturing..........................                      31-33
Real Estate Rental and Leasing...............                    531-533
Retail Trade.................................      441-446, 448, 451-454
Contract Construction........................                         23
Wholesale Trade..............................                         42
Other Commercial.............................     492, 541, 551, 561-562
Transportation...............................                    481-488
Arts Entertainment & Recreation..............                    711-713
Other Services (Except Public Administration)                    811-813
Petroleum Bulk Stations and Terminals........                       4247
Education....................................                         61
Hospitals & Other Health Care................                   621, 622
Accommodation and Food Services..............                   721, 722
Fuel Oil Dealers.............................                      45431
Gasoline stations............................                       4471
Information Finance and Insurance............                     51, 52
Mining.......................................                        212
Warehousing and Storage......................                        493
Religious Organizations......................                     813110
Military Installations.......................                     928110
Pipelines....................................                4861, 48691

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Government...................................                         92
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    The list of potentially affected entities in the above table may 
not be exhaustive. The Agency's goal is to provide a guide for readers 
to consider regarding entities that potentially could be affected by 
this action. However, this action may affect other entities not listed 
in this table. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding section 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 to navigable waters and adjoining shorelines 
from vessels and facilities and to contain such discharges. The 
President delegated the authority to regulate non-transportation-
related onshore facilities to EPA in Executive Order 11548 (35 FR 
11677, July 22, 1970), which was 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-related and non-transportation-related facilities. An 
MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59 
FR 34102, July 1, 1994) re-delegated the responsibility to regulate 
certain offshore facilities from DOI to EPA.

IV. Background

    The SPCC rule was originally promulgated on December 11, 1973 (38 
FR 34164). On July 17, 2002, EPA published a final rule amending the 
SPCC rule, formally known as the Oil Pollution Prevention regulation 
(40 CFR part 112). The 2002 rule included revised 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. All but one 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\ In addition, concerns 
were raised about the implementability of certain aspects of the 2002 
rule.
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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.  112.2.
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    As a result, EPA proposed amendments to the SPCC rule in December 
2005 and finalized them in December 2006 to address a number of issues, 
including those pertaining to certain ``qualified'' facilities, 
qualified oil-filled operational equipment, motive power containers, 
mobile refuelers, provisions inapplicable to animal fats and vegetable 
oils, and the compliance date for farms. See the final rule which 
published in the Federal Register at 71 FR 77266 (December 26, 2006) 
for a more detailed discussion of these amendments.
    Also, in December 2005, EPA released the SPCC Guidance for Regional 
Inspectors. EPA intends to issue revisions to this guidance document to 
incorporate changes consistent with the December 2006 amendments to the 
SPCC rule (71 FR 77266, December 26, 2006). This guidance document is 
intended to assist regional inspectors in reviewing the implementation 
of the SPCC rule at a regulated facility. The guidance document is 
designed to facilitate an understanding of the rule's applicability, to 
help clarify the role of the inspector in the review and evaluation of 
a facility owner or operator's compliance with the performance-based 
SPCC requirements, and to provide a consistent national policy on 
several SPCC-related issues. The guidance is available to the owner or 
operator of a facility that may be subject to the SPCC rule and to the 
general public on the Agency's Web site at http://www.epa.gov/emergencies.
 This guidance is a living document and will be revised, as 

necessary, to reflect any relevant future regulatory amendments, 
including any final rule based on this proposed action.
    In addition, EPA has amended the dates for compliance with the July 
2002 amendments to the SPCC rule by extending the dates for preparing 
or amending, and implementing revised SPCC Plans in 40 CFR 112.3(a), 
(b), and (c), most recently by final rule published May 16, 2007 (72 FR 
27443). EPA took the most recent action to provide facilities time to 
fully understand the amendments to the SPCC rule finalized in December 
2006 and to allow potentially affected owners and operators an 
opportunity to make any changes to their facilities and to their SPCC 
Plans, as well as to provide time for the Agency to take final action 
on this proposal. Additionally, EPA intends to provide the regulated 
community time to review and understand any revised material presented 
in the SPCC Guidance for Regional Inspectors. Please see the Federal 
Register notice (72 FR 27443, May 16, 2007) for further discussion of 
the compliance date extensions.
    The December 2006 final rule (71 FR 77266, December 26, 2006) 
addressed only certain areas of the SPCC requirements and specific 
issues and concerns raised by the regulated community. As highlighted 
in the EPA Regulatory Agenda and the 2005 Office of Management and 
Budget report on ``Regulatory Reform of the U.S. Manufacturing 
Sector,'' EPA is proposing amendments in this notice to address other 
areas where further changes may be appropriate.

V. This Action

A. Hot-mix Asphalt

    Hot-mix asphalt (HMA) is a blend of asphalt cement (AC) and 
aggregate material, such as stone, sand, or gravel, which is formed 
into final paving products for use on roads and parking lots. All types 
of asphalt, including HMA, are petroleum oil products. As a result, a 
facility that stores and handles HMA may currently be regulated under 
the SPCC rule, if the applicability criteria are met (e.g., storage 
capacity thresholds and potential for a discharge into navigable waters 
or adjoining shorelines). As such, SPCC requirements, including 
secondary containment, apply to HMA containers. However, EPA never 
intended that HMA be included as part of a facility's SPCC Plan, 
particularly facilities which may be subject to the SPCC requirements 
solely because of the presence of HMA. Taken to the extreme, it could 
be argued that roads, parking lots, or other asphalt paving projects

[[Page 58382]]

would be part of a facility's SPCC Plan. That was not and is not the 
Agency's intent.
    In addition, because this material is unlikely to flow as a result 
of the entrained aggregate, there are few circumstances in which a 
discharge of HMA would reach navigable waters or adjoining shorelines. 
As a result, EPA is proposing to revise the rule to eliminate the 
requirement for an owner or operator of a facility otherwise subject to 
the SPCC rule to include a HMA container in the facility's SPCC Plan or 
aggregate storage capacity calculations.
1. Proposed Exemption for Hot-Mix Asphalt
    This proposed rule amendment would exempt HMA from SPCC rule 
applicability by adding a new paragraph (8) under the general 
applicability section, Sec.  112.1(d). Furthermore, EPA proposes to 
modify Sec.  112.1(d)(2) so that the capacity of storage containers 
solely containing HMA would not be counted toward the facility oil 
storage capacity calculation. The Regional Administrator would continue 
to have the option under Sec.  112.1(f), however, to require an owner 
or operator of a facility, including one solely handling HMA, to 
prepare or amend and implement an SPCC Plan or any applicable part, to 
include HMA containers if he determines that it is necessary in order 
to prevent a discharge of oil into navigable waters or adjoining 
shorelines.
    For those substances that are not eligible for the proposed 
exemption, the SPCC rule provides the facility owner or operator with 
significant flexibility to select prevention and control measures that 
are appropriate and cost effective for the facility and type of product 
being stored. For example, the secondary containment requirements of 
the SPCC rule may be satisfied if the secondary containment system, 
including walls and floor, are capable of containing the oil and are 
constructed so that any discharge from a primary containment system 
will not escape secondary containment before cleanup occurs (Sec.  
112.7(c)) and diked areas are sufficiently impervious to contain the 
oil (Sec.  112.8(c)(2)). Therefore, the flow properties of asphalt 
cement (AC), for example, (as for any oil) may be considered in 
designing appropriate means of containment. If, once cooled, the oil 
remains in place, an effective means of secondary containment may 
involve surrounding the bulk storage container with an earthen berm 
that will contain the oil until it can solidify. As stated in the SPCC 
Guidance for Regional Inspectors (version 1.0, November 28, 2005), 
``The suitability of earthen material for secondary containment systems 
may depend on the properties of both the product stored and the soil. 
For example, compacted local soil may be suitable to contain a viscous 
product, such as liquid AC, but may not be suitable to contain 
gasoline.'' If an owner or operator chooses to use an earthen berm as a 
method of secondary containment, the facility owner or operator should 
consider, among other factors, the effect of weather, vehicle and 
worker movement, access, and safety, in accordance with good 
engineering practice.
    Furthermore, a facility owner or operator does not necessarily need 
to construct a berm around an asphalt cement container to satisfy the 
secondary containment requirements; he may opt to use a storm water 
retention pond or other similar structure or existing natural terrain 
features that would serve to divert, remotely impound, and prevent the 
discharge to navigable waters or adjoining shorelines. EPA notes that 
oil discharged into secondary containment needs to be removed promptly 
so that the containment system retains its appropriate capacity.
    Finally, the Agency would note that the SPCC rule only applies to 
facilities that, due to their location, can reasonably be expected to 
discharge oil to navigable waters or adjoining shorelines. In 
determining whether there is a reasonable expectation of discharge, an 
owner or operator of a facility may consider the nature and flow 
properties of the oils handled at the facility. Therefore, the owner or 
operator of a facility that stores or handles only those oils that are 
solid at ambient temperatures may conclude that the facility is not 
subject to the SPCC rule. However, if a facility owner or operator 
determines that there is a reasonable expectation to discharge oil to 
navigable waters or adjoining shorelines for a single oil container, 
all oil containers at the facility are subject to the rule's 
requirements.
    Although this proposed amendment would provide an exemption from 
the SPCC requirements for containers of HMA, HMA manufacturers and 
other facilities that use, store, distribute, or otherwise handle HMA 
may still be subject to the SPCC requirements due to the storage 
capacity of other types of oils (e.g., No. 2 fuel oil and heat transfer 
oils) at the facility.
    The Agency seeks comments on the proposed exemption for HMA. 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. Alternative Options Considered
a. No Action
    EPA considered taking no regulatory action regarding this issue. 
Under this option, a facility owner or operator would continue to be 
required to consider HMA in calculating the facility's total oil 
storage capacity, and comply with all SPCC requirements related to 
storage or transfer of HMA. The owner or operator would continue to 
benefit from the flexibility in the SPCC rule to provide secondary 
containment measures that are appropriate and cost effective for the 
facility and the asphalt it stores. EPA believes that it is unnecessary 
for an owner or operator of a facility that constructs roads, parking 
lots, or sidewalks to develop an SPCC Plan, solely for the routine end 
use of HMA as part of these operations. Moreover, as HMA is unlikely to 
flow as a result of the entrained aggregate, the Agency believes there 
are few circumstances in which a discharge of HMA would reach navigable 
waters or adjoining shorelines. Therefore, EPA chose not to propose 
this option.
b. Exemption for Asphalt Cement
    EPA considered exempting both HMA and AC from the requirements of 
the SPCC rule, but chose not to propose such an option. In documents 
submitted to EPA, the asphalt industry argues that AC poses a low risk 
to navigable waters and adjoining shorelines, claiming that it does not 
flow if spilled on the ground. The industry further argues that asphalt 
facilities are either already covered under other environmentally 
protective regulations or are granted a specific exemption from other 
regulations due the unique nature of the product, and that the cost of 
complying with the SPCC regulation is disproportionate to the risk 
posed.
    Because of the operational conditions under which AC is used and 
stored, AC does pose a risk of being discharged into navigable waters 
and adjoining shorelines. (See EPA's report, Asphalt Under the Spill 
Prevention, Control, and Countermeasure Regulation, August 29, 2007, in 
the docket for this proposal.) Although AC is semi-solid or solid at 
ambient temperature and pressure, it is generally stored at elevated 
temperatures. Hot AC is liquid--similar to other semi-solid oils, such 
as paraffin wax and heavy bunker fuels--and therefore is capable of 
flowing. All of these oils are regulated under the SPCC

[[Page 58383]]

rule to prevent discharges to navigable waters and adjoining 
shorelines.
    EPA believes that the threat that AC, as well as other semi-solid 
oils, pose to navigable waters and adjoining shorelines can be 
effectively addressed by implementing the procedures and measures 
required under the SPCC regulation. As discussed previously, the 
current SPCC regulation provides flexibility to an asphalt facility 
owner and operator to account for site- and product-specific 
characteristics in implementing measures to prevent oil discharges in a 
cost-effective manner.
    The Agency welcomes comments on these or other alternatives that 
could serve to address HMA, 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.

B. Farms

    The owner or operator of a farm, by virtue of storing or using oil, 
is potentially subject to the SPCC requirements. The December 2006 
amendments to the SPCC rule (71 FR 77266, December 26, 2006) defined a 
farm as ``* * * a facility on a tract of land devoted to the production 
of crops or raising of animals, including fish, which produced and 
sold, or normally would have produced and sold, $1,000 or more of 
agricultural products during a year.'' In providing the option for an 
owner or operator of a facility that stores 10,000 gallons of oil or 
less and meets other qualifying criteria to self-certify his SPCC Plan 
in lieu of review and certification by a Professional Engineer, the 
December 2006 amendments offered relief to an estimated 95 percent of 
all SPCC-regulated farms. The 2006 amendments also exempted mobile 
refuelers, which include fuel nurse tanks on farms, from the sized 
secondary containment requirements for bulk storage containers (see 
more detailed discussion regarding nurse tanks below). Finally, the 
2006 amendments extended the date by which farms must amend their 
existing SPCC Plans to come into compliance with the July 2002 rule 
changes until the Agency publishes a final rule in the Federal Register 
establishing a new compliance date. This proposal does not affect this 
extended compliance date for farms. The Agency will propose a new 
compliance date for farms in the Federal Register at a later date.
    While the December 2006 amendments provided streamlined 
requirements for most of the farms that are subject to the SPCC 
requirements, EPA believes further amendments to the SPCC rule are 
appropriate considering the unique characteristics of farm facilities, 
including their geographic scale, configuration, land ownership and 
lease structure, and on-farm activities. Specifically, EPA recognizes 
that a farm: May be privately owned and may contain the residence of 
the owner or operator; has a configuration that varies across the 
country, from farm to farm and season to season; contains low-volume 
oil storage that is often dispersed across different land parcels 
separated by roads and natural barriers; has multiple fueling sites; is 
located in a remote area; stores oil on-site for on-farm use and not 
for further distribution in commerce; uses oil seasonally in different 
quantities; and leases a significant amount of land to or from 
secondary parties. For these reasons, EPA is proposing additional 
amendments to the SPCC rule that further benefit farms.
    As discussed in Section G of this preamble, EPA is proposing an 
additional option for a subset of qualified facilities (``Tier I'') 
that have a maximum individual oil storage container capacity of 5,000 
gallons, by allowing these facilities to complete a simplified self-
certified SPCC Plan template in lieu of a full SPCC Plan. This option 
would be available to any facility that meets the Tier I qualification 
criteria, including a farm. EPA expects that at least 128,000 farms (or 
more than 84% of the farms regulated by the SPCC rule) may be eligible 
for this proposed option.
    EPA is also proposing to clarify the definition of ``facility'' in 
the SPCC rule, as discussed in Section D of this preamble. The proposed 
definition would clarify the existing flexibility for a facility owner 
or operator, particularly for a farmer, to define oil storage areas 
located on either contiguous or non-contiguous parcels of land (e.g., 
satellite storage areas) as separate facilities for the purpose of 
determining SPCC applicability and preparing/implementing an SPCC Plan.
    Under this proposal (see Section C), EPA would exempt heating oil 
containers at single-family residences. EPA understands that farms 
often include, within the geographical confines of the facility, the 
residence of the owner or operator, and so the Agency believes this 
proposed amendment also will be of benefit to farms.
    This proposal (see Section I) also addresses streamlining of the 
security requirements under Sec.  112.7(g) to allow more flexibility in 
determining how best to secure and control access to the oil handling, 
processing and storage areas; secure master flow and drain valves; 
prevent unauthorized access to starter controls on oil pumps; secure 
out-of-service and loading/unloading connections of oil pipelines; and 
address the appropriateness of security lighting to both prevent acts 
of vandalism and assist in the discovery of oil discharges. This 
amendment will particularly benefit the owner or operator of a farm, 
because it allows for consideration of site-specific factors in 
determining how best to design security for the facility to prevent 
vandalism and detect spills from oil-handling areas. An owner or 
operator of a farm may also benefit from the currently proposed 
amendments related to loading/unloading racks (Section F of this 
preamble) and integrity testing (Section J).
    The Agency believes that both the amendments finalized in 2006 and 
those being proposed in this notice provide significant flexibility to 
the agricultural sector. In this action, the Agency also is proposing 
further amendments to the SPCC rule to address concerns specific to the 
agricultural community regarding pesticide application equipment and 
related mix containers used at farms. The proposed amendments was 
informed by information collected by EPA through site visits to farms 
and numerous consultations with the U.S. Department of Agriculture 
(USDA). Farm site visits helped EPA further understand oil storage 
characteristics at a variety of farm operation types and sizes. The 
site visits included dairy farms, an orchard, an agribusiness supply 
company, and two rice farms.
1. Exemption for Pesticide Application Equipment and Related Mix 
Containers
    EPA is proposing to amend the SPCC rule by adding a new paragraph 
(10) under the general applicability section, Sec.  112.1(d) to exempt 
pesticide application equipment and related mix containers used at 
farms from the SPCC requirements. EPA also proposes to modify Sec.  
112.1(d)(2) so that the capacity of these pesticide application 
equipment and related mix containers (i.e., containers used to mix 
pesticides with oil immediately prior to application) would not be 
counted toward the facility oil storage capacity calculation. This 
equipment includes ground boom applicators, airblast sprayers, and 
specialty aircraft that are used to apply measured quantities of 
pesticides to crops and/or soil. The pesticide formulation may include 
petroleum-or vegetable-based oils in concentrated formulations or may

[[Page 58384]]

contain crop oil or adjuvant oil in the mix formulations added just 
prior to application, thereby potentially subjecting certain pesticide 
containers to the SPCC requirements, such as those for bulk storage 
containers under Sec. Sec.  112.8(c) and 112.12(c). Containers storing 
oil prior to blending it with the pesticide, and containers used to 
store any pesticides after they have been mixed with oil, are 
considered bulk storage containers and are regulated as such under the 
SPCC rule.
    EPA regulates pesticides under the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA), which establishes requirements for the 
registration and labeling of pesticides. Sections 19(e) and (f) of 
FIFRA grant EPA broad authority to establish standards and procedures 
to assure the safe use, reuse, storage, and disposal of pesticide 
containers. Under this authority, EPA established standards, including 
design and labeling requirements for pesticide containers and bulk 
pesticide containment. These standards were promulgated on August 16, 
2006 for certain facilities that use, reuse, or store pesticides in 
containers with capacities of 500 gallons or greater (Standards for 
Pesticide Containers and Containment, 40 CFR parts 156 and 165; see 71 
FR 47330, August 16, 2006). Facilities subject to these standards 
include pesticide registrants, agricultural retailers, and commercial 
pesticide applicators; however, farms were exempted from these 
standards. In evaluating the risk posed by pesticide containers and 
application equipment when promulgating the Standards for Pesticide 
Containment Structures in 40 CFR part 165, Subpart E, EPA noted that 
on-farm bulk storage of pesticides remains rare as opposed to on-farm 
bulk storage of oil, such as off-road diesel, on-road diesel and 
gasoline fuels. Additionally, EPA found that there was insufficient 
evidence of contamination occurring as a result of these containers or 
equipment to warrant their regulation under the pesticide container-
containment rule. However, EPA reserved the option of reexamining the 
need for Federal regulation of on-farm pesticide bulk storage in the 
future if it became apparent that the application or use of pesticides 
was having significant detrimental impacts. Similarly, EPA does not 
believe that the regulation of pesticide application equipment and 
related mix containers used at a farm is appropriate under the SPCC 
rule.
    EPA believes that, on a farm, the storage and application of 
pesticide mixtures that may contain oil just prior to application can 
be addressed through the use of best management practices (BMPs) that 
minimize the potential for discharges to navigable waters and adjoining 
shorelines. For example, a number of states have ``Farm*A*Syst'' 
programs (partnerships between government agencies and private business 
that foster pollution prevention on farms) that detail on-farm 
pesticide BMPs such as: (1) Adhere to pesticide label instructions and 
prepare only the necessary amount needed for immediate use; (2) prepare 
the pesticide mix immediately before application; (3) the equipment 
spray tank should be half full with water prior to mixing in the 
pesticide formulation; and (4) pesticides should be mixed and loaded on 
a concrete pad (Improving Storage and Handling of Pesticides, Farm-a-
Syst North Carolina, April 1997. Found at http://www.soil.ncsu.edu/assist/pesticides/.
 This document is also available in the docket for 

this rule proposal).
    EPA requests comments on the proposed exemption of pesticide 
application equipment and related mix containers from SPCC 
applicability. 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. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
    In the December 2006 amendments to the SPCC rule (71 FR 77266, 
December 26, 2006), EPA exempted mobile refuelers from the sized 
secondary containment requirements applicable to bulk storage 
containers. In the amended regulation, EPA defined a mobile refueler as 
``a bulk storage container onboard a vehicle or towed, that is designed 
or used solely to store and transport fuel for transfer into or from an 
aircraft, motor vehicle, locomotive, vessel, ground service equipment, 
or other oil storage container.'' (Sec.  112.2). In this action, EPA 
seeks to clarify that the definition of mobile refueler includes a 
nurse tank, which is a mobile vessel used at farms to store and 
transport fuel for transfers to or from farm equipment, such as 
tractors and combines, and to other bulk storage containers, such as 
containers used to provide fuel to wellhead/relift pumps at rice farms. 
A nurse tank is often mounted on a trailer for transport around the 
farm, and EPA believes that this function is consistent with that of a 
mobile refueler. A nurse tank, like other types of mobile refuelers, is 
exempt from the sized secondary containment requirements, but would 
need to meet the general secondary containment requirements at Sec.  
112.7(c).
    EPA does not believe that additional regulatory action is warranted 
to clarify that a nurse tank at a farm can be considered a mobile 
refueler. EPA welcomes comments on this approach.
3. Alternative Options Considered
    In developing the amendments proposed in this notice, EPA 
considered the following alternatives for differentiating the SPCC 
requirements for farms:
a. No Action
    With the promulgation of the final amendments to the SPCC rule on 
December 26, 2006, EPA estimated that approximately 145,000 of the 
152,000 farms subject to the SPCC rule (95 percent of regulated farms) 
identified in the Regulatory Impact Analysis may be eligible for the 
``qualified facility'' or self-certification option. Additionally, EPA 
is proposing an alternative compliance option for a subset of qualified 
facilities by adding a new tier, identified as Tier I qualified 
facilities, that would provide even more flexibility to farms.
    EPA believes that considerable flexibility was provided in the 
December 2006 amendments, as well as other amendments being proposed in 
this notice to address the definition of facility, the security and 
integrity testing requirements, residential heating oil containers, and 
further streamlining of the requirements for qualified facilities. 
Nevertheless, EPA has concluded based on comments from agricultural 
stakeholders, farm-related site visits, and the August 16, 2006 final 
action concerning pesticide containers (71 FR 47330), that additional 
amendments to the SPCC rule related to farms are necessary. Therefore, 
EPA chose not to propose this ``no action'' option.
b. Exempt Farms Below a Certain Storage Capacity Threshold
    EPA considered exempting farms that stored oil below a certain 
storage capacity threshold from the SPCC requirements, but determined 
that sufficient data to support such an exemption exclusive to farms do 
not currently exist. Storage tanks found at farms are similar in 
function and design as those found at other types of facilities, and 
therefore have a similar potential for a discharge. Thus, an effort to 
substantiate an exemption for a subset of affected farms below a 
certain threshold would be difficult. As a result, EPA chose not to 
propose this option.
    The Agency welcomes comments on this or other alternatives that 
could serve to address the needs of the agricultural sector, while at 
the same

[[Page 58385]]

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.
c. Alternative Qualified Facility Eligibility Criteria for Farms
    Under Sec.  112.6, a ``facility'' that has an aggregate above 
ground storage capacity of 10,000 gallons or less and that has not had 
a single discharge exceeding 1,000 U.S. gallons or two discharges each 
exceeding 42 U.S. gallons within any twelve month period in the three 
years prior is eligible for the ``qualified facility'' Plan 
requirements (i.e. a self-certified Plan in lieu of a PE certified 
Plan). The current criteria for ``qualified facilities,'' found at 
Sec.  112.3(g), treat farms like all other facilities. However, there 
may be alternative criteria unique to farms that would be appropriate 
for identifying qualified facilities. EPA requests comment on (1) 
whether a change in the criteria is appropriate for farms; and (2) 
whether a higher threshold is appropriate for farms. Any alternative 
approach presented must include an appropriate rationale in order for 
the Agency to be able to consider it for final action.

C. Residential Heating Oil Containers

    EPA understands that many regulated facilities, including farms, 
may include within the geographical confines of the facility the 
residence of the owner or operator. EPA did not intend to regulate 
residential uses of oil (i.e., those at non-commercial buildings) under 
the SPCC rule. For example, in 1973, EPA set the minimum facility 
aggregate storage capacity threshold for SPCC applicability (1,320 
gallons) by considering common sizes of residential heating oil 
containers. The Agency stated in the preamble to the 1973 final SPCC 
rule (38 FR 34164, December 11, 1973) that containers of 660 gallons 
are the normal domestic code size for nonburied heating oil containers, 
and that buildings may have two such containers. Thus, the presence of 
a heating oil container at a residence was generally not intended, by 
itself, to trigger SPCC applicability since residences generally do not 
have significant quantities of other types of oil. However, at the time 
the rule was originally promulgated, the Agency did not consider 
residential heating oil containers that may be co-located with 
businesses. As a result, EPA recognizes that owners and operators may 
be counting these residential containers in determining the 
applicability of the SPCC rule to their facility, and including these 
containers in their SPCC Plans. Therefore, EPA proposes to amend the 
rule to exempt single-family residential heating oil containers.
    This exemption would apply to aboveground as well as completely 
buried heating oil tanks at single-family residences. Heating oil tanks 
used for on-site consumptive use of oil are specifically exempted from 
the 40 CFR part 280 requirements, which apply to underground storage 
tanks (USTs). The SPCC rule does not apply to ``any completely buried 
storage tank * * * that is subject to all of the technical requirements 
of part 280 of this chapter or a State program approved under part 281 
of this chapter * * * '' (Sec.  112.1(d)(4)). Because USTs used for 
storing heating oil for consumptive use on the premises where stored 
are exempted from part 280, completely buried tanks used for 
residential heating would currently need to be included in the storage 
capacity of an SPCC-regulated facility, and would be subject to 
applicable SPCC requirements.
1. Exemption for Residential Heating Oil Containers
    EPA is proposing to specifically exempt from SPCC applicability 
containers that are used to store oil for the sole purpose of heating 
single-family residences (including residences at a farm) by adding a 
new paragraph (9) under the general applicability section, Sec.  
112.1(d). EPA also proposes to modify Sec.  112.1(d)(2) so that the 
capacity of single-family residential heating oil containers would not 
be counted toward facility oil storage.
    The current proposal would remove from SPCC applicability 
containers (both aboveground and completely buried) located at single-
family residences that are used solely to store heating oil used to 
heat the residence. Under the proposed amendments, the owner or 
operator would not count any residential heating oil container as part 
of the facility's aggregate storage capacity for the purpose of 
determining SPCC applicability, and no SPCC requirements would apply to 
the exempted containers. The SPCC requirements would continue to apply, 
however, to containers for oil used to heat other non-residential 
buildings within a facility, because the exemption covers only 
residential heating oil containers.
    This exemption is not limited to facilities with only one single-
family home; EPA recognizes that there may be multiple single-family 
homes within one facility. For example, a farm that has multiple 
single-family homes within its boundaries would not need to consider 
the residential heating oil tanks at any of those homes for purposes of 
SPCC applicability. Groups of single-family homes within a military 
base would similarly be exempted.
    EPA requests comment on this proposed exemption for single-family 
residential heating oil containers, and whether there is a better way 
to characterize containers used to store oil for heating buildings with 
a residential, rather than commercial, use, including whether there are 
any unique situations in which a residential heating oil tank would be 
subject to the SPCC rule because the aboveground oil storage capacity 
is greater than 1,320 U.S. gallons. Any alternative approach presented 
must include an appropriate rationale in order for the Agency to be 
able to consider it for final action.
2. Alternative Option Considered: Exemption for Residential Heating Oil 
Containers Only at Farms
    EPA initially considered providing an exemption only for 
residential heating oil containers located at farms, because farms 
commonly include, within the geographical confines of the facility, the 
residence of the farmer. Under this option, only heating oil containers 
associated with residences on farms would benefit from an exemption 
from the SPCC rule. However, EPA understands that a facility associated 
with another industry sector, such as a military base or university, or 
a small business run out of the owner's home, may also contain a 
residential heating oil container. The Agency determined that there was 
no rationale to support not expanding the exemption to all residential 
heating oil containers. Therefore, the Agency chose not to propose this 
option.
    EPA requests comment on this option, and whether an exemption for 
residential heating oil containers should be limited to any specific 
sector. Any alternative approach presented must include an appropriate 
rationale in order for the Agency to be able to consider it for final 
action.

D. Definition of Facility

    EPA first defined both ``facility'' and ``production facility'' at 
Sec.  112.2 in the July 2002 amendments to the SPCC rule (67 FR 47042, 
July 17, 2002). ``Facility'' is defined as: ``any mobile or fixed, 
onshore or offshore building, structure, installation, equipment, pipe, 
or pipeline (other than a vessel or a public vessel) used in oil well 
drilling operations, oil production, oil refining, oil storage, oil 
gathering, oil processing, oil transfer, oil distribution, and waste

[[Page 58386]]

treatment, or in which oil is used, as described in Appendix A of this 
part. The boundaries of a facility depend on several site-specific 
factors, including, but not limited to, the ownership or operation of 
buildings, structures, and equipment on the same site and the types of 
activity at the site.'' ``Production facility'' is defined as ``all 
structures (including but not limited to wells, platforms, or storage 
facilities), piping (including but not limited to flowlines or 
gathering lines), or equipment (including but not limited to workover 
equipment, separation equipment, or auxiliary non-transportation-
related equipment) used in the production, extraction, recovery, 
lifting, stabilization, separation or treating of oil, or associated 
storage or measurement, and located in a single geographical oil or gas 
field operated by a single operator.''
    Since the July 2002 amendments were published, members of the 
regulated community have asked EPA which of these definitions governs 
the term ``facility'' as it is used in the applicability determination 
of the Facility Response Plan requirements under Sec.  112.20(f)(1) 
when applied to an oil production facility. In May 2004, EPA issued a 
Federal Register notice clarifying this issue (69 FR 29728, May 20, 
2004). Specifically, section 112.20(f)(1) describes the applicability 
of the Facility Response Plan (FRP) rule by setting the criteria for 
determining whether a ``facility could, because of its location, 
reasonably be expected to cause substantial harm to the environment * * 
*'' [emphasis added]. Members of the regulated community were concerned 
that the language in the definition of production facility (``located 
in a single geographical oil or gas field'') would require aggregation 
of oil production structures and equipment in such a way that would 
trigger the applicability of the FRP rule. However, as stated in the 
May 2004 Federal Register notice (69 FR 29728), because Sec.  
112.20(f)(1) consistently uses the term ``facility,'' not ``production 
facility,'' it is the definition of ``facility'' in Sec.  112.2 that 
governs who is subject to Sec.  112.20(f)(1), regardless of the 
specific type of facility. Thus, consistent with the May 2004 notice, 
the definition of ``facility'' governs the meaning of facility as it is 
used in Sec.  112.20(f)(1), and accordingly, EPA is now proposing to 
amend the definition of facility to add language clarifying this point.
    Industry sectors, including farms, military bases and other large 
government facilities (e.g., national parks), airports, and 
universities also have raised concerns over how to aggregate or 
separate containers, buildings, structures, installations, equipment, 
and piping for the purpose of SPCC applicability. Regulated community 
members have expressed concern that non-contiguous oil-handling areas 
with similar purposes or ownership are required to be aggregated 
together as one ``facility'' to calculate total oil storage and 
determine SPCC applicability. A farmer, for example, often has multiple 
fuel storage sites on land under his management, which may include 
owned and leased tracts. A USDA study shows that among farmers 
surveyed, satellite fuel storage sites were an average distance of 4.1 
miles from the main site (U.S. Department of Agriculture, ``Fuel/Oil 
Storage and Delivery for Farmers and Cooperatives.'' March 2005).
    EPA believes that the existing definition of ``facility'' provides 
considerable flexibility, and that the extent of a facility depends on 
site-specific circumstances. The SPCC Guidance for Regional Inspectors 
(version 1.0, November 28, 2005) describes factors that may be 
considered relevant in delineating the boundaries of a facility for 
SPCC purposes. Those factors may include, but are not limited to: 
ownership, management, or operation of the containers, buildings, 
structures, equipment, installations, pipes, or pipelines on the site; 
similarity in functions, operational characteristics, and types of 
activities occurring at the site; adjacency; or shared drainage 
pathways. Consistent with this approach, EPA is proposing to amend the 
definition of facility to clarify that contiguous or non-contiguous 
buildings, properties, parcels, leases, structures, installations, 
pipes, or pipelines may be considered separate facilities.
    For further clarity, EPA is also proposing to amend the definition 
of ``production facility,'' as discussed in Section L of this notice.
1. Proposed Revisions to the Definition of Facility
    EPA is proposing to amend the definition of ``facility,'' as found 
in Sec.  112.2, in three ways: To clarify that this definition alone 
governs applicability of 40 CFR part 112; to clarify that contiguous or 
non-contiguous buildings, properties, parcels, leases, structures, 
installations, pipes, or pipelines may be considered separate 
facilities; and to add the qualifier ``oil'' before the term ``waste 
treatment.''
    To address concerns over whether the definition of ``facility'' or 
the definition of ``production facility'' controls the term 
``facility'' as it is used in Sec.  112.20(f)(1) when applied to an oil 
production facility, EPA is proposing to add the following sentence to 
the end of the definition of ``facility'': ``Only this definition 
governs whether a facility is subject to this part.'' This language is 
consistent with the clarification printed in a May 2004 Federal 
Register notice (69 FR 29728). The definition of ``production 
facility'' is used to determine which specific provisions of the rule 
may apply at a particular facility (e.g., Sec.  112.9), in addition to 
the administrative and general rule requirements.
    The Agency seeks comments on whether the proposed revision of the 
definition of ``facility'' to clarify that this definition governs 
applicability of part 112 is appropriate. Any suggestions for 
alternative language to amend the definition must include an 
appropriate rationale in order for the Agency to be able to consider it 
for final action.
    To address concerns over how oil containers and equipment can be 
separated or aggregated for the purposes of determining facility 
boundaries and applicability of the SPCC requirements, EPA proposes to 
insert the following sentence into the definition of facility: 
``Contiguous or non-contiguous buildings, properties, parcels, leases, 
structures, installations, pipes, or pipelines under the ownership or 
operation of the same person may be considered separate facilities.'' 
EPA also proposes to add the terms ``property,'' ``parcel,'' and 
``lease'' to the list of terms mentioned in the first sentence of the 
definition. EPA believes that adding these terms further distinguishes 
the attributes that can be considered in determining facility 
boundaries. These terms are intended to be those that are familiar to a 
regulated community member, such as a farmer or oil production facility 
owner, and are not meant to be exhaustive. EPA notes that an owner or 
operator may not determine his facility boundary in such a manner as to 
simply avoid applicability of the SPCC rule.
    The Agency seeks comments on whether the proposed revision to the 
definition of ``facility'' to clarify that contiguous or non-contiguous 
buildings, properties, parcels, leases, structures, installations, 
pipes, or pipelines may be considered separate facilities is 
appropriate. Any suggestions for alternative language to amend the 
definition must include an appropriate rationale in order for the 
Agency to be able to consider it for final action.
    Finally, EPA is proposing to amend the first sentence of the 
definition of facility to add the qualifier ``oil'' before the term 
``waste treatment.'' With this

[[Page 58387]]

amendment, EPA is clarifying that the term ``waste treatment'' refers 
to oil waste treatment and not to treatment of any other type of waste 
that may be generated. The Agency seeks comments on whether this 
proposed modification is appropriate.
2. Determining the Components of a Facility: Examples of Aggregation or 
Separation
    The list of factors for determining the boundaries of a facility in 
the definition of facility are not exclusive, but are merely examples. 
The SPCC Guidance for Regional Inspectors (version 1.0, November 28, 
2005) elaborates on what other factors may be considered. As noted 
above, those factors may include, but are not limited to: ownership, 
management, or operation of the containers, buildings, structures, 
equipment, installations, pipes, or pipelines on the site; similarity 
in functions, operational characteristics, and types of activities 
occurring at the site; adjacency; or shared drainage pathways.
    EPA provides the following example scenarios of how a facility 
owner or operator may determine what is considered a ``facility'' for 
the purposes of an SPCC Plan. Each of these scenarios is purely 
hypothetical and is not intended to provide a policy interpretation for 
any specific existing facility.
a. Separation of Tracts at a Farm
    A farmer has one central fueling location and ten separate (either 
contiguous or non-contiguous) tracts of land (inclusive of owned and 
leased tracts) where various types of crops are grown. The central 
fueling location has several oil containers, with an aggregate storage 
capacity of 5,000 gallons of diesel fuel, gasoline, and hydraulic/
lubrication oils. Each tract has one 1,000-gallon aboveground container 
of diesel fuel, used for fueling only the equipment operated on the 
tract. The tracts are located such that the containers are each several 
miles from each other. The tracts each produce various types of crops, 
and thus the equipment is operated seasonally according to crop type 
and irrigation needs.
    The farmer determines that, given the distance between containers, 
and the clear distinction between the operations that they support, 
each tract and the central fueling location can be considered a 
separate facility for the purposes of calculating oil storage capacity 
and determining the applicability of the SPCC rule. The fact that the 
tracts may be contiguous would be only one factor in the facility 
determination, and may allow the designation of the separate contiguous 
tracts as separate facilities, given the great distance and operational 
differences. In this example, each tract does not individually meet the 
aboveground storage capacity threshold for applicability of the SPCC 
rule (1,320 gallons). Therefore, no SPCC Plan is required for these 
containers. However, the central fueling location exceeds the SPCC rule 
aboveground storage capacity threshold. Assuming the farm is located 
such that a discharge of oil could reasonably pose a threat to 
navigable waters or adjoining shorelines, the farmer must prepare and 
implement an SPCC Plan for the central fueling area.
    To provide general protection and prevention measures against an 
oil discharge, the farmer has the option to include the oil containers 
on the separate tracts in his Plan. Under Section 311(b)(3) of the 
Clean Water Act, the farmer would still be liable for any harmful 
quantities of oil discharged from the containers on the separate tracts 
into navigable waters or adjoining shorelines, even if an SPCC Plan is 
not required.
b. Separation of Parcels at an Oil Production Facility
    An oil production facility operator leases the right to extract oil 
from three parcels of land separated by large distances within one oil 
production field. The parcels can be contiguous or non-contiguous. Each 
of the parcels is subject to a distinct lease agreement, consistent 
with all applicable state and local oil and gas laws and regulations. 
Each parcel contains a tank battery and a single or several wellheads. 
The operator determines that, given their geographic separation and 
individual lease agreements, each parcel can be considered a separate 
facility. Each tank battery stores a total aboveground capacity of oil 
greater than 1,320 gallons, so the operator prepares and implements a 
separate SPCC Plan for each tank battery and its associated wellheads, 
flowlines, and associated equipment, as individual facilities. Any 
gathering lines that transport oil from these individual facilities 
into a centralized collection area involve the transportation of oil 
between facilities (``inter-facility'') and are therefore not within 
EPA jurisdiction. These ``inter-facility'' gathering lines do not need 
to be included in the SPCC Plans.
    Because the definition of facility is flexible, the operator could 
alternatively choose to consider all three parcels as one facility, 
based on his common ownership or operation of all of them. Under this 
approach, the operator would only need to prepare one SPCC Plan that 
covers the components of all parcels. Any gathering lines connecting 
the tank batteries of each parcel are then considered ``intra-
facility'' gathering lines and must be included in the SPCC Plan (see 
section L.2 of this preamble). It is also important to note that if an 
owner/operator aggregates oil storage so as to develop one SPCC Plan, 
he must then determine the facility boundaries the same way for the 
purposes of applicability of the FRP rule requirements.
    Additionally, a production facility may consist of parcels that are 
smaller or larger than an individual lease.
c. Aggregation of Equipment at an Oil Production Facility
    An oil production facility owner operates one wellhead. Oil is 
treated in an 800-gallon capacity heater-treater to separate the oil 
from produced water; the treated oil is then stored in several stock 
tanks until it is sold and transported off-site. The heater-treater 
separation equipment is located several feet away from the stock tanks, 
which hold both the oil and produced water. These two areas may be 
physically separate and are protected by separate secondary containment 
berms, but the heater-treater is an integral component of an oil 
production facility, connected by piping, and under the control of the 
same operator. The separation equipment, such as a heater-treater, is a 
component of a larger process that would be incomplete without the 
ability to separate oil and produced water. Thus, all of these 
components should be aggregated together to comprise the oil production 
facility. In this circumstance, EPA does not believe the heater-treater 
should be considered a separate facility.
    As another related example, an oil production facility owner 
operates one wellhead connected to the tank battery by a mile-long 
flowline. Despite the length of the flowline, the facility operator may 
not have a reasonable basis for separating the wellhead, flowline, and 
tank battery as distinct facilities with individual SPCC Plans. Similar 
to the heater-treater, the wellhead and tank battery are considered 
integral components of the larger process, and an oil production 
facility would be incomplete without including these two components. 
The flowline, whether several feet or several miles in length, is a 
necessary connection between the wellhead and tank battery, and all of 
these components must be included in one SPCC Plan.

[[Page 58388]]

    An SPCC Plan must include all of the components that together 
comprise a complete facility. There may be no reasonable basis to 
determine that either of the facilities in these examples could be 
divided into separate, smaller facilities. While a facility owner or 
operator has some discretion in describing the parameters of his 
facility, he may not describe the boundaries of a facility unreasonably 
in an attempt to avoid regulation. EPA also notes that if an owner/
operator aggregates oil storage so as to develop one SPCC Plan, he must 
then determine the facility boundaries the same way for the purposes of 
applicability of the FRP rule requirements.
d. Separation of Areas at a Military Base
    A military base is spread out over 10 square miles. Within the 
base, there are several areas where oil containers are located: A tank 
farm associated with an aircraft fueling area, back-up fuel oil for a 
small power generation plant, and a mess hall with several drums of 
cooking oil. Because different groups service, manage, or maintain the 
various tank farms and oil storage areas, these operators have agreed 
to calculate the aggregate storage capacity of each of their operations 
separately to determine their SPCC rule applicability. The operations 
vary across these oil container locations, each with unique or specific 
characteristics. Thus, the operators have decided that oil spill 
prevention practices would be served best by preparing and implementing 
multiple SPCC Plans. If the military determines that it would be more 
efficient to prepare one SPCC Plan for the entire base, this would also 
be appropriate.
    The same principles apply at other large facilities, such as a 
university or airport. While a facility owner or operator has some 
discretion in describing the parameters of his facility, he may not 
describe the boundaries of a facility unreasonably to avoid regulation. 
If an owner/operator aggregates oil storage so as to develop one SPCC 
Plan, he must then determine the facility boundaries the same way for 
the purposes of FRP rule applicability.
e. Separation of Functions at a Dual-purpose Facility
    The owner of a truck maintenance company operates his business from 
a site that also includes his single-family residence. The business 
office is located in his residence. In an adjacent garage, he has one 
500-gallon gasoline container, one 250-gallon waste oil container, and 
five 55-gallon drums of various automotive lubricants. The entire 
building is heated with one 500-gallon heating oil container. In 
considering whether he is subject to the SPCC rule, this business owner 
concluded that the heating oil container is exempt from the rule, 
because it is associated with his home, and the function of heating his 
home is necessary regardless of the presence of his business 
operations. The total storage capacity of the remaining containers does 
not meet the aboveground storage capacity threshold for applicability 
of the SPCC rule (1,320 gallons) and so the owner does not need to 
comply with the rule requirements.
3. Alternative Options Considered
    In developing the amendments proposed in this notice, EPA 
considered the following alternatives for addressing the definition of 
facility:
a. No Action
    EPA considered taking no regulatory action regarding this issue. 
However, given the significant number of questions and concerns that 
have been raised by the regulated community, EPA believes that 
addressing the definition of facility in some manner is necessary. 
Therefore, EPA chose not to propose this ``no action'' option.
b. Address Only Through Guidance
    EPA considered providing guidance to address the regulated 
community's concern over the definition of facility and which 
definition governs the term ``facility'' as it is used in Sec.  
112.20(f)(1) when applied to an oil production facility. EPA has 
provided clarity already on the definition of facility in the SPCC 
Guidance for Regional Inspectors (version 1.0, November 28, 2005) and 
through a Federal Register Notice (69 FR 29728, May 25, 2004). Despite 
these efforts, the regulated community continues to express concern. 
EPA believes that a formal rule amendment will provide more clarity. 
Therefore, EPA is not moving forward with the option to address this 
rule solely through guidance. EPA does intend, however, to revise the 
SPCC Guidance for Regional Inspectors to be consistent with any rule 
amendment(s) finalized.
    The Agency welcomes comments on this or other alternatives that 
could serve to address the needs of the regulated community, while at 
the same time maintaining appropriate levels of environmental 
protection. Any alternative approaches presented must include an 
appropriate rationale in order for the Agency to be able to consider 
them for final action.

E. Facility Diagram

    Section 112.7(a)(3) of the SPCC rule requires that a facility owner 
or operator include in his SPCC Plan a facility diagram that identifies 
the location and contents of oil containers, connecting piping, and 
transfer stations. The diagram helps to ensure safe and efficient 
response actions, effective spill prevention and emergency planning, 
and proper implementation of the Plan by facility personnel. It also 
assists the EPA inspector in reviewing the facility's SPCC Plan.
    The rule requires that the facility diagram include the location 
and contents of each container, completely buried tanks (even if 
exempted from the SPCC requirements), transfer areas (i.e., stations), 
and connecting pipes. In addition to the requirement for a facility 
description and diagram, Sec.  112.7(a)(3) lists additional items to be 
addressed in an SPCC Plan, including the type of oil in each container 
and its capacity; discharge prevention measures; discharge or drainage 
controls; countermeasures for discharge discovery, response, and 
cleanup; methods of disposal of recovered materials; and specific 
contact information. The SPCC Guidance for Regional Inspectors (version 
1.0, November 28, 2005) discusses the requirements for facility 
diagrams in more detail.
    The facility diagram must include all containers (including oil-
filled equipment) that store 55 gallons or more of oil and must include 
information indicating the contents of these containers (Sec.  
112.7(a)(3)). The minimum container size addressed by the SPCC rule is 
55 gallons. Any containers with an oil storage capacity of less than 55 
gallons do not need to be included in the SPCC Plan.
    Regulated community members have raised the concern that 
documenting the contents of all oil storage containers with a capacity 
of 55 gallons or more on a facility diagram would be impractical due to 
seasonal and market changes. EPA acknowledges these concerns, and 
proposes to add flexibility to this requirement.
1. Proposed Revision to the Facility Diagram Requirement
    EPA proposes to amend Sec.  112.7(a)(3) to clarify that the 
facility diagram must include all fixed (i.e., not mobile or portable) 
containers. For any mobile or portable containers located in a certain 
area of the facility, a facility owner or operator must mark that area 
on the diagram where such containers are stored. He may mark the number 
of

[[Page 58389]]

containers, contents and capacity of each container either on the 
facility diagram, or provide a separate description in the SPCC Plan. 
If the total number of mobile or portable containers changes on a 
frequent basis, the owner or operator can indicate an estimate in the 
Plan of the number of containers, the anticipated contents and 
capacities of the mobile or portable containers maintained at the 
facility.
    Those oil storage containers that are located in a fixed position 
(and do not move around the facility) must be represented on the 
facility diagram, as currently required. In situations where diagrams 
become complicated due to the presence of multiple oil storage 
containers or complex piping/transfer areas at the facility, it may be 
difficult to indicate the contents and capacity of the containers on 
the diagram itself. In order to simplify the diagram, the owner or 
operator may choose to include that information separately in the SPCC 
Plan in an accompanying table or key.
    The proposed revision to the rule language would simplify the 
process for developing a facility diagram by allowing for a general 
description of the location and contents of mobile or portable oil 
storage containers (e.g., drums and totes) rather than representing 
each container individually. Under this proposal, the owner or operator 
could identify an area on the facility diagram (e.g., a drum storage 
area) and include a separate description of the total number of 
containers, capacities, and contents in the Plan or reference facility 
inventories that can be updated by facility personnel. As currently 
required in Sec.  112.7(a)(3)(i), an owner or operator is required to 
list all of the containers in the facility in the SPCC Plan. Under the 
current proposal, EPA would modify Sec.  112.7(a)(3)(i) to allow the 
owner or operator to provide an estimate of the potential number of 
mobile or portable containers, types of oil, and anticipated capacities 
in the Plan. This clarification may be particularly useful when the 
number of containers change frequently at the facility. Thus, the Plan 
should include a reasonable estimate of the number of containers 
expected to be stored in the area and the capacity of the containers. 
This estimate can be used to determine the applicability of the rule 
thresholds and provide a general description of the mobile/portable 
containers in the Plan.
    Mobile or portable containers should be marked on the facility 
diagram in their out-of-service or designated storage area or where 
they are most frequently located, such as a warehouse drum storage 
area. The facility owner/operator or certifying PE may determine how 
best to represent mobile/portable containers on the facility diagram, 
such as by including a descriptive table or indicating primary storage 
areas. A descriptive table or key would complement the facility diagram 
and the SPCC Plan by providing further information on the location and 
contents of mobile and portable containers.
    A mobile or portable oil storage container is still subject to the 
sized secondary containment requirements of the SPCC rule. Sections 
112.8(c)(11) and 112.12(c)(11) require that a mobile or portable oil 
storage container (other than a mobile refueler) be positioned or 
located to prevent a discharge as described in Sec.  112.1(b). The 
mobile or portable container must have 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. This area can be 
identified on the facility diagram.
    A facility diagram prepared for a state or federal plan or for 
other purposes (construction permits, facility modifications, or other 
pollution prevention requirements) may be used in an SPCC Plan if it 
meets the requirements of the SPCC rule. Additionally, changes to the 
facility diagram are considered administrative in nature and do not 
require PE certification.
    The Agency seeks comments on this proposed option or any other 
approach to revising to the facility diagram requirement at Sec.  
112.7(a)(3) to address how mobile/portable containers should be marked 
on a facility diagram. Any suggestions for alternative approaches must 
include an appropriate rationale and supporting data in order for the 
Agency to be able to consider it for a final action.
2. Indicating Complicated Areas of Piping or Oil-Filled Equipment on a 
Facility Diagram
    A facility diagram must also include all transfer stations and 
connecting pipes (Sec.  112.7(a)(3)). Associated piping and oil-filled 
manufacturing equipment present at an SPCC-regulated facility may be 
difficult to clearly present on a facility diagram, due to their 
relative location, complexity, or design. EPA requests comment on 
whether a rule revision is appropriate to provide further clarification 
on how complicated areas of piping or oil-filled equipment may be 
indicated on the facility diagram. As stated in the SPCC Guidance for 
Regional Inspectors (version 1.0, November 28, 2005), EPA allows 
flexibility in the way the facility diagram is drawn--an owner or 
operator may represent such systems in a less detailed manner on the 
facility diagram, as long as more detailed diagrams of the systems are 
maintained at the facility and referenced on the diagram. As described 
in the SPCC guidance document, the scale and level of detail shown on a 
facility diagram may vary according to the needs and complexity of the 
facility. For example, simplified schematic representations of piping 
combined with a description in the Plan may be sufficient. Similar to 
the approach described above for mobile/portable equipment, a facility 
owner or operator may indicate in the diagram an area where complicated 
oil-filled equipment is located and provide a table in the Plan 
describing the type(s) of equipment and oil storage capacities.
    Any suggestions for alternative approaches must include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider it for final action.

F. Loading/Unloading Racks

    Tank car and tank truck loading/unloading racks are subject to 
specific requirements in Sec.  112.7(h), including sized secondary 
containment requirements. Although the term ``rack'' is referred to in 
the title of the provision, the rule text refers to ``loading/unloading 
area.'' In response to concerns expressed by the regulated community 
over how broadly this provision applies (whether to all areas where oil 
is loaded or unloaded, or only to areas with a designated loading or 
unloading rack), the Agency in May 2004 issued a Federal Register 
notice clarifying that the provision only applies at areas of a 
regulated facility where a loading or unloading rack is located (69 FR 
29728, May 25, 2004). If a facility does not have a loading or 
unloading ``rack,'' Sec.  112.7(h) does not apply. To provide further 
clarification, in the SPCC Guidance for Regional Inspectors (version 
1.0, November 28, 2005), EPA provided a set of characteristics that 
describe the type of equipment typically associated with a loading or 
unloading rack. To provide additional clarity and certainty to the 
regulated community, EPA is now proposing a definition for the term 
``loading/unloading rack,'' which would govern whether a facility is 
subject to Sec.  112.7(h). Under this proposal, the requirements 
described at Sec.  112.7(h) would only apply to areas of a regulated 
facility where a loading/unloading rack, as would be defined in Sec.  
112.2, is located.

[[Page 58390]]

    A loading/unloading rack can be located at any type of facility; 
however, the loading and unloading areas associated with oil production 
tank batteries and farms generally do not have the equipment meeting 
the proposed definition of loading/unloading rack. Therefore, EPA is 
proposing a specific exclusion for oil production facilities and farms 
from the requirements at Sec.  112.7(h).
1. Proposed Loading/Unloading Rack Definition
    The proposed definition for ``loading/unloading rack'' is based on 
the set of characteristics that generally describes loading/unloading 
racks, as presented in the SPCC Guidance for Regional Inspectors 
(version 1.0, November 28, 2005). In developing this description, EPA 
considered existing definitions of the term ``loading rack'' or related 
terms, as found in industry, Federal, state, or international 
references. Based on this review, EPA is proposing to use the 
definition (with certain changes) developed by the American Petroleum 
Institute (API).\2\ Specifically, we removed language on frequency of 
use, various components, and the limitation to the types of facilities 
at which a rack could be located. EPA modified this definition in order 
to accommodate racks found among the broader universe of facilities 
subject to the SPCC rule. For this proposal, the guidelines presented 
in the guidance document were modified to reflect additional research 
on the equipment typically associated with racks and to remove several 
ambiguous terms and phrases (See EPA's Analysis of Loading and 
Unloading Rack Requirement (40 CFR part 112), August 31, 2007).
---------------------------------------------------------------------------

    \2\ American Petroleum Institute, October 18, 2002. Letter to 
David Lopez, Director, EPA Oil Program Center.
---------------------------------------------------------------------------

    EPA is proposing the following definition for ``loading/unloading 
rack'' under Sec.  112.2: ``Loading/unloading rack means a structure 
necessary for loading or unloading a tank truck or tank car, which is 
located at a facility subject to the requirements of this part. A 
loading/unloading rack includes a platform, gangway, or loading/
unloading arm; and any combination of the following: piping 
assemblages, valves, pumps, shut-off devices, overfill sensors, or 
personnel safety devices.'' The Agency believes this proposed amendment 
will provide clarity as to the applicability of the Sec.  112.7(h) 
requirement by providing a specific definition for a loading/unloading 
rack.
    In developing this proposed definition, EPA considered whether to 
differentiate between ``loading'' and ``unloading'' racks. Generally, 
loading involves oil transfer from a bulk storage container into the 
tank car/truck, whereas unloading involves oil transfer from the tank 
car/truck into a bulk storage container. Although racks are more 
commonly used for loading activities, there are instances in which 
unloading of oil also occurs at a rack, and, in some cases, using the 
same equipment. The similarity of equipment and activities suggests 
that EPA should not differentiate between loading and unloading racks 
nor eliminate the term ``unloading rack'' altogether. This approach is 
consistent with correspondence received from the regulated community on 
this issue. For example, in an October 2003 letter to EPA, the American 
Petroleum Institute (API) suggested a definition for rack that includes 
both loading and unloading activities (see the docket for this proposed 
rulemaking for the complete letter).
    EPA understands that a loading/unloading rack is typically designed 
to meet the needs of an individual facility, and thus a single 
definition that captures all potential variations of the components 
presents a challenge. However, discussions with manufacturers of 
loading/unloading racks suggest that there is some commonality among 
the basic structural components of a typical ``rack.'' Thus, each of 
the specific components listed in the proposed definition were included 
because they are common characteristics of loading or unloading racks.
    Loading arms are an essential component of both top and bottom 
loading. By including the generic term ``loading/unloading arms,'' EPA 
intends the proposed definition to be applicable to all loading 
approaches, including top, side, and bottom loading. The National 
Institute of Standards and Technology (NIST) (Loading-Rack Meters 
Presentations, Chapter 2: Introduction to Loading Rack Metering 
Systems, Revised August 2000) indicates that loading racks are designed 
to fill receiving tanks either from the top, side or bottom. Although 
top loading is common, bottom loading is increasingly used to load/
unload tank cars and trucks.
    Platforms offer structural bases to a loading rack and are typical 
of both top and bottom loading. Platforms are often found in 
conjunction with additional components (e.g., gangways), whereas 
bottom-loading operations that do not require access to the top of a 
tank are sufficient with only a platform component.
    Gangways are primarily found on loading racks that accommodate top 
loading operations. However, it is not uncommon for bottom loading 
operations to include gangways to access the top of the rack structure 
or receiving container during loading operations for the purposes of 
sampling, testing overfill or other safety equipment, or for pressure 
venting operations.
    Piping assemblages, valves, pumps, shut-off devices, overfill 
sensors, and personnel safety devices are examples of typical 
accessories of a loading/unloading rack, but may not be part of the 
rack structure itself.
    The Agency seeks comment on the proposed definition of ``loading/
unloading rack'' or if there are any other definitions for ``loading/
unloading rack'' that would be more suitable.
    Comments providing a description of a ``loading/unloading arm'' may 
also provide useful information for EPA to consider in determining a 
final action. Any alternative definition presented must include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider it for final action.
2. Requirements for Loading/Unloading Racks
    Although the title of Sec.  112.7(h) refers to ``loading/unloading 
rack,'' the text of the requirement refers to ``loading/unloading 
areas.'' Therefore, to provide additional clarity, EPA proposes to 
change all references from loading/unloading ``area'' to loading/
unloading ``rack.'' For example, Sec.  112.7(h)(1) would be modified as 
follows: ``Where loading/unloading rack drainage does not flow into a 
catchment basin or treatment facility designed to handle discharges, 
use a quick drainage system for tank car or tank truck loading/
unloading racks. You must design any containment system to hold at 
least the maximum capacity of any single compartment of a tank car or 
tank truck loaded or unloaded at the facility.'' Section 112.7(h)(2) 
would be similarly modified and includes a technical correction of the 
word ``break'' to ``brake'' to correct a typographical error.
    The modification to change the word ``area'' to ``rack'' in Sec.  
112.7(h) is consistent with EPA's notice in the Federal Register in May 
2004, which noted that the application of Sec.  112.7(h) only applies 
to facilities with loading and unloading ``racks'' (69 FR 29728, May 
25, 2004). EPA also clarified, in a letter to the Petroleum Marketers 
Association of America, that loading and unloading activities that take 
place beyond the rack area are not subject to

[[Page 58391]]

the requirements of Sec.  112.7(h), but are subject, where applicable, 
to the general secondary containment requirements of Sec.  112.7(c) 
(Letter to Daniel Gilligan, President, Petroleum Marketers Association 
of America, from Marianne Lamont Horinko, Assistant Administrator, 
Office of Solid Waste and Emergency Response, EPA, May 25, 2004).
    In the preamble to the July 2002 amendments to the SPCC rule, EPA 
stated that Sec.  112.7(h) ``applies to containers which are 
aboveground (including partially buried tanks, bunkered tanks, or 
vaulted tanks) or completely buried (except those exempted by this 
rule)'' (67 FR 47110, July 17, 2002). This means that Sec.  112.7(h) 
does not apply to a loading/unloading rack associated with a container 
that is exempted from the rule, such as an underground storage tank 
(UST) that is subject to all of the technical requirements of 40 CFR 
part 280 or a State program approved under part 281. EPA is 
reconsidering this position, because a transfer to or from such a 
container at an SPCC-regulated facility is a potential source of a 
discharge of oil into navigable waters or adjoining shorelines. 
Additionally, since a loading/unloading rack associated with the UST is 
not typically part of the UST system, it is not subject to all of the 
technical requirements of 40 CFR part 280 or 281, and is therefore 
regulated under SPCC in the same manner as any other transfer equipment 
or transfer activity located at an otherwise regulated SPCC facility.
    In the preamble to the December 2006 amendments, EPA noted that 
although the amendment provided an exemption for motive power 
containers, the oil transfer activities to or from motive power 
containers occurring within an SPCC-regulated facility continue to be 
regulated (71 FR 77283, December 26, 2006). Consistent with the 
preamble to the December 2006 amendments, the Agency is clarifying that 
at an SPCC-regulated facility, Sec.  112.7(h) (including the sized 
secondary containment provision) applies to transfers at any loading/
unloading rack associated with any type of container, including one 
that is exempted from the rule, as long as the loading/unloading rack 
meets the definition proposed in this notice. A transfer not associated 
with a loading or unloading rack is subject to the general secondary 
containment provision at Sec.  112.7(c). The Agency believes that no 
rule change is needed to clarify this point, because a rule amendment 
to exempt a loading/unloading rack associated with a UST was never 
proposed or finalized.
    The Agency seeks comments on the proposed modifications to the 
provision at Sec.  112.7(h), and how EPA regulates the transfers to or 
from completely buried tanks subject to all of the technical 
requirements under 40 CFR part 280 or part 281, or if there are any 
other modifications 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.
3. Exclusions
    EPA is proposing to exclude onshore oil production facilities and 
farms from the loading/unloading rack requirements at Sec.  112.7(h). 
The provision currently excludes all offshore facilities. EPA 
understands that there are extremely few, if any, loading/unloading 
racks at oil production facilities. Similarly, EPA understands that 
farm oil and fuel dispensing equipment is generally not associated with 
loading/unloading racks. Oil transfer areas, such as loading/unloading 
areas, at farms and oil production facilities that are subject to the 
SPCC rule remain subject to the general secondary containment 
requirements of Sec.  112.7(c).
    EPA understands that there may be other facilities or industry 
sectors that are involved in the transfer of oil, but do not have a 
structure that meets the definition of ``loading/unloading rack'' as 
proposed in this notice. EPA is proposing to exclude onshore oil 
production facilities and farms from Sec.  112.7(h), because the Agency 
is specifically aware that these types of transfer equipment are not 
typically associated with these types of facilities. EPA does not want 
to create any confusion for owners/operators associated with oil 
production facilities and farms, and for the purpose of clarity, is 
exempting them. At other facilities that do not have a loading/
unloading rack, the provisions at Sec.  112.7(h) similarly do not 
apply. As EPA stated in the SPCC Guidance for Regional Inspectors 
(version 1.0, November 28, 2005), ``Areas where oil is transferred but 
no loading or unloading rack is present are subject to Sec.  112.7(c), 
and thus appropriate containment and/or diversionary structures are 
required. EPA does not require specifically sized containment for 
transfer areas; however, containment size must be based on good 
engineering practice.''
    The Agency seeks comment on whether the proposed exclusion for 
onshore oil production facilities and farms from the loading/unloading 
rack requirements is necessary, or whether the proposed definition of 
the term ``loading/unloading rack'' would provide sufficient clarity as 
to the applicability of Sec.  112.7(h) at oil production facilities and 
farms. Any suggestions for alternative approaches must include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider it for a final action.
4. Alternative Option Considered: No Action
    EPA considered not providing any amendments to the SPCC rule 
related to loading/unloading racks. Under this approach, EPA would not 
provide a regulatory definition for loading/unloading rack or an 
exclusion for farms and oil production facilities, but would instead 
continue to follow the interpretation of loading/unloading rack as 
stated in the SPCC Guidance for Regional Inspectors and the May 2004 
Federal Register notice. EPA chose not to move forward with this ``no 
action'' option because it would not address the ambiguity of the 
loading/unloading rack requirement as it currently stands.
    The Agency seeks comment on whether there are any other alternative 
options that should be reviewed further by EPA prior to issuing a final 
action. Any suggestions for alternative options must include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider it for a final action.

G. Tier I Qualified Facilities

    In December 2005 (70 FR 73524, December 12, 2005), EPA proposed to 
allow the owner or operator of a qualified facility to self-certify his 
SPCC Plan (this proposal was finalized in December 2006 at 71 FR 
77266). In the preamble to this 2005 proposal, EPA discussed an 
alternative option that was developed in response to comments EPA 
received following publication of a Notice of Data Availability (NODA) 
for facilities that handle oil below a certain threshold amount (69 FR 
56182, September 20, 2004) and was based on an analysis submitted by 
the Small Business Administration (SBA) Office of Advocacy. This 
``multi-tiered approach'' was based on the total storage capacity of a 
facility, as follows:
     Tier I would include facilities that have between 1,321 
and 5,000 gallons of total oil 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 having between 5,001 and 
10,000 gallons of total oil storage capacity.

[[Page 58392]]

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 with total oil storage capacities greater than 10,000 
gallons. These facilities would be required to have a written SPCC Plan 
certified by a PE.
    As described in its December 2006 final rule (71 FR 77266, December 
26, 2006), EPA did not adopt this suggested multi-tiered structure 
approach because the Agency believes that a facility cannot effectively 
implement an oil spill prevention program, or any other program 
(business or otherwise), without documentation of that program's action 
items, such as in a written Plan. However, the Agency did finalize at 
that time requirements for one ``tier'' of qualified facilities to 
prepare a self-certified SPCC Plan. The Agency understands the concerns 
of small businesses, particularly of facilities with a smaller oil 
storage capacity and likely more limited resources, of the potential 
effort needed to develop a full Plan. Thus, the Agency is now exploring 
the possibility of further streamlining the SPCC requirements for 
certain qualified facilities that meet additional criteria.
    EPA proposes to amend the SPCC rule to provide an additional option 
for an owner or operator of a qualified facility with a maximum 
individual oil storage container capacity of 5,000 U.S. gallons to 
complete and implement a streamlined, self-certified SPCC Plan template 
(proposed as Appendix G to 40 CFR part 112), in order to comply with 
the requirements of the SPCC rule. A qualified facility is one that 
meets the qualifying criteria described in the December 2006 amendments 
to the SPCC rule (71 FR 77266, December 26, 2006): a facility that has 
an aggregate aboveground oil storage capacity of 10,000 U.S. gallons or 
less; and has had no single discharge as described in Sec.  112.1(b) 
exceeding 1,000 U.S. gallons or no two discharges as described in Sec.  
112.1(b) each exceeding 42 U.S. gallons within any twelve-month period 
in the three years prior to the SPCC Plan self-certification date, or 
since becoming subject to 40 CFR part 112 if the facility has been in 
operation for less than three years (this criterion does not include 
discharges as described in Sec.  112.1(b) that are the result of 
natural disasters, acts of war, or terrorism). For a more complete 
discussion on these qualifying criteria, see the preamble to the 
December 2006 SPCC rulemaking at 71 FR 77266.
    For clarity, EPA is now proposing the term ``Tier II qualified 
facility'' to describe those qualified facilities as defined by and 
subject to the requirements promulgated in the December 2006 SPCC 
rulemaking at 71 FR 77266 and to propose the term ``Tier I qualified 
facility'' for a new subset of these qualified facilities. EPA is 
proposing that a Tier I qualified facility, in addition to meeting the 
eligibility criteria for a Tier II qualified facility, also have no 
individual oil storage containers with a capacity greater than 5,000 
U.S. gallons in volume, as described below.
1. Eligibility Criteria
    As a subset of ``qualified facilities,'' Tier I qualified 
facilities must meet all of the eligibility criteria finalized by EPA 
in December 2006 (71 FR 77266), including reportable discharge history. 
In the current action, EPA is proposing an additional criterion for 
Tier I eligibility: a maximum individual oil storage container capacity 
of 5,000 U.S. gallons.
    EPA has developed the proposed Tier I category based on an 
operational characteristic, rather than a lower total facility storage 
capacity threshold (as suggested by SBA), in order to link any 
streamlined requirements with a reduced potential for oil discharge. 
EPA proposes to set the maximum individual container capacity threshold 
at 5,000 U.S. gallons because this volume is consistent with industry 
consensus standards that call for varying levels of inspection 
stringency based on container size and configuration. For example, the 
Steel Tank Institute's SP001, Standard for the Inspection of 
Aboveground Storage Tanks, allows for periodic visual inspection alone, 
with no requirement for the inspector to be professionally certified, 
for containers of 5,000 U.S. gallons or less that are equipped with a 
spill control measure and a continuous release detection method. 
Furthermore, a facility with smaller storage containers often has less 
complicated operations, is typically an end-user of oil (does not 
distribute the oil further), is involved in few oil transfers, and may 
have predominantly mobile or portable containers with a few low-
capacity fixed oil storage containers. Smaller containers have a 
smaller potential maximum discharge size, and there may be little or no 
piping associated with these small containers.
    Determining the storage capacity for each oil storage container is 
straightforward, so it should be relatively simple for a qualified 
facility owner or operator to determine whether the facility meets this 
criterion. An EPA inspector will be able to easily verify the storage 
capacity for each container, and therefore confirm eligibility for Tier 
I status as a qualified facility.
    This approach is similar to SBA's suggested Tier I eligibility 
criterion of a 5,000-gallon aggregate facility storage capacity 
threshold. However, by maintaining the higher facility capacity 
threshold that applies for all qualified facilities (10,000 U.S. 
gallons) and limiting the size of individual oil storage containers, 
EPA proposes an option from which a greater number of facilities, 
including those with a fluctuating oil storage capacity below 10,000 
U.S. gallons, may benefit.
    To determine eligibility as either a Tier I or Tier II qualified 
facility, only the aboveground oil storage capacity is considered. 
However, a completely buried oil storage tank located at a qualified 
facility is also regulated unless it is subject to all of the technical 
requirements of 40 CFR part 280 or a State program approved under part 
281. That is, if a facility is subject to the SPCC rule, then both 
aboveground and completely buried oil storage containers located at the 
facility are subject to the rule, unless specifically exempted from 
applicability under Sec.  112.1(d).
    The Agency seeks comments on whether setting the criteria for Tier 
I qualified facilities as a maximum individual oil container capacity 
of 5,000 U.S. gallons appropriately addresses the concerns of 
facilities with relatively smaller volumes of oil, while maintaining 
the environmental protection intended by the regulation. Any 
suggestions for alternative criteria, including alternate container 
volume thresholds, must include an appropriate rationale and supporting 
data in order for the Agency to be able to consider it for final 
action.
2. Provisions for Tier I Qualified Facilities
    In lieu of preparing a full SPCC Plan that is PE- or self-
certified, EPA proposes that an owner or operator of a Tier I qualified 
facility would have the option to complete the SPCC Plan template 
proposed as Appendix G of 40 CFR part 112. The Plan template is 
designed to be a simple SPCC Plan that includes only the requirements 
that should apply to this lowest tier of regulated facilities. This 
proposed rule streamlines requirements for Tier I qualified facilities 
by eliminating and/or modifying several SPCC requirements (e.g., 
facility diagram (Sec.  112.7(a)(3)) and

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certain provisions that generally do not apply to facilities that store 
or handle smaller volumes of oil, such as requirements for transfers 
taking place at loading racks (Sec.  112.7(h)).
    The list of applicable rule provisions for Tier I qualified 
facilities is included as Sec.  112.6(a)(3) of this proposal. For an 
owner or operator of a Tier I qualified facility completing the Plan 
template included in Appendix G of this part, the following existing 
requirements under Sec.  112.7 and in subparts B and C continue to 
apply: facility description (Sec.  112.7(a)(3)(i), 112.7(a)(3)(iv), 
112.7(a)(3)(vi), 112.7(a)(4), and 112.7(a)(5)); general secondary 
containment (Sec.  112.7(c)); inspections, tests and records (Sec.  
112.7(e)); personnel, training, and discharge prevention procedures 
(Sec.  112.7(f)); security (Sec.  112.7(g)); qualified oil-filled 
operational equipment (Sec.  112.7(k)); facility drainage (Sec. Sec.  
112.8(b)(1), 112.8(b)(2), 112.12(b)(1), and 112.12(b)(2)); bulk storage 
containers (Sec. Sec.  112.8(c)(1), 112.8(c)(3), 112.8(c)(4), 
112.8(c)(5), 112.8(c)(6), 112.8(c)(10), 112.12(c)(1), 112.12(c)(3), 
112.12(c)(4), 112.12(c)(5), 112.12(c)(6), and 112.12(c)(10)); piping 
inspections (Sec. Sec.  112.8(d)(4) and 112.12(d)(4)); oil production 
facility requirements(Sec.  112.9(b), 112.9(c), 112.9(d)(1), 
112.9(d)(3), and 112.9(d)(4)); and requirements for onshore oil 
drilling and workover facilities (Sec.  112.10(b), 112.10(c) and 
112.10(d)). This list of requirements reflects a set of currently 
existing requirements that apply to facilities subject to the SPCC 
rule; EPA found no rationale to remove or modify these requirements for 
Tier I qualified facilities. Additionally, as described below, EPA is 
proposing a set of revised, or streamlined, requirements applicable to 
Tier I qualified facilities in lieu of specific existing requirements.
a. Streamlined Provisions for Tier I Qualified Facilities
    EPA is proposing a set of revised requirements applicable to Tier I 
qualified facilities in lieu of the specific existing requirements.
    In lieu of the full failure analysis requirements in Sec.  
112.7(b), EPA proposes that an owner or operator of a Tier I facility 
examine areas where there is a reasonable possibility for equipment 
failure (such as where equipment is loaded or unloaded; where tank 
overflow, rupture, or leakage is possible; or at the location of any 
other equipment known to be a source of discharge) and include in the 
Plan the total quantity of oil that could be discharged and a 
prediction of the direction of flow. This proposed amendment removes 
the requirement for an owner or operator of a Tier I facility to 
predict the rate of flow that could result from an equipment failure. 
This modified requirement is proposed as Sec.  112.6(a)(3)(i). EPA 
believes this is appropriate because Tier I facilities will have only 
containers less than 5,000 gallons and, additionally, usually have low 
pressure pumps. In order to simplify completion of the SPCC Plan 
template, EPA is removing the requirement for an owner/operator to 
calculate the rate of flow that could result from an equipment failure.
    Currently, secondary containment requirements for mobile/portable 
containers and all other bulk storage container requirements are 
provided in separate provisions: Sec. Sec.  112.8(c)(2) and (c)(11) and 
112.12(c)(2) and (c)(11). In lieu of these separate requirements, EPA 
proposes to (1) combine mobile/portable container requirements with the 
other bulk storage container requirements, and (2) eliminate the 
requirement for containment to be ``sufficiently impervious.'' This 
modified requirement is proposed as Sec.  112.6(a)(3)(ii). Combining 
these requirements streamlines two similar provisions and simplifies 
requirements for Tier I qualified facilities. Because EPA expects a 
Tier I qualified facility to be a small, simple operation, with oil 
storage containers that are inside buildings, inside pre-engineered 
secondary containment, or double-walled, the requirement for 
containment to be specifically designed as ``sufficiently impervious'' 
may be unnecessary. Furthermore, the requirement for secondary 
containment to be capable of containing oil and constructed so that any 
discharge will not escape the containment system before cleanup occurs 
(Sec.  112.7(c)) still applies, and is similar in nature to the 
``sufficiently impervious'' requirement. For the purposes of 
simplicity, EPA would rely on the requirement in Sec.  112.7(c) to 
adequately address Tier I qualified facilities.
    In lieu of Sec. Sec.  112.8(c)(8) and 112.12(c)(8), the overfill 
prevention requirements, EPA proposes to require that an owner or 
operator of a Tier I qualified facility ensure each container is 
provided with a system or documented procedure to prevent overfills of 
containers, and that containers are regularly tested to ensure proper 
operation or efficacy. This modification provides more flexibility by 
allowing the use of alternative methods to prevent container overfills, 
rather than requiring an owner or operator to meet a prescribed set of 
overfill prevention procedures. This modified requirement is proposed 
as Sec.  112.6(a)(3)(iii). EPA believes this proposed flexibility is 
warranted, because overfills can be prevented on smaller containers if 
tanks are manually gauged and the transfer is constantly attended. In 
order to comply with this requirement, a Tier I qualified facility 
owner or operator simply needs to provide a relatively brief 
description of the overfill prevention procedures in the SPCC Plan. The 
description needs to provide only sufficient detail that would allow an 
EPA inspector to understand how the owner/operator prevents overfills 
of oil storage containers and how liquid level sensing devices are 
tested.
    Elsewhere in this notice, EPA is proposing to extend the 
streamlined security and integrity testing requirements that were 
provided for qualified facilities in the December 2006 SPCC rule 
amendment (71 FR 77266) to all facilities. Under this proposed 
approach, both Tier I and Tier II qualified facilities would be subject 
to the revised security (Sec.  112.7(g)) and integrity testing 
(Sec. Sec.  112.8(c)(6) and 112.12(c)(6)) provisions.
b. Provisions Not Applicable to Tier I Qualified Facilities
    The following requirements are not included in the SPCC Plan 
template because, for an end-use facility with a smaller oil storage 
capacity and a simple configuration, these requirements are 
inapplicable or unnecessary: facility diagram (Sec.  112.7(a)(3)); 
facility description (Sec.  112.7(a)(3)(ii), 112.7(a)(3)(iii)) and 
112.7(a)(3)(v)); loading/unloading rack (Sec.  112.7(h)); brittle 
fracture evaluation (Sec.  112.7(i)); facility drainage (Sec. Sec.  
112.8(b)(3), 112.8(b)(4), 112.8(b)(5), 112.12(b)(3), 112.12(b)(4), and 
112.12(b)(5)); monitoring internal heating coils (Sec. Sec.  
112.8(c)(7) and 112.12(c)(7)), effluent treatment facilities 
(Sec. Sec.  112.8(c)(9) and 112.12(c)(9)); and facility transfer 
operations (Sec. Sec.  112.8(d)(1), 112.8(d)(2), 112.8(d)(3), 
112.8(d)(5), 112.9(d)(2), 112.12(d)(1), 112.12(d)(2), 112.12(d)(3), and 
112.12(d)(5)).
    Section 112.7(a)(3) Facility diagram. A qualified facility with no 
individual container greater than 5,000 U.S. gallons in capacity is 
typically small and generally simple in configuration. A facility 
diagram is not needed to understand the facility layout and locate 
areas of potential discharge at such facilities.
    Section 112.7(a)(3)(ii) Discuss discharge prevention measures 
including routine handling of products (loading, unloading and facility

[[Page 58394]]

transfers). In order to simplify completion of the SPCC Plan template, 
EPA proposes to remove the administrative provisions that require 
discussion of oil handling at the facility. Smaller oil storage 
capacity facilities tend to have fewer oil transfers, which are 
generally conducted by an off-site oil distributor. Although the owner/
operator should be familiar with the routine oil-handling activities 
and train employees on established procedures for oil handling, EPA 
does not believe it is necessary to include a description of these 
procedures in the SPCC Plan template.
    Section 112.7(a)(3)(iii) Discuss discharge or drainage controls 
(e.g., secondary containment) and procedures. In order to simplify 
completion of the SPCC Plan template, we have removed the requirement 
to describe the facility drainage and secondary containment. Instead, 
Section 2 of the Plan template includes a table for the owner or 
operator to identify oil storage containers and the method of secondary 
containment provided for each container. EPA believes this is 
appropriate, considering the smaller volumes of oil stored or handled 
at these facilities.
    Section 112.7(a)(3)(v) Discuss methods of disposal of recovered 
materials. In order to simplify completion of the SPCC Plan template, 
we have removed the requirement to discuss disposal methods for 
recovered materials. However, the owner/operator is still obligated to 
meet all local, state and Federal regulatory requirements for the 
proper disposal of oil contaminated materials following an oil 
discharge.
    Section 112.7(h) Facility tank car and tank truck loading/unloading 
rack. Elsewhere in this notice, EPA is proposing a definition for the 
term ``loading/unloading rack.'' Given the Tier I qualified facility 
eligibility criteria, a Tier I qualified facility would be unlikely to 
have a loading/unloading rack, as proposed to be defined in Sec.  
112.2, because a Tier I qualified facility would not typically be 
involved with oil distribution. Therefore, eliminating this requirement 
is appropriate.
    Section 112.7(i) Brittle fracture evaluation. This requirement 
applies to field-constructed, aboveground containers. Field-constructed 
containers tend to be greater than 5,000 U.S. gallons in capacity; 
under this proposal, a Tier I qualified facility would not have any 
containers greater than 5,000 U.S. gallons in capacity. Therefore, 
eliminating this requirement is appropriate.
    Sections 112.8(b)(3)-(b)(5) and 112.12(b)(3)-(b)(5) Facility 
drainage requirements. A facility with a maximum individual container 
storage capacity of 5,000 U.S. gallons is unlikely to have complicated 
drainage systems. The purpose of drainage requirements listed in these 
provisions is to provide further specification for when drainage 
systems are used as secondary containment methods, and for how drainage 
from diked containment areas should be accomplished. In a smaller 
facility with less complicated operations, this additional 
specification is not necessary.
    Sections 112.8(c)(7) and 112.12(c)(7) Requirements for monitoring 
internal heating coils. A facility with smaller oil storage containers 
is unlikely to have oil storage containers with heating coils due to 
the type of operations conducted and the kind of oil commonly used at 
such a facility. Therefore, eliminating this requirement is 
appropriate.
    Sections 112.8(c)(9) and 112.12(c)(9) Effluent treatment facility 
inspections. A facility with smaller oil storage containers generally 
does not maintain an effluent treatment system. Therefore, eliminating 
this requirement is appropriate.
    Section 112.8(d)(1) and 112.12(d)(1) Corrosion protection for 
buried piping. A facility with smaller oil storage containers generally 
does not maintain extensive or complicated buried piping systems. 
Therefore, eliminating this requirement is appropriate.
    Sections 112.8(d)(2) and 112.12(d)(2), and 112.8(d)(3) and 
112.12(d)(3) Capping or blank-flanging terminal connections and design 
of pipe supports. A facility with smaller oil storage containers 
generally does not maintain extensive or complicated piping systems, 
and piping is generally limited in length and adjacent to buildings or 
associated equipment. Therefore, eliminating this requirement is 
appropriate.
    Section 112.8(d)(5) and 112.12(d)(5) Warn vehicles of aboveground 
piping. A facility with smaller oil storage containers generally does 
not maintain extensive or complicated piping systems that may be 
impacted by vehicles entering or leaving the facility. Furthermore, 
piping is generally limited in length and adjacent to buildings or 
associated equipment. Therefore, eliminating this requirement is 
appropriate.
    Section 112.9(d)(2) Inspect saltwater disposal facilities. EPA does 
not expect there to be any saltwater disposal equipment generally 
associated with an oil production facility that meets the criteria for 
a Tier I qualified facility as described in this notice. Therefore, 
eliminating this requirement is appropriate.
    EPA believes no further differentiation is warranted for onshore 
oil production facilities in Sec.  112.9 and onshore oil drilling and 
workover facilities in Sec.  112.10. An onshore oil production facility 
that qualifies as a Tier I qualified facility will generally have the 
same type of equipment as an oil production facility with larger oil 
storage capacity (i.e., a wellhead with a pumpjack, flowlines, oil 
separation equipment and oil storage and produced water containers) and 
therefore, no further differentiation is warranted. An onshore drilling 
or workover facility has three additional requirements under Sec.  
112.10. The facility must: position or locate mobile drilling or 
workover equipment so as to prevent a discharge as described in Sec.  
112.1(b); provide catchment basins or diversion structures to intercept 
and contain discharges of fuel, crude oil, or oily drilling fluids; and 
install a blowout prevention (BOP) assembly and well control system 
that is effective to control wellhead pressure. The presence of smaller 
oil storage containers does not support differentiation of these 
requirements, however, an onshore oil production, drilling or workover 
facility that is eligible as a Tier I qualified facility will benefit 
from the differentiated requirements under Sec.  112.7.
    EPA also believes that no further differentiation is warranted for 
offshore drilling, production, and workover facilities subject to Sec.  
112.11. Due to the nature of operations associated with these types of 
facilities, they are not likely to meet the criterion of a maximum 
individual container capacity of 5,000 U.S. gallons.
    The Agency notes that under the existing SPCC requirements, the 
Regional Administrator (RA), after reviewing a facility's Plan, has the 
authority under Sec.  112.4 to require an owner or operator of a 
facility to amend the SPCC Plan if the RA finds that an amendment is 
necessary to prevent and contain discharges from the facility. Such an 
amendment may include requiring PE certification in accordance with 
Sec.  112.3(d). Under this proposal, this provision would also apply to 
Tier I qualified facilities. An RA could, if warranted, require a Tier 
I qualified facility to prepare a full (i.e., not using the template) 
SPCC Plan with PE certification.
    The Agency also notes that use of the Plan template approach would 
be optional. Under this proposed rule, an owner or operator of a Tier I 
qualified

[[Page 58395]]

facility could choose to prepare and implement either a full PE-
certified SPCC Plan or a self-certified SPCC Plan according to all of 
the requirements of Sec.  112.6(b) in order to comply with the 
requirements under 40 CFR part 112. In other words, if a Tier I 
qualified facility owner/operator chooses not to use the Plan template 
in Appendix G, he would then be required to comply with the Tier II 
qualified facility requirements in Sec.  112.6(b). Any owner or 
operator of a qualified facility may also choose to prepare a full PE-
certified Plan instead of a self-certified one.
    The Agency believes that proposing a simpler, less costly 
compliance option for these smaller, less complex facilities will 
improve overall compliance with the SPCC regulation resulting in 
enhanced environmental protection. EPA seeks comments on whether the 
proposed streamlined set of rule provisions for Tier I qualified 
facilities addresses the concerns of owners and operators of facilities 
with relatively smaller volumes of oil and simpler configurations, 
while maintaining the environmental protection intended by the 
regulation. Any suggestions for alternative approaches and whether 
additional provisions should be included or excluded from the template 
must include an appropriate rationale and supporting data in order for 
the Agency to be able to consider it for final action.
3. SPCC Plan Template
    The proposed SPCC Plan template for Tier I qualified facilities is 
found at Appendix G in this proposed rule. To facilitate the 
development of SPCC Plans at Tier I qualified facilities, EPA would 
also make the Plan template available on its Web site, http://www.epa.gov/emergencies.
 Once completed and certified by the owner or 

operator, the Plan template would serve as the SPCC Plan for the 
facility. As for any facility subject to the SPCC rule, the owner or 
operator must maintain a written copy of the Plan--which in this case 
would be the completed and certified SPCC Plan template--at the 
facility or at the nearest field office if the facility is attended 
less than four hours per day (Sec.  112.3(e)).
a. SPCC Plan Template Format
    The proposed template in Appendix G consists of a simple form, 
where the facility owner/operator can confirm that that the facility 
meets the rule requirements by marking the appropriate checkboxes. In 
other sections, the owner or operator would enter the relevant 
information in a summary table, or describe the equipment or procedures 
implemented at the facility to meet the requirements. Specifically, 
detailed descriptions would be provided for: (1) The inspection/testing 
program used for all aboveground storage containers and piping; (2) 
security measures (except for oil production facilities); (3) immediate 
actions to be taken in the event of a reportable discharge (i.e., a 
discharge to navigable waters or adjoining shorelines); (4) procedures 
for preventing overfills from each oil storage container; and (5) the 
flowline/intra-facility gathering line maintenance program (for oil 
production facilities).
    The proposed template also includes attachments with various tables 
that the owner or operator may use to record compliance activities, 
such as periodic Plan reviews, equipment inspections, personnel 
training, and discharge notifications. Records of inspections and tests 
kept under usual and customary business practices also would suffice. 
An owner or operator may insert additional pages to his Plan to provide 
more detailed descriptions of equipment or procedures than allowed in 
the space provided in the template, and provide the appropriate 
reference in the relevant template field.
    At a minimum, an owner or operator would be required to fill out 
all applicable portions of the Plan template. EPA would expect an owner 
or operator to complete all fields in the general portion of the 
template (Sections I and II, and III.1 through III.8), and the specific 
portion of the template that applies to their facility type (A, B, or C 
of Section III).
    The first part of the proposed Plan template contains summary 
information about the facility. Section I contains the self-
certification statement that must be signed by the owner or operator. 
By signing this statement, the facility owner or operator preparing the 
Plan would commit to implementing the measures described in the Plan. 
In Section II, the owner or operator acknowledges the requirements to 
review and amend the Plan, and Plan reviews and amendments can be 
recorded in Attachment 2 to the Plan template. Section III consists of 
the requirements that apply to all facility types and include, in 
order: (1) Oil Storage Containers; (2) Secondary Containment and Oil 
Spill Control; (3) Inspections, Testing, Recordkeeping, and Personnel 
Training; (4) Security (excluding oil production facilities); (5) 
Emergency Procedures and Notifications; (6) Contact List; (7) NRC 
Notification Procedure; and (8) SPCC Spill Reporting Requirements.
    The owner or operator must also complete one of the Sections 
labeled A through C, according to the type of facility, as follows: 
Section A in the case of an onshore facility (excluding production) 
such as a farm; Section B in the case of an onshore oil production 
facility; and Section C in the case of an onshore oil drilling and 
workover facility. The Agency did not include requirements for offshore 
oil drilling, production or workover facilities in the template because 
EPA is not aware of any offshore drilling, production or workover 
facility that would meet the Tier I qualification criteria.
    EPA believes that this simplified approach to developing an SPCC 
Plan for Tier I qualified facilities is responsive to the concerns 
expressed by small businesses and the SBA Office of Advocacy, and is 
consistent with the characteristics of these facilities having a 
limited number of oil storage containers, smaller overall oil storage 
capacities, simple configurations, fewer oil transfers, and often have 
no further distribution of oil.
    The Agency seeks comments on whether the proposed SPCC Plan 
template in Appendix G for Tier I qualified facilities addresses the 
concerns of owners and operators of facilities with relatively smaller 
volumes of oil, while maintaining the environmental protection intended 
by the regulation. The Agency also seeks comments on the clarity and 
ease-of-use of the Plan template.
b. Environmental Equivalence and Impracticability Determinations
    Use of the Appendix G template would be limited to those facilities 
that do not use environmentally equivalent measures under Sec.  
112.7(a)(2) and that do not determine secondary containment to be 
impracticable as per Sec.  112.7(d). An owner or operator of a Tier I 
qualified facility who wants to use such deviations may choose to 
prepare and implement a self-certified Plan in accordance with the Tier 
II qualified facility requirements in Sec.  112.6(b) and can then have 
a licensed PE review and certify those portions of the SPCC Plan that 
provide for alternate measures to be implemented at the facility. 
However, these facilities would not be able to use the template in 
Appendix G to comply with the SPCC rule because Tier II facilities have 
additional SPCC requirements that are not included in the Plan 
template. Tier I qualified facilities may also choose to prepare and 
implement a PE-certified Plan in accordance with the full set of 
applicable requirements in Sec.  112.7 and subparts B and C of the 
rule.

[[Page 58396]]

4. Self-Certification and Plan Amendments
    The elements of the Tier I self-certification requirement currently 
being proposed are similar in scope to those required for an owner or 
operator of a qualified facility who chooses to self-certify a Plan (as 
promulgated in December 2006, 71 FR 77266). An owner or operator of a 
Tier I qualified facility who chooses to complete an Appendix G 
template Plan would be required to certify that: (1) He is familiar 
with the applicable requirements of the SPCC rule; (2) he has visited 
and examined the facility; (3) the Plan has been prepared in accordance 
with accepted and sound industry practices and standards; (4) 
procedures for required inspections and testing have been established 
in accordance with industry inspection and testing standards and 
recommended practices; (5) the Plan is being fully implemented; (6) the 
facility meets the qualification criteria set forth under Sec.  
112.3(g)(1); (7) the Plan does not utilize the environmental 
equivalence or impracticability provisions under Sec.  112.7(a)(2) and 
112.7(d); and (8) the Plan and the individual(s) responsible for 
implementing the Plan have the full approval of management and the 
facility owner or operator has committed the necessary resources to 
fully implement the Plan.
    The template also includes a section that acknowledges the owner/
operators' obligation to report oil discharges; review and amend the 
SPCC Plan; prepare an oil spill contingency plan and provide a written 
commitment of resources for qualified oil-filled operational equipment 
(in lieu of secondary containment) or for flowlines and intra-facility 
gathering lines at oil production facilities; implement the Plan; and 
certify that the information in the Plan is true.
    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). Consistent 
with the current requirement for qualified facilities, the owner or 
operator of a Tier I qualified facility would be allowed to self-
certify any of these technical amendments to the Plan under Sec.  
112.6(a)(2), and document this certification in the Plan template.
    If the owner or operator of a Tier I qualified facility makes 
changes to the facility such that the maximum individual oil storage 
container capacity is greater than 5,000 U.S. gallons, the facility no 
longer qualifies as a Tier I facility and is not eligible to implement 
the self-certified SPCC Plan template. The facility owner or operator 
must determine whether the facility still meets the eligibility 
criteria for a Tier II qualified facility (i.e., total aboveground 
storage capacity remains below 10,000 gallons). If the facility meets 
the Tier II qualified facility criteria, the owner/operator would be 
required to, within six months following the change in the facility, 
prepare and implement a Plan in accordance with the proposed Sec.  
112.6(b) or prepare and implement a Plan in accordance with the general 
Plan requirements in Sec.  112.7, and the applicable requirements in 
subparts B and C, including having the Plan certified by a PE, as 
required under Sec.  112.3(d). If, on the other hand, the facility is 
no longer a qualified facility, the owner/operator would be required 
to, within six months following the change in the facility, prepare and 
implement a Plan in accordance with the general Plan requirements in 
Sec.  112.7, and applicable requirements in subparts B and C.
    The Agency seeks comments on the appropriateness of these self-
certification elements and Plan amendment requirements, and on whether 
there are other requirements that should be included. Any suggestions 
for differentiation for the template must include an appropriate 
rationale and supporting data in order for the Agency to be able to 
consider it for a final action.
5. Tier II Qualified Facility Requirements
    EPA proposes to designate qualified facilities that do not meet the 
additional criterion for Tier I qualified facilities (i.e., no 
individual oil storage container with a capacity greater than 5,000 
U.S. gallons) as Tier II qualified facilities. Although EPA is 
proposing changes to the organization of the regulatory text in Sec.  
112.6 in order to accommodate the tiered approach, the requirements for 
Tier II qualified facilities remain the same as they were finalized in 
December 2006 (71 FR 77266). Tier II qualified facilities may choose to 
comply with the requirements in proposed Sec.  112.6(b) by completing 
and implementing a self-certified SPCC Plan, in lieu of having a PE-
certified Plan. The self-certified SPCC Plan must comply with all of 
the applicable requirements of section Sec.  112.7 and subparts B and C 
of the rule. The following table illustrates the tiers, criteria and 
options for qualified facilities and all others as described in this 
notice:

------------------------------------------------------------------------
               Qualified facilities
--------------------------------------------------- All other facilities
           Tier I                    Tier II
------------------------------------------------------------------------
If the facility has 10,000    If the facility has   If the facility has
 gallons or less in            10,000 gallons or     greater than 10,000
 aggregate aboveground oil     less in aggregate     gallons in
 storage capacity; and         aboveground oil       aggregate
                               storage capacity;     aboveground oil
                               and                   storage capacity,
                                                     or
If the facility has not had   If the facility has   If the facility has
 (1) a single discharge of     not had (1) a         had (1) a single
 oil to navigable waters       single discharge of   discharge of oil to
 exceeding 1,000 U.S.          oil to navigable      navigable waters
 gallons, or (2) two           waters exceeding      exceeding 1,000
 discharges of oil to          1,000 U.S. gallons,   U.S. gallons, or
 navigable waters each         or (2) two            (2) two discharges
 exceeding 42 U.S. gallons     discharges of oil     of oil to navigable
 within any twelve-month       to navigable waters   waters each
 period, in the three years    each exceeding 42     exceeding 42 U.S.
 prior to the SPCC Plan        U.S. gallons within   gallons within any
 certification date, or        any twelve-month      twelve-month
 since becoming subject to     period, in the        period, in the
 the SPCC rule if facility     three years prior     three years prior
 has been in operation for     to the SPCC Plan      to the SPCC Plan
 less than three years; and    certification date,   certification date,
                               or since becoming     or since becoming
                               subject to the SPCC   subject to the SPCC
                               rule if facility      rule if facility
                               has been in           has been in
                               operation for less    operation for less
                               than three years;     than three years;
                                                     or
If the facility has no                              If the owner/
 individual oil containers                           operator is
 greater than 5,000 gallons;                         eligible for
                                                     qualified facility
                                                     status, but decides
                                                     not to take the
                                                     option;

[[Page 58397]]


Then: The facility may        Then: The facility    Then: The facility
 complete and self-certify     may prepare a self-   must prepare a PE-
 an SPCC Plan template         certified SPCC Plan   certified SPCC Plan
 (proposed as Appendix G to    in accordance with    in accordance with
 40 CFR part 112) in lieu of   all of the            all of the
 a full SPCC Plan reviewed     applicable            applicable
 and certified by a            requirements of       requirements of
 Professional Engineer (PE)    Sec.   112.7 and      Sec.   112.7 and
                               subparts B and C of   subparts B and C.
                               the rule, instead
                               of one reviewed and
                               certified by a
                               Professional
                               Engineer (PE)
------------------------------------------------------------------------

    It is important to note that Tier II qualified facilities would not 
be able to use the Appendix G template because it does not include all 
of the SPCC requirements that may apply for these facilities.
    EPA is also proposing to remove the streamlined security and 
integrity testing requirements for qualified facilities. Under this 
proposal, the flexibility already available for qualified facilities 
would be extended to all facilities, so these requirements would be 
redundant.
6. Alternative Options Considered
    In developing the amendments proposed in this notice, EPA 
considered the following alternatives for streamlining requirements for 
a subset of qualified facilities:
a. Exemption From SPCC Regulation
    Under this option, EPA would exempt a certain subset of qualified 
facilities from the SPCC requirements altogether, based on a lower 
facility storage capacity threshold (e.g., 5,000 U.S. gallons). The 
exemption of Tier I qualified facilities from the SPCC regulation would 
significantly reduce the number of facilities subject to the SPCC 
requirements. This regulatory alternative would also simplify the 
applicability of the rule for qualified facilities. However, there is 
no rationale or basis for exempting Tier I qualified facilities 
completely from the SPCC rule. Furthermore, there are no data to 
support setting a facility capacity threshold lower than the current 
10,000-gallon capacity threshold for qualified facilities.
b. Tier I Eligibility Criteria Based on Total Facility Storage Capacity
    Under this option, EPA would determine the eligibility for Tier I 
qualified facilities by establishing a lower facility storage capacity 
threshold, such as 5,000 U.S. gallons. This action mirrors SBA's 
approach in its multi-tiered structure proposal (submitted as a public 
comment in response to the 2005 SPCC notice of proposed rulemaking, 
OPA-2005-0001-0120). One advantage of this option is its simplicity, 
since a facility owner or operator--once he determines that the 
facility is ``qualified'' according to the criteria promulgated in 
December 2006--would need only to consider the aggregate storage 
capacity to determine if the Tier I option is available.
    However, there are no data to support setting a total facility 
capacity threshold for a subset of qualified facilities to establish a 
lower tier of differentiated requirements. Furthermore, no strong 
rationale exists to support some areas for differentiation in the 
template, based on a 5,000-gallon total facility storage capacity 
threshold alone. EPA's preferred option ties the container capacity 
threshold to existing differentiation in the STI SP001 standard for 
container inspections. Additionally, a lower tier at the 5,000-gallon 
threshold capacity may complicate applicability of the relief for 
facilities with fluctuating oil storage capacity.
    The Agency seeks comments on these alternative options. Any 
suggestions for additional alternatives must include an appropriate 
rationale and supporting data in order for the Agency to be able to 
consider it for final action.

H. General Secondary Containment

    At a facility subject to the SPCC rule, all areas with the 
potential for a discharge as described in Sec.  112.1(b) are subject to 
the general secondary containment provision, Sec.  112.7(c). These 
areas may have loading/unloading areas (also referred to as transfer 
areas), piping, and/or mobile refuelers, and may include other areas of 
a facility where oil is present. The general secondary containment 
requirement requires that these areas be designed with appropriate 
containment and/or diversionary structures to prevent a discharge of 
oil in quantities that may be harmful (i.e., as described in 40 CFR 
part 110 into or upon navigable waters of the United States or 
adjoining shorelines; see Sec.  112.1(b)). EPA clarified in the SPCC 
Guidance for Regional Inspectors (version 1.0, November 28, 2005) that 
``appropriate containment'' should be designed to address the most 
likely discharge from the primary containment system, such that the 
discharge will not escape containment before cleanup occurs. With this 
proposed revision, EPA seeks to provide clarity consistent with the 
explanation found in the guidance document regarding the method, 
design, and capacity of secondary containment as required under Sec.  
112.7(c).
    Furthermore, Sec.  112.7(c)(1) and (2) list several example methods 
for providing secondary containment. These methods are examples only; 
other containment methods may be used, consistent with good engineering 
practice. To provide clarity for the regulated community, EPA is 
proposing to expand the list of examples of secondary containment 
methods for onshore facilities. By expanding this list of examples, EPA 
intends to include some additional prevention systems commonly used at 
facilities.
1. Proposed Revisions to the General Secondary Containment Requirement
a. Containment Method, Design, and Capacity
    EPA proposes to clarify the general secondary containment 
requirement at Sec.  112.7(c) by adding the text ``In determining the 
method, design, and capacity for secondary containment, you need only 
to address the typical failure mode, and the most likely quantity of 
oil that would be discharged. Secondary containment may be either 
active or passive in design.''
    In the SPCC rule, the general secondary containment provision is 
complemented by various specific secondary containment requirements 
(e.g., Sec. Sec.  112.7(h)(1), 112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 
112.12(c)(2), 112.12(c)(11)) which address the potential for oil 
discharges from specific parts of a facility where oil is stored or 
handled, such as at a bulk storage container or a loading/unloading 
rack. These specific secondary containment requirements address the 
design, sizing and freeboard capacity to account for a major container 
failure. In contrast, the general secondary containment provision is 
intended to address the most likely oil discharge from any part of a 
facility. Therefore, in determining how to provide appropriate general

[[Page 58398]]

secondary containment, a facility owner or operator would consider the 
typical failure mode and most likely quantity of oil that would be 
discharged. Based on these site-specific conditions, the owner or 
operator can determine what capacity of secondary containment is 
needed, and design the containment method accordingly. The most likely 
quantity of oil discharged is not often expected to be the maximum 
capacity of the container.
    For example, at a regulated transfer area where a truck loads fuel 
into an oil tank, the owner or operator may determine that the 
reasonably expected source and cause of a discharge would be a ruptured 
hose connection, and that a shutoff valve is present and accessible to 
the attendant. To determine the most likely quantity of oil that would 
be discharged, the oil's rate of flow and the amount of time it would 
take for the attendant to close the valve need to be considered, in 
accordance with good engineering practice. Depending on the likely 
quantity of oil that would be discharged, the owner/operator may 
determine that the appropriate method of secondary containment is a 
passive containment measure, such as curbing around the area, or, if 
the likely quantity of oil is reasonably handled by spill kits, then 
such an active method of containment may be used.
    Under this proposal, EPA would further amend Sec.  112.7(c) to make 
it clear that the requirement allows for the use of both active and 
passive secondary containment measures to prevent a discharge to 
navigable waters or adjoining shorelines. Active containment measures 
are those that require deployment or other specific action by the 
operator. These measures may be deployed either before an activity 
involving the handling of oil starts, or in reaction to a discharge, so 
long as the active measure is designed to prevent an oil discharge from 
reaching navigable waters or adjoining shorelines. Active measures are 
also referred to as spill countermeasures. In contrast, passive 
measures are installations that do not require deployment or action by 
the operator.
    The SPCC Guidance for Regional Inspectors (Version 1.0, November 
28, 2005) provides several examples of the use of active measures at an 
SPCC-regulated facility. 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 attended activities, such as those occurring during 
transfers, an active measure (e.g., sock, mat, or 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 general secondary containment approach implemented at a 
facility need not be ``one size fits all.'' Different approaches may be 
taken for the same activity at a given facility, depending on the 
material and location. For example, the SPCC Plan may specify that 
drain covers and sorbent material be pre-deployed prior to transfers of 
low viscosity oils in certain areas of a facility located in close 
proximity to navigable waters/adjoining shorelines or drainage 
structures. For other areas and/or other products (e.g., highly viscous 
oils), the Plan may specify that sufficient spill response capability 
is available for use in the event of a discharge, so long as personnel 
and equipment are available at the facility and these measures can be 
effectively implemented in a timely manner to prevent oil from reaching 
navigable waters and adjoining shorelines.
    Whatever method is used, the owner or operator must document in the 
SPCC Plan the rationale for each containment method (i.e., how the use 
of the measure is appropriate to the situation). The SPCC Plan must 
also describe the procedures to be used to deploy any active measures 
and explain the methods for discharge discovery that will be used to 
determine when deployment of the active measure is appropriate (Sec.  
112.7(a)(3)(iii)).
    EPA requests comments on the appropriateness of the proposed 
language for the general secondary containment provision to provide 
clarity regarding the method, design, and capacity of secondary 
containment as required under Sec.  112.7(c), consistent with current 
Agency guidance. Any suggestions for alternative approaches must 
include an appropriate rationale in order for the Agency to be able to 
consider it for final action.
b. List of Secondary Containment Methods for Onshore Facilities
    EPA also proposes to amend the general secondary containment 
provision at Sec.  112.7(c)(1) to include the following additional 
example prevention systems for onshore facilities: Drip pans, sumps, 
and collection systems. Drip pans are typically used to isolate and 
contain small drips or leaks until the source of the leak is repaired. 
They are commonly used with product dispensing containers (such as 
drums), uncoupling of hoses during bulk transfer operations, and for 
pumps, valves, and fittings. Sumps and collection systems generally 
involve a permanent pit or reservoir and the troughs/trenches connected 
to it that collect oil.
    By expanding the list of example secondary containment methods 
found in Sec.  112.7(c)(1), EPA intends to increase the clarity and 
better represent current prevention practices. EPA emphasizes that the 
list of prevention systems are examples only; other containment methods 
may be used, consistent with good engineering practice.
    EPA requests comments on the appropriateness of amending the 
general secondary containment provision to expand the list of example 
secondary containment methods found in Sec.  112.7(c)(1). Any 
suggestions for alternative approaches must include an appropriate 
rationale in order for the Agency to be able to consider it for final 
action.
2. Alternative Option Considered: No Action
    EPA considered taking no regulatory action regarding this issue. 
The current regulatory language currently allows for the facility 
owner/operator to design secondary containment based on a typical 
failure mode and likely quantity discharged. However, EPA believes that 
modifying the general secondary containment language at Sec.  112.7(c) 
is appropriate to more clearly illustrate the flexibility already 
contained in the rule, as described in the guidance document.
3. General Secondary Containment for Non-Transportation-Related Tank 
Trucks
    In the December 2006 amendments to the SPCC rule (71 FR 77266, 
December 26, 2006), EPA exempted mobile refuelers from the sized 
secondary containment requirements applicable to bulk storage 
containers. In the amended regulation, EPA defined a mobile refueler as 
``a bulk storage container onboard a vehicle or towed, that is designed 
or used solely to store and transport fuel for transfer into or from an 
aircraft, motor vehicle, locomotive, vessel, ground service equipment, 
or other oil storage container.'' (See Sec.  112.2). EPA recognizes 
that non-transportation-related tanker trucks may operate similarly to 
mobile refuelers, though not specifically transferring fuel. Therefore, 
they may have the same difficulty in complying with the sized secondary 
containment requirements. EPA requests comment on whether the 
regulatory relief provided to mobile refuelers in 2006 (i.e., an 
exemption

[[Page 58399]]

from the sized secondary containment requirements) should be extended 
to non-transportation-related tank trucks at a facility subject to the 
SPCC rule. Such tank trucks include those used to store for short 
periods of time and transport fuel, crude oil, condensate, non-
petroleum, or other oils for transfer to or from bulk storage 
containers, e.g., a truck used to refill oil-filled equipment at an 
electrical substation or a pump truck at an oil production facility. 
Under this approach, the general secondary containment requirements at 
Sec.  112.7(c) would still apply. This approach is also consistent with 
the general secondary containment requirements that are already 
applicable at the SPCC facility that the tank truck is visiting, and 
would simplify compliance for the facility. However, this exemption to 
sized secondary containment would not apply to a vehicle used primarily 
for the bulk storage of oil in a stationary location, in place of a 
fixed oil storage container.

I. Security

    In December 2005 (70 FR 73524, December 12, 2005), EPA proposed to 
allow the owner and operator of a qualified facility to comply with a 
set of streamlined facility security requirements (finalized in 
December 2006 at 71 FR 77266). In the preamble to that proposal, EPA 
recognized that there is no one single approach to ensure proper 
facility security. For example, the security requirements for fencing 
and lighting may not always be appropriate for sites such as a 
national, state, or local park subject to the SPCC requirements, where 
the site layout may be too extensive to fence, and where the lighting 
of a solitary container would invite, rather than deter, would-be 
intruders. EPA has received comments from the regulated community 
suggesting that the security requirements should be revised for all 
regulated facilities, for reasons consistent with those for a qualified 
facility. EPA agrees that, even for a facility that is not a qualified 
facility, it may not be appropriate to provide fencing around the 
entire perimeter, and that lighting requirements in remote areas may 
attract, rather than deter, vandals. Additionally, many oil storage 
sites at farms, parks, and similarly isolated facilities have no 
electricity, which makes compliance with the lighting requirement 
difficult. In other cases, oil storage sites, such as those at farms, 
may be located where an owner or operator is present around the clock. 
Furthermore, due to the increased focus on security requirements by the 
Department of Homeland Security (DHS) and other regulatory agencies to 
which a facility subject to the SPCC rule may also be subject, EPA 
believes that it is important to provide flexibility in complying with 
the security requirements to allow an owner/operator of a facility to 
customize a security program. By revising the facility security 
requirements to make them more performance-based, EPA expects to 
improve compliance rates, thereby enhancing environmental protection.
1. Proposed Revisions to the Security Requirements
    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 requirement. Therefore, EPA is proposing 
to modify the security requirements at Sec.  112.7(g) to make them 
consistent with the streamlined, performance-based requirements 
currently found at Sec.  112.6(c)(3)(ii) for qualified facilities. 
Because the proposed revised requirements at Sec.  112.7(g) would apply 
to all facilities (excluding oil production facilities), EPA proposes 
to remove Sec.  112.6(c)(3), as it would be redundant.
    This proposal would allow an owner or operator to describe in his 
SPCC Plan how he will:
     Secure and control access to all oil handling, processing 
and storage areas;
     Secure master flow and drain valves;
     Prevent unauthorized access to starter controls on oil 
pumps;
     Secure out-of-service and loading/unloading connections of 
oil pipelines; and
     Address the appropriateness of security lighting to both 
prevent acts of vandalism and assist in the discovery of oil 
discharges.
    A facility owner and operator would be required to document in his 
SPCC Plan how these security measures are implemented.
    These proposed requirements would replace the more prescriptive 
fencing and other requirements, currently found in Sec.  112.7(g)(1) 
through (5), and would allow the facility owner/operator to determine 
how best to secure and control access to areas where a discharge to 
navigable waters or adjoining shorelines may originate. With this 
proposed rule revision, EPA would also allow the facility owner/
operator to determine how lighting can be used to deter intruders and 
to assist in the discovery of oil discharges, or whether there is a 
more appropriate, site-specific method. EPA believes that this proposed 
amendment would likely eliminate the need for PE-certified 
environmentally equivalent alternatives to the specified security 
requirements, because the proposed provision would already provide the 
flexibility for the owner/operator to provide whatever measures are 
most appropriate for the facility, as long as they accomplish the 
stated security goal.
    EPA requests comments on the appropriateness of extending the 
streamlined security requirements already available to qualified 
facilities to all facilities regulated by the SPCC rule. Any 
suggestions for alternative approaches must include an appropriate 
rationale and supporting data in order for the Agency to be able to 
consider it for final action.
2. Alternative Option Considered: No Action
    EPA considered taking no regulatory action regarding this issue. A 
facility owner or operator could continue to use alternate measures in 
lieu of the more prescriptive requirements currently found at Sec.  
112.7(g), with a PE-certified explanation of how the alternate measures 
are environmentally equivalent. However, EPA believes that modifying 
the security requirements at Sec.  112.7(g) to make them consistent 
with the streamlined, performance-based requirements currently provided 
for qualified facilities is appropriate. Therefore, EPA chose not to 
propose this ``no action'' option.

J. Integrity Testing

    In December 2006, EPA promulgated an amendment (71 FR 77266, 
December 26, 2006) allowing the owner or operator of a qualified 
facility to comply with streamlined integrity testing requirements. 
This amendment allowed the owner or operator of a qualified facility to 
consult and rely on industry standards to determine appropriate 
qualifications for inspectors/testing personnel and the appropriate 
integrity testing method for a particular container based on size, 
configuration, and design, without the need for a PE-certified 
explanation for this environmentally equivalent deviation from the 
existing rule requirements at Sec.  112.8(c)(6) or Sec.  112.12(c)(6). 
In the preamble to the proposal for this amendment (70 FR 73524, 
December 12, 2005), EPA recognized that a facility owner or operator 
could rely on the appropriate use of industry standards for integrity 
testing requirements, and that in certain site-specific circumstances, 
visual inspection may be appropriate and sufficient for compliance with 
the integrity testing requirement. EPA has received comments from the 
regulated

[[Page 58400]]

community suggesting that the integrity testing requirements 
promulgated for qualified facilities should be extended to all 
regulated facilities, for reasons consistent with those for a qualified 
facility.
    EPA believes that owners or operators of all types of facilities 
subject to either Sec.  112.8(c)(6) or Sec.  112.12(c)(6) would select 
particular testing methods to comply with these requirements based on 
industry inspection standards such as the Steel Tank Institute (STI) 
SP001 (Standard for Inspection of Aboveground Storage Tanks) and 
American Petroleum Institute (API) Standard 653 (Tank Inspection, 
Repair, Alteration, and Reconstruction). For containers that meet 
certain characteristics, industry standards may not require both visual 
inspection and another system of non-destructive shell testing, as is 
currently required in Sec. Sec.  112.8(c)(6) and 112.12(c)(6).
    For example, a facility may store oil in a mobile or portable 
container, such as a 55-gallon drum. Under the current requirements at 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6), drums are required to be 
visually inspected and are also subject to a non-destructive testing 
method on a regular schedule. Alternatively, a Professional Engineer 
may determine an environmentally equivalent measure, in accordance with 
Sec.  112.7(a)(2). However, STI's SP001 standard specifies that the 
minimum inspection requirement for portable containers, such as drums, 
is visual inspection by the owner/operator unless no secondary 
containment is provided. Therefore, under this proposal to revise the 
integrity testing requirement, for portable containers provided with 
secondary containment, periodic visual inspection only by the owner/
operator can be sufficient under Sec. Sec.  112.8(c)(6) and 
112.12(c)(6). For portable containers without secondary containment, 
the owner/operator must follow the requisite DOT leak testing and 
recertification requirements as outlined in 49 CFR 173.28 (reuse, 
reconditioning and remanufacturing of packaging), 49 CFR 178.803 
(testing and certification of intermediate bulk containers (IBCs)), and 
49 CFR 180.605 (or equivalent for portable container testing and 
recertification). Currently, an owner/operator of a non-qualified 
facility would need a PE to review and certify sections of his SPCC 
Plan demonstrating that such inspection procedures, which are based on 
provisions in the STI SP001 standard, are environmentally equivalent to 
Sec.  112.8(c)(6) or Sec.  112.12(c)(6), even if the owner or operator 
chooses to adopt inspection requirements directly from the industry 
standard.
    Rather than require a PE-certified explanation of environmental 
equivalence every time a facility owner or operator chooses to base 
their integrity testing program on an industry standard instead of the 
more stringent requirements in Sec.  112.8(c)(6) or Sec.  112.12(c)(6), 
EPA is proposing to amend Sec. Sec.  112.8(c)(6) and 112.12(c)(6) to 
replace these provisions with the more flexible language already 
provided for qualified facilities at Sec.  112.6(c)(4)(ii).
1. Proposed Amendments to Integrity Testing Requirements
    EPA proposes to replace the current regulatory requirements at 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) with the regulatory 
requirements currently found at Sec.  112.6(c)(4)(ii). EPA believes 
that any SPCC facility owner or operator subject to Sec.  112.8(c)(6) 
or Sec.  112.12(c)(6) should be allowed the increased flexibility 
offered by the inspection requirements at Sec.  112.6(c)(4)(ii) (and 
corresponding reduction in burden associated with developing 
environmental equivalence determinations), particularly for portable 
containers. Because the proposed revised requirements at Sec. Sec.  
112.8(c)(6) and 112.12(c)(6) would apply to all facilities (excluding 
oil production facilities), EPA is proposing to remove Sec.  
112.6(c)(4), as it would be redundant.
    This proposal requires a facility owner or operator to:
     Test/inspect each aboveground container for integrity on a 
regular schedule and whenever material repairs are made.
     Determine, in accordance with industry standards, the 
appropriate qualifications of personnel performing tests and 
inspections, the frequency and type of testing and inspections, which 
take into account container size, configuration, and design.
    These provisions allow an owner/operator to adopt inspection 
requirements outlined in industry standards without the need for 
environmental equivalence determinations to be certified by a PE. The 
revised provision would continue to require an owner/operator to keep 
comparison records (records of inspections and tests kept under usual 
and customary business practices will suffice) and to inspect the 
container's supports and foundations. The owner or operator would also 
be required to conduct frequent inspection of the outside of the 
container for signs of deterioration, discharges, or accumulation of 
oil inside diked areas.
    It is important to note that, under this proposal, a facility owner 
or operator may still deviate from the proposed rule provision, or from 
an industry standard, if the alternate measure is equivalent to the 
environmental protections provided by the rule requirement (as provided 
in Sec.  112.7(a)(2)). In this case, a PE would need to certify the 
reason for the deviation and that the alternate measures are 
environmentally equivalent.
    EPA requests comments on the appropriateness of extending the 
streamlined integrity testing requirements already available to 
qualified facilities to all facilities subject to Sec.  112.8(c)(6) or 
Sec.  112.12(c)(6). Any suggestions for alternative approaches must 
include an appropriate rationale and supporting data in order for the 
Agency to be able to consider it for final action.
2. Alternative Option Considered: No Action
    EPA considered taking no action to modify the requirements at 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6). However, the Agency believes 
that all SPCC facility owners and operators subject to Sec.  
112.8(c)(6) or Sec.  112.12(c)(6) should be allowed the increased 
flexibility offered by the inspection requirements currently provided 
for qualified facilities, particularly for the inspection of portable 
containers and small shop-built tanks. Therefore, EPA chose not to 
propose this ``no action'' option.

K. Animal Fats and Vegetable Oils

    Stakeholders have commented that animal fats and vegetable oils 
(AFVOs) merit differentiated requirements under the SPCC regulation. In 
particular, the regulated community points to differences between the 
toxicity and biodegradation profiles of AFVOs and those of petroleum 
oils. Because of these claims, and in response to the Edible Oil 
Regulatory Reform Act (EORRA), the Agency has on several occasions 
formally requested information and supporting scientific data that 
would inform such a determination.
    The Agency provided a detailed review of AFVO toxicity and 
environmental effects as part of the denial of a petition requesting to 
amend the Facility Response Plan (FRP) rule (62 FR 54508, October 20, 
1997). EPA has reviewed the data available at that time, as well as 
more recent data that the Agency has gathered (See Technical Background 
Document for Animal Fats and Vegetable Oils Regulated under the Spill 
Prevention, Control, and Countermeasure (SPCC) Regulation (40 CFR part 
112) (September 12, 2007) in the docket for today's proposed 
rulemaking). Based on this review, EPA

[[Page 58401]]

has determined that not all AFVOs are non-toxic. Additionally, there 
are other non-AFVO oils which have toxicity profiles that are similar 
to some AFVOs. Therefore, the Agency continues to believe that it is 
not appropriate to differentiate between AFVOs and other oils based on 
toxicity.
    In addition, in 1999, EPA issued an Advanced Notice of Proposed 
Rulemaking (ANPRM) regarding differentiation of the requirements for 
AFVOs from petroleum and other oils subject to the SPCC regulation (64 
FR 17227, April 8, 1999). In the 2002 amendments to the SPCC rule, EPA 
provided new subparts to facilitate differentiation between categories 
of oil listed in EORRA (67 FR 47042, July 17, 2002). In December 2005, 
the Agency again requested comments and scientific evidence to support 
differentiation for AFVOs as part of a broader proposal to amend the 
SPCC requirements (70 FR 73524, December 12, 2005). In December 2006, 
the Agency promulgated amendments to the SPCC regulation, which 
included removing requirements that were not applicable for facilities 
that stored AFVO (71 FR 77266, December 26, 2006).
    The Agency has again examined the data submitted in response to the 
aforementioned actions (Technical Background Document for Animal Fats 
and Vegetable Oils Regulated under the Spill Prevention, Control, and 
Countermeasure (SPCC) Regulation (40 CFR part 112), September 12, 
2007). This data was submitted to support the claim that AFVOs 
biodegrade more readily than petroleum oils and therefore merit 
differentiated requirements under the SPCC rule. Although this data 
indicates that the AFVOs tested degraded to a greater extent than the 
petroleum oils tested, other data published in the scientific 
literature suggests that other non-AFVOs (e.g., some petroleum and 
synthetic oils) degraded equally to some AFVOs. EPA also notes that the 
biodegradation data submitted has been generated from laboratory tests, 
and therefore are only representative of the conditions set forth in 
the test, representing a relatively limited comparison of some 
vegetable oils with some petroleum oils. Additionally, other data 
published in the scientific and technical literature suggests that not 
all AFVOs are as readily biodegradable as some have claimed. These 
findings are consistent with the findings from other organizations that 
have used biodegradation tests to evaluate oils. That is, the 
laboratory tests suggest that there are petroleum and/or other oils 
that biodegrade similarly to AFVOs. As a result, EPA is unable to 
establish a ``bright line'' between AFVOs and all other oils based on 
biodegradability, and thus believes it is not appropriate to 
differentiate between them based on this criterion. For more 
information, see Technical Background Document for Animal Fats and 
Vegetable Oils Regulated under the Spill Prevention, Control, and 
Countermeasure (SPCC) Regulation (40 CFR part 112), (September 12, 
2007), in the docket for this proposed rulemaking.
    EPA is now considering whether there would be an alternative 
approach to differentiation that is not based on the oil's toxicity and 
its inherent physical/chemical properties, but rather based on the way 
these oils are stored and handled at a facility. EPA has focused 
specifically on the integrity testing requirements for bulk storage of 
AFVOs to address concerns raised by the regulated community. Therefore, 
the Agency is considering a compliance alternative for differentiated 
integrity-testing requirements for certain bulk storage containers that 
store AFVOs and that meet specific design and operational criteria.
    Specifically, EPA is proposing to modify Sec.  112.12(c)(6) to 
provide the PE or the owner or operator certifying an SPCC Plan the 
flexibility to determine the scope of integrity testing that is 
appropriate for certain AFVO bulk storage containers. This flexibility 
would apply to those bulk storage containers that are subject to the 
applicable sections of the Food and Drug Administration (FDA) 
regulation 21 CFR part 110, Current Good Manufacturing Practice in 
Manufacturing, Packing or Holding Human Food, and that meet the 
following additional criteria: (1) Are elevated; (2) made from 
austenitic stainless steel; have (3) no external insulation; and (4) 
are shop-built. That is, an owner or operator would be allowed to use 
industry standards for visual inspection of these containers, in lieu 
of the current integrity testing requirements (i.e., visual inspection 
and some other testing technique) or the proposed revisions to the 
integrity testing requirements as outlined under Section J in this 
proposal without having to make an environmental equivalence 
determination, including stating the reasons for nonconformance with 
the current integrity testing requirements, in accordance with Sec.  
112.7(a)(2). The owner or operator would be required to document 
procedures for inspections and testing in the SPCC Plan, including 
those for AFVO bulk storage containers that are eligible for the 
differentiated requirements in this proposal. EPA believes that AFVO 
bulk storage containers which meet the above criteria already have 
environmentally equivalent measures in place for integrity testing and 
thus, do not need to state reasons for nonconformance with the current 
integrity testing requirements (i.e., visual inspection and some other 
testing technique). Therefore, we are proposing this alternative option 
for integrity testing and no environmental equivalence determination in 
accordance with Sec.  112.7(a)(2) is necessary. This alternative would 
typically apply at food processing facilities that are subject to 21 
CFR part 110 and store animal fats or vegetable oil that are intended 
for human consumption. The regulations at 21 CFR part 110 have specific 
requirements for the design, construction, and use of AFVO equipment. 
The Agency believes that the proposed criteria ensure that the AFVO 
containers are less prone to internal and external corrosion and that 
the design elements make visual inspection effective.
1. Differentiation Criteria
    Properly designed and implemented integrity testing programs 
include practices and procedures to identify potential alterations to a 
bulk storage container's shell, bottom plate, foundation, and/or 
attached ancillary equipment, all of which may compromise a container's 
integrity. EPA generally believes it is important that the Plan include 
the scope of an integrity-testing program with consideration of 
established industry standards. Factors to consider when industry 
standards do not exist include, but are not limited to, the likelihood 
of the deterioration of the container foundation, stress-induced 
fractures in the shell wall or bottom plate, and internal and external 
corrosion. These are the factors the Agency considered in setting the 
proposed criteria. The FDA requirements for design and maintenance in 
addition to the criteria outlined in this proposal would be 
environmentally equivalent to the current integrity testing 
requirements under Sec.  112.12(c)(6).
a. Containers Subject to FDA Regulations--21 CFR Part 110
    When developing an integrity-testing program for AFVO bulk storage 
containers, FDA rule requirements may serve, in whole or in part, as 
alternative measures that provide equivalent environmental protection 
to an industry standard. Applicable requirements within 21 CFR part 
110, when taken

[[Page 58402]]

together with the additional criteria in this proposal, can serve as 
equivalent alternative measures that include the main elements of an 
integrity-testing program under the SPCC regulation. The minimal 
elements for this type of integrity-testing program can be separated 
into three main structural integrity areas: (1) Container foundations, 
(2) container support structures, and (3) the container itself. FDA 
requirements in each of these areas serve to support this proposed rule 
for AFVO.
    i. Container Foundations. FDA requires that facilities be 
constructed in such a manner that the floor, walls, and ceilings be 
adequately cleaned and kept clean and in good repair (21 CFR 
110.20(b)(4)). Bulk storage containers that sit atop floors that fall 
under this requirement are expected to be maintained and kept in good 
repair. Substances that accumulate on the floor can present an 
unsanitary condition, which may lead to food contamination. In 
addition, cracks in the floor under and/or around the foundation of a 
bulk storage container can accumulate food particles, organic matter, 
pests, and other potentially unsanitary substances that also could lead 
to food contamination. EPA believes that the procedures and practices, 
such as frequent monitoring of the floor around a bulk storage 
container, that are implemented in order to address this requirement 
serve not only to comply with the FDA requirements, but also address 
the elements associated with the structural integrity of the 
container's foundation.
    ii. Container Support Structures. FDA requires all plant equipment, 
including the container's structural supports, to be designed of such 
material and workmanship as to be adequately cleanable, and for it to 
be properly maintained (21 CFR 110.40(a)). Periodic maintenance of the 
structural support(s) of a bulk storage container is also an oil spill 
preventive measure, especially inside a facility where mobile equipment 
(e.g. forklifts) can strike and damage the container and/or its 
structural supports.
    iii. Container Itself. When considering the potential for 
corrosion, EPA considered the FDA requirements for food contact 
surfaces (e.g., internal surface of a food oil bulk storage container) 
and non-food contact surfaces (e.g., external surface of a bulk storage 
container). In most cases, FDA requirements address only food contact 
surfaces. For the purpose of oil spill prevention, the potential for 
corrosion of the external surface of bulk storage container is equally 
important.
    Internal Corrosion. FDA requires the design, construction, and use 
of equipment to preclude the adulteration of food with, among other 
potential contaminants, metal fragments (21 CFR 110.40(a)). FDA further 
requires that food contact surfaces shall be corrosion-resistant when 
in contact with food. While it is possible that corrosion of the 
interior surface of a bulk storage container can occur, it is also 
likely that any metal that dislodges from the interior surface is 
captured by a means that prevents metal inclusion. EPA believes that an 
owner or operator of a facility that monitors AFVOs for metal fragments 
as the oil exits the bulk storage container, either by sampling the oil 
itself for metal or by monitoring the inclusion prevention device for 
metal fragment accumulation, is a reasonable alternative approach to an 
internal inspection for corrosion. This, in conjunction with the design 
and applicable regulatory requirements are likely to prevent the 
corrosion of the internal contact surface in food grade AFVO bulk 
storage containers.
    External Corrosion. For some bulk storage container configurations, 
external corrosion can be the primary concern with respect to their 
integrity. Significant corrosion to the exterior surface can occur from 
exposure to moisture and in some cases, may be enhanced if insulation 
is present. Significant corrosion can also occur from overfills of oil 
and/or any associated substance(s) that have accumulated on the 
exterior surface, as well as from cleaning and sanitizing agents.
    FDA requires equipment that is in the manufacturing or food-
handling area and that does not come into contact with food must be 
constructed to be kept in a clean condition (21 CFR 110.40(c)). 
Exterior surface of bulk storage containers that are located in the 
manufacturing or food-handling area and that are subject to this 
requirement, are expected to be maintained to a higher standard than 
other bulk storage containers, which are not subject to a similar 
requirement. Since plant equipment used in the manufacturing or food-
handling area must be designed to be kept clean and withstand the 
corrosive effects of cleaning agents, it is generally constructed of 
austenitic stainless steel.
    EPA requests comments on the appropriateness of using the FDA 
requirements under 21 CFR part 110 as a criterion for the proposed 
alternative approach for integrity testing. Any suggestions must 
include an appropriate rationale in order for the Agency to be able to 
consider it for final action.
b. Elevated Bulk Storage Containers
    FDA recommends, but does not require, that all plant equipment be 
installed and maintained to facilitate its cleaning, including all 
adjacent spaces. According to 21 CFR 110.40(a), ``all equipment should 
be so installed and maintained as to facilitate cleaning of the 
equipment and of all adjacent spaces.'' In practice, an owner or 
operator of a facility implementing this recommended practice is likely 
to have a bulk storage container that is elevated off the floor, based 
upon discussion with AFVO container manufacturers and owners or 
operators of AFVO facilities. Food equipment is generally designed to 
stand on legs, which elevates the plant equipment off the floor so that 
the space between the plant equipment and the floor can be cleaned. For 
the purposes of oil spill prevention, elevated bulk storage containers 
allow visual inspections for oil discharges all around the container.
    An elevated bulk storage container also facilitates complete 
drainage because the oil can be withdrawn from the lowest point in the 
container, so that foreign substances or materials do not accumulate 
and contaminate the food oil. For the purposes of oil spill prevention, 
self-draining containers operating using gravity flow allows complete 
drainage and prevents substances other than oil (e.g., water) from 
accumulating at the bottom of the container, thus minimizing corrosion. 
EPA believes that the self-drainage design, in conjunction with the 
applicable regulatory requirements, is likely to prevent the corrosion 
of the internal contact surface in food grade AFVO bulk storage 
containers.
    EPA requests comments on this criterion for the proposed 
alternative approach for integrity testing for AFVO bulk storage 
containers. Any suggestions must include an appropriate rationale and 
supporting data in order for the Agency to be able to consider it for 
final action.
c. Containers Made From Austenitic Stainless Steel
    AFVOs are not required explicitly to be stored in austenitic 
stainless steel bulk storage containers under 21 CFR part 110. For 
example, a carbon steel container with an internal liner may suffice 
for the corrosion resistant requirements under FDA because in this case 
the lining is the food contact surface that is corrosion resistant. 
Although this meets the regulatory requirements for food contact 
surfaces, it also may be an indication that the oil in the bulk storage 
container is

[[Page 58403]]

incompatible with an unlined bulk storage container of the same 
material.
    In addition, EPA believes that non-homogenous container systems 
(e.g., containers with external insulation, external coating, mild-
carbon steel shell, internal liner) are more complex than homogenous 
container systems (e.g., containers constructed solely of austenitic 
stainless steel) and may require additional inspection measures to 
ensure the integrity of the container. Furthermore, austenitic 
stainless steel containers are often used because cleaning agents and 
acidic detergents used to clean food and non-food contact surfaces can 
be corrosive if used on incompatible surfaces. Therefore, EPA proposes 
to limit this alternative approach for integrity testing to AFVO bulk 
storage containers made of austenitic stainless steel.
    It is important to note that this limitation is only for an owner 
or operator that chooses to take advantage of the alternative 
compliance option. A facility Plan may still be certified with an 
environmental equivalence determination, in accordance with Sec.  
112.7(a)(2) of the SPCC rule, for other types of bulk storage 
containers that are similarly corrosion resistant.
    EPA requests comments on this criterion for the proposed 
alternative approach for integrity testing for AFVO bulk storage 
containers. Any suggestions must include an appropriate rationale and 
supporting data in order for the Agency to be able to consider it for 
final action.
d. Containers With No External Insulation
    EPA proposes to limit this proposed alternative option to 
containers with no external insulation. The Agency believes that 
inspections based on frequent monitoring of the exterior surface of a 
bulk storage container for corrosion and/or other mechanisms that can 
threaten a container's integrity is a minimum criterion for an 
alternative measure that provides equivalent environmental protection. 
External insulation covering the outside of a bulk storage container 
acts as a physical barrier to effective visual examination of the 
exterior surface. If not properly sealed, insulating materials covering 
the exterior surface of a bulk storage container and/or any associated 
equipment and piping can become damp. Insulation that retains moisture 
and that is adjacent to a container's exterior surface can cause 
significant corrosion, which may threaten the integrity of the 
container.
    EPA is unaware of any sanitation provision or regulatory 
requirements that require an inspection between the insulation and the 
exterior surface of a bulk storage container. Furthermore, we do not 
know of any established industry methods or procedures, or industry 
standards specific to AFVOs, to evaluate the exterior surface of a bulk 
storage container that is covered by insulation. Therefore, EPA 
believes only containers with no external insulation should be included 
in this proposed alternative option for integrity testing.
    EPA requests comments on this criterion for the proposed 
alternative approach for integrity testing for AFVO bulk storage 
containers. Any suggestions must include an appropriate rationale and 
supporting data in order for the Agency to be able to consider it for a 
final action. Additionally, we seek input on any applicable standards, 
sanitary provisions, or other regulatory requirements that apply to the 
construction, design and/or inspection of AFVO bulk storage containers.
e. Shop-Fabricated Containers
    EPA has stated that visual inspection might suffice for elevated 
shop-built bulk storage containers because these containers can be 
inspected on all sides (67 FR 47120, July 17, 2002). In the SPCC 
Guidance for Regional Inspectors document, EPA went on to say that ``* 
* * visual inspection provides equivalent environmental protection when 
accompanied by certain additional actions to ensure that the containers 
are not in contact with the soil. These actions include elevating the 
container in a manner that decreases corrosion potential and makes all 
sides of the container, including the bottom, visible during 
inspection.'' Shop-fabricated bulk storage containers, as opposed to 
field-erected, may best fit these conditions.
    EPA proposes to limit this proposed alternative option to shop-
fabricated containers (i.e., shop-built). Shop-fabricated containers 
are those containers that are shop-assembled in one piece before 
transport to the installation site which limits the maximum capacity of 
the container so that they can be transported over the road by truck. 
Shop-fabricated containers generally have lower volume capacities, 
smaller tank diameters, and a fewer number of welds than field-erected 
containers and are typically comprised of a single type of material 
with a single wall thickness.
    Alternatively, field-erected (i.e., field-constructed) containers 
can store much larger volumes of oil because individual pieces of the 
container can be transported to and assembled at the installation site, 
leading to much larger container capacities. Because of their greater 
size and complexity, field-erected containers have more stringent 
engineering requirements than shop-fabricated containers which would 
need to be considered in developing an appropriate inspection program. 
For example, field-erected containers may have variable shell-wall 
thicknesses, and/or be comprised of different materials to account for 
variations in the stresses caused by hydrostatic pressure. These field-
erected containers generally have a significantly greater number of 
welds as compared to a shop-fabricated container because they are 
fabricated on-site from individual pieces. The stress on the container 
walls and joints is greater as the diameter and/or height of the 
container increases. Finally, a brittle fracture evaluation of a field-
erected container may be necessary if the thickness of the shell wall 
is above a certain value and the container undergoes a repair, 
alteration, reconstruction, or a change in service that might affect 
the risk of a discharge or failure. The complexity associated with the 
construction of field-erected containers is considered in designing the 
scope and frequency of an integrity testing program.
    This proposal, therefore, is limited to shop-fabricated containers 
because they are simpler in design and construction (e.g., typically 
subject to less stress, have fewer welds, and are less likely to be 
subject to brittle fracture failure) than field-erected containers. The 
Steel Tank Institute's (STI) SP001, Standard for the Inspection for 
Aboveground Storage Tanks, establishes the scope and frequency for 
visual inspections of shop-fabricated containers. This proposed rule is 
consistent with past regulatory guidance and current industry best 
practices for this particular class of bulk storage containers and 
thus, the Agency is proposing to require that the alternative option be 
limited to shop-fabricated containers.
    EPA requests comments on this criterion for the proposed 
alternative approach for integrity testing for AFVO bulk storage 
containers. Any suggestions must include an appropriate rationale and 
supporting data in order for the Agency to be able to consider it for a 
final action.
2. Required Recordkeeping
    The SPCC regulations require inspections and tests be conducted in 
accordance with the written procedures that the owner or operator or 
the certifying PE develop for the facility be kept with the SPCC Plan 
in accordance with the recordkeeping provisions of

[[Page 58404]]

Sec.  112.7(e). We believe that visual inspection that is part of 
periodic maintenance of bulk storage container's support and foundation 
must be documented. Records of inspections and tests kept under usual 
and customary business practices will suffice. To develop an 
appropriate inspection, evaluation, and testing program for an SPCC-
regulated facility, the PE should refer to the appropriate requirements 
under 21 CFR part 110.
    For these reasons, EPA believes that streamlined integrity-testing 
requirements for certain AVFO containers are warranted. This proposal 
does not relieve an owner or operator from complying with any other 
bulk storage container requirement in Sec.  112.12(c). The Agency 
requests comments on the proposed approach and criteria. Any 
suggestions for alternative approaches must include a rationale and 
supporting data in order for the Agency to be able to consider it for 
final action.

L. Oil Production Facilities

    Since its original promulgation in 1973, the SPCC rule has included 
differentiated requirements for oil production facilities (Sec.  
112.9), as compared to other types of facilities (Sec. Sec.  112.8, 
112.10, 112.11., and 112.12). Based on issues brought forth by the 
regulated community and by other federal agencies (e.g., DOE), EPA is 
considering several ways that SPCC requirements can be further 
streamlined, tailored, or clarified for oil production facilities.
    As discussed in Section F above, EPA is proposing to exclude oil 
production facilities from the loading/unloading rack requirements at 
Sec.  112.7(h) because oil production facilities typically do not have 
the equipment meeting the proposed definition for a loading/unloading 
rack. Such oil production facilities may also benefit from the proposed 
revisions to the definition of ``facility,'' as described in Section D 
above, which may allow greater flexibility in determining the extent of 
a facility. Consistent with the revisions to the definition of 
``facility,'' EPA is also proposing revisions to the definition of 
``production facility'' to clarify that the production facility 
definition does not govern the applicability of 40 CFR part 112, but 
rather establishes which specific provisions of the rule may apply at a 
particular facility.
    Additional specific modifications being proposed in this notice, as 
discussed below, include: Extending the timeframe by which a new oil 
production facility must prepare and implement an SPCC Plan; exempting 
flow-through process vessels at oil production facilities from the 
sized secondary containment requirements while maintaining general 
secondary containment requirements and requiring additional oil spill 
prevention measures; establishing more prescriptive requirements for 
contingency planning and a flowline/intra-facility gathering line 
maintenance program, while exempting flowlines and intra-facility 
gathering lines at oil production facilities from secondary containment 
requirements; and clarifying the definition of ``permanently closed'' 
as it applies to an oil production facility. EPA also describes 
approaches for alternative criteria for an oil production facility to 
be eligible to self-certify an SPCC Plan as a qualified facility, and 
approaches to address produced water storage containers at an oil 
production facility.
1. Definition of Production Facility
    As described in section D above, EPA is proposing to modify the 
definition of ``facility'' to clarify that contiguous or non-contiguous 
buildings, properties, parcels, leases, structures, installations, 
pipes, or pipelines may be considered separate facilities, and to 
specify that the ``facility'' definition governs the applicability of 
40 CFR part 112. These proposed revisions would allow an owner or 
operator to separate or aggregate containers to determine the facility 
boundaries, based on such factors as ownership or operation of the 
buildings, structures, containers, the activities being conducted, 
property boundaries, and other relevant considerations. To provide 
clarity consistent with these proposed revisions, EPA is also proposing 
certain revisions to the definition of ``production facility.''
a. Proposed Revisions to the Definition of Production Facility
    EPA is proposing to amend the definition of ``production 
facility,'' as found in Sec.  112.2, in two ways. First, consistent 
with the proposed revision to the definition of ``facility,'' EPA seeks 
to clarify that while only the definition of ``facility'' governs the 
overall applicability of 40 CFR part 112, the definition of 
``production facility'' is used to determine which of the type-specific 
sections of the rule may apply at a particular facility, in addition to 
the general rule sections. For example, if an onshore facility meets 
the definition of ``production facility,'' then the owner or operator 
is subject to the provisions of Sec.  112.9, or potentially to the 
provisions of Sec.  112.10 if the facility is involved in drilling or 
workover activities, in addition to Sec. Sec.  112.1 through 112.7.
    Second, consistent with the proposed revisions to the definition of 
``facility'' that emphasize the flexibility in how a facility owner or 
operator can determine the boundaries of a facility, EPA is proposing 
to modify the definition of ``production facility'' to clarify the 
flexibility allowed in determining the extent of the facility. The 
current definition includes the phrase ``and located in a single 
geographical oil or gas field operated by a single operator.'' EPA 
proposes to modify the phrase to clarify that a production facility 
``may be located in a single geographical oil or gas field operated by 
a single operator.'' Because the definition of facility is flexible, 
EPA recognizes that a production facility need not be located in a 
single geographical field operated by a single operator. Like other 
facilities, a production facility's boundaries may be determined based 
on site-specific factors such as ownership, management, or operation of 
the containers, buildings, structures, equipment, installations, pipes, 
or pipelines on the site; similarity in functions, operational 
characteristics, and types of activities occurring at the site; 
adjacency; or shared drainage pathways.
    The Agency seeks comments on whether the proposed revision to the 
definition of ``production facility'' is appropriate. Specifically, EPA 
seeks comment on whether the phrase ``and located in a single 
geographical oil or gas field operated by a single operator'' should be 
deleted from the definition to provide greater clarity. Any suggestions 
for alternative language to amend the definition must include an 
appropriate rationale in order for the Agency to be able to consider it 
for final action.
b. Clarifications Related to Drilling and Workover Facilities
    Under the SPCC rule, the term ``production facility'' can encompass 
drilling and workover activities, as well as production operations. 
However, different provisions of the rule apply to these different 
activities. Therefore, EPA seeks to clarify the requirements applicable 
to the various phases of activities at a production facility: drilling, 
production, and workover.
    Both drilling and workover activities tend to be temporary in 
nature and are performed using mobile rigs and associated equipment. 
The owner or operator is required to develop an SPCC Plan under Sec.  
112.3(c) because a drilling or workover facility is considered a mobile 
facility. He is subject to the administrative and general requirements

[[Page 58405]]

of the SPCC rule (Sec. Sec.  112.1 through 112.7), as well as the 
specific requirements in Sec.  112.10 (for onshore facilities) or Sec.  
112.11 (for offshore facilities). EPA notes that under the requirements 
of Sec. Sec.  112.10 and 112.11, a regulated oil storage container 
associated with a drilling or workover facility is subject to the 
general secondary containment requirement (Sec.  112.7(c)); however, no 
sized secondary containment requirements exist.
    Drilling activities involve the initial establishment of an oil 
well: drilling the hole, inserting and cementing the casing, and 
completing the well to start the flow of oil to the surface. As noted 
above, a drilling facility must prepare and implement an SPCC Plan and 
is subject to the specific requirements in Sec.  112.10 (for onshore 
facilities) or Sec.  112.11 (for offshore facilities).
    Once the oil is flowing, the drilling rig is removed from the site 
and production equipment, such as a pump or valve assembly, is set up 
to extract or control the flow of oil from the well. At this point, 
drilling activities have ceased and production has begun; the facility 
is considered a production facility. The processes performed at a 
typical oil production facility include extraction, separation and 
treatment, storage, and transfer. The owner or operator of a production 
facility is subject to the administrative and general requirements of 
the SPCC rule (Sec. Sec.  112.1 through 112.7) as well as the specific 
requirements in Sec.  112.9 (for onshore facilities) or Sec.  112.11 
(for offshore facilities).
    During the life of an oil well, maintenance or remedial work may be 
necessary to improve productivity. A specialized workover rig, 
equipment, and associated containers are brought onsite to perform the 
maintenance or remedial activities. Workover operations are distinct 
from the normal production operations, and as such are not subject to 
the requirements of Sec.  112.9, but are subject to the applicable 
requirements in Sec.  112.10 (for onshore facilities) or Sec.  112.11 
(for offshore facilities). Because workover activities are a distinct 
operation and may be conducted by a separate owner or operator, a 
workover operation may be considered a separate, mobile facility, and 
described in a different SPCC Plan, separate from the production 
facility. EPA notes that although production activities may temporarily 
cease during workover, if the production equipment and containers (such 
as those found in a tank battery) remain operable then the production 
facility owner/operator must maintain his own SPCC Plan during workover 
activities. To clarify that drilling and workover activities are not 
subject to the provisions at Sec.  112.9, EPA proposes to amend the 
title of Sec.  112.9 to read ``Spill Prevention, Control, and 
Countermeasure Plan requirements for onshore oil production facilities 
(excluding drilling and workover facilities).'' EPA also proposes to 
amend the introductory sentence of the section accordingly.
    The Agency seeks comments on whether the proposed revisions to the 
title and introductory sentence of Sec.  112.9 adequately clarify that 
the section does not apply to drilling and workover facilities. Any 
suggestions for alternative approaches must include an appropriate 
rationale in order for the Agency to be able to consider it for final 
action.
2. SPCC Plan Preparation and Implementation
    EPA proposes to amend Sec.  112.3(b) to extend the timeframe by 
which an oil production facility that becomes operational after July 1, 
2009 must prepare and implement an SPCC Plan. Under the current rule, 
any facility that becomes operational after July 1, 2009 (a ``new 
facility'') must prepare an SPCC Plan before beginning operations. 
Unlike other facilities subject to the SPCC rule, however, an oil 
production facility has unique characteristics during the start-up 
period of its operations, which lead to variability in the amount and 
type of oil handled. EPA recognizes that, based on the often variable 
conditions of the oil reservoir, for some oil fields, the type and 
proportion of products may be uncertain until after the processes of 
extraction have begun. Additionally, the amount of pressure in the 
reservoir and the changes introduced by drilling the well hole could 
lead to variable initial flowrates that may take time to stabilize. 
While a new oil production facility on an older oil field may have 
predictable flowrates and proportion of product, the Agency notes the 
importance of providing this proposed relief for newer oil fields. The 
variables associated with the start of operations could lead to 
significant changes in necessary storage capacity and facility design. 
Such changes would necessitate that an owner/operator of a new oil 
production facility continually amend his Plan until operations 
stabilize, and have a licensed PE certify (or owner or operator of a 
qualified facility self-certify) any technical amendment. To alleviate 
this burden, EPA proposes to extend the time by which a new oil 
production facility must prepare and implement an SPCC Plan.
a. Proposed Timeframe for Plan Preparation and Implementation
    The proposed amendment would allow a new oil production facility 
that becomes operational after July 1, 2009 six months after the start 
of operations to prepare and implement a Plan. The ``start of 
operations'' for an oil production facility is indicated by the start 
of well fluid pumping, transfer via flowlines, separation, treatment or 
storage of crude oil. EPA proposes to exclude oil production facilities 
from the current requirements at Sec.  112.3(b)(1), and to add a new 
paragraph at Sec.  112.3(b)(3) to provide the requirement for an owner 
or operator of a new oil production facility to prepare and implement 
an SPCC Plan six months after the start of operations.
    The timeframe by which EPA is proposing to extend SPCC Plan 
preparation and implementation was chosen based on EPA's professional 
judgment, because such oil production facilities are likely to 
stabilize within six months after the start of operations. The proposed 
amendment is extended to oil production facilities only due to the 
circumstances specific to an oil production facility--their unique 
characteristics of variable and uncertain initial flowrates.
    Delaying SPCC Plan preparation and implementation for a period of 
time after operations begin is somewhat consistent with the 
requirements originally promulgated in 1973 (38 FR 34164, December 11, 
1973). At the time the rule was originally promulgated, EPA required 
preparation of an SPCC Plan six months after the start of operations 
and implementation of the Plan no later than one year after the start 
of operations. This requirement was amended in 2002 (67 FR 47042, July 
17, 2002) to require new facilities (those that become operational 
after the effective date of the rule) to prepare and implement an SPCC 
Plan before beginning operations. EPA made this change because new 
facilities generally should already be aware of the need for an SPCC 
Plan. That is, new facilities subject to the SPCC rule are able to take 
SPCC requirements into consideration and undertake the necessary 
construction, purchase equipment, or develop procedures before the 
start of operations. However, this amendment in 2002 did not take into 
consideration the unique nature of oil production facilities.
    Unlike the requirements originally promulgated in 1973, the 
proposed amendment combines the date for Plan preparation and 
implementation,

[[Page 58406]]

allowing six months total time to both prepare and implement an SPCC 
Plan.
    EPA notes that it is reasonable and usually less expensive to 
implement certain oil spill prevention measures, such as secondary 
containment around containers, at the time of the container 
installation. Therefore, EPA recognizes that even during the interim 
period before required Plan preparation and implementation, an oil 
production facility may already have certain environmentally protective 
measures in place. Under Section 311(b)(3) of the Clean Water Act, the 
oil production facility owner or operator would still be liable for any 
harmful quantities of oil discharged from the facility into navigable 
waters or adjoining shorelines, even before the requirement to prepare 
and implement an SPCC Plan comes into effect. Furthermore, the Regional 
Administrator would continue to have the authority under Sec.  112.1(f) 
to require an owner or operator of an oil production facility to 
prepare and implement an SPCC Plan or any applicable part at any point 
during the six months after start of operations, if a determination is 
made that it is necessary to prevent a discharge of oil into navigable 
waters or adjoining shorelines. In addition, a facility owner/operator 
can request an extension of time to come into compliance in accordance 
with Sec.  112.3(f) if circumstances are beyond his control, e.g., 
there are no qualified personnel available or construction or equipment 
delivery delays.
    The proposed rule amendment would apply only to a new oil 
production facility. The proposed amendment would not apply to a 
drilling or workover facility. Drilling and workover facilities are 
subject to the requirement at Sec.  112.3(c) for mobile facilities and 
may implement a general Plan. Therefore, during the initial drilling of 
the well, there are measures required for spill prevention and response 
for any oil discharges.
    EPA requests comments on whether an amendment to the Plan 
preparation and implementation date is appropriate for new oil 
production facilities, and whether new facilities in other industry 
sectors have similar variability during the start-up period of 
operations and would therefore benefit from a similar compliance date 
extension. Any suggestions must include an appropriate rationale and 
supporting data in order for the Agency to be able to consider it for 
final action.
b. Alternative Option Considered: One Year for Oil Production 
Facilities To Prepare and Implement a Plan
    EPA considered an alternate option to address the variability in 
start-up operations at a new oil production facility, wherein an owner/
operator would be allowed one year for SPCC Plan preparation and 
implementation after the start of operations. A variation of this 
alternative is to allow six months after the start of operations for 
SPCC Plan preparation, and another six months (for a total of one year 
after the start of operations) for Plan implementation. EPA recognizes 
that providing one year is consistent with the original promulgation of 
the rule in 1973. However, in proposing this amendment, EPA intends to 
provide this relief given the unique characteristics of a new oil 
production facility. Given that an oil production facility is likely to 
stabilize operations within six months from start-up, one year for Plan 
preparation and implementation does not seem necessary. The date for 
SPCC Plan preparation and implementation was selected given the 
timeframe for stabilization of operations at a new oil production 
facility. Additionally, a facility owner/operator can request an 
extension of time to come into compliance in accordance with Sec.  
112.3(f) if circumstances are beyond his control, e.g., no qualified 
personnel available or construction or equipment delivery delays. 
Therefore EPA chose not to propose this option.
    The Agency welcomes comments on this alternative or other 
alternatives regarding the variability during the start-up period of 
operations at a new oil production facility. Any suggestions must 
include an appropriate rationale and supporting data in order for the 
Agency to be able to consider it for final action.
3. Flowlines and Intra-Facility Gathering Lines
    EPA proposes to exempt flowlines and intra-facility gathering lines 
from the secondary containment requirements under the SPCC rule. In 
lieu of a secondary containment requirement, EPA proposes to require a 
contingency plan and written commitment of manpower, equipment, and 
materials for flowlines and intra-facility gathering lines at an oil 
production facility, and to prescribe specific requirements for a 
flowline and intra-facility gathering line maintenance program.
a. Examples of Flowlines and Gathering Lines
    For the purposes of the SPCC rule, flowlines are considered to be 
the piping that transfers oil and well fluids from the wellhead to the 
tank battery where separation and treatment equipment are typically 
found. A flowline may also connect a tank battery to an injection well. 
Flowlines are relatively small diameter steel or fiberglass piping 
(generally less than four inches). Depending on the size of the oil 
field, flowlines may run for hundreds of feet to a tank battery.
    The term ``gathering lines'' is a general term referring to the 
piping or pipelines that transfer the crude oil product between tank 
batteries, within or between facilities. Gathering lines often emanate 
from an oil production facility's lease automatic custody transfer 
(LACT) unit, which transfers oil to other facilities involved in 
gathering, refining or pipeline transportation operations. EPA 
recognizes that gathering lines are often outside of the Agency's 
jurisdiction because they ``transport'' oil outside of an oil 
production facility. Based on a 1971 Memorandum of Understanding (MOU) 
with the Department of Transportation (DOT) (see Appendix A to 40 CFR 
part 112), EPA has jurisdiction only over non-transportation-related 
facilities, which includes pipelines that transport oil within a 
facility. Any pipeline, including a gathering line, that transports oil 
between facilities or from a facility to a vessel, is considered 
transportation-related and is therefore outside the jurisdiction of EPA 
and not subject to the SPCC rule. However, the definition of 
``facility'' as it applies to the SPCC rule is flexible. As discussed 
in Section D of this preamble, an owner/operator can choose to 
determine the facility's boundaries based on a number of site-specific 
factors. A typical oil production facility includes a wellhead, a tank 
battery (including, but not limited to, separation equipment, stock oil 
containers and produced water containers), and the flowlines that 
transfer the oil and well fluids from the wellhead to the tank battery. 
Depending upon how an owner/operator defines his facility, an oil 
production facility may also include gathering lines. For example, if 
multiple tank batteries are included as part of the same facility for 
purposes of developing one SPCC Plan, then any gathering lines that 
connect the tank batteries, or flow to a central collection or 
gathering area or centralized tank battery within the facility 
boundaries, must also be included in the SPCC Plan. EPA

[[Page 58407]]

considers any gathering lines within the boundaries of a facility to be 
``intra-facility gathering lines'' and within EPA's jurisdiction for 
the purposes of SPCC rule applicability.
    EPA notes that the definition of ``production facility'' has 
included both the terms ``flowlines'' and ``gathering lines'' since it 
was promulgated in July 2002 (67 FR 47042), and that EPA is simply 
clarifying, not modifying, the applicability to these types of 
pipelines found within a facility (``intra-facility'').
    Given the common understanding of the terms ``flowline'' and 
``gathering line'' within the oil production sector, EPA does not 
believe that it is necessary to propose definitions for these terms 
under Sec.  112.2. However, EPA requests comments as to whether 
regulatory definitions for ``flowline'' and ``intra-facility gathering 
line'' are necessary, and if so, suggestions for an appropriate 
definition. Any suggestions must include an appropriate rationale and 
supporting data in order for the Agency to be able to consider it for 
final action.
b. Requirements in Lieu of Secondary Containment
    The SPCC rule requires secondary containment for all areas of a 
facility where there is a potential for discharge as described in Sec.  
112.1(b). This requirement, found at Sec.  112.7(c), applies to 
flowlines and intra-facility gathering lines. However, EPA recognizes 
that providing secondary containment for these pipelines can be 
difficult and expensive for an owner/operator because these lines are 
often several miles long, buried, and can extend far from the main 
facility. Flowlines and intra-facility gathering lines often are placed 
across land that is not owned by the owner/operator of the oil 
production facility (e.g., agricultural land), and providing secondary 
containment for these lines can be difficult, intrusive, or disruptive 
to the property owner. When flowlines and intra-facility gathering 
lines are located in farm fields, providing a secondary containment 
structure may result in soil erosion and negative impacts to the land. 
Buried flowlines present additional difficulty, because their exact 
location may be uncertain, especially at an oil production facility 
that has changed ownership since the original installation of the 
flowlines.
    The Agency is responding to the concerns described above by 
proposing tailored relief in an effort to improve compliance and 
enhance environmental protection. EPA believes that secondary 
containment is, in most cases, impracticable for flowlines and intra-
facility gathering lines. Therefore, EPA is proposing an amendment to 
Sec.  112.7(c) that would remove secondary containment requirements for 
flowlines and intra-facility gathering lines at an oil production 
facility, and instead require implementation of an oil spill 
contingency plan in accordance with 40 CFR part 109 (Criteria for 
State, Local and Regional Oil Removal Contingency Plans) and a written 
commitment of manpower, equipment, and materials required to 
expeditiously control and remove any quantity of oil discharged that 
may be harmful, without having to make an impracticability 
determination for each piece of piping. This new requirement would be 
found in proposed revisions to Sec.  112.9(d)(3). 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 Section 311(b)(3) 
of the Clean Water Act, 33 U.S.C. 1321(b)(3).
    In the preamble to the 2002 amendments (67 FR 47042, July 17, 
2002), EPA discusses how any facility owner/operator who makes a 
determination of impracticability and has submitted a Facility Response 
Plan (FRP) under Sec.  112.20 has satisfied the contingency planning 
requirement, because an FRP is more comprehensive than a contingency 
plan under 40 CFR part 109. Similarly, the Agency believes that the 
owner or operator of an oil production facility who has prepared an FRP 
would satisfy the contingency planning requirement for flowlines and 
gathering lines. If such a facility owner/operator has already 
developed an FRP to comply with Sec.  112.20, then he or she would not 
need to also develop a contingency plan in accordance with 40 CFR part 
109. However, the facility owner or operator would still be required to 
comply with the revised flowline/intra-facility gathering line 
maintenance program requirements proposed in this notice.
    Finally, EPA acknowledges that given the characteristics of certain 
intra-facility gathering lines, these pipelines may be regulated under 
requirements of both EPA and DOT. Because DOT requirements for 
pipelines may be similar in purpose and scope, EPA recognizes that 
compliance with DOT requirements (e.g., 49 CFR part 194) for these 
gathering lines may be considered to satisfy the contingency planning 
requirement.
    EPA requests comments on whether exempting flowlines and intra-
facility gathering lines from the secondary containment requirement is 
appropriate, and whether the provision for a 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 is an adequate alternative measure. Any suggestions must 
include an appropriate rationale and supporting data in order for the 
Agency to be able to consider it for final action.
c. Flowline and Intra-Facility Gathering Line Maintenance Program
    EPA recognizes that a contingency plan provides environmental 
protection in response to a discharge, but in order to implement such a 
plan, a discharge detection mechanism is necessary. Furthermore, EPA 
believes that with the elimination of the requirement for secondary 
containment, it is important to provide more prescriptive requirements 
for discharge prevention to ensure the integrity of the primary 
containment of the pipe. EPA believes that a strong program of flowline 
or intra-facility gathering line maintenance will provide additional 
preventative measures for these pipelines and increase discharge 
detection ability.
    The current SPCC requirement to have a program of flowline 
maintenance, found at Sec.  112.9(d)(3), is general in nature and 
offers the facility owner/operator a great deal of discretion in 
determining how best to prevent discharges from each flowline. The 
regulated community has expressed its desire for guidance on how to 
develop such a program. At this time, EPA is not aware of any industry 
standard for flowline maintenance. In the SPCC Guidance for Regional 
Inspectors (version 1.0, November 28, 2005), EPA provides a description 
of the elements that a comprehensive piping maintenance program should 
include, based on practices recommended by industry groups.
    As stated in the SPCC Guidance for Regional Inspectors, a flowline 
maintenance program aims to manage the oil production operations in a 
manner that reduces the potential for a discharge. Common causes of 
such discharges include mechanical damage (e.g., impact, rupture) and 
corrosion. A maintenance program usually combines careful 
configuration, inspection, and ongoing maintenance of flowlines and 
associated equipment to prevent and mitigate a potential discharge.
    EPA is now proposing to move the requirement for a flowline 
maintenance program to Sec.  112.9(d)(4), add specificity to the 
provision, and to clarify that the requirement applies to intra-
facility gathering lines, as well as flowlines at an oil production 
facility. Intra-facility

[[Page 58408]]

gathering lines pose the same potential for discharge as flowlines; EPA 
never intended to regulate the two types of piping differently.
    EPA proposes Sec.  112.9(d)(4) to require a performance-based 
program of flowline/intra-facility gathering line maintenance that 
addresses the facility owner/operator's procedures, and is documented 
in the SPCC Plan, to:
     Ensure that flowlines and intra-facility gathering lines 
and associated valves and equipment are compatible with the type of 
production fluids and their potential corrosivity, volume, and 
pressure, and other conditions expected in the operational environment. 
This preventative measure is intended to help preserve the integrity of 
the lines and reduce the potential effects of corrosion or other 
factors that may lead to a discharge.
     Visually inspect and/or test flowlines and intra-facility 
gathering lines and associated appurtenances on a periodic and regular 
schedule for leaks, oil discharges, corrosion, or other conditions that 
could lead to a discharge as described in Sec.  112.1(b). The frequency 
and type of testing must allow for the implementation of a contingency 
plan as described under 40 CFR part 109. This measure is intended to 
ensure that any discharges, potential problems or conditions related to 
the flowline/intra-facility gathering line that could lead to a 
discharge will be promptly discovered; the Agency believes that an oil 
spill contingency plan cannot be effective unless the discharge is 
discovered in a timely manner so that the oil discharge response 
operations described in the contingency plan may be implemented. The 
proposed inspection requirements are consistent with the requirements 
for aboveground valves, piping, and appurtenances at non-production 
facilities under Sec.  112.8(d)(4), which include regular inspection 
and assessment of the general condition of associated appurtenances 
such as flange joints, expansion joints, valve glands and bodies, catch 
pans, pipeline supports, valve locks, and metal supports. The Agency 
notes that due to changes in flowrates and corrosivity of production 
fluids over time in an oil field, the frequency of inspection may need 
to change over the lifetime of the well in order to prevent discharges. 
For buried piping, a facility owner or operator would develop an 
inspection program to identify evidence of leaks at the surface or 
other conditions that which may lead to a discharge to navigable waters 
or adjoining shorelines.
     Take corrective action or make repairs to any flowlines 
and intra-facility gathering lines and associated appurtenances as 
indicated by regularly scheduled visual inspections, tests, or evidence 
of a discharge. EPA intends for this proposed requirement to be 
implemented in conjunction with the proposed requirement for periodic 
inspection and testing; the results of the inspection or test would 
inform the owner/operator of any corrections or repairs that need to be 
made. Corrective action is necessary in order to prevent a discharge 
from occurring, as well as in response to a discharge. This measure is 
intended to prevent discharges as described in Sec.  112.1(b) by 
ensuring that flowlines and intra-facility gathering lines are well 
maintained.
     Promptly remove any accumulations of oil discharges 
associated with flowlines, intra-facility gathering lines, and 
associated appurtenances. EPA recognizes the importance of removing oil 
accumulations to prevent a discharge as described in Sec.  112.1(b). 
Section 311(j)(1)(C) of the CWA provides EPA with the authority to 
establish procedures, methods, and equipment and other requirements to 
prevent discharges of oil from onshore and offshore facilities. EPA 
considers the removal of oil-contaminated soil as a method to prevent 
oil from becoming a discharge as described in Sec.  112.1(b). Disposal 
of oil must be in accordance with applicable Federal, State, and local 
requirements; under Sec.  112.7(a)(3)(v), a facility owner or operator 
is required to describe the methods of disposal of recovered materials 
in accordance with applicable legal requirements. For the purposes of 
this provision, removal of recoverable oil may be combined with 
physical, chemical, and/or biological treatment methods to address any 
residual oil. These treatment methods must be consistent with other 
Federal, state or local requirements as applicable, and must be 
properly managed to prevent a discharge as described in Sec.  112.1(b).
    Consistent with the current flowline maintenance program 
requirements, the proposed amendments to the maintenance program 
requirements would be subject to the environmental equivalence 
provision found at Sec.  112.7(a)(2). That is, the facility owner/
operator may deviate from the requirements if an environmentally 
equivalent alternate measure is implemented instead. EPA recognizes 
that other Federal or State requirements may be environmentally 
equivalent to certain SPCC requirements, including the proposed 
flowline and intra-facility gathering line maintenance program 
requirement. An environmental equivalence determination is subject to 
review and certification by a PE. A Tier I qualified facility, as 
described in this proposal, would not be able to use environmentally 
equivalent measures and therefore would need to comply with the 
flowline/intra-facility gathering line maintenance program requirements 
as outlined above.
    While no industry standard for a flowline or intra-facility 
gathering line maintenance program currently exists, EPA acknowledges 
that in the future, an industry standard may be established. If such an 
industry standard is developed, the certifying PE would be able 
consider whether compliance with that standard is environmentally 
equivalent to the requirements of the proposed Sec.  112.9(d)(4). 
Additionally, for a facility owner/operator that has installed, or 
chooses to install, secondary containment systems for flowlines or 
intra-facility gathering lines, such measures are likely to be 
considered environmentally equivalent to one or more of the proposed 
maintenance program requirements.
    Additionally, EPA acknowledges that given the characteristics of 
certain intra-facility gathering lines, these pipelines may be 
regulated under requirements of both EPA and DOT. Because DOT 
requirements for pipelines may be similar in purpose and scope, EPA 
recognizes that compliance with DOT requirements (e.g., 49 CFR part 
195) for these gathering lines may be considered by the certifying PE 
to be environmentally equivalent alternatives to certain SPCC 
requirements associated with oil production facility piping.
    Similarly, EPA recognizes that state requirements governing 
flowlines and gathering lines may be environmentally equivalent to 
certain SPCC requirements applicable to flowlines and gathering lines. 
In accordance with the Memorandum of Understanding between the 
Interstate Oil and Gas Compact Commission and the U.S. Environmental 
Protection Agency, signed in 2002, and renewed in 2005 and 2007, the 
Agency intends to continue regulatory cooperation among the states and 
EPA that promotes protection of the environment in a cost-effective 
manner, and minimizes duplication.
    EPA requests comments on whether the proposed requirements for a 
flowline/intra-facility gathering line maintenance program are 
appropriate, and whether the proposed requirements conflict with state 
regulatory requirements. Any suggestions must include an appropriate 
rationale and

[[Page 58409]]

supporting data in order for the Agency to be able to consider it for 
final action.
d. Alternative Options Considered
    EPA considered other options to address the impracticability of 
secondary containment for flowlines and intra-facility gathering lines. 
EPA considered allowing a contingency plan and strengthened maintenance 
program requirements as an optional alternative to secondary 
containment. That is, the secondary containment requirement would 
remain as a compliance option. This would provide additional 
flexibility. EPA concluded, however, that since secondary containment 
for flowlines/intra-facility gathering lines is, in most cases, 
impracticable and few oil production facilities are likely to use this 
measure, providing an optional alternative could potentially increase 
confusion regarding the requirements for these lines. EPA recognizes 
that given the long lengths and placement of flowlines and intra-
facility gathering lines, and the cost of secondary containment for 
these lines, facilities are more likely to choose a contingency plan 
with inspection requirements.
    The Agency also considered taking no action for flowlines and 
intra-facility gathering lines, because the owner or operator of an oil 
production facility already has the ability to determine that secondary 
containment is impracticable under Sec.  112.7(d). However, EPA 
recognizes that in most cases secondary containment is impracticable 
for this type of equipment.
    For these reasons, the Agency decided to propose an alternative for 
secondary containment for flowlines and intra-facility gathering lines. 
The Agency welcomes comments on these or other alternatives. Any 
suggestions must include an appropriate rationale and supporting data 
in order for the Agency to be able to consider it for final action.
4. Flow-Through Process Vessels
    Separation and treating installations at an oil production facility 
typically include equipment whose primary purpose is to separate the 
well fluid into its marketable or waste fractions (e.g., oil, gas, 
wastewater, and solids), and to treat the crude oil as needed for 
further storage and shipping. Under the current SPCC requirements, 
separation and treatment equipment are required to have sized secondary 
containment for the entire capacity of the largest single container and 
sufficient freeboard to contain precipitation (Sec.  112.9(c)(2)). EPA 
recognizes that similar flow-through process equipment (i.e., oil-
filled manufacturing equipment, such as reaction vessels, fermentors, 
high pressure vessels, mixing tanks, dryers, heat exchangers, and 
distillation columns) at a non-production facility is not subject to 
the more stringent sized secondary containment and inspection 
requirements required for bulk storage containers; only the general 
secondary containment requirements at Sec.  112.7(c) apply (71 FR 
77276, December 26, 2006). In addition, EPA acknowledges concern among 
the regulated community regarding the requirement to provide sized 
secondary containment around heater-treaters, due to a potential fire-
hazard if spilled oil collects around the equipment. As a result, EPA 
is proposing to exempt flow-through process vessels at an oil 
production facility from the sized secondary containment requirements. 
However, EPA recognizes that process equipment at a non-production 
facility, such as at a manufacturing facility, is typically attended 
during hours of operation. Therefore, there is a greater potential to 
immediately discover and correct a discharge at a non-production 
facility than at an oil production facility, which is generally 
unattended. For this reason, EPA is also proposing to require the 
inspection of flow-through process vessel components; prompt removal of 
any oil accumulations, and corrective action should a discharge occur.
a. Examples of Flow-Through Process Vessels
    Flow-through process vessels, such as horizontal or vertical 
separation vessels (e.g., heater-treater, free-water knockout, gun-
barrel, etc.), have the primary purpose of separating the oil from 
other fractions (water and/or gas) and sending the fluid streams to the 
appropriate container. It is the intended use of this equipment that 
differentiates flow-through process vessels from bulk storage 
containers and end-use storage containers, such as produced water 
containers. Produced water containers store well fluids (which may also 
contain various amounts of oil) after they have been separated and/or 
treated, prior to disposal or reinjection. Under this proposal, 
produced water containers are not considered flow-through process 
vessels; they continue to be considered bulk storage containers if oil 
is present.
b. Exemption From Sized Secondary Containment Requirements for Flow-
Through Process Vessels
    EPA proposes to amend the requirements in Sec.  112.9(c)(2) as 
follows: ``Construct all tank battery, separation, and treating 
facility installations, except for flow-through process vessels so that 
you provide a secondary means of containment for the entire capacity of 
the largest single container and sufficient freeboard to contain 
precipitation.'' This proposed amendment removes the requirement to 
provide such sized containment for flow-through process vessels without 
making an impracticability determination. The general secondary 
containment requirement of Sec.  112.7(c) would still apply to flow-
through process vessels; they must be provided with secondary 
containment so that any discharge does not escape the containment 
system before cleanup occurs.
    Many oil production facilities currently provide secondary 
containment berms around the entire tank battery, which includes 
separators and other treatment installations, including flow-through 
process vessels, along with oil stock tanks and other bulk storage 
containers. Such a facility design is appropriate and EPA encourages 
oil production facility owners and operators to continue this practice 
to provide the maximum environmental protection. However, under this 
proposal, it would no longer be necessary to locate flow-through 
process vessels within a secondary containment system sized for the 
entire capacity of the largest single container and sufficient 
freeboard to contain precipitation.
    The Agency requests comments on the proposal to exempt flow-through 
process vessels from the sized secondary containment requirements. Any 
suggestions must include an appropriate rationale and supporting data 
in order for the Agency to be able to consider it for final action.
c. Additional Requirements for Flow-Through Process Vessels
    Because oil production facilities are typically unattended during 
the hours of operation, EPA is also proposing to add a provision at 
Sec.  112.9(c)(5)(i) through (iii) to provide additional requirements 
for flow-through process vessels. These additional requirements would 
include periodic inspection and/or testing, corrective action, and 
prompt removal of any oil accumulations.
    The proposed amendment to require periodic inspection and/or 
testing of the flow-through process vessels and associated 
appurtenances on a regular schedule for leaks, corrosion, or other 
conditions that could lead to a discharge as described in Sec.  
112.1(b) is intended to increase the likelihood that a discharge will 
be prevented or detected promptly, especially for components such as 
dump valves, that typically cause spills.

[[Page 58410]]

The proposed inspection and/or testing requirements for flow-through 
process vessels are consistent with the inspection requirements for 
bulk storage containers under Sec.  112.9(c)(3). EPA recognizes that 
because oil production facilities are typically unattended and remote 
and have a constant flow of oil and well fluids, sized secondary 
containment measures provide environmental protection for any potential 
discharge. Because EPA is proposing that this equipment be subject to 
the general secondary containment requirement (Sec.  112.7(c)) instead 
of sized secondary containment, EPA seeks to ensure that any leak, or 
potential for a leak, is detected promptly enough to prevent a 
discharge of the entire contents of the separation or treating 
equipment.
    EPA is also proposing to require the owner/operator of an oil 
production facility to correct or repair the flow-through process 
vessels and any associated components as indicated by regularly 
scheduled inspections or tests. EPA intends for this proposed 
requirement to be implemented in conjunction with the proposed 
requirement for periodic inspection and testing; the results of the 
inspection or test would inform the owner/operator of any corrections 
or repairs that need to be made. Corrective action is necessary in 
order to prevent a discharge from occurring, as well as in response to 
a discharge. This measure is intended to prevent discharges as 
described in Sec.  112.1(b) by ensuring that separation and treatment 
equipment are well maintained.
    EPA also proposes to require prompt removal upon discovery of any 
spills, discharges, or accumulations of oil associated with the flow-
through process vessels. EPA considers the removal of oil-contaminated 
soil as a method to prevent oil from becoming a discharge as described 
in Sec.  112.1(b). Disposal of oil must be in accordance with 
applicable Federal, state, and local requirements; under Sec.  
112.7(a)(3)(v), a facility owner or operator is required to describe 
the methods of disposal of recovered materials in accordance with 
applicable legal requirements. For the purposes of this provision, 
removal of recoverable oil may be combined with physical, chemical, 
and/or biological treatment methods to address any residual oil. These 
treatment methods must be consistent with other Federal, state or local 
requirements as applicable, and must be properly managed to prevent a 
discharge as described in Sec.  112.1(b).
    The Agency requests comments on these proposed additional 
requirements (inspections, corrective action, and prompt removal of oil 
discharges) for flow-through process vessels. EPA also requests 
comments on whether this approach, a general secondary containment 
requirement and additional requirements for flow-through process 
vessels should be an optional compliance alternative, in lieu of sized 
secondary containment. Under an optional approach, a facility owner or 
operator could choose whether to provide sized secondary containment 
for flow-through process vessels, or to provide general containment and 
comply with the additional requirements. (A facility owner or operator 
who already provides sized secondary containment for his flow-through 
process vessels would not be required to comply with the additional 
requirements, as long as he maintains the sized secondary containment.) 
Any suggestions must include an appropriate rationale and supporting 
data in order for the Agency to be able to consider it for final 
action.
d. Secondary Containment Requirements for Flow-Through Process Vessels 
if Facility Experiences Reportable Discharge
    EPA also is proposing a provision at Sec.  112.9(c)(5)(iv) stating 
that if an oil production facility has discharged more than 1,000 U.S. 
gallons of oil in a single discharge as described in Sec.  112.1(b), or 
discharged more than 42 U.S. gallons of oil in each of two discharges 
as described in Sec.  112.1(b), occurring within any twelve month 
period, from a flow-through process vessel, then the facility owner or 
operator must provide sized secondary containment for all flow-through 
process vessels at the facility within six months from the discovery of 
the spill(s). When determining spill history, the gallon amount 
specified in the criterion (either 1,000 or 42) refers to the amount of 
oil that actually reaches navigable waters or adjoining shorelines, or 
in connection with specified activities in waters and not the total 
amount of oil spilled. Discharges as described in Sec.  112.1(b) that 
are the result of natural disasters, acts of war, or terrorism would 
not be considered toward this requirement.
    The discharge criterion proposed in this notice is similar to the 
provision in Sec.  112.4(a) for discharges that must be reported to the 
EPA Regional Administrator (RA). Under Sec.  112.4, a facility owner or 
operator must report certain information to EPA whenever the facility 
experiences a discharge reportable under Sec.  112.4.
    The Agency requests comment on the proposed requirement for 
providing sized secondary containment for flow-through process vessels 
following a reportable discharge as described above. EPA also requests 
comments on whether a facility owner or operator who experiences such a 
discharge and subsequently provides sized secondary containment for 
separation and treating facility equipment at the facility should 
continue to be required to comply with the additional requirements 
described above (proposed as Sec.  112.9(c)(5)(i) through (iii)). Any 
suggestions must include an appropriate rationale and supporting data 
in order for the Agency to be able to consider it for final action.
e. Alternative Option Considered
    EPA considered another option to address secondary containment for 
flow-through process vessels. Under this option, EPA would allow a 
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, without the need to develop a 
written impracticability determination as an optional alternative to 
all secondary containment requirements for flow-through process 
vessels. This option would be available for eligible flow-through 
process vessels: those that have had no discharges of oil reportable to 
EPA under Sec.  112.4 in the past three years. In addition, this option 
would require a facility owner or operator to conduct periodic 
integrity testing of the process vessels and periodic integrity and 
leak testing of the associated valves and piping.
    EPA recognizes that this alternative to secondary containment would 
provide flexibility. However, EPA also recognizes that a typical oil 
production facility is remote and/or unattended, and therefore 
secondary containment is a preferable measure to prevent a discharge to 
navigable waters or adjoining shorelines in the event of an oil spill 
than a contingency plan. Some form of general secondary containment is 
practicable for this type of equipment. Therefore, EPA chose not to 
propose this option.
    The Agency welcomes comments on this alternative or other 
alternatives to address separation and treatment equipment, while 
maintaining environmental protection. Any suggestions must include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider it for final action.
5. Small Oil Production Facilities
    In this proposed rule, EPA has included a number of amendments to

[[Page 58411]]

the SPCC requirements that are designed to reduce the burden on oil 
production facilities, while maintaining protection of the environment. 
Specifically, EPA is proposing to amend the definition of ``facility'' 
to clarify the flexibility associated with defining a facility's 
boundaries; exclude oil production facilities from the loading/
unloading rack requirements at Sec.  112.7(h); extend the timeframe by 
which a new oil production facility must prepare and implement an SPCC 
Plan; exempt flowlines and intra-facility gathering lines at oil 
production facilities from all secondary containment requirements, 
while establishing requirements for a flowline/intra-facility gathering 
line maintenance program and contingency planning; exempt flow-through 
process vessels at oil production facilities from the sized secondary 
containment requirements, while maintaining general secondary 
containment requirements and requiring additional oil spill prevention 
measures; clarify the applicability of the rule to containers at a 
natural gas facility; and clarify the definition of ``permanently 
closed'' as it applies to an oil production facility. In addition, the 
Agency is taking comment on a number of approaches regarding the 
management of produced waters at oil production facilities.
    The regulated community has expressed particular concern regarding 
the regulation of small oil production facilities under the SPCC rule, 
suggesting that the cost of complying with the SPCC requirements is 
disproportionate to the risk these small facilities pose to the 
environment. While EPA is sensitive to these concerns, the Agency 
believes that spills from small oil production facilities have and can 
continue to pose a threat of an oil discharge to navigable waters and 
adjoining shorelines, and that smaller oil production facilities should 
remain subject to the SPCC rule.
    In evaluating the appropriate application of the SPCC rules to 
these facilities, the Agency is guided by Executive Order 13211, which 
directs federal agencies to evaluate and respond to effects that 
governmental regulatory action can have on the supply of energy 
(Executive Order 13211 of May 18, 2001, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use,'' (66 FR 28355, May 22, 2001)).\3\ Accordingly, the Agency 
believes it is appropriate to consider the impacts of existing 
regulations on the energy sector and to identify regulatory 
alternatives that reduce those impacts when implementing the statutory 
authorization of Section 311(j)(1)(C) of the Clean Water Act at oil 
production facilities.
---------------------------------------------------------------------------

    \3\ The overall effect of the proposed rule is to decrease the 
regulatory burden on facility owners or operators subject to its 
provisions. Accordingly, the proposed rule is not a ``significant 
energy action'' as defined in this Executive Order.
---------------------------------------------------------------------------

    While assessing opportunities for tailoring and streamlining the 
SPCC requirements, EPA considered whether there are alternative 
regulatory approaches to Section 311(j)(1)(C) for small oil production 
facilities that would further reduce the compliance burden associated 
with the current rule requirements, while still maintaining protection 
of human health and the environment. In particular, EPA considered 
regulatory alternatives for oil production facilities that have wells 
that produce 10 barrels or less of crude oil per day and are known as 
``stripper wells.'' \4\
---------------------------------------------------------------------------

    \4\ EPA established differentiated requirements for ``stripper 
wells'' under the Clean Water Act and codified it in 1979. See 40 
CFR 435.60. See also Interstate Oil and Gas Compact Commission, 
2006: ``Marginal Wells: Fuels for Economic Growth'', p. 4 (defining 
``stripper wells'' as wells that produce 10 barrels of oil per day 
or less).
---------------------------------------------------------------------------

    The owner or operator of an oil production facility generally 
provides adequate container capacity at his facility to ensure sound 
and continuous operations, and so that a container will not overfill if 
there is a delay in the removal of oil from the tanks. This practice 
would meet the SPCC rule provisions at Sec.  112.9(c)(4) to prevent 
overfills from the containers. However, this practice may prevent some 
small oil production facilities from being eligible for the burden 
reduction available to qualified facilities because they would likely 
have greater than 10,000 gallons in aggregate aboveground oil storage 
capacity. Therefore, the Agency is requesting comment on an approach 
described below that identifies specific criteria for an oil production 
facility that produces oil from a limited number of stripper wells to 
be considered a qualified facility, notwithstanding the tank storage 
capacity at the facility. The approach has been shaped by the specific 
characteristics of this category of facilities and, as such, could 
result in the application of SPCC requirements in a manner better 
suited to these facilities. In addition, the Agency is also requesting 
comment on some additional options for reducing the burden on small oil 
production facilities that have been suggested by the Department of 
Energy (DOE). Following consideration of public comments received in 
response to this notice, one or more of these approaches may be 
finalized as the applicable SPCC requirements for these facilities. 
Commenters may provide input on variations to these approaches for 
consideration by the Agency.
a. Alternative Qualified Facility Eligibility Criteria for Oil 
Production Facilities
    This approach is intended as an alternative for oil production 
facilities to be considered qualified facilities because they do not 
meet the current qualified facility requirements under 40 CFR 112.3(g). 
Under this alternative, an oil production facility would be eligible as 
a qualified facility if it meets the following criteria: (1) The oil 
production facility must have no more than four wells associated with a 
single tank battery; (2) all four of the wells must be stripper wells 
each producing 10 barrels or less of crude oil per day--that is, a tank 
battery at an oil production facility could not include any non-
stripper wells under this option; (3) the facility must have no 
injection wells; and (4) the facility must not have had a single 
discharge exceeding 1,000 U.S. gallons or two discharges each exceeding 
42 U.S. gallons within any twelve month period in the three years prior 
to Plan certification. Discharges as described in Sec.  112.1(b) that 
are the result of natural disasters, acts of war, or terrorism will not 
disqualify a facility owner or operator from the alternative option 
described above. The owner or operator of an oil production facility 
could avail himself of the streamlined requirements for a ``qualified 
facility'' at Sec.  112.6, if the facility meets all four of the 
proposed criteria, notwithstanding the total aboveground oil storage 
capacity at the facility. That is, a qualified facility owner/operator 
would have the option to prepare a self-certified SPCC Plan in lieu of 
a Plan certified by a PE. An oil production facility owner or operator 
exercising this option may be required to make available production or 
shipping records to support his eligibility. Records may be kept under 
usual and customary business practices, and must be kept for a period 
of three years, in accordance with Sec.  112.7(e).
    EPA based this potential qualified production facility approach on 
input from the oil production sector regarding concerns for the burden 
of preparation of a PE-certified Plan for small oil producers. As 
stated above, EPA notes that this option would be available to those 
oil production facilities with up to four stripper wells per tank 
battery; each well producing 10 barrels or less of crude oil per day; 
and no injection wells or other wells associated with secondary or 
tertiary recovery techniques. EPA is

[[Page 58412]]

considering a maximum of four wells per tank battery in identifying a 
``qualified oil production facility'' based on discussions with EPA 
regional personnel and the Texas Railroad Commission who suggest that 
this number of wells is fairly typical of oil production facilities.\5\ 
EPA, therefore, believes that the maximum of four stripper wells per 
tank battery adequately captures the smaller operators targeted by the 
self-certification option. EPA believes that these facilities are less 
complex than other oil production facilities based on the limited 
number of wells per tank battery operating at a low flow rate.
---------------------------------------------------------------------------

    \5\ EPA assumed an average of four wells per tank battery at a 
facility to estimate the number of oil production facilities that 
are subject to the SPCC requirements (see Regulatory Impact Analysis 
for the Proposed Amendments to the Oil Pollution Prevention 
Regulations). DOE also conducted an analysis of the impact of the 
SPCC rule on the oil production sector and assumed an average of 
three stripper wells per oil production facility.
---------------------------------------------------------------------------

    As discussed in the preamble to the December 2006 rule amendments, 
in which EPA finalized the qualified facility approach, the basis for 
the exemption from the requirement for a PE certification is that 
facilities with smaller oil volumes tend to be less complex (71 FR 
77270, December 26, 2006). The Agency believes that a facility meeting 
the potential criteria for a ``qualified oil production facility'' as 
described above (i.e., no more than four stripper wells to one tank 
battery, no injection wells, and meets the current spill history 
criterion for qualified facilities) would be less complex than other 
oil production facilities for the following reasons. At oil production 
facilities with no more than four wells per tank battery, the flowlines 
and the stripper well(s) are commonly co-located within the immediate 
area of the tank battery therefore reducing the length of flowlines. 
Additionally, it is likely that an oil production facility that meets 
the proposed qualification criteria would have fewer valves, less 
piping, smaller separation equipment, and fewer locations where 
transfers and discharges could occur because there are fewer wells 
associated with one tank battery.
    The underground injection process adds complexity to the design of 
an oil production facility; consequently, EPA has included a ``no 
injection wells'' criterion for an oil production facility to qualify 
for this alternative option. The injection well process adds complexity 
because the flowlines from a produced water container to the injection 
wellhead adds valves, pumps and piping to the facility. In addition, 
the produced water tanks associated with injection may have high level 
indicators, floats and actuators/switches that further add complexity. 
At small production facilities, these systems may not be automated due 
to cost. The design of the production facility is based on the ability 
to inject the produced water; generally no extra storage capacity is 
available to contain fluids if there is a failure or system upset. This 
leads to a greater likelihood of a discharge. Finally, the water in the 
produced oil/water mixture is usually corrosive, especially if it is 
saline, leading to a greater potential for discharge from injection 
equipment as a result of this corrosion which would be present at more 
complex facilities.
    This alternative set of criteria for identifying a qualified oil 
production facility would only be available to oil production 
facilities, and not oil drilling or workover facilities. Due to the 
nature of its operations, a drilling facility has not yet established 
an oil production flow rate, and thus a well at such a facility cannot 
be determined to meet the definition of a ``stripper well.'' However, 
the owner/operator of an oil drilling and/or workover facility 
considers the capacity of oil that is maintained for his operations to 
determine applicability of the SPCC rule and therefore may still be 
eligible for qualified facility status based on the current criteria in 
Sec.  112.3(g), i.e., the 10,000-gallon total facility oil storage 
capacity threshold and discharge history criteria.
    It should also be noted that under the current regulations, the 
owner or operator of an oil production facility can make a 
determination that sized secondary containment is impracticable. The 
owner or operator of an oil production facility that meets the proposed 
criteria for a Tier II qualified facility (as described elsewhere in 
this proposed rulemaking) would still be able to determine that 
secondary containment is impracticable and implement the alternative 
measures under Sec.  112.7(d) (i.e., develop a contingency plan and a 
written commitment of resources and conduct integrity testing of the 
bulk storage container and associated piping) if a PE certifies that 
the secondary containment is impracticable, under the ``hybrid'' 
approach in which a PE certifies a portion of the SPCC Plan.
    EPA is requesting comment on this approach, including the specific 
criteria identified and whether changes to these criteria would 
properly assess the complexity of such small oil production facilities. 
This proposed action may provide a reduction in regulatory burden to 
those oil production facilities with no more than four stripper 
extraction wells per tank battery that nonetheless is likely to exceed 
the current qualified facility threshold criterion of 10,000 gallons. 
For example, the difference in compliance costs between an oil 
production facility that prepares an SPCC Plan requiring PE-
certification and one that can be self-certified is about $950.
    EPA is also requesting comment on whether a small oil production 
facility may be further eligible for the Tier I qualified facility 
status, as described elsewhere in today's preamble, if the facility 
meets the criterion proposed in the rulemaking for a Tier I qualified 
facility--i.e., the facility has no oil storage containers with an 
individual storage capacity greater than 5,000 gallons, notwithstanding 
the total aboveground oil storage capacity at the facility. That is, at 
a Tier I oil production qualified facility, the owner or operator could 
avail himself of the streamlined Tier I Qualified Facility SPCC Plan 
template, as found in the proposed Appendix G to the SPCC rule. An 
owner or operator of an oil production facility qualifying for and 
opting to use the Tier I Qualified Facility SPCC Plan template would 
not be able to make an impracticability determination for secondary 
containment requirements. Instead, the owner or operator may choose the 
Tier II approach and develop a ``hybrid'' Plan in which the P.E. 
certifies the portion of the Plan pertaining to impracticability of 
secondary containment.
    Finally, the Agency specifically solicits comment on the number of 
oil production facilities that would be able to take advantage of this 
approach.
b. Alternative Approaches for Addressing Small Oil Production 
Facilities as Suggested by the Department of Energy (DOE)
    The Department of Energy (DOE) requested that the Agency seek input 
on several approaches that DOE believes may be more suited to address 
the concerns of small oil production facilities. One approach would 
have different eligibility criteria to enable the owner or operator of 
a small oil production facility to be considered a ``qualified 
facility'' under Sec.  112.6, and allow for the development of a self-
certified SPCC Plan, or a ``Tier I Qualified Facility,'' and allow the 
use of a streamlined SPCC Plan template, similar to that found in the 
proposed Appendix G to the SPCC rule. Under the existing qualified 
facilities criteria at Sec.  112.3(g), a facility that has an

[[Page 58413]]

aggregate aboveground storage capacity of 10,000 gallons or less and 
has not had a single discharge exceeding 1,000 U.S. gallons or two 
discharges each exceeding 42 U.S. gallons within any twelve-month 
period in the three years prior is eligible for the qualified facility 
Plan requirements at Sec.  112.6 (i.e., a self-certified Plan in lieu 
of a PE certified Plan). DOE suggests that because of the unique 
characteristics of small oil production facility operations, such 
facilities may merit the establishment of small oil production 
facility-specific eligibility criteria, including a different aggregate 
oil storage capacity threshold \6\ or stripper well definition \7\ for 
identifying qualified facilities. In light of this request, EPA seeks 
comment on whether there are unique circumstances at small or 
marginally economic oil production facilities and the alternative 
criteria based on these circumstances for the possible establishment of 
a ``qualified facility'' provision specific to small oil production 
facilities that would serve to increase SPCC compliance and reduce the 
likelihood of a harmful oil discharge. Any alternative approaches 
submitted must include an appropriate rationale in order for the Agency 
to be able to consider it for final action.
---------------------------------------------------------------------------

    \6\ The Oklahoma Independent Petroleum Association and the 
Independent Petroleum Association of America suggest an aggregate 
oil capacity threshold of 50,000 gallons.
    \7\ DOE suggests that a stripper well be defined using the 
Internal Revenue Service (IRS) tax code definition of 15 barrels or 
less of oil per day equivalence (see 26 U.S.C. 613A).
---------------------------------------------------------------------------

    The other approach DOE requested that EPA take comment on is to 
outright exempt existing stripper oil and natural gas wells from all 
SPCC requirements, except those applicable to crude oil and condensate 
tanks (e.g., tanks which store gas condensate (which is an oil) at oil 
and gas production facilities). The eligibility criteria for the 
exemption would include those facilities that meet the Internal Revenue 
Service (IRS) Tax Code definition of stripper well property at 26 
U.S.C. 613A, which defines a stripper well property, with respect to 
any calendar year, as any property producing 15 barrel equivalents or 
less per day, where this rate is calculated by dividing:
    (i) The average daily production of domestic crude oil and domestic 
natural gas from producing wells on such property for such calendar 
year, by
    (ii) The number of such wells.
    DOE, states and industry have raised concerns that the SPCC 
regulation has the potential to result in the premature abandonment of 
stripper wells. They argue that stripper wells are marginally economic 
and can be particularly burdened by increased regulatory compliance and 
other operating costs. These wells are often operated by small 
independent producers in mature oil and gas producing regions, have low 
oil productivity and low oil volumes, and thus could be viewed as 
presenting a low oil spill risk. According to DOE, stripper wells are 
vital to sustaining production from conventional oil and natural gas 
resources in the United States. More than 321 million barrels of oil 
and 1.7 trillion cubic feet of natural gas were produced from stripper 
wells in 2005, representing 17 percent of domestic oil production and 9 
percent of domestic natural gas production respectively. The Interstate 
Oil and Gas Compact Commission has estimated that if oil production 
from stripper wells active in 2005 did not exist, imports would have to 
increase 6.7 percent to make up for this shortage.\8\
---------------------------------------------------------------------------

    \8\ See Interstate Oil and Gas Compact Commission, 2006: 
``Marginal Wells: Fuels for Economic Growth.''
---------------------------------------------------------------------------

    Eligibility criteria for relief would not be limited to the 
presence of injection wells or the use of secondary and tertiary 
recovery techniques which are common in more mature oil and gas 
producing regions. DOE has commented that such criteria have no direct 
relationship to the spill risk posed by marginal well facilities and 
may serve as a disincentive to enhanced oil and gas recovery and well 
maintenance. Production and injection operations for disposal or 
enhanced recovery may be regulated under existing Federal and State 
regulatory programs, e.g., under Clean Water Act NPDES, Safe Drinking 
Water Act underground injection control, and state production or 
environmental permits to reduce or manage pollutants that could be 
introduced into the environment. For NPDES and underground injection 
control, these regulatory programs are intended to address the 
discharge of known pollutants that are to be introduced to navigable 
waters (in the case of NPDES) or to underground sources of drinking 
water (in the case of UIC). In contrast to these measures, SPCC is 
designed to prevent the non-routine accidental discharge of oil that 
might be held in an oil container at a facility. DOE has suggested that 
these regulations may accomplish certain SPCC objectives in a different 
manner, such as prohibiting pollution or unlawful discharges rather 
than requiring an SPCC Plan. Therefore, the Agency specifically 
solicits comment on the extent that these regulatory programs, 
particularly state production or environmental permits, address the 
objectives of the SPCC rules, and if so, how they are achieved. 
Finally, EPA would note that under this approach, new facilities and 
existing non-marginal facilities would not be exempted from the SPCC 
regulation, but once their production declines below the marginal level 
as defined above, these wells would be excluded from continuing or 
periodic SPCC requirements under this approach.
    EPA requests comments on the scope of a stripper well exemption, 
including the eligibility criteria, and whether such an exemption can 
reduce the regulatory burden on marginally economic properties while 
protecting the environment. Any alternative approaches must include an 
appropriate rationale and supporting data in order for the Agency to be 
able to consider these for a final action.
6. Produced Water Storage Containers
    At an oil or natural gas production facility, ``produced water'' is 
the oil and water mixture resulting from the separation of marketable 
crude oil from the fluid extracted from the geological formation. 
Produced water chemical and physical characteristics vary considerably 
depending on the geologic formation, usually being commingled with oil 
and gas at the wellhead, and changing in composition as the oil or 
natural gas fraction is separated and sent to market. The management of 
produced water may typically entail the use of separation and treatment 
process vessels, tanks both near the point of separation and at the 
point of its disposal or reuse (e.g., in an injection well for disposal 
or enhanced oil recovery, discharge to a stream, or agricultural water 
resource), and flowlines and gathering lines.
    In the current SPCC rule, the term ``bulk storage container'' is 
defined as ``any container used to store oil.'' EPA considers a 
produced water container that also contains oil to be a bulk storage 
container, and therefore subject to applicable provisions under Sec.  
112.9(c). Produced water containers are typically located within a tank 
battery at a production facility where they are used to store well 
fluids after separation and prior to subsequent use (e.g., re-injection 
or re-use), further treatment, or disposal. Because the separation 
process is not completely effective, under normal operating conditions, 
a layer of oil may be present above the produced water in the 
container. The amount of oil by volume observed in produced water 
storage containers varies, but based on EPA's assessment, is generally 
estimated to range from less than one to

[[Page 58414]]

up to ten percent, and can be greater. This estimate is based on a 
review of National Response Center (NRC) spill reports, observations 
from EPA inspectors, and comments made by industry representatives and 
the accompanying document ``Consideration for the Regulation of Onshore 
Oil Exploration and Production Facilities Under the Spill Prevention, 
Control, and Countermeasures Regulation'' (May 30, 2007), in the docket 
for today's rulemaking. The Department of Energy (DOE) and the industry 
believe that the oil layer may be much less.
    Many production sites operate in geographically remote areas and 
are typically unattended. At these production sites, fluids extracted 
from the well flow through the production and separation equipment and 
into various storage containers provided at the facility. The produced 
water storage containers are usually the last containers in the 
separation process stream where fluids accumulate; consequently, 
produced water containers are a potential source of discharge due to 
overfill when there is an upset in operations (e.g., such as separator 
failure) or when an operator is delayed in making a scheduled visit to 
the facility to empty the produced water containers. In an overfill 
situation, the oil floating at the surface of the water may be first to 
be discharged, followed by water which could serve to transport the oil 
for longer distances. Oil discharges to navigable waters or adjoining 
shorelines from an oil/water mixture in a produced water container may 
cause harm. Such mixtures are regulated as oil under the SPCC rule.
    The regulated community has expressed concern regarding the 
regulation of produced water containers under the SPCC rule, suggesting 
that the cost of complying with the SPCC requirements is 
disproportionate to the risk these containers pose to the environment. 
For this reason, EPA is considering whether there are regulatory 
options for produced water containers that can protect the environment 
at lesser cost than the current rule requirements along with the 
amendments proposed in this action. The Agency is requesting comments 
on three options, as described below.
    EPA requests comment on the characteristics of produced water 
containers at production facilities that may uniquely distinguish these 
containers from containers used at other types of facilities that hold 
oil mixtures. EPA also requests comment on whether the approaches 
outlined below appropriately address industry concerns, while 
protecting the environment. In particular, EPA requests comment on an 
approach that would require general secondary containment combined with 
additional requirements in lieu of sized secondary containment. A 
second approach, advanced by DOE, would require inspection, 
maintenance, and periodic oil skimming of produced water storage 
containers in lieu of both sized and general secondary containment.
    Finally, comment is requested on whether a third approach, advanced 
by DOE, that exempts produced water treatment facilities altogether 
would be appropriate. In connection with this approach, the regulated 
community and DOE have suggested that produced water containers should 
be exempt from all SPCC requirements, arguing that these containers 
have only incidental amounts of oil and a low risk of discharge. 
Published data used to establish national effluent limitations for 
coastal oil and gas production facilities show that the oil content of 
produced water in tanks after initial separation is low, e.g., 
averaging 50 parts per million, with a maximum of 200 parts per million 
in samples taken.\9\
---------------------------------------------------------------------------

    \9\ SAIC, 1993, draft ``Coastal Oil and Gas Production Sampling 
Summary Report'' April 30, and SAIC 1994, ``Statistical Analysis of 
Effluent from Coastal Oil and Gas Extraction Facilities'' September 
30.
---------------------------------------------------------------------------

    Data EPA received in the past suggest that produced water 
containers may hold up to 10% of free-phase oil floating on the surface 
of the produced water. EPA is asking that commenters provide additional 
data on the amount of oil commonly observed in produced water 
containers. EPA is primarily interested in data on the amount of free-
phase oil present in produced water containers, for example as a layer 
of oil floating at the surface of the produced water, rather than oil 
present in solution, suspension or emulsion within the produced water 
mixture. EPA also requests comment, and supporting data, on the 
efficiency of oil and water separation and treatment at onshore 
production facilities, how the efficiency of oil-water separators 
changes over time as equipment ages and production of oil from the 
formation evolves, the efficiency of oil skimming on oil volume, and 
the frequency and consequences of equipment failure. Finally, EPA 
requests data on oil spills, the source, and the cause of such oil 
spills from these produced water containers.
    Any suggestions on alternative approaches must include an 
appropriate rationale and information and data in order for the Agency 
to be able to consider it for final action.
a. General Secondary Containment, Inspection, Integrity Testing & 
Maintenance of Produced Water Bulk Storage Containers
    One approach on which EPA requests comment would allow an owner/
operator of a production facility to comply with the general secondary 
containment requirements along with additional measures for existing 
produced water containers as an option in lieu of the current 
regulatory requirement for sized secondary containment for these 
containers. That is, a production facility owner/operator would provide 
general secondary containment and comply with additional measures for 
existing produced water containers, or the owner/operator could choose 
to comply with the current sized secondary containment requirements for 
produced water containers and not be subject to the new additional set 
of measures. Under this approach, an owner/operator that chooses to 
carry out additional measures in addition to the general secondary 
containment requirement for existing produced water containers (see 
Sec.  112.7(c)) would be exempted from the sized secondary containment 
requirement at Sec.  112.9(c)(2). The general secondary containment 
requirements (Sec.  112.7(c)) apply to all parts of a facility that 
could be involved in a discharge. If an owner or operator has already 
provided sized secondary containment for the facility produced water 
bulk storage container, the owner or operator may choose not to select 
this new option. EPA expects many operators may be in this situation, 
as a recent DOE report stated that over two-thirds of produced water 
tanks ``were assumed to be already contained within existing SPCC Plans 
and have secondary containment.'' \10\
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    \10\ See ``Assessment of the Potential Costs and Energy Impacts 
of Spill Prevention, Control, and Countermeasure Requirements for 
U.S. Oil and Natural Gas Production'' prepared for U.S. DOE Office 
of Fossil Energy by Advance Resources International, Inc., August 
17, 2006 (Revised). Available at http://www.fossil.energy.gov/programs/oilgas/publications/environment_otherpubs/SPCC_Impact_Exploration_and_Production_8.pdf
.

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

    This approach would be limited to existing produced water 
containers because this approach is intended to balance the cost of 
retrofitting existing containers with EPA's belief that sized secondary 
containment is the most effective method to prevent oil discharges from 
these containers. Existing produced water containers would be those at 
oil production facilities in operation on the effective date of the 
final rule addressing this approach. Newly constructed oil

[[Page 58415]]

production facilities and newly installed produced water containers at 
existing facilities would not be eligible to use these alternative 
measures in lieu of sized secondary containment because it is EPA's 
best professional judgment that because construction crews and 
equipment are already present at a facility during the installation of 
new produced water containers, the incremental cost for adding/
installing sized secondary containment for these containers would not 
be significant.
    In addition, if a facility experiences a discharge reportable to 
EPA under Sec.  112.4, then sized and general secondary containment 
would be required for all produced water containers at the facility 
within six months from the discovery of the spill(s).\11\ When 
determining spill history, the gallon amount specified in the criterion 
(either 1,000 or 42) refers to the amount of oil that actually reaches 
navigable waters or adjoining shorelines, or in connection with 
specified activities in waters and not the total amount of oil spilled. 
Discharges as described in Sec.  112.1(b) that are the result of 
natural disasters, acts of war, or terrorism will not disqualify a 
facility owner or operator from the alternative measures described 
above.
---------------------------------------------------------------------------

    \11\ See the similar discussion in Section V.L.4 of this 
proposal pertaining to flow-through process vessels.
---------------------------------------------------------------------------

    To maintain environmental protection under this approach, the 
following additional measures for produced water containers would be 
required:
     Periodic inspections on a regular schedule of equipment 
and appurtenances that typically cause spills from produced water 
containers (e.g. piping, valves, pumps and the container itself). A 
requirement for periodic inspection of the produced water containers 
and associated appurtenances on a regular schedule for leaks, 
corrosion, or other conditions that could lead to a discharge as 
described in Sec.  112.1(b) would increase the likelihood that a 
discharge will be prevented or detected promptly, especially for 
appurtenances that typically cause spills. Inspection of produced water 
containers and appurtenances would be consistent with the inspection 
requirements for bulk storage containers under Sec.  112.9(c)(3). 
Facilities would outline, in writing, procedures for routine inspection 
and keep records of these inspections in accordance with Sec.  
112.7(e).
     Conduct a condition examination \12\ and integrity testing 
of produced water containers on a regular schedule and after completing 
material repairs. In lieu of the protection offered by sized secondary 
containment, this approach would require a formal integrity inspection/
condition examination of the produced water bulk storage container(s) 
on a regular schedule. The frequency, inspector qualifications and the 
scope of the inspections, integrity testing, and condition examinations 
must be in accordance with good engineering practice and documented in 
the SPCC Plan. For condition examinations and integrity testing, the 
industry recommended practices for tanks in production service provide 
the scope and frequency of examinations necessary to ensure the 
suitability of tanks for continued service, based on the type of tank, 
fluid stored, and service conditions. For an example of such practices, 
a facility owner or operator may refer to American Petroleum Institute, 
Recommended Practice 12R1, fifth edition, August 1997. These practices 
include the routine visual operational examination of produced water 
bulk storage containers by facility personnel according to written 
procedures, and external and/or internal condition examination of these 
same containers according to a schedule and following an operational 
alert, malfunction, or other condition noted during the routine 
operational examination. The external condition examination \13\ would 
cover the tank exterior, and check for leaks, shell distortion, and 
evidence of corrosion; it would also look at the condition of the 
foundation, pad, drainage, coatings, appurtenances and connections. The 
internal condition examination would check for leaks, shell distortion, 
cracks, condition of any internal coating, and evidence and severity of 
internal corrosion. The external and internal condition examinations 
would be complemented by integrity testing (e.g., using non-destructive 
evaluation methods, such as ultrasonic thickness measurements of the 
shell) used to assess the suitability of the container for continued 
production service, as appropriate for the type of container. 
Facilities would outline in writing procedures for routine visual 
examination, external condition examination, internal condition 
examination, and integrity testing and keep records of the examinations 
and testing in accordance with Sec.  112.7(e).
---------------------------------------------------------------------------

    \12\ ``Condition examination'' is defined in API Recommended 
Practice 12R1 as a review of history and physical observation of a 
tank and its adjacent equipment by a competent person.
    \13\ API Recommended Practice 12R1 provides guidelines on 
developing the scope of a program for condition examination and 
integrity testing for tanks at production facilities. While the RP 
does not include mandatory requirements, this approach would include 
a mandatory requirement to conduct a condition examination and 
integrity testing for produced water containers.
---------------------------------------------------------------------------

     Prompt removal of any oil discharges from produced water 
containers and appurtenances. This approach also would require prompt 
removal upon discovery of any spills, discharges, or accumulations of 
oil associated with the produced water containers. EPA considers the 
removal of oil-contaminated soil as a method to prevent oil from 
becoming a discharge as described in Sec.  112.1(b). Disposal of oil 
must be in accordance with applicable Federal, State, and local 
requirements; under Sec.  112.7(a)(3)(v), a facility owner or operator 
is required to describe the methods of disposal of recovered materials 
in accordance with applicable legal requirements. For the purposes of 
this provision, removal of recoverable oil may be combined with 
physical, chemical, and/or biological treatment methods to address any 
residual oil. These treatment methods must be consistent with other 
Federal, state or local requirements as applicable, and must be 
properly managed to prevent a discharge as described in Sec.  112.1(b).
     Corrective action to repair or replace any container, or 
associated equipment and appurtenances in order to prevent a discharge 
from occurring, as well as in response to a discharge. Finally, this 
approach would require the owner/operator of an oil production facility 
to take corrective action to repair any produced water container, and 
associated equipment and appurtenances as indicated by regularly 
scheduled inspections or tests. This requirement could be implemented 
in conjunction with the requirement for periodic inspection and 
testing; the results of the inspection or test would inform the owner/
operator of any corrections or repairs that need to be made. Corrective 
action is necessary in order to prevent a discharge from occurring, as 
well as in response to a discharge. This measure would prevent 
discharges as described in Sec.  112.1(b) by ensuring that produced 
water containers are well maintained.
    In evaluating this potential regulatory approach, the Agency 
examined oil production operations as they relate to the storage, 
treatment, and handling of these oil/water mixtures. EPA conducted a 
study of the exploration and production sector (see Considerations for 
the Regulation of Onshore Oil Exploration and Production Facilities 
Under the Spill Prevention, Control, and Countermeasure Regulation (May 
30, 2007), in the docket

[[Page 58416]]

for this rulemaking). In this study, EPA reviewed the spills reported 
to the National Response Center (NRC) during calendar years 2000 
through 2005. The NRC spill reports specifically attribute 3% of the 
spill incidents from oil production facilities to produced water 
containers. Some of the spill incidents attributed to unspecified tank 
batteries (4%) or unspecified tanks (6%) may also involve produced 
water containers. Based on these reports, 5% of the volume of oil 
spills from oil production facilities is attributed specifically to 
produced water containers, 6% is attributed to unspecified tank 
batteries, and 20% is attributed to unspecified tanks. The NRC reports 
also attribute 3% of the spill incidents to water disposal, which is 
16% of the total volume of oil and oil mixtures discharged from oil 
production facilities. The NRC data does not show the ratio of oil and 
water in spills. Incidents associated with water disposal may involve 
produced water containers, although the review found that water 
disposal piping frequently suffers from corrosion damage and accidental 
impacts and incidents associated with water disposal may also be 
associated with the water disposal piping. Based on the information 
reported to the NRC, the most common causes of oil spill incidents from 
oil production facilities were equipment failure (18%), corrosion 
(20%), and leaks, holes and ruptures (20%). Twenty-four percent of the 
spill reports have unspecified causes.
    Many onshore production facilities already locate produced water 
containers within the same containment structure as other oil 
containers, and size this containment structure to the capacity of the 
largest oil container plus freeboard for precipitation. Therefore, 
those oil production facilities that include sufficient containment 
already meet the existing sized secondary containment requirement and 
would not need to comply with these additional measures. A review of 
spill incident reports from the NRC and selected state data sources 
shows that containment structures are an effective means of containing 
oil spills within the facility and preventing discharges to navigable 
waters and adjoining shorelines.
    EPA requests comment on whether this approach, an exemption from 
the sized secondary containment requirement, with additional measures 
for produced water containers (including integrity testing and 
condition examinations), appropriately addresses industry concerns, 
while preserving environmental protection. Additionally, EPA requests 
comment on whether there are other measures that should be considered 
in developing this alternative approach in lieu of the sized secondary 
containment requirements. Finally, as EPA previously indicated, the 
Agency also requests comment on the characteristics of produced water 
containers at production facilities that may uniquely distinguish these 
containers from containers used at other types of facilities to hold 
oil mixtures.
b. Inspection and Maintenance of Produced Water Storage Containers
    DOE has requested that EPA take comment on a second approach which 
would allow an owner/operator of a production facility to comply with 
additional measures for produced water storage containers in lieu of 
both sized and general secondary containment requirements. That is, a 
production facility owner/operator would be able to comply with these 
specific tailored measures for produced water containers, or the owner/
operator could choose to comply with the current sized secondary 
containment requirements for produced water containers and not be 
subject to an additional set of measures. Under this approach, an 
owner/operator that chose to comply with these tailored requirements 
would be exempted from the sized secondary containment requirement at 
Sec.  112.9(c)(2) and the general secondary containment requirements at 
Sec.  112.7(c).
    However, if a facility experiences a discharge reportable to EPA 
under Sec.  112.4, then sized and general secondary containment would 
be required for all produced water containers at the facility within 
six months from the discovery of the spill(s).\14\ When determining 
spill history, the gallon amount specified in the criterion (either 
1,000 or 42) refers to the amount of oil that actually reaches 
navigable waters or adjoining shorelines, or in connection with 
specified activities in waters and not the total amount of oil spilled. 
Discharges as described in Sec.  112.1(b) that are the result of 
natural disasters, acts of war, or terrorism will not disqualify a 
facility owner or operator from using these tailored requirements in 
lieu of sized and general secondary containment.
---------------------------------------------------------------------------

    \14\ See the similar discussion in Section V.L.4 of this 
proposal pertaining to flow-through process vessels.
---------------------------------------------------------------------------

    This approach is based on input DOE received from the production 
sector that suggested that an inspection and maintenance approach may 
be more appropriate for these containers. Additionally, DOE believes 
that the volume of oil in the storage container can be significantly 
reduced further after separation by periodic skimming of the oil layer 
that may reside in the top of the container.
    To maintain environmental protection under this approach, the 
following additional measures for produced water containers would be 
required:
     Visually inspect on a regular schedule the equipment and 
appurtenances which typically cause spills from produced water 
containers (e.g., piping, valves, pumps, and the container itself) to 
assess the suitability of the equipment for continued service, as 
appropriate for the type of fluids. Facility owners and operators must 
outline in writing procedures for routine visual inspection and keep 
records of these inspections in accordance with Sec.  112.7(e).
     Implement a program to periodically skim the fluids in the 
produced water container as necessary to prevent an oil layer that 
would increase the potential for a discharge of oil as described in 
Sec.  112.1(b). The skimming program must be appropriate for the fluids 
stored, the rate of production, the container size, and the facility 
configuration.
     Promptly remove any oil discharges from produced water 
containers and appurtenances. This approach would require prompt 
removal upon discovery of any spills, discharges, or accumulations of 
oil associated with produced water containers that are subject to these 
tailored requirements. As noted previously, EPA considers the removal 
of oil-contaminated soil as a method to prevent oil from becoming a 
discharge as described in Sec.  112.1(b). Disposal of oil must be in 
accordance with applicable Federal, State, and local requirements; 
under Sec.  112.7(a)(3)(v), a facility owner or operator is required to 
describe the methods of disposal of recovered materials in accordance 
with applicable legal requirements. For the purposes of this provision, 
removal of recoverable oil may be combined with physical, chemical, 
and/or biological treatment methods to address any residual oil. These 
treatment methods must be consistent with other Federal, State, or 
local requirements as applicable, and must be properly managed to 
prevent a discharge as described in Sec.  112.1(b).
     Corrective action to repair or replace any produced water 
container, or associated equipment and appurtenances in order to 
prevent an oil discharge from occurring, as well as in response to a 
discharge. This approach would require the owner or operator of an oil 
production facility to take corrective action to repair any produced 
water container and associated

[[Page 58417]]

equipment or appurtenances as indicated by regularly scheduled 
inspections. This requirement could be implemented in conjunction with 
the requirement for periodic inspection; the results of the inspection 
would inform the owner or operator of any corrections or repairs that 
need to be made. Corrective action is necessary in order to prevent a 
discharge from occurring, as well as in response to a discharge. This 
measure is intended to prevent discharges as described in Sec.  
112.1(b) by ensuring that produced water equipment is well maintained.
    The requirement for periodic inspection of produced water equipment 
on a regular schedule is intended to increase the likelihood that a 
discharge as described in Sec.  112.1(b) will be prevented or detected 
promptly. The inspection requirements for produced water equipment 
would be consistent with the inspection requirements for oil containers 
at oil production tank batteries under Sec.  112.9(c)(3). The 
requirement for periodic skimming of the container should reduce the 
impact of a spill by limiting the amount of oil held in a produced 
water storage container.
    The Agency seeks comments on this approach, including comment on 
the proper methodology, procedures, industry standards/practices, 
equipment and frequency for an oil ``skimming program.'' Any 
suggestions on alternative approaches or language must include an 
appropriate rationale in order for the Agency to be able to consider it 
for final action.
c. Exemption for Produced Water Treatment
    Due to several factors including the growing interest in produced 
water for beneficial uses, and the understanding that the increased use 
of produced water for beneficial uses will reduce the potential for oil 
spills, DOE also requested that EPA consider alternatives to current 
SPCC requirements for produced water at oil and natural gas operations. 
In the July 2002 (67 FR 47139; July 17, 2002) amendments to the SPCC 
rule under Sec.  112.1(d)(6), EPA exempted wastewater treatment 
facilities or parts thereof from the SPCC rule. In the amended 
regulation, EPA defined wastewater treatment as not including oil 
production, recovery, or recycling of oil, and clarified that treatment 
of produced water was not considered wastewater treatment.
    Since the 2002 amendments were issued, industry, states, and DOE 
have commented on the low incremental environmental benefit of 
regulating produced water under the SPCC regulation. Concern has also 
been expressed by the regulated community regarding the perceived 
inequity of the SPCC regulation relative to oil production wastewater 
treatment, because the wastewater treatment facilities of publicly 
owned treatment works and other industries were exempted from the SPCC 
rule in 2002. Therefore, DOE has requested that EPA request comment on 
an exemption from the SPCC rule for produced water altogether, similar 
to that previously provided to wastewater treatment systems.
    Produced water treatment facilities or parts thereof may be subject 
to the National Pollutant Discharge Elimination System (NPDES), Safe 
Drinking Water Act (SDWA), Underground Injection Control (UIC), or 
State permitting requirements that limit the level of pollutants in 
produced water that could be introduced into the environment. For 
example, under 40 CFR 122.41(e), NPDES permits require permittees to 
properly operate and maintain all facilities and systems of treatment 
or control. 40 CFR 122.41(d) requires the NPDES permit holder to take 
all reasonable steps to minimize or prevent any discharge in violation 
of a permit that has a reasonable likelihood of adversely affecting 
health or the environment. Underground sources of drinking water are 
protected under 40 CFR 144.12, whereby any underground injection, 
except into wells authorized by rule or authorized by permit issued 
under the UIC program, is prohibited. These measures are intended to 
address the discharge of known pollutants contained in water that is to 
be introduced to water bodies (in the case of NPDES) or to groundwater 
(in the case of UIC). In contrast to these measures, SPCC is designed 
to prevent the non-routine accidental discharge of oil that might be 
held in an oil container at a facility.
    Produced water treatment facilities or parts thereof are often 
regulated under state laws and regulations applicable to oil and 
natural gas production which address operations and pollution 
prevention. Oil and natural gas operations, including produced water 
treatment facilities on Federal lands managed by the Department of the 
Interior Bureau of Land Management are subject to environmental review, 
lease stipulations, and operational guidelines that include best 
management practices for reducing environmental impacts.\15\
---------------------------------------------------------------------------

    \15\ For example, see Argonne National Laboratory, 2007, 
``Produced Water Management Information System'' at http://web.evs.anl.gov/pwmis/
 and U.S. Department of the Interior, 2007, 

Bureau of Land Management Best Management Practices for Fluid 
Minerals Web site at http://www.blm.gov/wo/st/en/prog/energy/oil_and_gas/best_management_practices.html
.

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

    The characteristics of produced water in the United States vary 
widely, ranging from produced water that is potable to produced water 
that can be discharged, injected underground or used as a beneficial 
water resource following varying levels of treatment to remove oil, 
salt, or other chemical constituents. Similarly, factors such as high 
energy prices, advances in water treatment technology, and changing 
perspectives on the value of produced water for beneficial uses 
including agriculture irrigation, livestock watering, recreation, 
aquifer recharge, and enhanced oil recovery are factors that may 
encourage the industry to separate oil and natural gas fluids from 
produced water and to manage the produced water in a manner that will 
reduce oil spills. The docket of this proposed rule contains several 
documents relating to produced water provided to EPA by DOE.\16\
---------------------------------------------------------------------------

    \16\ Relevant documents include:
    Interstate Oil and Gas Compact Commission and ALL Consulting, 
2006, ``A Guide to Practical Management of Produced Water from 
Onshore Oil and Gas Operations in the United States.'' Available at 
http://www.iogcc.state.ok.us.

    Veil, J.A., M.G. Puder, D. Elcock, and R.J. Redweik, Jr., 2004, 
``A White Paper Describing Produced Water from Production of Crude 
Oil, Natural Gas, and Coal Bed Methane,'' prepared by Argonne 
National Laboratory for the U.S. Department of Energy, National 
Energy Technology Laboratory, January. Available at: http://www.ead.anl.gov/pub/dsp_detail.cfm?PubID=1715
.

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

    Therefore, as requested by DOE, EPA seeks comment on an exemption 
for produced water treatment facilities or parts thereof from the SPCC 
regulation. At oil or natural gas drilling, production, recovery, or 
recycling facilities, produced water treatment facilities or parts 
thereof that would be exempted from SPCC regulation include the 
storage, treatment, or beneficial use of produced water in containers, 
pits, ponds, piping, flowlines, and injection or discharge systems 
including pumps and other appurtenances necessary for the operation of 
these systems. Specifically, this approach would amend Sec.  
112.1(d)(iii)(6) pertaining to the general applicability of the SPCC 
rule, to read, ``Any facility or part thereof used exclusively for 
waste water treatment and not used to satisfy any requirement of this 
part. This would include produced water treatment in oil or natural gas 
production, recovery, or recycling.''
    Produced water managed prior to the initial separation of co-
mingled oil or natural gas fluids that are produced

[[Page 58418]]

from the wellhead would not be exempted from the SPCC regulation.
    Whether a produced water treatment facility or part thereof is used 
exclusively for wastewater treatment (i.e., not storage or other use of 
oil) or used to satisfy a requirement of part 112 will often be a 
facility-specific determination based on the activity associated with 
the facility or part thereof. Only the portion of the facility 
(including produced water treatment associated with production, 
recovery, or recycling of oil or natural gas) used exclusively for 
produced water treatment and not used to meet any part 112 requirement 
would be exempt from part 112 under this approach. Examples of produced 
water treatment facilities or parts thereof used to meet a part 112 
requirement which would not be part of this exemption include an oil/
water separator.
    It should also be noted that under this approach, a discharge of 
produced water containing oil to navigable waters or adjoining 
shorelines in a ``harmful quantity'' (40 CFR part 110) is still 
prohibited. Thus, to avoid such discharges, EPA would expect owners or 
operators to comply with the applicable permitting requirements under 
Federal or State statutes, including best management practices and 
operations and maintenance provisions contained therein. EPA would 
require that if a facility experiences a discharge reportable to EPA 
under Sec.  112.4, then the facility would no longer be exempt and 
sized and general secondary containment would be required for all 
produced water containers at the facility within six months from the 
discovery of the spill(s).
    The Agency seeks comments on whether exempting produced water 
treatment facilities from the SPCC regulation is appropriate. In 
particular, EPA requests comment on the rationale for this approach, 
i.e., the assumption that the oil content of equipment handling 
produced water (e.g., tanks, piping, and related appurtenances) after 
initial separation is low. Any suggestions on alternative approaches or 
language must include an appropriate rationale in order for the Agency 
to be able to consider it for final action.
7. Clarification of the Definition of Permanently Closed Containers
    The SPCC rule exempts from applicability and from capacity 
threshold determinations any oil storage container that is permanently 
closed. EPA seeks to clarify concerns expressed by the regulated 
community over the requirements for permanently closing a container, as 
described in the definition of ``permanently closed'' at Sec.  112.2. 
According to the definition, for a container to be permanently closed, 
all liquid and sludge must be removed from the container and connecting 
lines, all connecting lines and piping must be disconnected from the 
container and blanked off, all valves (except ventilation valves) must 
be closed and locked, and conspicuous signs must be posted on each 
container stating that it is a permanently closed container and noting 
the date of closure. Once permanently closed, a container is no longer 
required to be counted toward the total facility storage capacity, nor 
is it subject to the other requirements under the SPCC rule.
    Variable economic conditions and production rates at an oil 
production facility may cause certain containers to be unused for long 
periods of time. Regulated community members have indicated that 
permanent closure of such containers is undesirable because the 
requirements for closing a container makes it costly and difficult to 
return a container to use if production rates surge or if economic 
conditions become more favorable.
    Members of the regulated community have suggested that EPA provide 
an option to ``temporarily'' close a container, to exempt it from SPCC 
applicability, but allow it to be returned to service if needed. 
Specifically, ``temporary closure'' would have less stringent 
requirements than permanent closure, and would be intended for 
situations where containers would only be closed for short periods of 
time. The significant difference in closure requirements between EPA's 
current ``permanent'' requirements and the suggested ``temporary'' 
requirements appears to be the removal of liquid and sludge from the 
container and connecting lines. EPA believes that allowing liquid and 
sludge to remain in the container, without the benefit of the SPCC rule 
protections, such as containment and inspection, creates the potential 
for a discharge. Therefore, EPA does not believe that it is appropriate 
to exempt containers without requiring that all liquid and sludge be 
removed.
    EPA reiterates the statement that the Agency made in the preamble 
to the July 2002 amendment to the SPCC rule: ``If a tank is not 
permanently closed, it is still available for storage and the 
possibility of a discharge as described in Sec.  112.1(b), remains. Nor 
does a short time period of storage eliminate the possibility of such a 
discharge. Therefore, a prevention plan is necessary. A tank closed for 
a temporary period of time may contain oil mixed with sludge or 
residues of product, which could be discharged. Discharges from these 
facilities could cause severe environmental damage during such 
temporary storage and are therefore subject to the rule.'' (67 FR 
47059)
    EPA notes, however, that the definition of permanently closed does 
not require a container to be removed from a facility; permanently 
closed containers may be brought back into use as needed for variations 
in production rates and economic conditions. (A facility owner or 
operator should review state and local requirements, which may require 
removal of a container when it is taken out service.)
    Furthermore, EPA wants to clarify that permanent closure 
requirements under the SPCC rule are separate and distinct from the 
closure requirements in regulations promulgated under Subtitle C of the 
Resource Conservation and Recovery Act (RCRA), i.e., the Standards For 
Owners and Operators of Hazardous Waste Treatment, Storage, And 
Disposal Facilities at 40 CFR part 264 and Interim Status Standards for 
Owners and Operators of Hazardous Waste Treatment, Storage, and 
Disposal Facilities at 40 CFR part 265. These regulations describe the 
requirements for operators of facilities that use tank systems for 
storing or treating hazardous waste, as well as requirements for tank 
closure and post-closure care (Sec. Sec.  264.197 and 265.197). 
However, these requirements generally do not apply to an oil production 
facility. According to the applicability provision in Sec.  264.1(b), 
``the standards in this part apply to owners and operators of all 
facilities which treat, store, or dispose of hazardous waste, except as 
specifically provided otherwise in this part or part 261 of this 
chapter'' (emphasis added). Part 261 states that ``Drilling fluids, 
produced waters, and other wastes associated with the exploration, 
development, or production of crude oil, natural gas or geothermal 
energy'' are not hazardous waste (Sec.  261.4(b)(5)). Therefore, an oil 
production facility does not have to undergo the expense of permanent 
closure under part 264 or part 265 of RCRA, because these wastes--that 
is, drilling fluids, produced waters, and other wastes associated with 
the exploration, development, or production of crude oil are not 
subject to these regulations. In addition, the owner or operator of the 
oil production facility could transport such wastes to a non-hazardous 
waste disposal or treatment facility, as opposed to a permitted 
Subtitle C hazardous waste facility. (The reasons why regulation under 
Subtitle C of RCRA for wastes associated with oil

[[Page 58419]]

production was determined to be unwarranted are described in the 
Federal Register notice ``Regulatory Determination for Oil and Gas and 
Geothermal Exploration, Development, and Production Wastes'' (July 6, 
1988; 53 FR 25446).)
    Given the clarifications provided here, EPA does not believe that 
further regulatory action is needed to address this issue. 
Nevertheless, EPA welcomes comments on whether further clarification 
regarding the definition of permanently closed is necessary. Any 
suggestions for alternative approaches must include an appropriate 
rationale and supporting data in order for the Agency to be able to 
consider it for final action.
8. Oil and Natural Gas Pipeline Facilities
    In developing this proposed rulemaking, questions have been raised 
concerning the jurisdictional lines between EPA and the Department of 
Transportation (DOT) in relation to oil and gas pipeline systems and 
associated equipment. Our objective, in keeping with the Executive 
Order 12777 and earlier executive orders, as well as the 1971 DOT and 
EPA Memorandum of Understanding (MOU), is to differentiate between 
``transportation'' and ``non-transportation'' facilities in a manner 
that provides clear and definitive standards, while eliminating 
regulatory gaps, and overlapping regulation and oversight. To these 
ends, EPA and DOT have committed to revise or augment their 1971 MOU to 
more clearly define the jurisdictional scope over oil and gas-related 
infrastructure by delineating the specific equipment and appurtenances 
that are part of the pipeline system subject to DOT jurisdiction. In 
the case of a natural gas pipeline, EPA and DOT will evaluate the 
appropriate jurisdictional divide for equipment such as compressor 
stations, lubricating systems and tanks. EPA and DOT have committed to 
diligently pursue resolution of this issue and, early next year, to 
make available for public comment the document memorializing the 
culmination of this effort. EPA, intends to give notice of completion 
of this process in connection with publication of the final version of 
this rule by incorporating by reference or otherwise a provision 
outlining the agencies' relative jurisdiction in this area.

M. Man-Made Structures

    The SPCC rule is applicable to a facility that, due to its 
location, could reasonably be expected to have a discharge of oil as 
described in Sec.  112.1(b). As described in a 1976 amendment to the 
rule (41 FR 34164, December 11, 1976), this determination must be based 
solely upon consideration of the geographical aspects of the facility, 
and excludes consideration of manmade features such as dikes, 
equipment, or other structures that may serve to restrain, hinder, 
contain, or otherwise prevent a discharge as described in Sec.  
112.1(b). As EPA noted in the 1976 rule preamble, ``manmade features, 
such as drainage control structures and dikes, are not to be used in 
concluding there is no reasonable expectation that a discharge will 
reach navigable waters. If there is a reasonable expectation that a 
discharge from the facility would reach navigable waters but for or in 
the absence of such containment or other structures, the facility is 
subject to the requirements of this part.'' (41 FR 34164, December 11, 
1976). This policy has been an important foundation for the 
applicability of the SPCC rule for over 30 years.
    Although the issue was addressed in 1976, members of the regulated 
community continue to raise questions regarding the use of man-made 
structures. In the preamble to the 2002 SPCC rule revisions, EPA 
responded to comments by explaining that, ``To allow consideration of 
manmade structures (such as dikes, equipment, or other structures) to 
relieve a facility from being subject to the rule would defeat its 
preventive purpose. Because manmade structures may fail, thus putting 
the environment at risk in the event of a discharge, there is an 
unacceptable risk in using such structures to justify relieving a 
facility from the burden of preparing a prevention plan.'' (67 FR 
47062, July 17, 2002). However, members of the regulated community 
continue to suggest that man-made features, such as basements or 
containment structures, should be taken into consideration when 
determining whether the SPCC requirements apply.
    EPA continues to uphold this applicability criterion, but seeks to 
clarify that certain man-made features, such as building walls, 
basement structures, and drainage systems may be taken into 
consideration in determining how to comply with the SPCC requirements.
1. Secondary Containment
    If an oil storage container at a regulated facility is located 
inside a building, the PE or facility owner/operator certifying the 
SPCC Plan may take into consideration the ability of the building walls 
and/or drainage systems to serve as secondary containment for the 
container. The SPCC regulation is performance-based and provides 
flexibility to the facility owner or operator in terms of the design 
and implementation of the secondary containment system that will 
provide adequate protection. Secondary containment may be achieved by 
use of dikes, berms, or other barriers, engineered drainage structures, 
or other active or passive containment methods. The regulation provides 
general design criteria for secondary containment of bulk storage 
containers by requiring simply that the containment be of a size 
sufficient to contain the capacity of the largest container, with 
freeboard for precipitation, as appropriate. EPA does not require the 
use of specific sizing criteria to account for precipitation (e.g., 110 
percent of capacity); instead it allows the facility owner or operator, 
or the PE certifying the Plan, to consider location specific 
conditions, including the possibility that a bulk storage container is 
located indoors where precipitation does not occur. The SPCC rule also 
requires that the containment structure provided around bulk storage 
containers be sufficiently impervious to oil. Therefore, the 
containment structure must not be equipped with open floor drains 
unless the drainage system has been purposefully equipped to treat any 
discharge, for example by use of an adequately sized oil-water 
separator (any indoor drainage system that leads directly to a sewer 
authority, Publicly Owned Treatment Works (POTW), or a waterbody may 
serve as a conduit for a discharge to navigable waters). Additionally, 
any doorways, windows, or other openings thatwould permit a discharge 
to flow out of the building must also be taken into consideration. To 
the extent that an existing building structure meets the SPCC 
performance criteria for secondary containment, the owner/operator can 
consider such a building as an appropriate containment structure. In 
cases where the building walls may be used for secondary containment, 
it should be noted, that the calculation of the capacity of the 
secondary containment structure would need to consider the displacement 
by other containers, equipment, and items sharing the containment 
structure.
    Where applicable, containers may be subject to the National Fire 
Protection's Flammable and Combustible Liquids Code (NFPA 30) in 
addition to the SPCC requirements. In these situations, the building 
may serve as both general and sized secondary containment. For 
containers located in buildings, NFPA 30 prescribes specific 
requirements to control fire hazards involving

[[Page 58420]]

flammable or combustible liquids, particularly in the areas of design, 
construction, ventilation, and ultimately facility drainage. More 
specifically, NFPA 30 requires curbs, scuppers, drains or similar 
features to prevent the flow of liquids in emergencies to adjacent 
buildings, including provisions to handle water from fire protection 
systems. In the area of facility drainage, NFPA 30 requires that a 
facility be designed and operated to prevent the discharge of liquids 
to public waterways, public sewers, or adjoining property. Thus, if a 
facility is designed, constructed and maintained to applicable fire 
codes, such as NFPA 30, the building may serve as secondary containment 
under the SPCC rule.
    Given the clarifications provided here, EPA does not believe that 
further regulatory action is needed to address this issue. EPA welcomes 
comments on whether further clarification regarding the use of building 
structures to meet the SPCC secondary containment requirements is 
necessary.
2. Integrity Testing
    The SPCC rule requires that bulk storage containers be made of 
compatible materials and are appropriate for the conditions of storage, 
such as pressure and temperature (Sec. Sec.  112.8(c)(1) and 
112.12(c)(1)), and are tested for integrity on a regular schedule 
(Sec. Sec.  112.8(c)(6), and 112.12(c)(6)). If, at a regulated 
facility, indoor conditions are such that they reduce external 
corrosion and potential for discharges, these operating conditions may 
be considered in the development of a site-specific inspection program. 
Tank inspection standards, such as the American Petroleum Institute's 
(API) Standard 653 and the Steel Tank Institute's (STI) SP001, detail 
the appropriate inspection scope and frequency depending on container 
type and configuration. However, in developing a regulated facility's 
inspection program, it should be recognized that although indoor oil 
storage containers are generally shielded from precipitation, 
precipitation is only one of the many factors that promote corrosion. 
Even indoors, high humidity acidic dust settling on the container 
surface or some other factor may promote external corrosion. 
Furthermore, indoor containers may be comparatively more susceptible to 
accidental impacts from mobile equipment (e.g., forklifts) given the 
more restricted space. Indoor containers also remain subject to 
internal corrosion that can lead to pitting and leaking.
    The SBA requested that EPA consider whether there should be 
differentiated integrity testing requirements for containers located 
indoors. With respect to integrity testing of aboveground storage tanks 
located indoors, applicable industry inspection standards, such as API 
653 and STI SP001 do not specifically differentiate inspection 
requirements for indoor versus outdoor containers. However, SP001, for 
example, does differentiate based on container size and configuration, 
and, for tanks with storage capacities up to 5,000 gallons provided 
with sized secondary containment and a release prevention barrier (such 
as a liner, concrete pad, or an elevated tank in secondary 
containment), the standard requires visual inspection and recordkeeping 
by the owner/operator per the SP001 schedule. For tanks greater than 
5,000 gallons in the same configuration, SP001 requires visual 
inspection by the owner/operator coupled with a formal external 
inspection by a certified inspector on a 20-year cycle versus a more 
stringent inspection scope and schedule for tanks located outdoors in 
earthen secondary containment. Therefore, the Agency believes that the 
industry standards already provide flexibility to the owner/operator of 
the facility based on tank size and configuration. Additionally, the 
owner/operator in conjunction with the certifying PE has the 
flexibility under the SPCC regulation to develop an alternate container 
inspection program.
    Given the clarifications provided here, EPA does not believe that 
further regulatory action is needed to address this issue. 
Nevertheless, EPA welcomes comments on whether further clarification 
regarding requirements for integrity testing of containers located 
indoors, or a regulatory amendment is necessary.

N. Underground Emergency Diesel Generator Tanks at Nuclear Power 
Stations

    Under the U.S. Nuclear Regulatory Commission (NRC) regulations, a 
nuclear power generation facility must meet certain design criteria to 
ensure that the plant will be operated in a manner protective of the 
public's health and safety (10 CFR part 50, Appendix A). The NRC design 
criteria cover the design, fabrication, installation, testing and 
operation of structures, systems, and components important to safety. 
Nuclear power stations are required to provide redundant on-site 
electric power system and an off-site power system to allow functioning 
of structures, systems, and components important to safety. These on-
site power systems typically consist of diesel-powered emergency or 
standby generators, which may include day fuel tanks, either integral 
to the generator or immediately adjacent to the unit. Additional 
reserve capacity may also be provided by aboveground and/or underground 
storage tanks (USTs) to meet the NRC requirement to provide a seven-day 
supply of fuel oil on-site. Each utility develops its particular 
systems and procedures for ensuring their operability and integrity; 
these elements become part of the safety program that is reviewed and 
approved by NRC in granting an operating license for the utility.
    EPA currently exempts from the SPCC requirements any completely 
buried storage tank that is subject to all of the technical 
requirements for USTs under 40 CFR part 280 or a state program approved 
under part 281. However, as discussed in the preamble to the final rule 
for parts 280 and 281 (53 FR 37082, September 23, 1988), the Agency 
chose to defer the requirements of Subparts B, C, D, E, and G for these 
tanks pending completion of a review of the NRC regulations (10 CFR 
part 50, Appendix A) governing these tanks to determine whether further 
regulation under the UST regulations is necessary to protect human 
health and the environment or whether such regulation would be 
inconsistent with the NRC regulations. Thus, UST tanks that are part of 
an emergency generator system at a nuclear power generation facility 
regulated by the NRC are still subject to some of the UST regulations. 
For example, deferred tanks must still comply with the release response 
and corrective action requirements under Subpart F (Sec. Sec.  280.60 
through 280.67). Consequently, because these tanks are not subject to 
all of the UST requirements, they are currently subject to the SPCC 
requirements.
    Nuclear power plant stakeholders have provided comments to the 
Agency questioning whether dual regulation of these USTs under relevant 
NRC requirements and SPCC requirements is appropriate or necessary. The 
industry has also indicated that to comply with SPCC requirements, the 
unit would need to be shut down to properly address secondary 
containment and integrity testing and inspection requirements; to do so 
otherwise would violate stringent NRC operating safety requirements. A 
shutdown to address SPCC requirements is costly and jeopardizes public 
power supply needs. To further analyze the potential overlap and 
concerns relative to the SPCC requirements in light of NRC 
requirements, EPA conducted a site visit to a nearby nuclear power 
station and consulted NRC.

[[Page 58421]]

    EPA compared the NRC regulations and guidelines with the relevant 
SPCC requirements. Under 10 CFR Part 50, Appendices A and B, nuclear 
power generation facility operators must identify the relevant codes 
and standards, develop and implement a quality assurance program, and 
maintain appropriate records of the design, fabrication, erection, and 
testing throughout the life of the nuclear unit. The quality assurance 
program required per Appendix B must be documented by written policies, 
procedures or instructions and implemented as documented. To assist 
nuclear power unit licensees in complying with the license 
requirements, the NRC has developed a number of guidance documents, 
including documents pertaining to the operation of standby diesel 
generators. Specifically, NRC Regulatory Guide 1.137, ``Fuel-Oil 
Systems for Standby Diesel Generators'' details the requirements for 
inspection and testing of fuel oil systems, corrosion protection, and 
the periodic cleaning of fuel supply tanks. These measures are similar 
to the measures required under the SPCC regulation for completely 
buried tanks, which include corrosion protection of buried tanks (Sec.  
112.8(c)(4)) and of buried piping (Sec.  112.8(d)(1)), and inspection 
and testing of buried piping (Sec.  112.8(d)(4)). According to NRC, 
this guideline represents one acceptable method to meet the NRC 
requirements for these standby systems. If a licensee chooses an 
alternative approach then equivalency must be demonstrated through an 
engineering review by the NRC as part of the licensing process.
    In conducting the site visit to a nearby nuclear power station, EPA 
observed that the standby generators had both aboveground and 
underground storage tanks on-site to meet the requisite fuel demands. 
The USTs were installed in 1973 and consist of single-walled steel 
tanks equipped with automatic tank gauging and are subjected to 
nondestructive evaluation (ultrasonic thickness testing) every 10 
years. Associated piping is tested every 10 years. EPA then reviewed 
the relevant SPCC requirements associated with USTs that meet the 
definition of completely buried tanks in Sec.  112.2 of the SPCC rule 
and conducted a comparative analysis as detailed below.
     All containers: Sec.  112.8(c)(2): Sized secondary 
containment requirements.
     Buried Tanks: Sec.  112.8(c)(4): Protection and leak 
testing of buried metallic tanks.
     All Containers: Sec.  112.8(c)(8): Engineering of each 
container to prevent overfills.
     Buried Piping: Sec.  112.8(d): Protection and leak testing 
of buried piping.
    Since the USTs are single-walled steel tanks, the tanks may not 
meet the secondary containment requirements at Sec.  112.8(c)(2); 
however, an argument could be made that secondary containment is 
impracticable under Sec.  112.7(d). Since these USTs remain subject to 
Subpart F of Part 280 (Release Response and Corrective Action for UST 
Systems Containing Petroleum or Hazardous Substances), the requirements 
of Sec.  112.7(d)(1) and 112.7(d)(2) may be met. Additionally, since 
the tanks were installed prior to January 10, 1974, the completely 
buried tanks are not subject to the cathodic protection requirements at 
Sec.  112.8(c)(4). However, since the tanks are subjected to a non-
destructive evaluation on a 10-year cycle, the leak testing requirement 
under Sec.  112.8(c)(4) would be met. Completely buried tanks are also 
subject to the engineering requirement at Sec.  112.8(c)(8) to prevent 
overfills. The observed tanks were equipped with automatic tank 
gauging. Buried piping associated with the completely buried tanks is 
subjected to pressure testing on a 10-year cycle; however, since the 
piping was installed prior to 2002, the buried piping is not subject to 
the coating, wrapping and cathodic protection requirements at Sec.  
112.8(d)(1).
    The case summarized above illustrates the similarities between UST 
safety measures implemented under the NRC regulations and SPCC 
requirements applicable to completely buried tanks. EPA believes that 
nuclear power plants have unique characteristics that differentiate 
them from other types of regulated facilities. Thus, EPA understands 
that certain actions necessary to comply with the SPCC rule could be 
impracticable at NRC facilities because they may compromise the 
availability of the emergency diesel generation tank and consequently 
affect the reliability of the nuclear power supply and result in the 
shut down of a nuclear power plant. EPA believes that the NRC operating 
safety requirements best address the specific and unique operational 
challenges represented by completely buried tanks at nuclear power 
plants. EPA is, therefore, proposing to exempt completely buried oil 
storage tanks at NRC-regulated facilities that are subject to the 
safety requirements under the NRC regulations. The exemptions would 
apply only to completely buried tanks as defined in Sec.  112.2 of the 
SPCC regulation. Similar to completely buried tanks subject to all the 
technical requirements of 40 CFR part 280 or a State program approved 
under 40 CFR part 281, completely buried tanks at NRC-regulated 
facilities would not be counted as part of the aggregate aboveground 
storage capacity of the facility, but the tanks would need to be marked 
on the facility diagram as provided in Sec.  112.7(a)(3) if the 
facility is otherwise subject to the SPCC rule.
    EPA seeks comments on the proposed exemption of completely buried 
oil storage tanks at NRC facilities. 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.

O. Wind Turbines

    The Agency was requested to address the applicability of the rule 
to wind turbines used to produce electricity. In consultation with DOE, 
EPA's research shows that the larger 1.5-mega watt (MW) turbines have 
gearbox capacities typically ranging between 55 and 65 gallons. 
Additionally, other wind turbine components, such as the gear reducers 
within the turbine for yaw and pitch control may contain up to 10 
gallons of lubricating oil. Based on these capacities, wind turbine 
farms at locations where there is a reasonable expectation of a 
discharge to navigable waters or adjoining shorelines could meet the 
1,320-gallon aggregate aboveground oil storage capacity applicability 
threshold for the SPCC rule and would be required to prepare a Plan. 
The Agency believes that these wind turbines meet the definition of 
oil-filled operational equipment promulgated in the December 2006 SPCC 
rule amendments (71 FR 77266, December 26, 2006) and thus can take 
advantage of the alternative compliance option provided for this type 
of equipment.
    The amendments to the SPCC rule promulgated in December 2006 allow 
owners and operators of facilities with eligible oil-filled operational 
equipment the option to prepare an oil spill contingency plan and a 
written commitment of manpower, equipment, and materials to 
expeditiously control and remove any oil discharged that may be harmful 
without having to make an individual impracticability determination as 
required in Sec.  112.7(d). If an owner or operator takes this option, 
he or she is also required to establish and document an inspection or 
monitoring program for this qualified oil-filled operational equipment 
to detect equipment failure and/or a discharge in lieu of providing 
secondary containment.
    The Agency defined ``oil-filled operational equipment'' as 
``equipment

[[Page 58422]]

that 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 
solely to enable the operation of the device.'' (71 FR 77290)
    These examples the Agency included in definition of oil-filled 
operational equipment were intended to provide additional clarity and 
not to exclude other such equipment. Based on their characteristics, 
the Agency considers wind turbines to meet the definition of oil-filled 
operational equipment. Wind farm facilities can take advantage of the 
oil spill contingency plan compliance option as an alternative to 
secondary containment requirements.
    In addition, in examining the design of a wind turbine, a PE (or 
owner/operator of a qualified facility) may determine that it 
inherently provides sufficient secondary containment for its oil 
reservoirs. The nacelle, or structure that contains the key components 
of the turbine, including the gearbox and the electrical generator, may 
be determined to serve as sufficient secondary containment in the event 
of an oil discharge. Thus, the PE or owner/operator of a qualified 
facility may certify a wind turbine as being in compliance with the 
Sec.  112.7(c) requirements for secondary containment. As such, the 
alternative measures described in Sec.  112.7(k) (i.e., an oil spill 
contingency plan, the commitment of resources and manpower, and an 
inspection or monitoring program) would not be necessary.
    It is important to note that a wind farm that meets the criteria 
for qualified facility status has additional compliance alternatives, 
and flexibility is available, the most significant being the option for 
self-certification of his SPCC Plan. EPA seeks comments on whether this 
discussion provides adequate clarity on the applicability of the SPCC 
rule to wind turbines, or whether further clarification is needed.

P. Technical Corrections

    EPA proposes a technical correction to the introductory paragraph 
of Sec.  112.3, to move the phrase ``in writing'' after ``must 
prepare'' and then insert the phrase ``and implement'' after the phrase 
``in writing'', in order to provide an explicit requirement for a 
facility owner to both prepare and implement an SPCC Plan. This 
paragraph describes the requirement for an owner or operator of an 
onshore or offshore facility subject to the rule to prepare an SPCC 
Plan, in writing, and in accordance with Sec.  112.7 and any other 
applicable section of the rule. Adding the term ``and implement'' to 
this paragraph would be consistent with the subsequent subsections, 
which provide compliance dates to both prepare or amend, and implement, 
an SPCC Plan for various categories of facility owners and operators. 
In describing the requirement to prepare a Plan in the introductory 
paragraph of Sec.  112.3, the Agency inadvertently excluded the 
explicit requirement to also implement that Plan. Clearly, a facility 
owner or operator must implement his SPCC Plan in order for it to be 
effective in preventing discharges of oil to navigable waters and 
adjoining shorelines. In order to provide clarity, EPA will explicitly 
include the word ``implement'' in Sec.  112.3 as a technical 
correction, and seeks comment on this clarification.
    EPA also proposes a technical correction to the introductory 
paragraph of Sec.  112.12, to delete the phrase ``(excluding a 
production facility.)'' In the December 2006 amendments to the SPCC 
rule (71 FR 77266, December 26, 2006), EPA amended Subpart C of part 
112 by removing several sections because they were not appropriate for 
animal fats and vegetable oils. At that time, as a point of 
clarification, EPA also removed the phrase ``for onshore facilities 
(excluding production facilities)'' from the title of Sec.  112.12, 
because, having removed the inapplicable production facility 
requirements from Subpart C, it was no longer necessary to 
differentiate onshore oil production facilities from other facilities 
in Sec.  112.12. However, EPA inadvertently neglected to remove the 
corresponding phrase from the introductory paragraph of the section. 
EPA currently seeks to correct this inadvertent omission. EPA seeks 
comments on this proposed technical correction.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735, 
October 4, 1993), this action is an ``economically significant 
regulatory action'' because it is likely to have an annual effect on 
the economy of $100 million or more. Accordingly, EPA submitted this 
action to the Office of Management and Budget (OMB) for review under EO 
12866 and any changes made in response to OMB recommendations have been 
documented in the docket for this action. In addition, EPA prepared an 
analysis of the potential costs and benefits associated with this 
action. This analysis is contained in the regulatory impact analysis 
(RIA) entitled, ``Regulatory Impact Analysis for the Proposed 
Amendments to the Oil Pollution Prevention Regulations (40 CFR Part 
112)'' (September 2007). A copy of the analysis is available in the 
docket for this action and the analysis is briefly summarized here. EPA 
requests comments from the public on the costs and benefits of any of 
the proposed regulatory alternatives and preferred options discussed in 
this proposed rulemaking action.
    For the economic impact analysis of these proposed amendments to 
the SPCC rule, EPA used the SPCC rule requirements at 40 CFR part 112, 
as amended in 2002 (67 FR 47042, July 17, 2002) as the baseline to 
estimate the potential cost savings to regulated facilities from these 
proposed amendments. The cost savings are not adjusted for the 
estimated, potential cost savings for the final 2006 rule amendments 
and may overestimate the cost savings for these proposed amendments, 
particularly for proposed Tier 1 qualified facilities, proposed 
revisions to the integrity testing requirement, and the proposed 
amendments to delay SPCC Plan preparation and implementation for oil 
production facilities. The regulatory impact analysis developed in 
support of this proposal compares the compliance costs for owners and 
operators of facilities affected by the proposed amendments to the 
costs owners and operators would face under the 2002 SPCC rule 
amendments. The proposed regulatory amendments have twelve major 
components: (1) Exempt hot-mix asphalt; (2) exempt pesticide 
application equipment and related mix containers used at farms; (3) 
exempt heating oil containers at single-family residences; (4) amend 
the definition of ``facility'' to clarify the flexibility

[[Page 58423]]

associated with defining a facility's boundaries; (5) amend the 
facility diagram requirement to provide additional flexibility for all 
facilities; (6) define ``loading/unloading rack'' to clarify the 
equipment subject to the provisions for facility tank car and tank 
truck loading/unloading racks; (7) provide streamlined requirements for 
a subset of qualified facilities; (8) amend the general secondary 
containment provision to provide more clarity; (9) amend the security 
requirements for all facilities; (10) amend the integrity testing 
requirements to allow a greater amount of flexibility in the use of 
industry standards at all facilities; (11) amend the integrity testing 
requirements for containers that store animal fats or vegetable oils 
and meet certain criteria; (12) streamline a number of requirements at 
oil production facilities; and (13) exempt completely buried oil 
storage tanks at nuclear power generation facilities. EPA is also 
providing clarification in the preamble to this proposed rule on three 
additional issues identified by the regulated community: (1) the 
consideration of man-made structures in determining how to comply with 
the SPCC rule requirements; (2) the applicability of the rule to 
underground emergency diesel generator tanks at nuclear power stations, 
and (3) the applicability of the rule to wind turbines for electricity 
generation.
    For each of these components, EPA estimated potential cost savings 
to regulated facilities that may result from reductions in compliance 
costs. The main steps used to estimate the compliance cost impacts of 
the SPCC proposed rule are as follows:
     Develop the baseline universe of SPCC-regulated 
facilities;
     Estimate the number of facilities affected by the proposed 
rule amendments;
     Estimate changes in unit compliance cost for each 
regulated facility affected by the proposed rule;
     Estimate total compliance cost savings to owners and 
operators of potentially affected facilities; and
     Annualize compliance cost savings over a ten-year period, 
2008 through 2017, and discount the estimates using 3 and 7 percent 
discount rates.
    Based on these steps, EPA estimated the annualized compliance cost 
savings to potentially affected facilities associated with each of the 
major components of the proposed rule, and presents the results of the 
economic analysis in Exhibit 1. EPA uses four key assumptions in its 
regulatory impact analysis. First, the Agency assumes that cost 
minimization behavior applies to all owners and operators of facilities 
that qualify for reduced regulatory requirements, whereby all those 
affected would seek burden relief. Second, EPA assumed, consistent with 
EPA's guidelines for conducting economic analyses, that all existing 
owners and operators of facilities are in full compliance with the July 
2002 amendments to the SPCC rule (67 FR 47042). Third, EPA assumes that 
owners and operators of existing SPCC-regulated facilities would forgo 
compliance activities offered as alternatives to activities that 
required one-time initial investments because they would have already 
incurred a one-time cost. For example, EPA assumes that an owner or 
operator of an existing facility who would qualify for reduced security 
requirements under the proposed rule that allows facility owners/
operators to tailor their security measures to the facility's specific 
characteristics and location, would have already provided the security 
measures as per the 2002 rule amendments or demonstrated environmental 
equivalence for tailored security measures. Thus, owners and operators 
of existing facilities would not take advantage of the provided 
alternative. Fourth, EPA assumes that compliance is nationally 
consistent although variability in state regulations and the 
distribution of affected facilities is recognized.
    Exhibit 1 presents the estimated cost savings for each rule 
component and for the proposed rule amendments in total. For several 
proposed rule amendments, such as the security requirements and 
facilities handling AFVO, EPA did not have numeric data on the number 
of affected facilities within a general industry sector; thus, it 
developed three scenarios to evaluate a range of cost savings.\17\ The 
exhibit below presents the estimated cost savings for the proposed 
options for this proposed rule. The total potential cost savings are 
calculated taking into account the mid-point values of the estimated 
ranges of statistical distributions for unit costs. These estimates are 
not necessarily additive, given that they do not account for 
interactions among the various components of the proposed rule.\18\
---------------------------------------------------------------------------

    \17\ For example, to develop a range for the number of affected 
AFVO facilities, EPA contacted industry experts who determined that 
40 percent to 90 percent of containers at AFVO facilities are made 
of stainless steel and almost all containers have bottom drainage. 
Therefore, based on professional judgment, the Agency considered 
three scenarios: 40% (low), 65% (medium) and 90% (high) of all AFVO 
facilities would have food oil tanks that are eligible.
    \18\ Certain industry sectors are affected by multiple rule 
components. For example, farms would benefit from the new 
requirements for Tier I qualified facilities, amendments to the 
definition of ``facility'', amendments to the security, integrity 
testing, facility diagram requirements, amendments to the definition 
of ``loading/unloading rack'', and the exemption for single-family 
residential heating oil containers, in addition to the exemption of 
pesticide application equipment. As a result, taking advantage of 
one new requirement might preclude a facility from benefiting from 
other proposed requirements.
---------------------------------------------------------------------------

    The oil production sector and farms would benefit from multiple 
components of the proposed rule. Farms would benefit from the proposed 
requirements for Tier I qualified facilities, amendments to the 
definition of ``facility'', amendments to the security, integrity 
testing, facility diagram requirements, amendments to the definition of 
``loading/unloading rack'', and the exemption for single-family 
residential heating oil containers, in addition to the exemption of 
pesticide application equipment. The total cost savings to farm owners 
and operators from these amendments are estimated at $263 million on an 
annualized basis.
    The oil production sector would benefit from proposed revisions to 
the facility diagram requirements, and amendments to the definition of 
``loading/unloading rack'', and some would benefit from the new 
requirements for Tier I qualified facilities, in addition to amendments 
specific to the oil production sector such as the six-month delay in 
preparation and implementation of SPCC Plans and the exemption of flow-
through separation and treating equipment from sized secondary 
containment requirements. The total savings to owners and operators of 
oil production facilities from all of the proposed amendments that 
affect this sector are estimated at $83 million on an annualized basis.

[[Page 58424]]



     Exhibit 1.--Estimated Compliance Cost Savings for the Proposed
                          Regulatory Amendments
------------------------------------------------------------------------
                                              Annualized cost  savings
          Rule component/scenario             ($2006,  in millions,  7%
                                                   discount rate)
------------------------------------------------------------------------
Hot-Mix Asphalt:
    Exempt HMA containers.................  $7
Farms:
    Exempt pesticide application            $4
     equipment; clarification on nurse
     tanks being mobile refuelers.
Residential Heating Oil Containers:
    Exempt single-family residential        $2
     heating oil containers.
Definition of Facility:
    Revise the definition of ``facility''.  $251
Facility Diagram:
    Revise facility diagram requirement...  $1
Loading/Unloading Racks:
    Define ``loading/unloading rack''.....  $48
Tier I Qualified Facilities:
    Provide streamlined requirements for    $24
     Tier I qualified facilities.
General Secondary Containment:
    Amend the general secondary             No cost impact.
     containment provision to provide more
     clarity.
Security Requirements:
    Revise security requirements \1\......  $7
Integrity Testing:
    Amend the integrity testing             $9
     requirements to allow a greater
     amount of flexibility in the use of
     industry standards at all facilities.
Animal Fats and Vegetable Oil:
    Amend integrity testing requirements    $2
     for containers that store animal fats
     or vegetable oil and that meet
     certain criteria \2\.
Oil Production Facilities:
    Six month delay for Plan preparation    $25
     and implementation.
    Exempt flowlines and gathering lines    No net cost impact.
     from secondary containment.
    Flow-through separation and treatment   $8
     equipment.
Man-Made Structures:
    Consider manmade structures in          No cost impact.
     determining SPCC rule applicability.
Nuclear Power Stations:
    Exempt completely buried oil storage    Less than $1.
     tanks at nuclear power generation
     facilities..
Wind turbines:
    Clarify applicability of the rule to    No cost impact.
     wind turbines used to produce
     electricity.
                                           -----------------------------
        Total.............................  $387
------------------------------------------------------------------------
\1\ Mid-point estimate (17% of oil production facilities, 50% of AFVO
  facilities, and 8% of farms affected). Cost savings might be higher or
  lower using different assumptions.
\2\ Mid-point estimate (65% of facilities affected). Cost savings might
  be lower using different assumptions.

B. Paperwork Reduction Act

    The information collection requirements for this proposed rule have 
been submitted for approval to 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 0328.14.
    EPA does not collect the information required by the SPCC rule on a 
routine basis. SPCC Plans ordinarily need not be submitted to EPA, but 
must generally be maintained at the facility. Preparation, 
implementation, and maintenance of an SPCC Plan by the facility owner 
or operator helps prevent oil discharges and mitigate the environmental 
damage caused by such discharges. Therefore, the primary user of the 
data is the facility personnel. While EPA may, from time to time, 
request information under these regulations, such requests are not 
routine.
    Although facility personnel are the primary data user, EPA also 
uses the data in certain situations. EPA reviews SPCC Plans: (1) When 
it requests a facility owner or operator to submit required information 
in the event of certain discharges of oil or to evaluate an extension 
request; and (2) as part of the 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 Clean Water Act as implemented 
by 40 CFR part 112.
    EPA estimates that in the absence of this proposed rulemaking, 
approximately 592,000 existing facilities would be subject to the SPCC 
rule in 2008 and have SPCC Plans. In addition, EPA estimates that 
approximately 18,100 new facilities would become subject to the SPCC 
requirements during that year, resulting in a total of about 610,000 
regulated facilities in 2008.\19 \
---------------------------------------------------------------------------

    \19\ To estimate the number of SPCC-regulated facilities in 
2008, EPA used the estimated number of facilities for 2005 (571,000) 
and applied annual, industry-specific growth rates that resulted in 
about 610,000 facilities.
---------------------------------------------------------------------------

    Under this proposed action, the storage capacity of containers 
solely containing hot-mix asphalt would be exempt from the SPCC rule; 
the proposal would also exempt all heating oil containers for single-
family residences; pesticide application equipment and related mix 
containers used at farms would no longer be regulated; the definition 
of ``facility'' would be amended to clarify that contiguous or non-
contiguous buildings, properties, parcels, leases, structures, 
installations, pipes, or pipelines may be considered separate 
facilities, and to specify that the ``facility'' definition governs the 
applicability of 40 CFR part 112; EPA would amend the facility

[[Page 58425]]

diagram requirement to provide additional flexibility for all 
facilities; EPA would provide a definition for the term ``loading/
unloading rack,'' which would determine whether a facility is subject 
to the provisions at Sec.  112.7(h), as well as specifically exclude 
onshore oil production facilities and farms from the requirements of 
Sec.  112.7(h); a subset of qualified facilities (Tier I) would be 
allowed to complete and implement an SPCC Plan template (proposed as 
Appendix G to 40 CFR part 112) in order to comply with the SPCC rule 
requirements; the security requirements at Sec.  112.7(g) would be 
modified to allow an owner or operator to tailor his security measures 
to the facility's specific characteristics and location; the current 
integrity testing requirements at Sec. Sec.  112.8(c)(6) and 
112.12(c)(6) would be replaced with the requirements provided for 
qualified facilities, as promulgated in December 2006; the PE or an 
owner/operator certifying an SPCC Plan would have the flexibility to 
determine the scope of integrity testing that is appropriate for 
containers that store animal fats or vegetable oil that is intended for 
human consumption and that meet other criteria; lastly, this proposed 
rulemaking would streamline the requirements for oil production 
facilities by modifying the definition of production facility to be 
consistent with the proposed amendments to the definition of facility, 
extending the timeframe by which a new oil production facility must 
prepare and implement an SPCC Plan, exempting flow-through process 
vessels at oil production facilities from the sized secondary 
containment requirements, while maintaining general secondary 
containment requirements and requiring additional oil spill prevention 
measures, establishing more specific requirements for contingency 
planning and a flowline/intra-facility gathering line maintenance 
program, while exempting such flowlines and intra-facility gathering 
lines at oil production facilities from the secondary containment 
requirements, clarifying the applicability of the SPCC rule to oil 
containers at a natural gas facility, clarifying the SPCC provisions to 
which a natural gas facility may be subject, and clarifying the 
definition of ``permanently closed'' as it applies to an oil production 
facility.
    Under this proposed action, an estimated 610,000 regulated 
facilities would be subject to the SPCC information collection 
requirements of this rule in 2008.\20\ The Agency estimates that as a 
result of the proposed amendments to tailor, clarify, and streamline 
certain SPCC requirements, the reporting and recordkeeping burden would 
decrease by approximately 1.4 million hours. The proposed amendments 
would reduce capital and O&M costs by approximately $43 million on an 
annualized basis.
---------------------------------------------------------------------------

    \20\ To estimate the number of SPCC-regulated facilities in 
2008, EPA used the estimated number of facilities for 2005 (571,000) 
and applied annual industry-specific growth rates.
---------------------------------------------------------------------------

    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.

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 this proposed rule on 
small entities, a small entity is defined as: (1) A small business as 
defined in the U.S. Small Business Administration (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 oil production facilities, which 
constitute a large percentage of the facilities affected by this 
proposed rule, generally defines small businesses as having less than 
$0.5 million to $27.5 million per year in sales receipts, depending on 
the industry, or 500 or fewer employees, respectively; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise that is independently owned and operated and is not dominant 
in its field.
    After considering the economic impacts of this 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 would not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    Under this proposal, the following issues will be addressed: exempt 
hot-mix asphalt from SPCC requirements; exempt specific oil storage 
equipment on farms from the SPCC rule requirements; exempt heating oil 
containers at single-family residences; clarify how containers, fixed 
and mobile, are identified on the facility diagram; modify the 
definition of ``facility'' to clarify that contiguous or non-contiguous 
buildings, properties, parcels, leases, structures, installations, 
pipes, or pipelines may be considered separate facilities and that the 
definition of ``facility'' governs the applicability to the SPCC rule; 
define ``loading/unloading rack'' to clarify whether a facility is 
subject to the SPCC rule requirements of Sec.  112.7(h); streamline the 
requirements for a subset of qualified facilities (Tier I qualified 
facilities); amend the facility security requirements at Sec.  112.7(g) 
to allow an owner or operator to tailor security measures to his 
facility's specific characteristics and location; replace the current 
integrity testing requirements at Sec. Sec.  112.8(c)(6) and 
112.12(c)(6) with the current regulatory requirement for a qualified 
facility; provide the PE or an owner/operator certifying an SPCC Plan 
with the flexibility for integrity testing

[[Page 58426]]

for bulk storage containers that store animal fats or vegetable oil and 
that meet other criteria; and initiate several amendments to streamline 
the requirements for oil production facility to address concerns raised 
by the production sector, respectively.
    Overall, EPA estimates that this proposed action would reduce 
annual compliance costs by approximately $387 million for owners and 
operators of affected facilities. Total costs were annualized over a 
10-year period using a 7 percent discount rate. EPA derived these 
savings by estimating the number of facilities affected by each 
proposed amendment; identifying the specific behavioral changes that 
may occur (e.g., choosing to prepare an SPCC Plan template instead of a 
full SPCC Plan); estimating the unit costs of compliance measures under 
the baseline and proposed scenarios; and applying the change in unit 
costs to the projected number of affected facilities.
    EPA has therefore concluded that this proposed rule would relieve 
regulatory burden for small entities and therefore, certify that this 
proposed 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 cost-effective, or least burdensome alternative if the 
Administrator publishes with the rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    EPA has determined that this 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. This proposed action would reduce 
compliance costs on owners and operators of affected facilities by 
approximately $387 million annually, although EPA acknowledges this 
total estimate is derived from analyses of individual major components 
of the proposed rule that are not necessarily additive, given that they 
do not account for interactions among the various components. Thus, 
this proposed rule is not subject to the requirements of sections 202 
and 205 of the UMRA.
    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 for facility owners and operators, including 
certain small governments that are subject to the rule.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State 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 and adjoining shorelines. EPA 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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. This 
proposed rule would not significantly or uniquely affect communities of 
Indian trial governments. Thus, Executive Order 13175 does not apply to 
this proposed rule.

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 it does not establish an 
environmental standard intended to mitigate health or safety risks.

[[Page 58427]]

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. The 
overall effect of the proposed rule is to decrease the regulatory 
burden on facility owners or operators subject to its provisions.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards such as materials specifications, test methods, 
sampling procedures, and business practices that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    The owner or operator of a facility subject to the SPCC rule has 
the flexibility to consider applicable industry standards in the 
development of an SPCC Plan, in accordance with good engineering 
practice. However, this proposed rulemaking does not involve technical 
standards, as it does not set or incorporate by reference any one 
specific technical standard. Therefore, the NTTAA does not apply. EPA 
welcomes comments on this aspect of the proposed rulemaking and, 
specifically, invites the public to identify potentially applicable 
voluntary consensus standards and to explain why such standards should 
be used in this regulation.

List of Subjects in 40 CFR Part 112

    Environmental protection, Animal fats and vegetable oils, Hot-mix 
Asphalt, Farms, Flammable and combustible materials, Integrity testing, 
Loading racks, Materials handling and storage, Natural gas, Oil 
pollution, Oil and gas exploration and production, Oil spill response, 
Penalties, Petroleum, Reporting and recordkeeping requirements, 
Secondary containment, Security, Tanks, Unloading racks, Water 
pollution control, Water resources.

    Dated: October 1, 2007.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 
112 of the Code of Federal Regulations is proposed to be amended 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 as follows:
    a. By revising paragraphs (d)(2)(i) and (d)(2)(ii).
    b. By revising paragraph (d)(4).
    c. By adding paragraphs (d)(8) through (d)(10).


Sec.  112.1  General applicability.

* * * * *
    (d) * * *
    (2) * * *
    (i) The completely buried storage capacity of the facility is 
42,000 gallons or less of oil. For purposes of this exemption, the 
completely buried storage capacity of a facility excludes the capacity 
of a completely buried tank, as defined in Sec.  112.2, and connected 
underground piping, underground ancillary equipment, and containment 
systems, that is currently subject to all of the technical requirements 
of part 280 of this chapter or all of the technical requirements of a 
State program approved under part 281 of this chapter, or which, in the 
case of a nuclear power generation facility, meets the Nuclear 
Regulatory Commission design criteria at 10 CFR part 50, Appendices A 
and B. The completely buried storage capacity of a facility also 
excludes the capacity of a container that is ``permanently closed,'' as 
defined in Sec.  112.2.
    (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'' and the capacity 
of a ``motive power container'' as defined in Sec.  112.2; the capacity 
of hot-mix asphalt or any hot-mix asphalt container; the capacity of a 
container for heating oil used solely at a single-family residence; and 
the capacity of pesticide application equipment and related mix 
containers used at farms.
* * * * *
    (4) Any completely buried storage tank, as defined in Sec.  112.2, 
and connected underground piping, underground ancillary equipment, and 
containment systems, at any facility, that is subject to all of the 
technical requirements of part 280 of this chapter or a State program 
approved under part 281 of this chapter or which, in the case of a 
nuclear power generation facility, meets the Nuclear Regulatory 
Commission design criteria at 10 CFR part 50, Appendices A and B, 
except that such a tank must be marked on the facility diagram as 
provided in Sec.  112.7(a)(3), if the facility is otherwise subject to 
this part.
* * * * *
    (8) Hot-mix asphalt, or any hot-mix asphalt container.
    (9) Any container for heating oil used solely at a single-family 
residence.
    (10) Any pesticide application equipment or related mix containers 
used at farms.
* * * * *
    3. Amend Sec.  112.2 by revising the definitions for ``Facility'', 
``Production facility'', and adding a definition for ``Loading/
unloading rack'' in alphabetical order to read as follows:


Sec.  112.2  Definitions.

* * * * *
    Facility means any mobile or fixed, onshore or offshore building, 
property, parcel, lease, structure, installation, equipment, pipe, or 
pipeline (other than a vessel or a public vessel) used in oil well 
drilling operations, oil production, oil refining, oil storage, oil 
gathering, oil processing, oil transfer, oil distribution, and oil 
waste treatment, or in which oil is used, as described in Appendix A to 
this part. The boundaries of a facility depend on several site-specific 
factors, including but not limited to, the ownership or operation of 
buildings, structures, and equipment on the same site and types of 
activity at the site. Contiguous or non-contiguous buildings, 
properties, parcels, leases, structures, installations, pipes, or 
pipelines under the ownership or operation of the same person may be 
considered separate facilities. Only this definition governs whether a 
facility is subject to this part.
* * * * *
    Loading/unloading rack means a structure necessary for loading or 
unloading a tank truck or tank car, which is located at a facility 
subject to

[[Page 58428]]

the requirements of this part. A loading/unloading rack includes a 
platform, gangway, or loading/unloading arm; and any combination of the 
following: piping assemblages, valves, pumps, shut-off devices, 
overfill sensors, or personnel safety devices.
* * * * *
    Production facility means all structures (including but not limited 
to wells, platforms, or storage facilities), piping (including but not 
limited to flowlines or gathering lines), or equipment (including but 
not limited to workover equipment, separation equipment, or auxiliary 
non-transportation-related equipment) used in the production, 
extraction, recovery, lifting, stabilization, separation or treating of 
oil, or associated storage or measurement, and may be located in a 
single geographical oil or gas field operated by a single operator. 
This definition governs whether a facility is subject to a specific 
section of this part.
* * * * *
    4. Amend Sec.  112.3 as follows:
    a. By revising the introductory text.
    b. By revising paragraph (b)(1).
    c. By adding paragraph (b)(3).
    d. Revising paragraph (g).


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

    The owner of operator of an onshore or offshore facility subject to 
this section must prepare in writing and implement a Spill Prevention 
Control and Countermeasure Plan (hereafter ``SPCC Plan'' or ``Plan),'' 
in accordance with Sec.  112.7 and any other applicable section of this 
part.
* * * * *
    (b)(1) If you are the owner or operator of an onshore or offshore 
facility (excluding oil production facilities) that becomes operational 
after July 1, 2009, and could reasonably be expected to have a 
discharge as described in Sec.  112.1(b), you must prepare and 
implement a Plan before you begin operations.
* * * * *
    (3) If you are the owner or operator of an oil production facility 
that becomes operational after July 1, 2009, and could reasonably be 
expected to have a discharge as described in Sec.  112.1(b), you must 
prepare and implement a Plan within six months after you begin 
operations.
* * * * *
    (g) Qualified Facilities. The owner or operator of a qualified 
facility as defined in this subparagraph may self certify his or her 
facility's Plan, as provided in Sec.  112.6. A qualified facility is 
one that meets the following Tier I or Tier II qualified facility 
criteria:
    (1) A Tier I qualified facility meets all of the qualification 
criteria in paragraph (g)(2) of this section and has no individual oil 
storage container with a capacity greater than 5,000 U.S. gallons.
    (2) A Tier II qualified facility is one that:
    (i) Has an aggregate aboveground oil storage capacity of 10,000 
U.S. gallons or less; and
    (ii) Has had no single discharge as described in Sec.  112.1(b) 
exceeding 1,000 U.S. gallons or no two discharges as described in Sec.  
112.1(b) each exceeding 42 U.S. gallons within any twelve month period 
in the three years prior to the SPCC Plan self-certification date, or 
since becoming subject to this part if the facility has been in 
operation for less than three years (other than discharges as described 
in Sec.  112.1(b) that are the result of natural disasters, acts of 
war, or terrorism).
    5. Revise Sec.  112.6 to read as follows:


Sec.  112.6  Qualified Facilities Plan Requirements.

    Qualified facilities meeting the Tier I applicability criteria in 
Sec.  112.3(g)(1) are subject to either all of the requirements in 
paragraph (a) of this section or all of the requirements in paragraph 
(b) of this section. Facilities meeting the Tier II applicability 
criteria in Sec.  112.3(g)(2) are subject to the requirements in 
paragraph (b) of this section.
    (a) Tier I Qualified Facilities--(1) Preparation and Self-
Certification of the Plan. If you are an owner or operator of a 
facility that meets the Tier I qualified facility criteria in Sec.  
112.3(g)(1), you may choose to prepare an SPCC Plan that meets the 
requirements of paragraph (a)(3) of this section to serve as the Plan 
for your facility, instead of preparing a Plan meeting requirements of 
paragraph (b) of this section or the general Plan requirements in Sec.  
112.7 and applicable requirements in subparts B and C of this part, 
including having the Plan certified by a Professional Engineer as 
required under Sec.  112.3(d). The template in Appendix G to this part 
has been developed to meet the requirements of 40 CFR part 112 and must 
be used as the SPCC Plan. To complete the template in Appendix G, you 
must certify that:
    (i) You are familiar with the applicable requirements of 40 CFR 
part 112;
    (ii) You have visited and examined the facility;
    (iii) You prepared the Plan in accordance with accepted and sound 
industry practices and standards;
    (iv) Procedures for required inspections and testing have been 
established in accordance with industry inspection and testing 
standards or recommended practices;
    (v) You will fully implement the Plan;
    (vi) The facility meets the qualification criteria in Sec.  
112.3(g)(1);
    (vii) The Plan does not deviate from any requirement of this part 
as allowed by 112.7(a)(2) and 112.7(d); and
    (viii) The Plan and individual(s) responsible for implementing this 
Plan have the approval of management, and the facility owner or 
operator has committed the necessary resources to fully implement this 
Plan.
    (2) Technical Amendments. You must certify any technical amendments 
to your Plan in accordance with paragraph (a)(1) of this section when 
there is a change in the facility design, construction, operation, or 
maintenance that affects its potential for a discharge as described in 
Sec.  112.1(b). If the facility change results in the facility no 
longer meeting the Tier I qualifying criteria in Sec.  112.3(g)(1) 
because an individual oil storage container capacity exceeds 5,000 U.S. 
gallons or the facility capacity exceeds 10,000 gallons in aggregate 
aboveground storage capacity, within six months following preparation 
of the amendment, you must either:
    (i) Prepare and implement a Plan in accordance with Sec.  112.6(b) 
if you meet the Tier II qualified facility criteria in Sec.  
112.3(g)(2), or
    (ii) Prepare and implement a Plan in accordance with the general 
Plan requirements in Sec.  112.7, and applicable requirements in 
subparts B and C of this part, including having the Plan certified by a 
Professional Engineer as required under Sec.  112.3(d).
    (3) Plan Template and Applicable Requirements. The following 
requirements under Sec.  112.7 and in subparts B and C of this part 
apply to qualified Tier I facilities choosing the self-certification 
Tier I option: Sec. Sec.  112.7(a)(3)(i), 112.7(a)(3)(iv), 
112.7(a)(3)(vi), 112.7(a)(4), 112.7(a)(5), 112.7(c), 112.7(e), 
112.7(f), 112.7(g), 112.7(k), 112.8(b)(1), 112.8(b)(2), 112.8(c)(1), 
112.8(c)(3), 112.8(c)(4), 112.8(c)(5), 112.8(c)(6), 112.8(c)(10), 
112.8(d)(4), 112.9(b), 112.9(c), 112.9(d)(1), 112.9(d)(3), 112.9(d)(4), 
112.10(b), 112.10(c), 112.10(d), 112.12(b)(1), 112.12(b)(2), 
112.12(c)(1), 112.12(c)(3), 112.12 (c)(4), 112.12(c)(5), 112.12(c)(6), 
112.12(c)(10), and 112.12(d)(4). Additionally, you must meet the 
following requirements:
    (i) Failure analysis, in lieu of the requirements in Sec.  
112.7(b). Where experience indicates a reasonable potential for 
equipment failure (such as loading or unloading equipment, tank 
overflow, rupture, or leakage, or any

[[Page 58429]]

other equipment known to be a source of discharge), include in your 
Plan a prediction of the direction and total quantity of oil which 
could be discharged from the facility as a result of each type of major 
equipment failure.
    (ii) Bulk storage container secondary containment, in lieu of the 
requirements in Sec. Sec.  112.8(c)(2) and (c)(11) and 112.12(c)(2) and 
(c)(11). Construct all bulk storage container installations, including 
mobile or portable oil storage containers, so that you provide a 
secondary means of containment for the entire capacity of the largest 
single container plus additional capacity to contain precipitation. 
Dikes, containment curbs, and pits are commonly employed for this 
purpose. You may also use an alternative system consisting of a 
drainage trench enclosure that must be arranged so that any discharge 
will terminate and be safely confined in a catchment basin or holding 
pond. Position or locate mobile or portable oil storage containers to 
prevent a discharge as described in Sec.  112.1(b).
    (iii) Overfill prevention, in lieu of the requirements in 
Sec. Sec.  112.8(c)(8) and 112.12(c)(8). Ensure that each container is 
provided with a system or documented procedure to prevent overfills of 
the container, describe the system or procedure in the SPCC Plan and 
regularly test to ensure proper operation or efficacy.
    (b) Tier II Qualified Facilities--(1) Preparation and Self-
Certification of Plan. If you are the owner or operator of a facility 
that meets the Tier II qualified facility criteria in Sec.  
112.3(g)(2), you may choose to self-certify your Plan. You must certify 
in the Plan that:
    (i) You are familiar with the requirements of this part;
    (ii) You have visited and examined the facility;
    (iii) The Plan has been prepared in accordance with accepted and 
sound industry practices and standards, and with the requirements of 
this part;
    (iv) Procedures for required inspections and testing have been 
established;
    (v) You will fully implement the Plan;
    (vi) The facility meets the qualification criteria set forth under 
Sec.  112.3(g)(2);
    (vii) The Plan does not deviate from any requirement of this part 
as allowed by Sec.  112.7(a)(2) and 112.7(d), except as provided in 
paragraph (b)(3) of this section; and
    (viii) The Plan and individual(s) responsible for implementing the 
Plan have the full approval of management and the facility owner or 
operator has committed the necessary resources to fully implement the 
Plan.
    (2) Technical Amendments. If you self-certify your Plan pursuant to 
(b)(1) of this section, you must certify any technical amendments to 
your Plan in accordance with paragraph (b)(1) of this section when 
there is a change in the facility design, construction, operation, or 
maintenance that affects its potential for a discharge as described in 
Sec.  112.1(b), except:
    (i) If a Professional Engineer certified a portion of your Plan in 
accordance with paragraph (b)(4) of this section, and the technical 
amendment affects this portion of the Plan, you must have the amended 
provisions of your Plan certified by a Professional Engineer in 
accordance with paragraph (b)(4)(ii) of this section.
    (ii) If the change is such that the facility no longer meets the 
Tier II qualifying criteria in Sec.  112.3(g)(2) because it exceeds 
10,000 gallons in aggregate aboveground storage capacity you must, 
within six months following the change, prepare and implement a Plan in 
accordance with the general Plan requirements in Sec.  112.7 and the 
applicable requirements in subparts B and C of this part, including 
having the Plan certified by a Professional Engineer as required under 
Sec.  112.3(d).
    (3) Applicable Requirements. Except as provided in this 
subparagraph, your 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. Your Plan may not include alternate 
methods which provide environmental equivalence pursuant to Sec.  
112.7(a)(2), unless each alternate method has been reviewed and 
certified in writing by a Professional Engineer, as provided in 
paragraph (b)(4) of this section.
    (ii) Impracticability. Your Plan may not include any determinations 
that secondary containment is impracticable and provisions in lieu of 
secondary containment pursuant to Sec.  112.7(d), unless each such 
determination and alternate measure has been reviewed and certified in 
writing by a Professional Engineer, as provided in paragraph (b)(4) of 
this section.
    (4) Professional Engineer Certification of Portions of a Qualified 
Facility's Self-certified Plan. As described in paragraph (b)(3) of 
this section, the facility owner or operator may not self-certify 
alternative measures allowed under Sec.  112.7(a)(2) or (d), that are 
included in the facility's Plan. Such measures must be reviewed and 
certified, in writing, by a licensed Professional Engineer as follows:
    (i) For each alternative measure allowed under Sec.  112.7(a)(2), 
the Plan must be accompanied by a written statement by a Professional 
Engineer that states the reason for nonconformance and describes the 
alternative method and how it provides equivalent environmental 
protection in accordance with Sec.  112.7(a)(2). For each determination 
of impracticability of secondary containment pursuant to Sec.  
112.7(d), the Plan must clearly explain why secondary containment 
measures are not practicable at this facility and provide the 
alternative measures required in Sec.  112.7(d) in lieu of secondary 
containment.
    (ii) By certifying each measure allowed under Sec.  112.7(a)(2) and 
(d), the Professional Engineer attests:
    (A) That he is familiar with the requirements of this part;
    (B) That he or his agent has visited and examined the facility; and
    (C) That the alternative method of environmental equivalence in 
accordance with Sec.  112.7(a)(2) or the determination of 
impracticability and alternative measures in accordance with Sec.  
112.7(d) is consistent with good engineering practice, including 
consideration of applicable industry standards, and with the 
requirements of this part.
    (iii) The review and certification by the Professional Engineer 
under this paragraph is limited to the alternative method which 
achieves equivalent environmental protection pursuant to Sec.  
112.7(a)(2) or to the impracticability determination and measures in 
lieu of secondary containment pursuant to Sec.  112.7(d).
    6. Amend Sec.  112.7 as follows:
    a. By revising paragraphs (a)(3) introductory text and (a)(3)(i).
    b. By revising paragraphs (c) introductory text and (c)(1).
    c. Revising paragraph (g).
    d. Revising paragraphs (h) introductory text, (h)(1) and (h)(2).


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

* * * * *
    (a) * * *
    (3) Describe in your Plan the physical layout of the facility and 
include a facility diagram, which must mark the location and contents 
of each fixed oil storage container and the storage area where mobile 
or portable containers are located. The facility diagram must include 
completely buried tanks that are otherwise exempted from the 
requirements of this part under Sec.  112.1(d)(4). The facility diagram 
must also include all transfer stations and

[[Page 58430]]

connecting pipes. You must also address in your Plan:
    (i) The type of oil in each fixed container and its storage 
capacity. For mobile or portable containers, either provide the type of 
oil and storage capacity for each container or provide an estimate of 
the potential number of mobile or portable containers, the types of 
oil, and anticipated storage capacities;
* * * * *
    (c) Provide appropriate containment and/or diversionary structures 
or equipment to prevent a discharge as described in Sec.  112.1(b), 
except for flowlines and intra-facility gathering lines at an oil 
production facility, and 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, will not escape the 
containment system before cleanup occurs. In determining the method, 
design, and capacity for secondary containment, you need only to 
address the typical failure mode, and the most likely quantity of oil 
that would be discharged. Secondary containment may be either active or 
passive in design. At a minimum, you must use one of the following 
prevention systems or its equivalent:
    (1) For onshore facilities:
    (i) Dikes, berms, or retaining walls sufficiently impervious to 
contain oil;
    (ii) Curbing or drip pans;
    (iii) Sumps and collection systems;
    (iv) Culverting, gutters, or other drainage systems;
    (v) Weirs, booms, or other barriers;
    (vi) Spill diversion ponds;
    (vii) Retention ponds; or
    (viii) Sorbent materials.
* * * * *
    (g) Security (excluding oil production facilities). Describe in 
your Plan how you secure and control access to the oil handling, 
processing and storage areas; secure master flow and drain valves; 
prevent unauthorized access to starter controls on oil pumps; secure 
out-of-service and loading/unloading connections of oil pipelines; 
address the appropriateness of security lighting to both prevent acts 
of vandalism and assist in the discovery of oil discharges.
    (h) Facility tank car and tank truck loading/unloading rack 
(excluding offshore facilities, farms, and oil production facilities). 
(1) Where loading/unloading rack drainage does not flow into a 
catchment basin or treatment facility designed to handle discharges, 
use a quick drainage system for tank car or tank truck loading/
unloading racks. You must design any containment system to hold at 
least the maximum capacity of any single compartment of a tank car or 
tank truck loaded or unloaded at the facility.
    (2) Provide an interlocked warning light or physical barrier 
system, warning signs, wheel chocks or vehicle brake interlock system 
in the area adjacent to a loading/unloading rack, to prevent vehicles 
from departing before complete disconnection of flexible or fixed oil 
transfer lines.
* * * * *

Subpart B--[Amended]

    7. Amend Sec.  112.8 by revising paragraph (c)(6) to read as 
follows:


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

* * * * *
    (c) * * *
    (6) Test or inspect each aboveground container for integrity on a 
regular schedule and whenever you make material repairs. You must 
determine, in accordance with industry standards, the appropriate 
qualifications for personnel performing tests and inspections, the 
frequency and type of testing and inspections, which take into account 
container size, configuration, and design (e.g., containers that are: 
shop-built, field-erected, skid-mounted, elevated, equipped with a 
liner, double-walled, or partially buried). Examples of these integrity 
tests include, but are not limited to: visual inspection, hydrostatic 
testing, radiographic testing, ultrasonic testing, acoustic emissions 
testing, or other systems of non-destructive testing. You must keep 
comparison records and you must also inspect the container's supports 
and foundations. In addition, you must frequently inspect the outside 
of the container for signs of deterioration, discharges, or 
accumulation of oil inside diked areas. Records of inspections and 
tests kept under usual and customary business practices satisfy the 
recordkeeping requirements of this paragraph (c)(6).
* * * * *
    8. Amend Sec.  112.9 as follows:
    a. By revising the section heading.
    b. By revising the introductory text.
    c. By revising paragraphs (c)(2) and (c)(3).
    d. By adding paragraph (c)(5).
    e. By revising paragraph (d)(3).
    f. By adding paragraph (d)(4).


Sec.  112.9  Spill Prevention, Control, and Countermeasure Plan 
Requirements for onshore oil production facilities (excluding drilling 
and workover facilities).

    If you are the owner or operator of an onshore oil production 
facility (excluding a drilling or workover facility), you must:
* * * * *
    (c) * * *
    (2) Construct all tank battery, separation, and treating facility 
installations, except for flow-through process vessels, so that you 
provide a secondary means of containment for the entire capacity of the 
largest single container and sufficient freeboard to contain 
precipitation.
    You must safely confine drainage from undiked areas in a catchment 
basin or holding pond.
    (3) Except for flow-through process vessels, periodically and upon 
a regular schedule visually inspect each container of oil for 
deterioration and maintenance needs, including the foundation and 
support of each container that is on or above the surface of the 
ground.
* * * * *
    (5) Flow-through process vessels. (i) In lieu of the requirements 
in paragraph (c)(3) of this section, periodically and on a regular 
schedule visually inspect and/or test flow-through process vessels and 
associated components (e.g., dump valves) for leaks, corrosion, or 
other conditions that could lead to a discharge as described in Sec.  
112.1(b).
    (ii) Take corrective action or make repairs to flow-through process 
vessels and any associated components as indicated by regularly 
scheduled visual inspections, tests, or evidence of an oil discharge.
    (iii) Promptly remove any accumulations of oil discharges 
associated with flow-through process vessels.
    (iv) If your facility discharges more than 1,000 U.S. gallons of 
oil in a single discharge as described in Sec.  112.1(b), or discharges 
more than 42 U.S. gallons of oil in each of two discharges as described 
in Sec.  112.1(b) within any twelve month period, from flow-through 
process vessels (excluding discharges that are the result of natural 
disasters, acts of war, or terrorism) then you must, within six months 
from the time the facility becomes subject to this paragraph, provide 
flow-through process vessels with a secondary means of containment for 
the entire capacity of the largest single container and sufficient 
freeboard to contain precipitation.
    (d) * * *
    (3) For flowlines and intra-facility gathering lines, unless you 
have

[[Page 58431]]

submitted a response plan under Sec.  112.20, provide in your Plan the 
following:
    (i) An oil spill contingency plan following the provisions of part 
109 of this chapter.
    (ii) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that might be harmful.
    (4) Prepare and implement a written program of flowline/intra-
facility gathering line maintenance. The maintenance program must 
address your procedures to:
    (i) Ensure that flowlines and intra-facility gathering lines and 
associated valves and equipment must be compatible with the type of 
production fluids, their potential corrosivity, volume, and pressure, 
and other conditions expected in the operational environment.
    (ii) Visually inspect and/or test flowlines and intra-facility 
gathering lines and associated appurtenances on a periodic and regular 
schedule for leaks, oil discharges, corrosion, or other conditions that 
could lead to a discharge as described in Sec.  112.1(b). The frequency 
and type of testing must allow for the implementation of a contingency 
plan as described under part 109 of this chapter.
    (iii) Take corrective action or make repairs to any flowlines and 
intra-facility gathering lines and associated appurtenances as 
indicated by regularly scheduled visual inspections, tests, or evidence 
of a discharge.
    (iv) Promptly remove any accumulations of oil discharges associated 
with flowlines, intra-facility gathering lines, and associated 
appurtenances.

Subpart C--[Amended]

    9. Amend Sec.  112.12 by revising the introductory text and 
paragraph (c)(6) to read as follows:


Sec.  112.12  Spill Prevention, Control, and Countermeasure Plan 
Requirements.

    If you are the owner or operator of an onshore facility, you must:
* * * * *
    (c) * * *
    (6) Bulk storage container inspections. (i) Except for containers 
that meet the criteria provided in paragraph (c)(6)(ii) of this 
section, test or inspect each aboveground container for integrity on a 
regular schedule and whenever you make material repairs. You must 
determine, in accordance with industry standards, the appropriate 
qualifications for personnel performing tests and inspections, the 
frequency and type of testing and inspections, which take into account 
container size, configuration, and design (e.g., containers that are: 
shop-built, field-erected, skid-mounted, elevated, equipped with a 
liner, double-walled, or partially buried). Examples of these integrity 
tests include, but are not limited to: visual inspection, hydrostatic 
testing, radiographic testing, ultrasonic testing, acoustic emissions 
testing, or other systems of non-destructive testing. You must keep 
comparison records and you must also inspect the container's supports 
and foundations. In addition, you must frequently inspect the outside 
of the container for signs of deterioration, discharges, or 
accumulation of oil inside diked areas. Records of inspections and 
tests kept under usual and customary business practices satisfy the 
recordkeeping requirements of this paragraph.
    (ii) For bulk storage containers that are subject to 21 CFR part 
110, are elevated, constructed of austenitic stainless steel, have no 
external insulation, and are shop-fabricated, conduct formal visual 
inspection on a regular schedule. In addition, you must frequently 
inspect the outside of the container for signs of deterioration, 
discharges, or accumulation of oil inside diked areas. You must 
determine and document in the Plan the appropriate qualifications for 
personnel performing tests and inspections. Records of inspections and 
tests kept under usual and customary business practices satisfy the 
recordkeeping requirements of this paragraph (c)(6).
* * * * *
    10. Add Appendix G to part 112 to read as follows:

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[FR Doc. E7-19701 Filed 10-12-07; 8:45 am]

BILLING CODE 6560-50-C
