COMMENT AND RESPONSE DOCUMENT 

Oil Pollution Prevention; SPCC Plan Requirements - Amendments

40 CFR Part 112

November 20, 2008

U.S. Environmental Protection Agency

Office of Emergency Management

INTRODUCTION

Purpose of This Document

The purpose of this document is to provide complete responses to
comments on the 2007 proposed rule (40 CFR part 112) to revise the Oil
Pollution Prevention and Response rule, also known as the Spill
Prevention, Control, and Countermeasure (SPCC) rule (40 CFR part 112),
promulgated under the Clean Water Act.  

Organization of This Comment and Response Document

To develop this document, EPA reviewed the submissions made to public
docket number EPA-HQ-OPA-2007-0584.  EPA organized the submission
comments based on the topics they addressed in the proposed rule, which
had been published in the Federal Register on October 15, 2007 (72 FR
198).  Comments submitted to the public docket for this rulemaking
appear in their entirety at http://www.regulations.gov, identified by
Docket number “EPA-HQ-OPA-2007-0584.”

EPA organized the comments into general categories and subcategories,
and responds to each in turn.  Several comment excerpts are provided, in
addition to responses for each major issue.  In most cases, comment
excerpts that simply state support for the proposed revisions are not
included.  Instead, the Docket Number of each submission is listed in
parentheses in the Comments section for each category addressed. The
Docket Number was assigned to each submission by the Federal Docket
Management System (FDMS) based on the date the submission was received.

The comment excerpts that are included in this document are taken
verbatim from the submissions received by the Federal Docket Management
System.  Comments that make similar statements are grouped and one
response is provided for the group.  EPA responds to the remaining
comments individually.

EPA also received comments that addressed issues outside the scope of
the proposed rule and the associated request for comment.  While EPA
appreciates and will consider these comments, EPA will not respond to
them in this document. 

The following table lists all comments received by the Federal Docket
Management System for docket EPA-HQ-OPA-2007-0584.  The Document Number,
assigned by FDMS to each comment, begins with 19 because other types of
documents were included in the docket prior to the docket posting the
first public comment.  The table also lists each commenter’s name and
the organization with which the commenter claims affiliation, if
provided.  Multiple signatories to a single document are listed in the
last column.

The following table lists all comments received by the Federal Docket
Management System for docket EPA-HQ-OPA-2007-0584.  

FDMS ID	First Name	Last Name	Organization

19	J.	Bargmann	 

22	Robert	McCrary	Clemson University

23	Brad	Rodgers	FMSM Engineers, Inc.

24	Kaara	Smith	Dove Environmental Management

25	Brad	Rodgers	FMSM Engineers, Inc.

26	Brad	Rodgers	FMSM Engineers, Inc.

27	Anonymous	Anonymous	 

28	Brad	Rodgers	FMSM Engineers, Inc.

29	William	Decker	Environmental Business Partners, LLC

30	Robert	Garfield	Food Industry Environmental Council

31	G.H.	Holliday	Holliday Environmental Services, Inc.

32	S.	Douglas	 

33	E.	Douglas	 

34	S. 	Wolf	 

35	S. 	Wolf	 

36	G.	Hibbs	 

37	Robert	Tadsen	The Fertilizer Institute

38	Keith	Epperson	American Feed Industry Association

39	Devin S.	Hodge	Argonne National Laboratory

40	Gary	LeMoine	PPM Energy

41	L.	Nickell	 

42	Jon	Joyce	First Electric Cooperative Corporation (FECC)

43	Pamela F.	Faggert	Dominion Resources Services, Inc.

44	John	Rodgers	Nodak Electric Cooperative

45	Douglas R.	Busdeker	The Andersons, Inc.

46	Ryan G.	Dolan	Vorys, Sater, Seymour and Pease LLP

47	Renee	Pinel	Western Plant Health Association (WPHA)

48	Mark	Haagenstad	Los Alamos National Security, LLC

49	Jimmie	Walker	Helena Chemical Company

50	Clay	Detlefsen	International Dairy Foods Association

51	Glenn	Roberts	Flavor and Extract Manufacturers Assocation of the
United States

52	Robert H.	Wills, Jr.	Crucible Specialty Metals Corp.

53	James M.	Loar	Wilbur-Ellis Company

54	L. Davis	Phaup, III	Old Dominion Electric Cooperative

55	John P.	Campbell	First Light Power Resources

56	Steve	Hensley	USA Rice

57	Ross	Wilson	Texas Cattle Feeders Association

58	Jackie	Klippenstein	Agriculture Coalition on the Spill Prevention,
Control and Countermeasure rule

59	Allan	Oracion	EnergyUnited

60	Clayton	Huseman	Kansas Livestock Association

61	Douglas	Greenhaus	National Automobile Dealers Association

62	Steve	Patterson	Southern States Cooperative

63	Mike	Roddy	Seminole Electric Cooperative, Inc.

64	Gus	Aljure	Washington Closure Hanford LLC

65	Donald	Schregardus	Department of Navy (Installations and Environment)

66	Patrick	Flowers	Xcel Energy, Inc.

67	Steve	Hensley	USA Rice Federation

68	Robert	Looney	CHS Inc

69	Anonymous	 	 

70	Steven	Jarvis	Forest Resources Association

71	Gus	Aljure	Washington Closure Hanford LLC

72	David 	Darling	National Paint & Coatings Association

73	Mark	Dopp	American Meat Institute

74	Jessica	Steinhilber	Airports Council International - North America

75	Mickey	Carter	ConocoPhillips

76	Gregory	Russell	Ohio Oil and Gas Association

77	James 	Stine	National Rural Electric Cooperative Association

78	Pamela A.	Lacey	American Gas Association

79	Wade	Moser	North Dakota Stockmen's Association

80	Ralph	Andersen	Nuclear Energy Institute

81	James	Hodgens	 

82	James	Hodgens	Hodgens Engineering Service

83	David 	Case	Environment Technology Council

84	Daniel	Moss	Synthetic Organic Chemical Manufacturers Assocation
(SOCMA)

85	Angie	Burckhalter	Oklahoma Independent Petroleum Association (OIPA)

86	Lee	Fuller	Independent Petroleum Association of America (IPAA) and
multiple signatories

87	Henry	Hamanishi	J.R. Simplot Company

88	Terry	Behrman	Alliance of Automobile Manufacturers

89	Steven	Crockett	US Nuclear Regulatory Commission

90	Robert	Garfield	Food Industry Environmental Council

91	J.P.	Blackford	American Public Power Assocation

92	Jerry 	Schwarts	American Forest and Paper Association

93	Michael 	Fusco	Safety Kleen

94	John 	Robitaille	Petroleum Assocation of Wyoming

95	Douglas 	Fulle	Oglethorpe Power Corporation

96	James 	Slutz	US Department of Energy

97	James 	Boswell	Peabody Energy

98	James	Thrift	Agricultural Retailers Association

99	Guy	Gockley	First Energy

100	Anda	Ray	Tennessee Valley Authority

101	Shirley	Neff	Association of Oil Pipelines

102	Keith	Epperson	American Feed Industry Association

103	Nicholas 	DeMarco	West Virginia Oil and Natural Gas Association

104	Jackie	Klippenstein	Agriculture Coalition on the Spill Prevention,
Control and Countermeasure rule

105	Charlie	Burd	Independent Oil and Gas Association of West Virginia,
Inc. (IOGA)

106	Timothy	Couch	Indiana Statewide Association of Rural Electric
Cooperatives Regulatory Program 

107	Ken	Nobis	Michigan Milk Producers Association

108	William	Whitsitt	American Exploration and Production Council (AXPC)

109	Craig	Head	Nebraska Farm Bureau Federation

110	Jeff	Spillyards	Entergy Services, Inc.

111	Roger	Claff	American Petroleum Institute

112	Nancy	Young	Air Transport Association

113	Michael 	Walls	American Chemistry Council

114	Douglas	Greenhaus	National Automobile Dealers Association

115	Jim	Magagna	Wyoming Stock Growers Association

116	Mickey	Carter	ConocoPhillips

117	Michael 	Walls	American Chemistry Council

118	 	 	Natural Resources Defense Council; Sierra Club; Earthjustice

119	Jerrald	Moore	Georgia Transmission

120	Multiple Signatories	Multiple Signatories	On behalf of the dairy
industry, the National Milk Producers Federation, the National Council
of Farmer Cooperatives and other dairy interests

121	Jon	Devine	Utility Solid Waste Activities Group (USWAG)

122	Adam	Haynes	Texas Independent Producers and Royalty Owners
Assocation

123	Leslie	Savage	The Railroad Commission of Texas

124	David L.	Wagger	Institute of Scrap Recycling Industries, Inc.

125	James	Hadley	 

126	David	Fairfield	National Grain and Feed Association, Grain Elevator
Processing Society

127	Justin	Massey	Trustees for Alaska

128	T. Mayes	Starke	Georgia-Pacific Corporation, LLC

129	Lori	Wrotenbery	Oil and Gas Conservation Division, Oklahoma
Corporation Commission

130	Leslie	Kaufman	Kansas Cooperative Council

131	R. Gary	Fore	National Aslphalt Pavement Association

132	 	 	 

133	Mark	Bohrer	North Dakota Industrial Commission, Oil and Gas Division

134	Steve	Lomax	Corn Refiners Association

135	 	 	 

136	 	 	 

137	Stephanie	Olson	Marathon Oil Company

138	Justin	Massey	Trustees for Alaska

139	Merrill E.	Bishop	Trans Environmental Systems, Inc.

140	 	 	 

141	Anne	Coan	The North Carolina Farm Bureau Federation 

142	Leah F.	Pilconis	The Associated General Contractors of America

143	Jeffrey	Leiter	The Independent Lubricant Manufacturers Association 

144	 	 	Alaska Wilderness League

145	 	 	 

146	Jean	Cameron	Oil Spill Task Force

147	Allan 	Oracion	EnergyUnited

148	Bobby	Davis	 

149	Bobby 	Davis	 

150	Stephanie	Reid	New Mexico Oil and Gas Association

151	Anthony 	Grieggs	Los Alamos National Laboratory

152	Heidi 	McKenzie	Ford Motor Company

153	Debbie	Hastings	Texas Oil and Gas Association

154	Tammie 	Candelario	Pacific Gas Electric Company

155	Ram	Singhal	Flexible Packaging Association

156	Sullivan D.	Curran	Fiberglass Tank & Pipe Institute

157	David E.	Ziarnik	Adams-Columbia Electric Cooperative

158	Gerry	Baker	Interstate Oil & Gas Compact Commission

159	Deborah A. 	Boyle	Oncor Electric Delivery

160	Curtis	Trivitt	CoServ Electric

161	Chad	Kirkpatrick	Fort Loudon Electric Cooperative

I. Hot-mix Asphalt

Issue: EPA proposed to exempt hot-mix asphalt (HMA) from the SPCC
requirements but would continue to regulate asphalt cement (AC), asphalt
emulsions, and cutbacks, which are not HMA.

COMMENTS

Support Proposal

Generally Support. Several commenters expressed general support for the
proposed exemption. (72, 75, 111, 113, 131, 142)

Oppose Proposal

No comments were submitted on this topic.

Alternative Approaches

Extend exemption to all solid or non-flowing materials. One commenter
suggested that the exemption should be extended to whenever oil has been
mixed with material that will make the mixture unlikely to flow: oil
mixed with sorbents, jelled oils, etc. The commenter believes that oils
and other similar materials which are solids in storage would not pose a
threat and should be exempt from SPCC applicability just as Hot-Mix .
The commenter also stated that the additional recordkeeping and
inspection requirements imposed by including materials that cannot flow
in an SPCC Plan is not justified by any protection provided to the
environment. That commenter went on to suggest “[t]he language in the
regulation should be changed to reflect that any material stored in a
solid or otherwise non-flowing state should not be counted towards the
facility oil storage capacity.” (113) 

Another commenter suggested extending the exemption to other Group 5
oils, arguing that with specific gravities greater than or equal to 1.0,
these products are solids or highly viscous at ambient temperature. The
commenter added that a discharge of one of these products does not have
the same results as a discharge of a Group 1 through Group 4 oil as it
would generally be contained in the immediate vicinity of the container.
The commenter recommended, at minimum, that EPA exempt these oils from
sized secondary containment and integrity testing requirements. (111) 

	One commenter suggested extension of this exemption to all waxes since
they are unlikely to reach navigable waters or adjoining shorelines and
pose minimal risk of environmental harm.  The commenter also requested
that EPA confirm that waxes used in the flexible packaging industry are
not classified as oils for SPCC purposes. (155)  Another commenter
suggested exempting paraffin wax due to its chemical and physical
properties that vary from other petroleum or oil products regulated
under 40 CFR 112.  The commenter contends that paraffin wax has an oil
content less than one percent when fully refined, is solid at
temperatures less than 120 degrees F and solidifies quickly when
spilled.  The commenter further contends that the wax is non-toxic and
not a contamination threat. (92)

One commenter recommended “a modification to the rule that would also
allow the Professional Engineer (P.E.), utilizing good engineering
judgment, to exempt certain asphalt cement in bulk storage which, if
released from its primary container, would not reach navigable water.
This modification to the rule would ease the burden of providing full
SPCC compliance for asphalt cement that is a solid at ambient
temperature. At a minimum, these asphalt cement containers should be
exempt from the integrity testing and sized secondary containment
requirements.” (75)

	One commenter suggested, “[t]he language in the regulation should be
changed to reflect that any material stored in a solid or otherwise
non-flowing state should not be counted towards the facility oil storage
capacity.” (113) 

Commenters suggested that EPA clarify that containers storing or holding
solid-at-ambient-temperature AFVOs are exempt from the rule’s
requirements when there is not a reasonable expectation that the AFVOs
in such containers would discharge to navigable water or adjoining
shorelines.  (51,126)

One commenter requested that EPA clarify what is an oil for purposes of
SPCC applicability. (72)

Extend exemption to all asphalt cement containers at HMA mix plant
sites. One commenter stated that the HMA Industry does not agree that
asphalt cement (AC), under ordinary circumstance, represents a
significant threat to the environment as stored on HMA Mix Plant sites.
The commenter added that the spill record simply does not support such
conclusion and that it is not likely that such spill, if it did occur,
would either contribute to sheen or to a contravention of water quality
standards. The commenter thought it would seem logical to exempt AC
storage at HMA plant sites from secondary containment provisions of SPCC
regulation. Should EPA not agree with this exemption logic, the
commenter’s request would be that the language in §112.7 relating to
the requirement for secondary containment specifically allow latitude
for site specific good engineering judgment in the use of equivalent
protection measures relating to containment of any potential spills from
AC storage at HMA plant facilities. The commenter continued that such
judgment would take into account the potential for a sizeable spill
event, the viscous properties of asphalt cement, the nature of the
terrain, the distance from a navigable water and the presence of already
existing barriers to spills such as existing storm water retention
structures, manmade channels and holding areas to allow time for set-up,
dirt or aggregate berms, along with the ready availability of
containment equipment. (131)

One commenter requested that EPA exempt AC from the SPCC rule and
exclude the capacity of AC storage tanks from the determination of a
facility’s total oil storage capacity on the basis of its
“’self-containing’” properties, low risk of a spill to navigable
waters and the absence of data on harm. (142)

No exemption for oils associated with asphalt production. One commenter
requested that EPA clarify that any oils associated with asphalt
production be regulated if their total volume exceeds 1,320 gallons.
(48)

Applicability of rule based on reasonable expectation of discharge. A
commenter also urged EPA to “redact the previously noted statement
made in its Federal Register notice that ‘…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.’” (126)

RESPONSE

Support Proposal

Generally Support.  EPA agreed with the commenters and is finalizing the
exemption for HMA, as proposed.

Alternative Approaches

Extend exemption to all solid or non-flowing materials. EPA disagrees
with commenters who requested that the Agency consider extending the
proposed HMA exemption to oils (including asphalt cement) which
commenters believe are unlikely to flow at ambient temperatures. Unlike
HMA, these materials do have the potential to discharge into navigable
waters or adjoining shorelines. Additionally because these oils are
often stored at elevated temperatures and thus, are capable of flowing
if there is a discharge from the container.  As stated in the proposal
EPA believes that the threat that asphalt cement, as well as other
semi-solid oils including waxes, pose to navigable waters and adjoining
shorelines can be effectively addressed by implementing the procedures
and measures required under the SPCC, therefore, EPA did not propose an
exemption. Additionally no new data was provided by commenters which
convinced EPA to take action beyond HMA. More importantly since EPA did
not propose an exemption for oils other than HMA, expanding the
exemption is outside the scope of the proposal.

However, it should be noted that the SPCC rule only applies to
facilities that, due to their location, can reasonably be expected to
discharge oil to navigable waters or adjoining shorelines. In
determining whether there is a reasonable expectation of discharge, an
owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. If a facility owner or
operator determines that there is a reasonable expectation to discharge
oil to navigable waters or adjoining shorelines from any single oil
container (including a container storing oil associated with hot-mix
asphalt production), and other rule applicability criteria are met, then
all oil containers at the facility are subject to the rule’s
requirements (except as otherwise exempted).  The Agency disagrees that
any additional regulatory modifications are necessary.  

EPA disagrees with commenters who recommended that EPA exempt AC or
Group 5 oils from sized secondary containment and integrity testing
requirements. EPA believes that 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 (§112.7(c)) and diked areas are sufficiently impervious
to contain the oil (§112.8(c)(2) and §112.12(c)(2)). Therefore, the
flow properties of Group 5 oils 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.

	A commenter requested that EPA clarify what is an oil for purposes of
SPCC applicability. Oil as defined in 40 CFR 112.2, means oil of any
kind or in any form, including, but not limited to: fats, oils, or
greases of animal, fish, or marine mammal origin; vegetable oils,
including oils from seeds, nuts, fruits, or kernels; and, other oils and
greases, including petroleum, fuel oil, sludge, synthetic oils, mineral
oils, oil refuse, or oil mixed with wastes other than dredged spoil. 
The above definition includes, but is not limited to, asphalt cement and
other solid or semi-solid oils, such as paraffin wax and heavy bunker
fuels. Because of the operational conditions under which solid or
semi-solid oils are used and stored, they pose a risk of being
discharged into or upon navigable waters or adjoining shorelines.

Extend exemption to all asphalt cement containers at HMA mix plant
sites. The Agency disagrees with the commenters’ requests to exempt AC
from the SPCC rule. 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. Therefore, all of these oils are
regulated under the SPCC rule.

EPA disagrees with the commenter(s) who believes the lack of spill data
is a reason to exempt heavy oils. The SPCC regulations address a
facility’s reasonable expectation of an oil discharge in quantities
that may be harmful to navigable waters and adjoining shorelines.  The
lack of spill data for facilities that are in compliance with SPCC
regulations is an indicator that the spill prevention regulations may be
effective.

EPA disagrees with commenters who believe that the SPCC requirements for
certain oils should be differentiated based on an oil’s toxicity. 
Irrespective of oil toxicity, discharges of oil in such quantities that
may be harmful are described in 40 CFR 110.3 to include discharges of
oil that violate applicable water quality standards, or cause a film or
sheen upon or discoloration of the surface of the water or adjoining
shorelines or cause a sludge or emulsion to be deposited beneath the
surface of the water or upon adjoining shorelines. EPA is also concerned
about the physical effects of oil spills such as smothering of habitat,
clogging of fish gills, and destruction of the benthic community that
can happen when heavy oils such as AC sink to the bottom of a water body
and come into contact with fish.

No exemption for oils associated with asphalt production.

The Agency agrees that oils associated with hot mix asphalt production,
including asphalt cement, are regulated under SPCC if the facility meets
the applicability requirements in § 112.1, which includes the storage
capacity threshold.  .

Applicability of rule based on reasonable expectation of discharge. EPA
disagrees with the commenter who suggested that EPA redact the
previously noted statement made in its Federal Register notice that
‘…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, except as otherwise
exempted. The applicability of the SPCC regulation is based on a
determination that a reasonable expectation of discharge of oil in
quantities that may be harmful to navigable waters or adjoining
shorelines can occur from the facility.  



Ii. Farms

II.A  	Exemption for Pesticide Application Equipment and Related Mix
Containers

Issue: EPA proposed to exempt pesticide application equipment and
related mix containers used at farms that may currently be subject to
the SPCC rule when crop or adjuvant oil is added to formulations
requirements.  EPA also proposed to modify §112.1(d)(2) so that the
capacity of these pesticide application equipment and related mix
containers would not be counted toward the facility oil storage capacity
calculation.

COMMENTS

Support 

Support for proposed exemption. Several commenters expressed general
support for the proposed exemption of pesticide application equipment
and related mix containers from SPCC requirements. (45, 56, 60, 98, 104,
109, 110, 113) Several commenters specifically supported the proposed
modification of §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. (110,
113)

Oppose 

No commenters expressed opposition to this proposed amendment.

Alternative Approaches Suggested 

Application of exemption to other industries. Several commenters
suggested that this exemption be extended to all pesticide equipment,
regardless of ownership or where equipment is stored.  (59, 110, 113,
121)  For example, one commenter indicated that custom pesticide
applicators apply over two thirds of all pesticides to crop lands. (45) 
Another commenter suggested that the exemption should be extended to
cover right-of-way pesticide applications by utility companies. (110)

Exempt pesticide containers from SPCC. Commenters suggested that EPA
“limit the potential for duplicative regulation of pesticides by the
FIFRA and SPCC programs by exempting pesticide mix containers and
equipment from the SPCC program requirements and capacity calculations
for all potentially covered industries, and not restrict this exemption
to farms.” (59, 121)  

Treatment of mixtures under SPCC.  Two commenters raised concerns about
the SPCC rule lacking a clear definition of oils in product mixtures and
contended that  many liquid mixes in food production may needlessly fall
under the SPCC rule.  (104, 109).  The commenters stated that many
agricultural products, such as milk, have an oil content from less than
0.5 percent to approximately 4.5 percent and requested that EPA should
define such mixtures as exempt from SPCC regulation where the properties
of oil are no longer present due to the low concentrations.  (104, 109)

RESPONSE

Support for proposed exemption.  EPA agrees with commenters that
pesticide application equipment and related mix containers should be
exempted from SPCC requirements.

Application of exemption to other industries. EPA agrees with the
commenters that it would be appropriate to extend the exemption to
pesticide application equipment and related mix containers, regardless
of ownership or point of use. EPA evaluated the merits of extending the
exemption for all pesticide application equipment and related mix
containers at farms to all such equipment, regardless of ownership or
where used, based on the fact that this pesticide use, and certain
pesticide containers, are already subject to “similar” regulation
under FIFRA to assure the safe use, reuse, storage, and disposal of
pesticide containers.  

Exempt pesticide containers from SPCC. EPA agrees with the commenters
that it would be appropriate to extend the exemption to pesticide
application equipment and related mix containers, regardless of
ownership or point of use. 

Treatment of mixtures under the SPCC.  EPA does not agree that
agricultural products that may be oil mixtures should be exempted from
the SPCC rule. The statutory definition of oil includes oil of any kind
and in any form, (33 U.S.C. section 1321(a)(1)), and does not exclude
oil mixtures or establish a de minimis oil content.  EPA has found that
discharges of oil mixtures to navigable waters or adjoining shorelines
may be harmful as set forth in 40 CFR part 110.  In considering dairy
industry comments about milk mixtures and milk storage, EPA evaluated
whether the unique handling requirements and standards for milk could
provide a basis for an exemption of milk containers and their associated
piping and appurtenances from SPCC regulation.  EPA found that milk
containers should be constructed according to current applicable 3-A
Sanitary Standards, and are subject to the current applicable
Pasteurized Milk Ordinance (PMO) or a State dairy regulatory requirement
equivalent to the current applicable PMO.  Although these measures to
prevent milk spoilage and contamination are not specifically intended
for oil spill prevention, control and countermeasure purposes, they may
nonetheless serve to prevent discharges of oil in quantities that are
harmful. Thus, EPA has proposed to exempt milk containers and associated
piping and appurtenances subject 3-A Sanitary Standards and the current
applicable PMO from SPCC requirements. 

II.B 	Applicability of Mobile Refueler Requirements to Farm Nurse Tanks

Issue: 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.

COMMENTS

Support clarification 

General Support. Several commenters supported the Agency’s
clarification. (45, 60, 98) 

Extension to related industries. Commenters also suggested that the EPA
definition “needs to include all businesses including retailer
suppliers who have these tanks on non-road licensed equipment which are
used to re-fuel farm equipment in fields.” (45, 98)

RESPONSE

General Support. EPA agrees with those commenters supporting the
clarification.  EPA is maintaining these clarifications.

Extension to related industries. EPA agrees with commenters that
non-road licensed equipment that is used to refuel farm equipment
functions as a mobile refueler, similar to a farm fuel nurse tank. EPA
understands that agricultural retail suppliers may provide refueling
services via non-road licensed equipment to farm equipment in farm
fields. As the Agency described in the preamble to the proposed rule (72
FR 58378, October 15, 2007), a fuel nurse tank is typically used at a
farm to store and transport fuel to or from farm equipment.  Owners and
operators of these nurse tanks may also benefit from other amendments in
this action regarding the extension of relief from sized secondary
containment to all non-transportation-related tank trucks.  For example,
nurse tanks containing oils other than a fuel, such as lubrication or
hydraulic oil, would also be eligible.

II.C  	Differentiating the SPCC Requirements for Farms 

Issue: EPA requested comment on three alternatives for differentiating
the SPCC requirements for farms. These include (1) providing no
additional amendments to the SPCC rule related to farms; (2) providing
alternative qualified facility criteria for farms; and (3) exempting
farms that store oil below a certain storage capacity threshold from
SPCC requirements.

II.C.i  	No Further Action

COMMENTS

General Support. One commenter supported providing no additional
amendments to the SPCC rule related to farms, asserting that EPA does
not truly understand the farm and ranch community and that the
commercial farming industry should not be given even more advantages
over the traditional farmers.  (33)

RESPONSE

General Support. EPA disagrees with commenter’s assertion that no
further action is necessary for the farm community.  EPA consulted USDA
to better understand the organizational structure of farms and the
affected farm universe and to analyze the effects of the additional
amendments, including the Tier 1 qualified facilities amendments. 
According to USDA’s Economic Research Service, there are approximately
2 million farms, and 91 percent of U.S. farms are small farms with less
than $250,000 in annual sales.  Approximately 98 percent of farms are
family farms based on 2003 data and are organized as proprietorships,
partnerships or family corporations (see Economic Research Service,
“Structure and Finances of U.S. Farms: 2005 Family Farm
Report”/EIB-12, May 2006).  EPA does understand that many farms are
structured as commercial operations, but many other affected facilities
are structured as commercial entities, such as petroleum bulk plants,
fuel stations, utilities, and refineries.  The organizational structure
or ownership of a particular affected sector does not affect the
applicability determinations under the SPCC rule.  Finally, EPA
estimates that approximately 84% of the affected farm universe could be
eligible for the Tier 1 qualified facilities option.

II.C.ii   	Exempt Farms Below a Certain Storage Capacity Threshold

COMMENTS

Exemption for farms with capacities at or below 10,000 gallons. One
commenter requested that the Agency should provide for an exemption at a
threshold of, at a minimum, 10,000 gallons oil storage capacity. The
commenter cited the lack of risk based on evidence in the Regulatory
Impact Analysis showing that there was only one spill violation related
to a farm out of 292 spill violations between 2001-2006. (56)

RESPONSE

Exemption for farms with capacities at or below 10,000 gallons. EPA
disagrees with the commenter and maintains that there is insufficient
data to support an exemption exclusively for farms with aggregate
storage capacities at or below 10,000 gallons beyond the existing
aboveground storage capacity applicability threshold of 1,320 U.S.
gallons that applies to all facilities (§112.1(d)(2)(ii)).  EPA
disagrees with the commenter that the existence of a small number of
reported spills at farms provides adequate justification for an
exemption whether for farms or any other affected sector, because EPA is
generally aware of under reporting of oil spills across all affected
sectors.   

II.C.iii  Alternative Qualified Facility Eligibility Criteria for Farms

COMMENTS

20,000-gallon threshold. Several commenters suggested that EPA adopt a
20,000-gallon threshold as criteria for alternative qualified facility
eligibility. (56, 60, 87, 104, 109) Commenters supported this threshold
by citing limitations on the lower limit for bulk purchase of oil (60,
104), the necessity of storing empty and/or seasonal-use tanks on a farm
(56, 60, 104), and the low risk of oil spills in the industry (56,104,
109). One commenter cited that many farms will have one 10,000-gallon
tank for gasoline and one 10,000-gallon diesel fuel tank. (104)
Commenters claim that EPA lacks the data needed to establish meaningful
triggers for all agricultural sections (56, 60, 104); and should
evaluate the threat (if any) presented by the agricultural industry and
then establish applicable regulations. (56, 104)

Tier 1 threshold. A commenter urged EPA to increase the Tier 1
individual tank threshold requirement from 5,000 gallons to 10,000
gallons. (104) The commenter stated that there is no evidence that
10,000 gallon tanks at farms present heightened concerns for spills.
(104)

Financial burden. Commenters noted that most farms do not have staff to
designate as environmental managers, nor the financial resources to hire
one; a 10,000-gallon threshold would cause unnecessary burden. (56, 104,
109) A commenter argued that EPA underestimates the calculated costs and
number of farms affected by the rule. (104)

Farming and stewardship. One commenter believes that farms with a larger
storage capacity than identified in the proposal should be exempt due to
the inherent nature of farming activities being reliant on wise
stewardship of soil and water resources. The commenter also suggested
that the revised standard might include a higher total capacity limit of
20,000 gallons. (82)

Inconsistent qualified facility approaches.  Commenters questioned why
oil production facilities, which produce oil on a constant basis, are
granted leeway from the 10,000 gallon aggregate aboveground storage
capacity threshold while farms are not. (56, 104)

RESPONSE

20,000-gallon threshold.  EPA disagrees with the commenters’
suggestions for modifying the existing qualified facilities threshold of
10,000 U.S. gallons total aboveground storage capacity.  Comments from
the agricultural community did not provide, and EPA does not otherwise
have, sufficient information that would lead the Agency to conclude that
farms are sufficiently different to warrant a higher qualified
facilities threshold, such as 20,000 U.S. gallons.  Commenters asserted
that high fuel prices tend to push growers to purchase tanks that can
accept bulk fuel orders, such as two 10,000-gallon tanks (one tank for
gasoline and one tank diesel fuel).  This rationale is no different from
that of other sectors that use fuel in their operations.  EPA believes
that other sectors have a similar need to purchase fuel in bulk and may
have similar if not identical storage needs as identified by
agricultural stakeholders. Thus, EPA is not persuaded by these comments
to raise the existing qualified facilities threshold solely for farms
beyond 10,000 U.S. gallons. In setting the qualified facilities
threshold at 10,000 U.S. gallons in the December 2006 amendments, EPA
sought to provide an alternative for facilities, among other things,
with simple oil storage configurations and smaller quantities of oil
handled (see 71 FR 77271, December 26, 2006).  EPA continues to maintain
that the focus of the qualified facilities alternative should be on
simple configurations and small quantities of oil stored or handled.

Additionally, EPA disagrees with commenters’ request that EPA evaluate
the threat of oil discharges specifically from the agricultural industry
to establish applicable regulations.  Facilities, regardless of industry
sector, that store and/or use oil above 1,320 gallons and that have a
reasonable expectation for a discharge of oil in quantities that may be
harmful, as described in 40 CFR part 110 [see §112.1(b)], are subject
to SPCC.  In evaluating whether additional tailored requirements for
farms were necessary, EPA reviewed potential unique aspects of farms
based on data gathered from consultations with USDA and stakeholders and
from site visits to farms as opposed to looking at a “specific
threat” of an oil discharge for a specific farm type, since farms
differ in crops produced, livestock raised and geographic footprint. 
From these data gathering efforts, EPA has further amended the SPCC rule
with specific actions that could benefit all farms subject to SPCC.  For
example, the exemption for pesticide application equipment and related
mix containers, the revised definition of “facility”, the Tier 1
qualified facilities template, streamlined security and integrity
testing provisions, and the clarification that nurse tanks are mobile
refuelers all serve to lower the burden for farms to comply with SPCC.  

Tier 1 threshold. EPA does not agree that the Tier I individual tank
threshold capacity should be raised from 5,000 U.S. gallons to 10,000
U.S. gallons.  EPA is finalizing a multi-tiered approach to allow the
owner or operator of a facility that meets the eligibility criteria for
a qualified facility to self-certify his SPCC Plan, and allow a subset
of qualified facilities (i.e., “Tier I qualified facilities”) to
complete the SPCC Plan template in Appendix G of this part in lieu of
preparing a full SPCC Plan. Tier I qualified facilities can have no
individual oil containers greater than 5,000 U.S. gallons and must meet
the eligibility criteria for qualified facilities (i.e., aggregate
aboveground oil storage capacity of 10,000 U.S. gallons or less and
meets the reportable discharge history criterion).  EPA believes that
the Tier I qualified facility alternative should focus on facilities
with the simplest configurations and smallest oil storage containers. 
The commenter did not provide sufficient data to support an increase in
the Tier I threshold exclusively for farms higher than proposed.  With
respect to the comment related to spill risk of 10,000-gallon tanks on
farms, EPA does not agree that the Tier 1 threshold is predicated on an
assertion that 10,000-gallon tanks at farms or at any other affected
sectors pose a heightened spill risk.  Based on a survey of oil storage
facilities, EPA generally concluded that the “larger the storage
capacity at a facility, the greater the likelihood of larger spills,
more spills, and more cleanup costs annually” (see 71 FR 77271,
December 26, 2006, preamble discussion of qualified facilities in the
2006 SPCC rule amendments). Note that this general conclusion was not
focused on any specific category of facilities subject to the SPCC
regulations.  

Financial burden.  EPA understands that many businesses do not have
dedicated environmental staff to manage SPCC issues at affected
facilities.  However, this condition exists for compliance with a wide
range of EPA regulations, not just SPCC.   EPA believes that the 2006
and 2008 amendments provide streamlined alternatives to comply with SPCC
for small users of oil (including the Tier I template option and the
Tier II hybrid option under the umbrella of qualified facilities, which
allows the owner/operator to self-certify the SPCC plan).  However, if
an owner/operator requires specialized assistance with the
self-certification approach, the owner/operator can consult EPA’s
website, a PE and/or standards setting organizations on specific issues,
such as secondary containment sizing and tank integrity testing.  The
hybrid option under Tier II provides the flexibility of having a PE
certify environmentally equivalent options or the impracticability of
secondary containment, when appropriate.  EPA disagrees with the
commenter that we have underestimated the size of the affected farm
universe and relevant costs.  EPA consulted USDA’s Economic Research
Service, along with other resources, to evaluate the affected farm
universe and develop cost aspects related to the 2008 amendments, which
are presented in the RIA (see Section 4.1 of the RIA).  

Farming and stewardship. EPA disagrees with the commenter’s request to
either exempt farms with storage capacities up to 20,000 gallons from
SPCC regulations or increase the qualified facility capacity threshold
to 20,000 gallons because farming activities rely upon wise stewardship
of natural resources. The goal of EPA’s regulations, including the
SPCC rule, is protection of human health and the environment, which
includes soil and water resources. Proper stewardship by any
owner/operator of a facility subject to the SPCC rule is important to
prevent oil spills, whether the facility is a farm, an oil production
facility, a refinery or a soybean oil processing facility.  Thus,
farming is not unique in this expectation.

Inconsistent qualified facility approaches.  EPA disagrees with the
commenter that the qualified facility approaches are inconsistent
despite the variations in the eligibility criteria for both qualified
facility options. The alternative qualified facility option for small
oil production facilities is tailored to the attributes of oil
production operations. The SPCC rule provides differentiated
requirements for oil production facilities in 40 CFR part 112, Subpart B
and the Agency believes that it is appropriate to develop differentiated
eligibility criteria for qualified oil production facilities.  However,
while the eligibility criteria vary, the underlying rationale is the
same. As EPA explained in the preamble of the October 2007 proposal (see
72 FR 58411-58412, October 15, 2007) the qualified facility approach for
oil production facilities was intended as an alternative for small oil
production facilities that do not meet the qualified facility
requirements in § 112.3(g), primarily because these facilities would
likely exceed the capacity threshold of 10,000 U.S. gallons. EPA stated
that the alternative qualified facility approach for production
facilities captures the smaller operators the Agency targeted for 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.  The basis for
the exemption for qualified facilities from the requirement for PE
certification is that facilities with smaller oil quantities tend to be
less complex (see 71 FR 77270, December 26, 2006).  Therefore, EPA
believes that each qualified facility approach identifies the smaller,
less complex facilities eligible for self-certified SPCC Plans based on
appropriate criteria.   

II.C.iv   Other	

COMMENTS

Remove “special treatment.”  A commenter suggested that EPA should
“Remove the special treatment provided by the qualified facility so
all farmers, small businesses and other small oil storage facilities are
required to prepare a complete SPCC Plan certified by a PE based on
1,320-gallon storage capacity. This will assure equal and fair treatment
for all owners and operators of oil tankage.” (31) The commenter
alleged that, for many years, EPA has contravened its responsibility to
assure that farms come into compliance by not taking enforcement actions
against farms while acknowledging non-compliance in the farming
industry. (31)

Clarify that oil tanks not in use can be classified as out-of-service.
Commenter sought clarification in the SPCC rule that oil tanks that are
not in use can be classified as out of service with a minimum of tank
cleaning, preparation and signage and without the need to remove the
tanks from the facility. (98)

Extend compliance date for farmers. A commenter requested a minimum of
two additional years to allow farms to comply with the SPCC rule. The
commenter adds that this additional time would also provide farmers and
others the opportunity to work with governmental agencies, including
USDA on the development of a model plan or set of guidelines. (56)

Need for compliance assistance. One commenter requested that EPA set up
a hotline for entities seeking information and clarity on the rule and
how it applies to their operation.  The commenter also asked that the
hotline be able to send out ‘plain-English’ documentation to back up
its oral advice. The commenter also wanted EPA develop a website
dedicated specifically to SPCC requirements that offers
‘plain-English’ information on rules, clearly states deadlines,
provides templates and makes clear the formal review, appeal and
mitigation process. (56)

RESPONSE

Remove “special treatment.” EPA disagrees that the amendments to the
SPCC rule in December 2006 provide special treatment to any eligible
facility.  Many farmers and owner/operators of small oil storage
facilities may be eligible to self-certify their SPCC Plans, if they
meet the eligibility criteria for qualified facilities in §112.3(g). 
In providing this option for facilities handling smaller amounts of oil,
the Agency sought to focus on smaller, less complex operations that may
be concerned about the impact of utilizing a PE on their limited budget.
 The Agency believes that providing a tailored option for owners and
operators of these smaller, less complex facilities will provide the
same level of environmental protection (71 FR 77270, December 26, 2006).
 Also, EPA disagrees with the notion that we have overlooked compliance
with SPCC in the farm sector.  EPA has actively engaged the agricultural
sector, during site visits at farms, at national forums, and at industry
trade meetings to improve awareness of SPCC requirements in the farm
sector.  EPA also disagrees that it has avoided taking SPCC enforcement
cases against farms.  

Clarify that oil tanks not in use can be classified as out-of-service.
EPA defines permanently closed at §112.2  We would note that any
container that meets this definition is not subject to the SPCC
regulation and therefore, would not be included in the facility’s
aggregate oil storage capacity. The definition does not require that the
permanently closed container be removed from the facility but it does
require cleaning, signage and other preparations. Similarly, a new,
empty tank that arrives at a farm or other SPCC-regulated facility is
not to be counted towards a facility’s aggregate oil storage capacity
until the tank is actually used to contain oil.  EPA discusses this
clarification further in section M of the final rule preamble.

Extend compliance date for farmers. In a separate Federal Register
notice, EPA is proposing new compliance dates for the owner or operator
of SPCC facilities, including a farm, as defined in §112.2, to prepare
or amend and implement the facility’s SPCC Plan.  EPA will take
comment on these new compliance dates for further consideration,
including the prior comment by the farm community to extend the
compliance date by an additional two years.

Need for compliance assistance.  EPA agrees with the commenter that
plain-language, common-sense outreach is needed to guide affected
facilities in understanding the amendments and other SPCC requirements. 
We have an established hotline to answer SPCC-related questions via the 
 HYPERLINK "http://www.epa.gov/superfund/contacts/infocenter/" 
Superfund, TRI, EPCRA, RMP & Oil Information Center  at  (800) 424-9346
or TDD (800) 553-7672.  Stakeholders can also view the latest
SPCC-related information and guidance on the web at   HYPERLINK
"http://www.epa.gov/emergencies/content/spcc/index.htm" 
http://www.epa.gov/emergencies/content/spcc/index.htm .  EPA anticipates
an increase in outreach work to the farm sector following the
promulgation of these amendments

III. Residential Heating Oil Containers

III.A  Exemption for Residential Heating Oil Containers

Issue: EPA proposed to exempt residential heating oil containers 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. 

COMMENTS

Support Proposal 

Generally Support. Several commenters expressed support for the proposed
exemption of residential heating oil containers from SPCC requirements.
(60, 96, 97, 104, 113, 141)

Oppose Proposal

Oppose cost estimate. One commenter challenged EPA’s cost estimate for
savings due to the residential heating oil container exemption. In the
Regulatory Impact Analysis for the proposed amendments, EPA estimated a
residential heating oil tank exemption savings of $1,550 to $2,210 per
farm.  EPA also stated that the tanks’ capacities are between 413
gallons and 1,045 gallons. The commenter stated that this is a false
savings because:

The original 1973 rule exempted 660 gallon tanks for the express purpose
of exempting residential heating oil tanks;

The current threshold of 1,320 gallons is above the upper gallon size of
heating oil tanks as estimated by EPA at 1,045 gallons; and,

Savings on annual SPCC expenditures for residential tanks realized by
homeowners is nonexistent because, in real life, practically no one has
applied SPCC rules to their home heating oil tanks. (56)

Other Suggested Approaches

Extend proposed exemption beyond single-family residences.  One
commenter suggested that “EPA include buildings and offices located
remotely from mining operations that meet 40 CFR Part 112
applicability” because “heating containers at these buildings do not
pose any greater threat of discharge than EPA’s proposed exempted
residential oil containers.” (97) Another commenter suggested the
exemption of heating oil tanks at a facility occupied daily, with
storage capacity not exceeding 5,000 gallons, in containers not
exceeding 1,000 gallons, because these facilities are regularly
occupied, and thus would not pose any more likelihood of release than a
single-family residence. (82) 

Exempt heating oil storage containers serving four or fewer households.
One commenter suggested this approach to be consistent with federal
underground storage tank regulations. (141)

RESPONSE

Generally Support. EPA agrees with those commenters who supported the
exemption, and is finalizing the exemption as proposed.  EPA views a
single-family residence as a household that has direct ownership of the
oil stored in the heating oil container. The Agency did not intend, by
itself, that a single-family residence that stores heating oil for
personal use should trigger SPCC applicability, particularly because
such residences generally do not have significant quantities of other
types of oil. The basis for this interpretation stems from the preamble
to the original 1973 SPCC rule (38 FR 34164, December 11, 1973), which
identified containers of 660 U.S. gallons as the maximum domestic code
size for non-buried heating oil containers, and that residences could
have two such containers. The storage capacity thresholds for SPCC rule
applicability were initially established at 660 U.S. gallons for an
individual container and 1,320 U.S. gallons total aboveground capacity
for the facility, to essentially exclude the capacity of residential
heating oil containers. Thus, the presence of heating oil containers at
a single family residence was generally not intended, by itself, to
trigger SPCC applicability. 

Oppose cost estimate. EPA disagrees with the commenter’s criticism of
the method for estimating cost savings for the exemption of residential
heating oil containers. In 2002, EPA revised the aggregate aboveground
oil storage container capacity threshold from 660 gallons to 1,320
gallons. The threshold of 1,320 gallons applies to the total aboveground
oil storage capacity at a facility, not of individual containers. The
minimum container size that counts towards the total storage capacity is
55 gallons. Therefore, containers between 413 gallons and 1,045 gallons
would be counted towards a facility’s total storage capacity, and if
this capacity exceeds 1,320 gallons (and other applicability criteria
are met), then the facility is subject to SPCC. As per EPA’s
“Guidelines for Preparing Economic Analyses,” EPA assumes full
compliance with the existing SPCC rule in the baseline cost assumptions.
EPA recognizes the commenter’s concerns that some facilities may not
be in compliance with SPCC. To account for this, EPA conducted a
sensitivity analysis that considers partial compliance in the baseline.

Extend proposed exemption beyond single-family residences.  EPA
disagrees with those commenters who suggested extending the exemption
beyond heating oil containers at single-family residences. Owners and
operators of commercial facilities, such as mining operations,
refineries, and manufacturing plants that include related
administrative/office buildings plus commercial multi-family structures
(such as condominiums and apartment complexes) will generally store
larger volumes of oil as compared to single-family residences.  When
these volumes exceed the SPCC threshold of 1,320 U.S. gallons (or 42,000
U.S. gallons for completely buried tanks) and there is a reasonable
expectation of an oil discharge to navigable waters or adjoining
shorelines, the facility is subject to SPCC.  However, if a commercial
facility (for example, a university) includes a single- family residence
on the premises, then any heating oil container associated solely with
this residence is exempt from SPCC.

Exempt heating oil storage containers serving four or fewer households.
EPA disagrees with exempting heating oil containers based on the number
of households served.  As stated previously, the original 1973 SPCC rule
intended to include residential home heating oil containers and was not
crafted to exclude multi-family residential housing complexes, since
these complexes would typically have heating oil tank capacities greater
than 660 gallons to meet the heating demand.  

III. B  	Alternative Option Considered 

Issue: EPA invited comments on 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.

COMMENTS

Support Proposal

Exclude heating oil storage containers at farms with a single-family
residence. One commenter supported exempting heating oil storage
containers located at a farm facility’s single-family residence. (82) 

Oppose Proposal

No comments were submitted on this topic.

RESPONSE

Exclude heating oil storage containers at farms with a single-family
residence. EPA agrees with the commenter that heating oil containers
located at a single-family residence at a farm should be exempt from the
SPCC rule and is finalizing such an exemption.  However, the commenter
does not provide any basis to limit the exemption solely to farms. 
Because we believe the same rationale applies to exempting heating oil
containers at single family residences at facilities other than farms,
the exemption applies to all single-family residences. 

IV. Definition of Facility

IV.A 	Revisions to the Definition of Facility 

Issue: EPA proposed 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. The final revisions, following the proposal, clarify that an owner
or operator may 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.

COMMENTS

Support Proposal

Generally Support. Many commenters expressed general support for the
proposed amendment. (40, 43, 48, 52, 55, 56, 60, 64, 66, 70, 72, 74, 75,
76, 97, 100, 103, 104, 105, 108, 109, 110, 111, 112, 113, 121, 123, 124,
133, 143, 151) 

Support with provision of examples. Several commenters indicated that
certain types of facilities, such as those in the wind power (40),
agriculture (56, 60, 104, 109), electrical utility (66, 110), forestry
(70), aviation (74), and others, including coal mining (48, 64), might
be managed by multiple groups, and that dividing a parcel of land into
facilities on the basis of these individual operations makes sense. 

Oppose Proposal 

Operators should not be able to define the facility boundaries. One
commenter indicated that, if operators are allowed to define facility
boundaries themselves, a facility “could be 'broken up' into more than
one facility, thereby getting the ‘new’ facilities under the
regulated thresholds; e.g., a facility with one 2,000 gallon tank and
one 1,000 gallon tank might be able to split into two separate
facilities, making the area within the new boundary where the 1,000
gallon tank lies unregulated. If this is a possible outcome, [the
commenter] strongly objects to this provision.” (146)

RESPONSE

Generally Support/ Support with provision of examples. EPA agrees with
those commenters who supported this approach. We also agree with the
commenters that the owner or operator has the discretion to determine
what constitutes a facility. That is, the rule may become applicable to
the facility for the first time in cases of aggregation of buildings,
structures or equipment and associated storage or type of activity, or
the division of the facility may end applicability due to separation of
buildings, structures or equipment and associated oil storage or type of
activity.

Operators should not be able to define the facility boundaries. EPA
disagrees with the commenter who believes that operators should not be
allowed to define facility boundaries. EPA recognizes that this
amendment may have the affect of removing a facility from being subject
to the SPCC requirements by virtue of the legitimate use of discretion
by the owner or operator in defining facility boundaries.  However, we
would also note that an owner or operator may not make such
determinations indiscriminately and in such a manner as to simply avoid
applicability of the rule (for example, the division of one facility
into separate facilities with one oil storage container located at each
facility where all storage containers are located side-by-side or close
to each other, and are used for the same purpose). For further
information on the definition of facility, see Chapter 2 of the SPCC
Guidance for Regional Inspectors (version 1.0, November 28, 2005).

IV.B 	Determining the Components of a Facility: Examples of Aggregation
or Separation

Issue: 	The factors for determining the boundaries of a facility as
listed 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 additional factors that may be
considered. 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. In the October 2007 proposed rule, EPA provided several
examples and hypothetical scenarios of how a facility owner or operator
may determine what is considered a “facility” for the purposes of an
SPCC Plan (see 72 FR 58387, October 15, 2007). 

COMMENTS

Oil and Gas Operations. A commenter requested that EPA modify § 112.2
so that multiple facilities can be included within a single plan. The
commenter stated that to reduce the costs of preparing SPCC Plans, most
P.E.s combine as many oil and gas leases (operated by the same company
within the same county) as possible because oil and gas operations,
whether small or large are virtually alike with wells, flowlines,
separators, treaters and storage tanks. The commenter believes that
based on reading 112.2, production facility, EPA concludes this cost
saving procedure comports with the 112.2 definition. If not, the
commenter requested that EPA revise the definition or there will be
thousands of almost duplicate, costly SPCC Plans and would decrease the
availability of professional engineers. (31)

Wind power plants. One commenter supported flexibility to prepare single
or multiple SPCC Plans for wind power plants, which potentially involve
many landowners spread over large areas. (40)

Refineries; legitimate means for defining facility boundaries; FRP
applicability. Two commenters recommended that EPA clarify the preamble
statement that a facility owner or operator has some discretion in
describing the paramaters of his facility while he cannot describe the
facility boundaries unreasonably in an attempt to avoid regulation. 
(75, 111).  The commenters recommended that if a logical separation
exists as detailed in the preamble to this proposed rule, then EPA
should acknowledge that the facility is not separating the installation
in order to avoid regulation. (75, 111) One commenter described a
situation where remediation activities may be ongoing at an operating
refinery. In such a case, the commenter noted that “[t]he refinery
owner may determine that the refinery is a facility and the remediation
activities are a separate facility. The commenter posited that the
refinery meets the Facility Response Plan (FRP) applicability
requirements but the remediation activities, whether or not meeting SPCC
requirements, do not meet the FRP applicability requirements. The
commenter stated that this situation should not be interpreted as
avoiding FRP regulation for the remediation activities. (75)  The other
commenter was concerned that the preamble statement may be interpreted
to mean that when an owner or operator defines contiguous properties as
separate facilities (e.g. refinery with an associated terminal
contiguous to the refinery) he is merely seeking partial relief from FRP
requirements with the method in which he defines his facility. (111)   

Airports; fuel transfers. A commenter asked EPA to clarify whether
activities at a non-SPCC regulated facility could become subject to SPCC
because regulated activities occur at another facility under the same
ownership or operation. For example, the commenter wondered whether fuel
transfer between a tank that is exempt from SPCC requirements and a
SPCC-regulated mobile refueler, both on the same airport property, is
subject to SPCC requirements.  (74)

Relationship between SPCC and FRP requirements. Several commenters
suggested that multi-facility SPCC Plans may be created that combine
common elements (such as structures, equipment, inspections, integrity
testing, secondary containment designs, and response procedures) while
retaining site-specific information. Commenters urged EPA to clarify
that using a single plan for multiple locations does not force
facilities to be considered a single facility for FRP purposes. (43, 75,
103, 108, 111) One commenter did not believe that the intent of the FRP
regulations is to require an FRP where a million gallons or more of oil
storage is scattered across large geographic areas in multiple
non-contiguous facilities. (43) A commenter suggested that this will
reduce redundancy while providing the necessary containment and response
organization to address releases. (108) Another commenter recommended
the insertion of the sentence, “Use of a general plan at multiple
sites does not make such sites a facility.”

RESPONSE

Oil and Gas Operations. EPA agrees with the commenter that facilities
with the same owners or operators that are virtually alike may be
combined into one Plan, at the owner’s discretion. As described in the
hypothetical scenario (72 FR 58387, October 15, 2007), the Agency
reiterates that an owner or operator of an oil production facility may
aggregate some or all of his leases into one Plan, at his discretion,
whether or not they are associated with the same oil or gas field.   

This practice is consistent with the amended definition of facility and
therefore, no modification of rule text is necessary.  

Wind power plants. EPA agrees that wind power plants, whether spread
over large or small areas and which may involve multiple landowners, may
be appropriately defined as single or multiple facilities, depending on
the circumstances, at the owner or operator’s discretion. Such
facilities may be encompassed in single or multiple facility SPCC Plans.


Refineries; legitimate means for defining facility boundaries; FRP
applicability. EPA agrees with the commenters that while an owner or
operator has discretion in defining facility boundaries, that owner or
operator may not make such determinations indiscriminately and in such a
manner as to simply avoid applicability of the rule. EPA agrees that if
a logical separation exists as described in the preamble, such
separation may be legitimate and not designed merely to avoid
regulation. EPA also generally agrees with the commenter that a
petroleum refinery owner or operator may, at his discretion, decide that
remediation activities at an operating petroleum refinery constitute a
separate facility.  When an owner or operator defines contiguous
properties as separate facilities (e.g., a refinery with an association
terminal contiguous to the refinery), his facility determination will
impact both SPCC and FRP applicability.

Airports; fuel transfers. EPA agrees with the commenter that the Agency
does not regulate the transfer of fuel at an exempt facility. However,
once the fuel is transferred to a regulated container at a facility
subject to the SPCC requirements, the transfer activity becomes subject
to the SPCC requirements.  

Relationship between SPCC and FRP requirements. EPA agrees with the
commenter that the use of a general Plan at multiple sites does not make
such sites one facility, but disagrees that a rule text change is
necessary because EPA believes the amended rule text encompasses such a
situation. The definition of facility determines the applicability for
all purposes under part 112. Thus, once an owner or operator defines the
extent of his facility, that definition determines applicability for
both SPCC and FRP purposes. The owner or operator may, at his
discretion, create a Plan that includes more than one site, and define
it as one facility for both FRP and SPCC applicability. Or, an owner or
operator can include several separate facilities in one SPCC plan.  Such
multi-facility Plans may combine common elements of various sites, while
retaining site-specific information. While the Plan may encompass
multiple facilities, the applicability of SPCC and FRP requirements is
determined by the extent of each individual facility. This action should
not be viewed as a deterrent to the use of multi-facility SPCC Plans, a
concern expressed by operators in the oil production sector.   

IV.C	Alternative Options Considered

Issue: EPA requested comment on alternative options listed in the
proposal as well as other suggested approaches.

COMMENTS 

No Action

No comments were submitted on this topic.

Address through guidance

No comments were submitted on this topic.

Other Suggested Approaches

Suggested edit to definition. One commenter recommended removing the
terms “…property, parcel, lease…” from proposed definition
because the commenter believes the terms constitute an unnecessary
expansion that will only complicate and confuse the issue as these types
of areas can extend well beyond the actual production facility. (85)

Limit definition of facility to SPCC program. One commenter urged EPA to
state that determination of “facility” for the purpose of preparing
an SPCC Plan does not preclude an operator from making different
determination of the scope of the facility for the purposes of reporting
or planning under any other federal or state statute. (105)

Clarification on leases. Two commenters recommended that EPA “clarify
that a lease does not necessarily define a facility…” (108, 111) One
commenter suggested that the definition of facility be revised to
exclude DOT and USCG components and to clarify that contiguous
buildings, properties, parcels, leases, structures, installations,
pipes, or pipelines do not necessarily define a facility but may be
considered separate facilities. The commenter also requested that EPA
codify the litigation settlement language, either as rule amendments or
an appendix to the rule, that the definition of facility in 40 CFR §
112.2 governs the meaning of facility as used in 40 CFR § 112.20(f)(1),
regardless of the specific type of facility at issue  (111) 

Resolving disputed facility determination; timeline. Two commenters
recommended that 120 days be given to an agricultural producer to
resolve any compliance concerns, including a disputed facility
determination. (56, 104)  One commenter suggested that EPA further
clarify its intent in the guidance provided to inspectors to ensure the
fewest number of differing interpretations during implementation. (56)

Consistency between definitions. One commenter suggested that the
current proposal does not clarify or streamline the definition of
facility, because of the consistent definitions of facility boundaries
for SPCC and FRP requirements. (108)

RESPONSE

Suggested edit to definition. EPA disagrees with the suggested edit to
remove the terms “. . . property, parcel, lease. . .” from the
definition of facility. The Agency believes that these terms serve as
clarifying examples of what may constitute a facility.   As stated in
the proposal, EPA believes that adding these terms further distinguishes
the attributes that can be considered in determining facility
boundaries. The owner or operator has the discretion to define his
facility boundaries based on any of the factors described in the rule
text.  EPA reiterates that an owner or operator may not define facility
boundaries indiscriminately to simply avoid applicability of the rule.  

Limit definition of facility to SPCC program. EPA agrees that the
definition of facility, as defined in §112.2, applies only for purposes
of part 112, and not for purposes of any other federal or state statute.
 The SPCC definitions in 40 CFR 112 are preceded by the statement
“[f]or the purpose of this part:”

Clarification on leases. EPA does not agree with the commenter that a
lease does not necessarily define a facility.  EPA clarifies that a
lease may, at the owner or operator’s discretion, constitute a
facility. According to the definition, contiguous or non-contiguous
buildings, properties, leases, structures, installations, pipes, or
pipelines under the ownership or operation of the same person may be
considered separate facilities. The definition further lists several
site specific factors, including but not limited to, ownership or
operation of buildings, structures, and equipment on the same site and
types of activity at the site. EPA disagrees with the commenter who
requested revisions to the definition of facility to exclude DOT and
USCG components.  The existing regulations in § 112.1(d) delineate the
facilities, equipment or operations that are not subject to SPCC
regulations and addresses DOT jurisdiction.  EPA does not agree that the
litigation settlement language should be codified because EPA believes
that this action addresses the facility definition issue in the
settlement of the 2002 SPCC rule litigation.  In the amended definition,
EPA clarifies that only the definition of “facility” in § 112.2 is
used to determine whether a facility is subject to 40 CFR part 112,
regardless of the specific type of facility at issue.   

Resolving disputed facility determination; timeline.  EPA disagrees that
owners or operators of SPCC regulated facilities should be given 120
days to address any possible compliance concerns, including but not
limited to, differences of opinion on a facility determination. Whether
or not a total or partial SPCC Plan is needed, or whether an existing
Plan should be amended is a compliance issue, subject to the provisions
of §112.1(f) or §112.4(e) and (f). These sections provide adequate
time for appeal a final determination of the Regional Administrator
under § 112.1(f) or a decision of the Regional Administrator under §
112.4(e) and (f) to the Administrator. Therefore, a period of 120 days
is unnecessary and is not included in this final rule to allow the owner
or operator to resolve compliance issues.  

Consistency between definitions. The Agency disagrees that the proposal
does not clarify or streamline the definition of facility. EPA has
specifically clarified that the definition of “facility” determines
both SPCC and FRP applicability under 40 CFR part 112.  

					

V. 	Facility Diagram

V.A	Revision to the Facility Diagram Requirement Regarding Mobile or
Portable Containers

Issue:  EPA proposed to revise the facility diagram requirement at
§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. Furthermore, EPA proposed a revision so
that 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.

COMMENTS

Support Revision

Generally support. Many commenters expressed general support for the
proposed amendments. (30, 38, 43, 51, 52, 55, 59, 61, 64, 72, 75, 81,
88, 90, 97, 100, 102, 105, 108, 110, 111, 112, 113, 119, 121, 123,128,
129, 143) 

Oppose Revision

Increase in cost of preparing diagram. One commenter opposed the
proposed amendments because of increased cost estimates for facility
diagrams. The commenter claimed that EPA inspectors cite the Guidance as
if it were a rule and use it as the basis for requiring more expensive
facility diagrams. The commenter asserted that EPA has no legal
authority to demand a more expensive facility diagram than anticipated
and justified in the Executive Order 12866 published 17 July 2002. (31)

Other Suggested Approaches

Clarify types of containers considered mobile/portable tanks or
mobile/portable containers. Commenters suggested that EPA should clarify
that a small container, put into place and later moved, qualifies as a
mobile container. (51, 90, 102) One commenter stated that EPA includes
55-gallon drums, IBC’s, and mobile/portable maintenance tanks which
are some of the more problematic containers to address on a facility
diagram, in the population of mobile/portable tanks.” The commenter
requested that EPA make formal inclusion of this clarification in the
rule. (110) 

Fixed or permanent storage locations. One commenter suggested that EPA
clarify that only portable or mobile storage container locations that
are fixed or permanent be required in the facility diagram, and that
internal facility tracking of these containers is sufficient for
planning and emergency response purposes. (75) Similarly, two commenters
supported minimizing diagram requirements to only areas with
“significant and dedicated quantities of mobile or portable
containers” and stated that single drums are not reasonable to track
on a diagram and do not provide increased environmental protection by
their inclusion. (111, 113)

Range reporting. One commenter suggested that EPA allow facility
operators to use “range reporting” for numbers of containers and
their quantities that may be in use at the facility, as discussed in the
General Information summary for the proposed rule and that EPA
incorporate this concept in the final rule. (88)

Computerized tracking system. One commenter recommended an “internal
site-wide computerized tracking system utilizing container bar codes
that provide real-time information on the quantity, type, location, and
person responsible for oil containers 55 gallons or greater.” The
commenter recommended this option, or “a similar administrative
alternative, be added to the requirement to mark facility diagrams with
storage areas for mobile or containers, since such storage areas could
be anywhere around the site and vary over time.” (39)

Expand list of compliance activities that do not require PE
certification.  One commenter suggested that the rule would be even
clearer “if Section 112.5 were amended to specify… other examples of
plan changes that do not require certification. These examples could be
listed immediately following the existing list in 112.5 of changes that
may require PE certification.” (43)

Diagrams prepared for other use. One commenter suggested the final rule
should state that an FRP diagram is acceptable for SPCC purposes. (75)
Two commenters specifically supported the use of facility diagrams for
SPCC Plans that have already been prepared for other programs. (111,
113)

Changes to the diagram. One commenter challenged EPA’s statement that
changes to the facility diagram are considered administrative in nature
and do not require PE certification. The commenter believes that as it
relates to non-engineer ‘certified’ plans, this statement conflicts
with 112.5, Amendment of SPCC Plan by owners or operators which gives
examples of changes that may require amendment of the Plan including
commissioning or decommissioning containers; replacement,
reconstruction, or movement of containers.(82) The commenter also
claimed that documents prepared by engineers may not be legally altered.
(82)

Reference to “oil storage containers” should be changed. One
commenter suggested referring to “oil storage containers” as “bulk
storage” or “bulk oil storage containers” in §112.7(a)(3). (128)

Dedicated permanent storage area. Two commenters suggested that the rule
require the diagram to indicate the location of the dedicated permanent
storage area where significant quantities of mobile portable containers
are located. The commenter also suggested that, instead of requiring the
facility diagram to include all transfer stations and connecting pipes,
allow a PE to require additional details, such as transfer stations and
connecting pipes, as appropriate. (111, 113)

RESPONSE

Generally support. The Agency agrees with those commenters who supported
the proposal, and believes that clarification and simplification of
these requirements will reduce costs and facilitate compliance.  

Increase in cost of preparing diagram. The Agency disagrees that these
amendments would increase the cost of preparing a facility diagram. The
Agency is not adding any additional requirements that would result in a
more expensive facility diagram, but is rather reiterating that it does
not require that a facility diagram be developed exclusively for the
SPCC Plan. Facility diagrams prepared for a state or federal plan,
including the FRP requirements under §112.20, or other facility
diagrams prepared for purposes such as construction permits, facility
modifications, or other pollution prevention requirements may be used in
an SPCC Plan if they meet the requirements of the SPCC rule.
Furthermore, the clarification and simplification of these requirements
will result in reduced costs and increased ease of compliance. 

Clarify types of containers considered mobile/portable tanks or
mobile/portable containers. The Agency does not agree that we need to
clarify, via rule language, which containers are considered mobile or
portable.  The Agency has already provided examples of mobile/portable
containers in Section 4.4.4 Secondary Containment Requirements for
Mobile/Portable Containers of the SPCC Guidance for Regional Inspectors
(e.g., 55 gallon drums, skid tanks, totes, and intermodal bulk
containers). Some oil refinery tank trucks and fueling trucks dedicated
to a particular facility (such as a construction site, military base, or
similar large facility) may fall under this category.

Fixed or permanent storage locations. The Agency disagrees with
commenters regarding the need to include on the facility diagram only
those mobile or portable container locations that are “fixed”,
“permanent”, or dedicated, as part of the clarifying language.  The
Agency believes, and clearly stated in preamble to the proposed rule (72
FR 58378, October 15, 2007), that mobile or portable containers should
be marked on the facility diagram in their out-of-service or designated
storage area, primary storage areas, or areas where they are most
frequently located, and believes that the final rule language
accomplishes this purpose. 

Range reporting. The Agency agrees with the comments supporting the
flexibility of reporting an area on the facility diagram (such as a drum
storage area) for these containers, as well as providing reasonable
estimates (including ranges) for the potential number of mobile or
portable containers, types of oil, and anticipated capacities in the
SPCC Plan. The Agency believes that the amendment to allow for reporting
estimates already incorporates the concept of ranges. The Agency
believes that these estimates can be effectively used to determine the
applicability of the rule thresholds and provide a general description
of the mobile/portable containers in the SPCC Plan; this clarification
may be particularly useful when the number of containers change
frequently at the facility. 

Computerized tracking system. The Agency does not agree with the
suggestion to add computerized tracking system, or similar requirements,
to the SPCC rule.  While the idea of an internal computerized tracking
system, utilizing container bar codes to provide real-time information
on the quantity, type, location, and person responsible for oil
containers of 55 U.S. gallons or greater may suit some facilities, the
Agency does not believe it can reasonably require such a system for all
SPCC-regulated facilities. However, EPA believes that the amendments
allow a facility owner or operator to implement such a system to assist
in their tracking of mobile or portable containers, and to use it to
meet the SPCC Plan requirement for these types of containers, if
desired. 

Expand list of compliance activities that do not require PE
certification. The Agency does not agree that it needs to expand the
list in §112.5 of examples of compliance activities that do not require
PE certification, because including every potential scenario is not
possible. Generally, a change to the facility that may affect the
facility’s potential to discharge oil in quantities that may be
harmful, as described in part 110, would require PE certification.
Additionally, owners or operators can refer to the existing list of
changes that may require PE certification in §112.5. 

Diagrams prepared for other use. The Agency does not agree that it needs
to amend the rule language to require the use of any specific type of
facility diagram.  EPA does not require that a facility diagram be
developed exclusively for the SPCC Plan. A facility diagram prepared for
a state or federal plan (including the FRP requirements under §112.20)
or for other purposes (for example, 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 (i.e., it
includes the contents and capacities of containers; transfer areas; and
piping). Thus, we believe that the existing regulations allow for a
facility diagram developed for other programs to be used, which not only
facilitates compliance with this requirement, but also reduces the cost
of diagram preparation.

Changes to the diagram. EPA disagrees that its statement that changes to
the facility diagram are considered administrative and do not require PE
certification conflicts with §112.5.  The SPCC rule requires PE
certification for any technical amendment (§112.5(c)). Nonetheless,
facility diagram changes may not always be technical amendments. The
Agency acknowledges that some amendments to the facility diagram may be
administrative in nature, and by themselves do not require PE
certification. For example, the owner or operator may also need to
revise the facility diagram to reflect changes in the facility that do
not relate to oil storage or handling operations, or to comply with
other state, federal or local requirements outside of SPCC. Conversely,
amendments to a facility diagram that result from changes that could
affect the facility’s potential to discharge oil (e.g., commissioning
or decommissioning containers; replacement, reconstruction, or movement
of containers) may require PE certification. Although the SPCC
requirements allow the owner or operator of a facility to make changes
to the facility diagram, the owner or operator may need to determine
what state or local restrictions there are, if any, for making those
changes.

	EPA notes that the Plan certification requirements for owners and
operators of qualified facilities are found in §112.6. Additionally,
there is no facility diagram requirement for Tier I qualified
facilities.

	 

Reference to “oil storage containers” should be changed. The Agency
disagrees with the comments to remove the term “oil storage
container” in favor of the terms “bulk storage” or “bulk storage
containers” because the facility diagram requirements include other
containers that do not fall into this category (i.e., oil-filled
operational equipment, flow through process vessels, mobile/portable
containers).  The term “oil storage containers” encompasses all of
these.

Dedicated permanent storage area. The Agency disagrees with
commenters’ suggestion that the facility diagram should only include
dedicated, permanent storage areas where significant quantities of
mobile or portable containers are located. The Agency believes and
clearly stated in preamble to the proposed rule (72 FR 58378, October
15, 2007) that mobile or portable containers should be marked on the
facility diagram in their out-of-service or designated storage area,
primary storage areas, or areas where they are most frequently located,
and believes that the final rule language accomplishes this purpose. The
Agency disagrees with the suggestion of allowing a PE to require
additional details as appropriate instead of requiring the facility
diagram to include all oil transfer stations and connecting pipes. The
Agency believes that identifying the location of transfer stations and
connecting piping on the facility diagram is necessary to ensure safe
and efficient response actions, effective spill prevention and emergency
planning, ease of Plan review by an EPA inspector, and proper
implementation of the Plan by facility personnel.

V.C  	Indicating Complicated Areas of Piping or Oil-Filled Equipment on
a Facility Diagram

Issue: A facility diagram must also include all transfer stations and
connecting pipes (§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. Therefore, in the October 2007
proposal (72 FR 58378, October 15, 2007), EPA requested 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. 

COMMENTS

Support 

Support clarification for methods of diagramming complex piping or
oil-filled equipment. Several commenters requested examples of piping or
oil-filled equipment schematics, or further clarification of acceptable
diagrams. (43, 55, 75, 112, 121, 143)

Support Rule Revision. Commenters supported and encouraged EPA to
clarify via rule revision the guidance that they have published in the
SPCC Guidance for Regional Instructors. The commenters believe that in
this guidance document EPA allows the appropriate flexibility in the way
the facility diagram is drawn. (100, 112, 121) Another commenter
requested a regulatory amendment incorporating the example from the
proposal that simplified schematic representations of piping combined
with a description in the Plan may be sufficient. (43)  Another
commenter recommended that EPA allow a deviation to SPCC Plan
requirements to allow flexibility by the P.E. in determining what is
appropriate for the facility diagram by adding § 112.7(a)(3) to the
environmental equivalence provision in § 112.7(a)(2). (111)

Other Suggested Approaches

Oil-filled equipment. A commenter requested that EPA modify the rule
language to provide flexibility in showing operational equipment on the
facility diagram. (128)   Commenters suggested that oil-filled equipment
located in buildings with multiple floors, or in process areas with
numerous other pieces of equipment, such as hydraulic units, electrical
equipment and machinery lubrication systems, is difficult to delineate
and should not be required to be shown in the facility diagram (111,
113, 128). Commenters believe that the requirement to include the
contents, even on a table or key accompanying the SPCC Plan, is not
practical for the number of piping, oil filled equipment, and transfer
areas that may be present at a complex site such as a refinery or
chemical plant. These commenters recommended that EPA limit the diagram
requirements to fixed bulk oil storage containers only. (111, 113)

 Methods to provide details. Two commenters suggested describing
oil-filled equipment rather than specifically identifying it on a
facility drawing. (64, 128) One commenter added that the SPCC Plan could
include a description of the number of oil-filled equipment that
contains storage capacities greater than 55-galllons and could include a
table identifying the oil-filled equipment and associated storage
capacities. The commenter believes that this would provide the necessary
information in the SPCC Plans to support response personnel in the event
of a spill. (64) One commenter considered the clarification as a formal
endorsement of the use of electrical one-line diagrams in identifying
spatial arrangement of oil-filled electrical equipment, and also offers
relief for facilities “with ‘hard-piped’ tank systems. (110) Other
commenters indicated that it may be difficult to include piping detail
on a diagram and that operators should be allowed either to label an
area or provide this information through the use of flow charts, piping
inventories, summary statements, drawings, keys, tables or other means.
(85, 111, 112)  Another commenter requested clarification that EPA does
not mandate detailed piping diagrams that may not be available.  (88)

Define transfer stations. A commenter requested revisions to the
Guidance document to allow additional flexibility for representing
piping on facility diagrams. The commenter suggested that the Guidance
document should define transfer stations as “locations where oil is
transferred between bulk storage containers,” which “would eliminate
the need to show equipment piping on the diagram.” (92) 

Types of piping. One commenter asked EPA to modify the rule to clarify
the types of piping required on the facility diagram. The commenter
indicated that hydraulic and lubrication tubing is complex, and drawings
may not be available on older equipment, making production of facility
diagrams depicting this piping is unnecessarily burdensome. The
commenter recommended that the definition of “connecting piping”
should be limited to that associated with bulk storage tanks. (128)
Another commenter indicated that showing hydraulic lines and equipment
piping on a facility diagram is unnecessary because the lines may be
integral to the equipment and difficult to draw on a scale typically
used on SPCC plans. (92)  Another commenter requested that EPA clarify
that an operator may simply identify on the facility diagram areas that
contain piping associated with outdoor tanks and by doing so is
providing sufficient information. The commenter suggested that indoor
piping poses no risk to navigable waters; and outdoor piping system
diagrams may not exist for older manufacturing plants. (88)

RESPONSE

Support clarification for methods of diagramming complex piping or
oil-filled equipment. The Agency agrees with those commenters who
believe that the guidance adequately addresses the flexibility for
complying with these requirements. 

Support Rule Revision. EPA disagrees with the commenters and believes
that no additional rule amendment is necessary. In contrast with the
current requirements for oil-filled equipment and piping, previous
regulatory requirements for mobile or portable containers did not allow
the same flexibility. Thus, the Agency is amending the language
pertaining to the mobile or portable containers, but the Agency does
believe it is necessary to provide an amendment for requirements that
already offer equivalent flexibility for oil-filled equipment and piping
as they are typically associated with fixed operations. Additionally,
the Agency disagrees with the request for a regulatory amendment to
incorporate the example from the proposal regarding the use of
simplified schematic representations of piping with descriptions in the
Plan. That statement in the proposal (72 FR 58389, October 15, 2007) was
provided only as an example of an approach that may be sufficient to
satisfy facility diagram requirements for complicated areas of piping.  

	EPA also disagrees with the request for a regulatory amendment to allow
deviations under the environmental equivalence provision for facility
diagram requirements.  The facility diagram is an important component of
an SPCC Plan because the diagram is used for prevention, planning,
inspection, management, and response considerations. EPA and facility
inspectors, responders, and facility personnel need to be aware of the
location of all containers, piping, and transfer areas subject to the
SPCC rule. The facility diagram may also assist response efforts by
helping responders determine the flow pathway of discharged oil and take
more effective measures to control the flow of oil. Diagrams may also
help federal, state, or facility personnel avoid certain hazards and
identify the location of facility response equipment. Finally, by
informing responders of the location and content of containers, a
facility diagram helps to ensure their safety in conducting response
actions and protecting property. The Agency believes that the
requirements under the facility diagram provision adequately serve these
purposes, and that environmental equivalence deviations would limit its
usefulness. 

Oil-filled equipment. The Agency disagrees with the commenter requesting
rule revisions. The Agency interprets the requirement at §112.7(a)(3)
to allow an owner or operator of a facility to represent such systems in
a less detailed manner on the facility diagram  in the SPCC Plan, as
long as more detailed diagrams of the systems are maintained elsewhere
at the facility and this location is referenced in the SPCC Plan.  The
SPCC Guidance for Regional Inspectors describes the Agency’s
interpretation of the requirements for a facility diagram as allowing an
owner or operator to determine the scale and level of detail to be shown
on a facility diagram according to the needs and complexity of the
facility.  The guidance document illustrates how the current regulatory
requirement allows flexibility in the way the facility diagram is drawn
to include complex designs of oil-filled equipment or pipelines.

Methods to provide details. The Agency disagrees with comments that
argue that additional flexibility is warranted by allowing a description
of the number of oil-filled equipment rather than specifically
identifying it on a facility drawing.  The relief the Agency is
finalizing addresses the complexity of identifying mobile/portable
containers in a facility diagram; the same complexity would not be
present when indicating where a fixed piece of equipment is located at a
facility, such as oil-filled equipment. Additionally, not having this
information readily available as part of a facility diagram would not
provide the immediate location information response personnel need in
support of a spill event. 

The owner or operator of a facility is already allowed to identify
spatial arrangement of oil-filled electrical equipment in a less
detailed manner on the facility diagram in the SPCC Plan, as long as the
information is contained in more detailed diagrams of the systems or is
contained in some other form and such information is maintained
elsewhere at the facility and this location is referenced in the SPCC
Plan (§112.7(a)(3 )).  The SPCC Guidance for Regional Inspectors
describes the Agency’s interpretation of the requirements for a
facility diagram that allows the owner or operator to determine the
scale and level of detail shown according to the needs and complexity of
the facility. The guidance document illustrates the flexibility under
the current regulatory requirement in the way the facility diagram can
be drawn to include complex designs of oil-filled equipment or
pipelines.   

As noted in the guidance document, schematic representations that
provide a general overview of the piping service (for example,
supply/return) may provide sufficient information when combined with a
description of the piping in the SPCC Plan. Alternatively, overlay
diagrams showing different portions of the piping system may be used
where the density and/or complexity of the piping system would make a
single diagram difficult to read. For areas of complicated piping, which
often include different types, numbers, and lengths of pipes, the
facility diagram may show a simplified box labeled “piping” or show
a single line that identifies the service (for example, supply/return),
as long as more detailed diagrams are available elsewhere at the
facility. Therefore, because the existing regulations already provide
adequate flexibility and because we believe that amending the regulatory
text will not provide any greater clarity, we have decided not to
provide further amendment to the rule.  

Define transfer stations. The Agency disagrees that the guidance should
be revised to include a definition for transfer stations or areas.  EPA
believes that the guidance adequately describes transfer stations as any
location where oil is transferred.  The amendments to the facility
diagram requirement were focused on allowing flexibility in addressing
the complexity of identifying mobile/portable containers and complicated
piping.  The guidance document provides a number of examples that
demonstrate the flexibility allowed for representing piping on facility
diagrams.

Types of piping. The Agency disagrees with the request to modify the
rule to clarify the types of piping required on the facility diagram. 
As noted in the SPCC Guidance for Regional Inspectors, schematic
representations that provide a general overview of the piping service
(for example, supply/return) may provide sufficient information when
combined with a description of the piping in the Plan. Alternatively,
overlay diagrams showing different portions of the piping system may be
used where the density and/or complexity of the piping system would make
a single diagram difficult to read. For areas of complicated piping,
which often include different types, numbers, and lengths of pipes, the
facility diagram may show a simplified box labeled “piping” or show
a single line that identifies the service (for example, supply/return),
as long as more detailed diagrams are available elsewhere at the
facility.  Therefore, because the existing regulations already provide
adequate flexibility, and because we believe that amending the
regulatory text will not provide any greater clarity, we have decided
not to provide further amendment to the rule.  

	The Agency also does not agree that connecting piping should be limited
to piping associated with bulk storage containers or that indoor piping
can be excluded from facility diagrams.  Piping associated with all
SPCC-regulated containers and equipment, whether indoors or outdoors,
are potential sources of oil discharges and must be represented on the
facility diagram.

VI. 	Loading/Unloading Racks

VI.A 	Loading/Unloading Rack 

Issue: EPA proposed to define the term ‘‘loading/unloading
rack’’ and specify that this definition would govern the
applicability of the provisions at §112.7(h), Facility tank car and
tank truck loading/unloading rack. This new definition will provide
clarity to the regulated community over whether this provision applies
to a facility.  EPA proposed the following definition for
“loading/unloading rack” under § 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 fixed 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.” 

COMMENTS

Support Definition

		

Generally support. Many commenters expressed general support for the
proposed definition. (55, 66, 74, 84, 87, 97, 108, 110, 126, 143)  

Oppose Definition

Proposed definition too broad. Several commenters opposed the proposed
definition, suggesting that it is too broad, including many
loading/unloading areas or equipment that would not normally be
considered “racks.” (92, 99, 121, 152) This (non-rack-specific)
equipment includes: “storage containers equipped with safety
platforms” (92); or "piping assemblages, valves, pumps, shut-off
devices, overfill sensors, or personnel safety devices" (88,152) One
commenter construed the definition as consisting of and requiring
satisfaction of three separate component categories, which are that the
“rack” must (i) be a structure necessary for loading/unloading a
tank truck or tank car, (ii) include at least one of the following: a
platform, a gangway, a loading arm or an unloading arm, and (iii)
include at least one of the following: piping assemblages, valves,
pumps, shut-off devices, overfill sensors, or personnel safety devices. 
The commenter argued that application of these regulatory provisions to
real-world scenarios would become complicated and possibly contradictory
for certain devices at regulated facilities. (121) Another commenter
expressed a similar sentiment, arguing, for example, that the use of
“or” in “platform, gangway, or loading/unloading arm” combined
with the remainder of the definition implies that any transfer from a
platform into a tank via a valve is considered a transfer at a
loading/unloading rack. (125)  Another commenter also questioned the use
of the word “or” in “platform, gangway, or loading/unloading.”
(43) Another commenter questioned why the presence of features such as
overfill sensors or personnel safety devices should trigger more
stringent sized secondary containment requirements that those areas that
do not contain those features. (121) 

Proposed definition too subjective. One commenter expressed concern that
the definition of loading rack does not distinguish a facility with a
loading rack from a facility “where filling/emptying is accomplished
by direct connection to the same tanks.” (82)  The commenter believes
the distinction is arbitrary given that loading racks that serve only
USTs at 40 CFR Part 280 or 281 facilities have never been regulated. 
(82)

Definition of “loading arm.” One commenter expresses concern that,
by not defining “loading arm,” EPA might inadvertently cause hoses
used at loading racks to be identified as loading/unloading arms. (72)
Two other commenters suggested EPA clearly state that the essential
component of a loading/unloading rack is the loading arm and define a
loading/unloading arm as “at least two articulated parts that are
connected in such a way that relative movement is feasible to transfer
product via top or bottom loading/unloading to a transportation
vehicle.” (111, 113)

New definition will not cover all rural facilities. One comment states
that, in the state of Alaska, many rural facilities and virtually all
loading/unloading areas on the North Slope oil field do not have a
gangway and a fixed loading arm, so the proposed definition will leave
the loading/unloading areas of these facilities unregulated under SPCC,
allowing further opportunity for polluting behavior. (146) The commenter
pointed out, however, that state regulations will still cover many areas
on the North Slope. (146)

Rationale for special regulation of loading/unloading racks. One
commenter believes that EPA has not provided a rationale for determining
the containment requirements for loading racks and questioned why the
containment requirements vary for transfers occurring at loading racks,
transfer areas and at completely buried tanks exempt from SPCC
regulation. (125) 

Other Suggested Definitions and Approaches

Clarify essential aspects of loading racks. One commenter suggested that
the Agency clarify what is essential for a loading rack by stating: “A
loading/unloading rack includes a platform, and/or gangway, and a
loading/unloading arm.” (112) Commenters requested that EPA clearly
define each term required to be present to constitute a rack (i.e.,
platform, gangway, or loading/unloading arm). (74, 88) A commenter also
requested that EPA add photographs to the Guidance displaying examples
of necessary components. (74) One commenter questioned whether any
manmade structure in a loading or unloading area is considered a
platform. (88)

Two other commenters suggested EPA clearly state that the essential
component of a loading/unloading rack is the loading arm and define a
loading/unloading arm as “at least two articulated parts that are
connected in such a way that relative movement is feasible to transfer
product via top or bottom loading/unloading to a transportation
vehicle.” (111, 113) One commenter stated that if EPA prefers not to
base the definition on throughput, it should be made clear that a
loading or unloading arm is a requirement for a rack, as opposed to a
‘platform, gangway, or loading/unloading arm.’ (43)

	One commenter “recommends that accessories such as piping
assemblages, valves, pumps, shut-off devices, overfill sensors,
personnel safety devices be deleted from the definition, as these may or
may not be a part of the rack, and one or more of these devices (e.g.,
overfill sensors) are typically present on most tanks.” The commenter
also “recommends that the definition of loading/unloading rack be
narrowed to cover only permanently installed platforms, gangways or
loading/unloading arms used in the loading or unloading of tank trucks
or tank cars. (92) Additionally, commenters requested that EPA clarify
that loading/unloading operations utilizing a single hose and connection
or standpipe are not considered racks (92, 111); even when these
operations occur in areas where there is a platform or gangway (121);
facility loading/unloading docks (concrete platforms) are not considered
loading/unloading racks (92); platforms used to access tanks are not
classified as loading racks. (92, 99)

Confirm that flexible hoses used in loading or unloading should not be
considered loading/unloading arms.  Commenters requested that EPA
confirm that flexible hoses used in loading or unloading should not be
considered loading/unloading arms. (90, 102, 112, 113, 134) 

Base definition on throughput threshold. Commenters suggested a
throughput threshold for a loading area to be defined as a loading rack.
(43, 66, 121) One commenter recommended that the definition require that
the tank truck, rail car, or vessel being loaded or unloaded is
transportation-related and not an intra-facility tank vehicle. The
commenter also suggested defining racks by limiting racks to those
loading/unloading facilities with an average daily throughput in excess
of a specified threshold. The commenter provided this example: An annual
average of 100 trucks, on a five-year rolling average at 12,000 gallons
per truck, would be equivalent to 1.2 million gallons per year. The
commenter believes that using a rolling average would prevent unusual
events, such as the emptying of a large tank for internal inspection,
from triggering the definition of a loading rack. (43) Another commenter
recommended a throughput threshold of 800,000 gallons per month, based
on the relatively low risk of spill when petroleum product is
transferred only occasionally. (66) Similarly, another commenter
recommended a throughput threshold of at least 830,000 gallons of oil
loaded/unloaded per month, calculated annually. (121) Other commenters
suggested that EPA narrow the definition of loading/unloading racks by
associating the definition with the flow-rate capacities of the pump
systems typically associated with the equipment. (110, 121)

Oil-filled equipment. A commenter requested that EPA clarify that
loading/unloading racks are not typically associated with oil-filled
operational equipment. (110)

Size of transfer. One commenter suggests that small tank
transfers—using a small transfer hose to fill a shop built tank, and
therefore having the potential of only a small release (one which could
be managed with absorbents)—should be viewed as a loading area and
require compliance with §112.7(c), whereas large tank transfers—using
a larger hose equipped with a hose coupler and either the trucks’
internal pump at rates up to 400 gpm or a stationary pump at a rate
greater than 50 gpm to transfer product, with the consequent risk of a
larger release—should be viewed as a loading rack and require
compliance with §112.7(h). (23) 

Clarify equipment described applies only to tank cars or tank trucks at
the loading/unloading rack.  Commenters requested that 40 CFR
112.7(h)(2) be revised to clarify that the equipment described applies
only to tank cars or tank trucks located within the loading/unloading
rack and not to tank cars or trucks waiting to enter the
loading/unloading rack. (111, 113)  The commenters also recommended
removing the reference to “flexible or fixed oil transfer lines” and
replacing it with “loading/unloading arm.” One commenter reasoned
that this particular change incorporated the commenter’s prior
clarification that loading/unloading arms are an essential component of
a rack. (111) The commenters offer this revision of §112.7(h)(2):
“Provide an interlocked warning light or physical barrier system,
warning signs, wheel chocks or vehicle brake interlock system to prevent
vehicles from departing before complete disconnection of the
loading/unloading arm.” (111, 113)

Remove specific language from definition. Commenters suggested that
“equipment that is not unique to loading racks should not be included
in the definition.” (152)  One commenter “recommends that
accessories such as piping assemblages, valves, pumps, shut-off devices,
overfill sensors, personnel safety devices be deleted from the
definition, as these may or may not be a part of the rack, and one or
more of these devices (e.g., overfill sensors) are typically present on
most tanks. (92) Another commenter questioned why the presence of
features such as overfill sensors or personnel safety devices should
trigger more stringent sized secondary containment requirements that
those areas that do not contain those features. (121).  

Use “transfer areas” to refer to “loading and unloading areas. A
commenter requested that EPA refer to “loading and unloading areas”
as “transfer areas” in the final rulemaking and in the guidance
document to avoid any confusion between a rack and a transfer area.
(113)

Other Proposed Definitions of Loading/Unloading Rack. Commenters
proposed the following definitions for loading/unloading rack:

"Loading/unloading rack means a structure located primarily for loading
or unloading a rail car or tank truck or other similar transportation
vessel, which is located at a facility subject to the requirements of
this part. A loading/unloading rack, by definition, includes all of the
following: a fixed platform, gangway, a fixed piping loading/unloading
arm, and a fixed piping/transfer system for material delivery.” (72)

“A loading / unloading rack would not include those structures
(portable or fixed) primarily designed for the purposes of providing
fall protection to employees while loading tank trucks or wagons via
portable hose / hose connections if the loading station is located such
that a release from the operation would be prevented from migrating off
site or into waters of the ’state‘ via a PE approved site
containment feature." (72)

"Loading/unloading rack means a permanent, fixed 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 loading/unloading arm as an essential component. A
loading/unloading rack may also include a platform or gangway and/or any
combination of the following: piping assemblages, valves, pumps,
shut-off devices, overfill sensors, or personnel safety devices." (111,
113)

“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 loading/unloading arm; and any
combination of the following: a platform, gangway, piping assemblages,
valves, pumps, shut-off devices, overfill sensors, or personnel safety
devices." (99)

One commenter suggested that the definition be changed to state
affirmatively what is not a loading rack. The commenter thinks the term
should not include:

nozzled connection to a tank (i.e., one nozzle to one tank connection)
is not a rack, even if multiple tank/connections are located in one
loading area

connection consisting of a flexible hose does not constitute a rack;

single connection with a valve is not a rack; and

loading structure that is not overhead is not a rack.”

This commenter also requested that EPA remove references of unloading
from the definition.  The commenter believes that EPA has not
appropriately justified including unloading in the definition and took
out of context references to unloading in the API letter. The commenter
believes that API suggested that EPA limit the applicability of the term
only to petroleum refineries, bulk plants, and marketing terminals
because those sites have significant loading and unloading operations
occurring at regular intervals. The commenter also argued that the
secondary containment requirements for the loading rack would also serve
to protect against any lesser risk associated with unloading and where
unloading occurs in a location other than a loading rack, the unloading
activity would be subject to the general secondary containment
requirements in §112.7(c). (88)  

RESPONSE

Support Definition

		

Generally support. EPA agrees with commenters who expressed general
support for the proposed amendment. (55, 66, 74, 84, 87, 97, 108, 110,
126, 143)  However, EPA has made some revisions to the definition in
response to the comments received.  EPA has promulgated the following
definition for “loading/unloading rack” under § 112.2:
“Loading/unloading rack means a fixed structure (such as a platform,
gangway) 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 loading or unloading arm, and may
include any combination of the following: piping assemblages, valves,
pumps, shut-off devices, overfill sensors, or personnel safety
devices.” 

Oppose Definition

Proposed definition too broad. EPA agrees that the proposed definition
could be refined to provide clarity and address the concerns associated
with the “broad” and “subjective” scope of the definition. The
Agency does not intend this definition to include simple loading or
unloading configurations, but rather to only include the equipment and
structure associated with loading/unloading arms. 

EPA believes that providing the list of equipment usually associated
with a loading/unloading rack will be useful for the owner/operator and
the Professional Engineer (PE) in determining the applicability of the
rule requirements at §112.7(h) to the facility. The Agency agrees with
commenters that the key to the definition is the presence of a loading
arm in association with a permanent structure and other equipment. Thus,
the agency has added the phrase “a loading/unloading rack includes a
loading or unloading arm” in the definition to clarify this point. A
commenter requested clarification regarding proposed definition
requiring three separate components.  While the proposed definition did
require three separate components for equipment to be considered a
loading rack, the definition finalized today now requires (1) a fixed
structure for loading or unloading a tank car or tank truck; (2) the
equipment must be at a facility subject to the rule; (3) a
loading/unloading arm; and (4) any combination of piping assemblages,
valves, pumps, shut-off devices, overfill sensors, or personnel safety
devices. EPA has made these revisions to the definition in response to
the comments received.  EPA believes that the definition finalized in
today’s action is clear and provides specificity as to the type of
equipment that is considered a loading or unloading rack.  EPA’s final
modification to the term loading rack no longer includes the word
“or” as in the proposed “platform, gangway, or
loading/unloading” phrase.  EPA agrees that a structure and a loading
or unloading arm must be present for the equipment to meet the
definition of a loading or unloading “rack” (as well as meeting the
other elements of the definition).  The additional equipment (overfill
sensors or personnel safety devices) do not alone trigger more stringent
requirements.  Rather this phrase serves as examples of equipment that
is typically present at a loading or unloading rack, which would further
assist regulated community with the applicability of this term.  

Proposed definition too subjective. EPA disagrees with the comment that
the definition of loading rack does not distinguish a facility with a
loading rack from a facility where oil transfer is accomplished by
direct connection to the same tanks. The definition includes the phrase
“necessary for loading or unloading a tank truck or tank car”
indicating that the term does not apply to a transfer between two fixed
bulk storage tanks rather it address transfers to or from a bulk storage
tank and a tank car or tank truck. Additionally, EPA clarifies that
transfers associated with equipment attached to exempt USTs are subject
to SPCC regulation, which is consistent with earlier rule changes (71 FR
77283, December 26, 2006). 

Definition of “loading arm.”  A definition for loading arm was not
proposed, and is therefore outside the scope of this rulemaking. EPA
understands, consistent with commenters, that a loading/unloading arm is
typically a movable piping assembly that may include fixed piping or a
combination of fixed and flexible piping, typically with at least one
swivel joint (that is, at least two articulated parts that are connected
in such a way that relative movement is feasible to transfer product via
top or bottom loading/unloading to a tank truck or rail car). However,
certain loading/unloading arm configurations present at loading racks
may include a loading arm that is a combination of flexible piping
(hoses) and rigid piping without a swivel joint. In this case, a swivel
joint is not present on the loading arm because flexible piping is
attached directly to the rigid piping of the loading arm and the
flexible hose provides the movement needed to conduct loading or
unloading operations in lieu of the swivel joint. 

New definition will not cover all rural facilities. Commenters raised
concerns that, because of the new loading rack definition, many transfer
operations (particularly those at rural facilities with no gangways or
fixed loading arms) will not be regulated under SPCC rule. The Agency
disagrees with this assertion. Although the Agency intends the new
definition of loading rack to clearly delineate those facilities subject
to the regulatory requirements at §112.7(h) (such as sized secondary
containment), any otherwise regulated SPCC facility will still be
subject to general secondary containment requirements under §112.7(c)
for all areas where oil is transferred into or out of any regulated
container.

Rationale for special regulation of loading/unloading racks. EPA did not
propose to change the containment requirements for loading or unloading
racks or other transfer areas and therefore this comment is outside the
scope of this rulemaking. However, EPA clarifies that loading rack
equipment attached to exempt USTs are subject to the SPCC rule, which
consistent with earlier rule changes (71 FR 77283, December 26, 2006).

Other Suggested Definitions and Approaches

Clarify essential aspects of loading racks. EPA agrees that the proposed
definition of “loading/unloading rack” should be refined to provide
clarity and address the concerns about the scope of the definition.
Therefore, EPA has modified the proposed definition to provide more
clarity by addressing concerns that a loading/unloading arm is an
essential component of a loading rack, while describing other components
that may be found at a loading or unloading rack. EPA did not propose to
define platform, gangway, or loading/unloading arm, thus definitions for
these terms were not finalized. However, the fixed structure (such as a
platform or gangway) is typically the equipment used to support the
loading and/or unloading arm and often houses the piping, assemblages,
valves, pumps shut-off devices, overfill sensors, or personnel safety
devices listed as examples of equipment to load or unload a tank or rail
car.  Note that this list of equipment is not exhaustive and lists
typical, but, not all equipment that may be present at a loading rack. 
Every man made structure may not serve this function but this evaluation
must be made on a site specific basis. EPA understands, consistent with
commenters, that a loading/unloading arm is typically a movable piping
assembly that may include fixed piping or a combination of fixed and
flexible piping, typically with at least one swivel joint (that is, at
least two articulated parts that are connected in such a way that
relative movement is feasible to transfer product via top or bottom
loading/unloading to a tank truck or rail car). However, certain
loading/unloading arm configurations present at loading racks may
include a loading arm that is a combination of flexible piping (hoses)
and rigid piping without a swivel joint. In this case, a swivel joint is
not present on the loading arm because flexible piping is attached
directly to the rigid piping of the loading arm and the flexible hose
provides the movement needed to conduct loading or unloading operations
in lieu of the swivel joint. The presence of concrete platforms does not
specifically exempt a transfer area from the definition of loading rack.
 A concrete platform may be part of a loading rack if the platform
serves to support a loading and/or unloading arm and houses the type of
equipment referenced in the definition, necessary to load or unload a
tank or rail car. Every concrete platform structure may not serve this
function but this evaluation must be made on a site specific basis.
Finally, EPA plans on updating the inspectors guidance document to
address comments and suggestions provided by commenters relating to the
definition of loading rack.

Confirm that flexible hoses used in loading or unloading should not be
considered loading/unloading arms. Equipment present at a loading/
unloading areas where a pipe stand connects to tank car or tank truck
via a flexible hose, which is not equipped with a loading arm, is
generally not considered a loading or unloading rack as defined in this
action. However, the presence of flexible hoses on oil transfer
equipment does not always indicate that the equipment is exempt from the
definition of loading rack, as some top and bottom loading racks are
made up of a combination of steel loading arms connected by flexible
hosing. 

Base definition on throughput threshold.  EPA considered, but did not
agree with, this alternative in developing the definition for
loading/unloading rack promulgated in this notice. However, the
commenters suggestions included limited supporting data for a threshold
based criteria (such as the 800,000 gallon monthly threshold). The
complexity in determining a rack’s throughput for a given time period
would add additional burden on the owner and operator of a facility,
making this a a less attractive option in today’s efforts to
streamline requirements. Furthermore, there is no basis for deciding on
a specific time period for making this determination. Thus, EPA is not
basing its definition of loading/unloading rack on a “racks”
throughput, but rather on equipment. The determination of whether the
particular equipment at a facility constitutes a loading or unloading
rack will often be a site-specific determination, however, EPA believes
the definition finalized today will assist the regulated community in
making this determination.  

Oil-filled equipment. The definition typically will not include
oil-filled equipment; however transfers associated with oil-filled
operational equipment where a rack is not present are still required to
meet the general containment requirements of §112.7(c). 

Size of transfer. EPA considered throughput (size of the transfer) in
developing the definition for loading/unloading rack promulgated in this
notice. Specifically, several commenters recommended that the definition
of loading/unloading racks be based on throughput, offering various
throughput numbers as a method of defining transfer operations that
would be subject to the §112.7(h) requirements. However, these
suggestions included limited supporting data. The complexity in
determining a rack’s throughput for a given time period would add
additional burden on the owner and operator of a facility. Furthermore,
there is no basis for deciding on a specific time period for this
determination. Thus, EPA is not basing its definition of
loading/unloading rack on a “racks” throughput.

Clarify equipment described applies only to tank cars or tank trucks at
the loading/unloading rack.  In response to questions from commenters,
EPA is clarifying that tank cars and tank trucks are only subject to the
requirements of §112.7(h) when conducting loading or unloading
operations associated with a rack as defined in this action. Otherwise,
they are subject to the general secondary containment requirements at
§112.7(c).	Commenters suggested a modification to the text associated
with §112.7(h)(2), which was not proposed.  This suggested change is
outside the scope of today’s final action.

Remove specific language from definition. Commenters suggested that EPA
delete reference to the accessories such as piping assemblages, valves,
pumps, shut-off devices, overfill sensors, and personnel safety devices
from the definition, as these may or may not be a part of the rack, and
one or more of these devices (such as overfill sensors) are typically
present on most tanks. The definition is not intended to address oil
containers (such as tanks); the list of equipment specifically addresses
equipment associated with loading/unloading rack structures. EPA
believes that providing examples of equipment usually associated with
loading/unloading racks would be useful for the owner or operator of a
facility, as well as the PE, for determining the applicability of the
definition. 

Use “transfer areas” to refer to “loading and unloading areas. EPA
disagrees with the commenter’s suggestion to change the §112.7(h)
text. Additionally, EPA did not propose the suggested changes.  All
areas are transfer areas and to finalize the text as the commenter
suggested would lead to more confusion.  EPA did finalize modifications
to §112.7(h) to make the rule text and title of the section consistent
by removing the word “area” and replace it with the word “rack.”

Other Proposed Definitions of Loading/Unloading Rack. EPA received
several alternatives to the definition of loading/unloading rack
proposed by the Agency. EPA considered these alternative definitions in
developing the definition for loading/unloading rack promulgated.
Certain definitions provided examples only of equipment that should not
be considered a loading or unloading rack. The Agency believes that it
is much clearer to define the equipment typically associated with a
loading or unloading rack than to provide a list of equipment that are
not considered a loading or unloading rack. Thus, EPA is finalizing an
equipment-based definition, as proposed, as a clearer method for
identifying transfer activities subject to the requirements of
§112.7(h). While some commenters suggested limiting the definition to
certain facility types (petroleum refineries, bulk plants, and marketing
terminals), doing this would be inappropriate as loading and unloading
rack equipment is present at many other facility types (military bases,
manufacturing facilities, transloading operations) regulated by EPA. As
stated elsewhere, transfer activities at an otherwise regulated SPCC
facility, not occurring at a loading or unloading rack are subject to
only the general containment requirements.  EPA agrees that the sized
containment for a loading or unloading rack may, in some situations, but
not all, serve to address the general containment requirements for a
co-located non-rack transfer location, but this is a site-specific
determination, subject to good engineering practice.   

VI.B 	Requirements for Loading/Unloading Racks

Issue: EPA proposed editorial revisions to the provision at §112.7(h)
for clarity. Specifically, EPA proposed to change all references from
loading/unloading “area” to loading/unloading “rack.” The Agency
also proposed modifications to an interpretation in the 2002 preamble
discussing how EPA regulates the transfers to or from completely buried
tanks subject to all of the technical requirements under 40 CFR 280 or
281. 

COMMENTS

Support Proposal

Generally support. Three commenters expressed support for the proposed
amendment to change all references from loading/unloading “area” to
loading/unloading “rack.” (111, 113, 129)

Oppose Proposal

Transfers to or from completely buried tanks. Commenters recommended
that EPA maintain its existing position that the rule does not apply to
loading/unloading racks and transfer areas for transfers to or from
exempted tanks - specifically, in this instance, tanks exempted under 40
CFR 280.30(a) or associated state programs approved under Part 281. (75,
111) One commenter reasoned that removing the exemption could result in
gasoline service stations and aviation fixed base of operations (FBO)
facilities developing plans. The commenter also indicated that 40 CFR
280.30(a) have spill prevention provisions.  The commenter believes that
no rule change is necessary, and that any change in interpretation is
inappropriate. The commenter also believes that any reinterpretation
would expand the agency's jurisdiction and cause undue burden on
industry. (111)

Other Suggested Approaches

Exempt loading/unloading activity from SPCC regulation. One commenter
supports exempting the loading/unloading activity from SPCC regulation,
because standard industry practice is to place the connection valve
inside a secondary containment area during loading/unloading. The
commenter provides as justification the small volume of a potential
leak, flat loading area location, and that a discharge would be observed
and responded to immediately by personnel engaged in loading/unloading
activity. (133)  Another commenter requested that all equipment,
including loading/unloading racks, that are associated with an
SPCC-exempt tank, also be exempted from the rule. (75) 

General secondary containment. A commenter requested EPA clarify in the
regulations that loading racks are subject only to general secondary
containment requirements; and that this revision will address the goal
of § 112.7(h) by not including operations that do not pose significant
oil discharge risks. (100)  Another commenter also suggested that EPA
use the term “reasonably expected maximum rate of discharge” instead
of “most likely discharge” in the Guidance as the basis for
designing secondary containment for transfers.  The commenter would
interpret “reasonably expected maximum rate of discharge” to mean
the maximum flow rate of the largest transfer pump used in a transfer
are or the estimated flow rate from a tank if a transfer coupling
disconnected. (121)

Settlement language. Two commenters recommended EPA codify the
settlement agreement in this rule to provide clarity to the regulated
community (75, 111) and place all rule requirements in a single document
rather than separate documents. (75)

Special control measures. A commenter suggested EPA regulate transfers
based on frequency, volume, method, spill likelihood, and spill
consequences. (125) The commenter reasoned that regulation of
loading/unloading only at racks may create an incentive for conducting
transfers without racks to avoid regulation. (125) The commenter
suggested the following text for §112.7(h): “(1) Special Control
Measures. The SPCC plan shall describe special secondary containment or
other measures required for portions of the facility where experience at
the facility, or similar facilities, indicates a higher likelihood of a
discharge as described in Section §112.1(b), such as transfer areas
where containers are frequently open for filling or where couplings are
frequently connected and disconnected from containers. The need for and
volume of special secondary containment shall depend on (i) the
reasonably expected sources and causes of leaks and the resulting
reasonably expected maximum leak rate, (ii) whether or not overflows
from the special secondary containment will flow into a catchment basin,
treatment facility, or other containment system designed to handle the
reasonably expected maximum leak rate, and (iii) procedures, personnel,
alarms, emergency shutoffs, automatic shutoffs, and other equipment
available to prevent or limit the volume of a leak. (2) Special
Prevention Measures. The SPCC plan shall describe warning signs, other
warning systems, use of wheel chocks, or vehicle brake interlock systems
to prevent movement of mobile containers (including tank trucks and tank
cars) during operations when movement would probably cause a leak.”
(125) 

RESPONSE

Support Proposal

Generally Support. EPA agrees with the commenters who expressed support
for the proposed amendment to change all references from
loading/unloading “area” to loading/unloading “rack.”  This
revision will provide clarity to the regulated community as to the
ability of the loading rack requirements.

Oppose Proposal

Transfers to or from completely buried tanks. EPA has decided to modify
the Agency’s interpretation in the 2002 preamble discussion of how EPA
regulates the transfers to or from completely buried tanks to clarify
that at an SPCC-regulated facility, §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 finalized in this notice. A transfer not
associated with a loading or unloading rack is subject to the general
secondary containment provision at §112.7(c). This interpretation is
consistent with the approach EPA has taken with other exempt containers
at an otherwise regulated SPCC facility. For example, 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). No rule change is needed to clarify this point, because a
rule amendment to exempt a loading/unloading rack associated with an UST
was never proposed or finalized. This clarification is intended to
correct preamble language that was inconsistent with the Agency’s
position on other exempt containers and their associated transfer
activities.

One commenter stated that the provisions associated with 40 CFR
280.30(a) address spill prevention and thus, the requirements for
loading/unloading racks should not apply to exempted USTs. While we
recognize that this provision (40 CFR 280.30(a)) describes spill and
overfill control requirements when USTs are being filled, EPA still
believes that the loading/unloading requirements should apply to these
exempted USTs, for the reasons described above. However, EPA would note
that to the extent that 40 CFR 280.30(a) addresses SPCC requirements,
these measures can be described in the SPCC Plan, as appropriate.
Therefore, transfers at loading/unloading racks and transfer areas
associated with exempted USTs are considered regulated activities at an
otherwise regulated SPCC facility. In addition, exempted USTs, at an
otherwise-regulated SPCC facility, equipped with a loading/unloading
rack as defined in this action, are subject to the requirements of
§112.7(h). Also, exempted USTs, at an otherwise regulated SPCC
facility, equipped with a transfer area (for example, dispenser or other
transfer equipment) are subject to the requirements of §112.7(c).
Non-rack transfer areas are required to provide only general secondary
containment for the most likely discharge, as discussed in Section H in
this action, and which may include active containment measures, such as
response action or sorbent deployment.  EPA disagrees with commenters
who stated that this change in interpretation would result in gas
stations and FBOs being required to develop SPCC Plan and increasing
burden on the regulated community. This interpretation impacts only the
transfer activities associated equipment (exempt USTs) at otherwise
regulated SPCC facilities.  The interpretation did not change the
fundamental applicability of the rule to facilities.                    
     

Other Suggested Approaches

Exempt loading/unloading activity from SPCC regulation. EPA did not
propose: (1) to exempt (nor do we agree that the final rule should
exempt) loading or unloading activities conducted at loading/unloading
racks from the SPCC rule The industry practices described by the
commenter may be used to meet the rule requirements that exist for
loading and unloading activities; these do not provide adequate
justification to exempt this equipment from the SPCC regulation).  EPA
disagrees with comments requesting that all equipment, including
loading/unloading racks, that are associated with an SPCC-exempt tank,
also be exempted from the rule. (75)  EPA did not propose an exemption
and to do so would be outside the scope of toady’s final action. 

General secondary containment. EPA did not propose to eliminate the
sized containment requirements for loading and unloading racks.  EPA
also did not propose a risk based standard for determining applicability
of the loading and unloading rack provisions.  Therefore, these comments
fall outside the scope of today’s final action.  EPA disagrees with
the commenter who stated that the term “reasonably expected maximum
rate of discharge” should be used in the Guidance instead of “most
likely discharge” as the basis for designing secondary containment for
transfers.  EPA did not propose to change any on the containment
requirement to require sizing based on “reasonably expected maximum
rate of discharge”  However, elsewhere in today’s action EPA did
provide flexibility in determining the containment sizing requirements
for the general containment provisions under §112.7(c).

Settlement language. Commenters requested that EPA codify settlement
language on this issue. We have not done this; however, the modification
to change the word “area” to “rack” in §112.7(h) is consistent
with EPA’s notice in the Federal Register in May 2004, which stated
that §112.7(h) only applies at facilities with loading and unloading
“racks” (69 FR 29728, May 25, 2004). EPA also maintains its
position, as clarified in a letter to the Petroleum Marketers
Association of America (PMAA), that loading and unloading activities
that take place beyond the rack area are not subject to the requirements
of §112.7(h), but are subject, where applicable, to the general
secondary containment requirements of §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 and 69 FR 29728, May 25,
2004).  Thus, EPA has codified in rule text the agreements made during
settlement in an effort to provide clarity to the regulated community.

Special control measures.  EPA does not agree with the commenter that
suggested that further revisions be made to the rule requirements at
§112.7(h) to address special control measures for portions of the
facility with a higher likelihood of a discharge as described in
§112.1(b). The Agency believes the current requirements are appropriate
to address a discharge at the loading/unloading rack. The clarifications
to the language in §112.7(h) finalized in this action address the
questions that have been raised by the regulated community on how these
rule provisions apply to loading/unloading racks and do not apply to
areas beyond the “rack.”  EPA did not propose, and does not agree
with, regulating transfer activities based on a risk based approach
evaluating transfer frequency, volume, method, spill likelihood and
spill consequences.  As explained above, EPA has finalized an equipment
based definition for the term “loading and unloading rack” which is
used to determine the applicability of the sized containment
requirements in lieu of a risk based approach.  Finally, EPA modified
the general containment provisions to provide additional flexibility to
address transfer operations located at non-rack transfer areas.

	EPA also disagrees that regulating transfers at loading racks will
create an incentive for conducting transfers without racks to avoid
regulation because all transfer activities are regulated at facilities
subject to SPCC.  Transfers at loading/unloading racks are subject to
§112.7(h), while transfers operations at non-rack transfer areas are
subject to the general secondary containment requirements at §112.7(c).

VI.C	Exclusion

Issue: EPA proposed to exclude onshore oil production facilities from
the loading/unloading rack requirements at §112.7(h). EPA sought
comment on whether the proposed exclusion for onshore oil production
facilities 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
§112.7(h) at oil production facilities. In addition, EPA proposed to
exclude farms from the loading/unloading rack requirements at
§112.7(h). EPA sought comment on whether the proposed exclusion of
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
§112.7(h) at farms.

COMMENTS 

Support Proposal

Generally Support. Several commenters expressed support for the proposed
amendments regarding onshore oil production facilities. (76, 85, 105,
108, 111, 113, 123) One commenter expressed support for the amendments
addressing exemption of farms. (56) 

Oppose Proposal

No comments were submitted on this topic regarding onshore oil
production facilities.

Treat agricultural retailers similarly. One commenter stated that if the
EPA believes loading racks are generally not found at farms and are
already covered by existing federal and state regulations, the same
holds true for agricultural retailers. The commenter suggested that
agricultural retail facilities should be exempt from SPCC regulations
since these facilities already fall under FIFRA pesticide regulations.
(Undocketed Letter)

RESPONSE

Generally support. The Agency agrees that it is appropriate to exclude
onshore oil production facilities and farms from the loading/unloading
rack requirements at §112.7(h). Commenters confirmed EPA’s
understanding that there are only a few, if any, loading/unloading racks
at oil production facilities, and that agricultural oil and fuel
transfers at farms are generally not associated with loading/unloading
racks. However, all transfer activities at an SPCC production facility
or farm would be subject to the general containment requirements in
§112.7(c). 

Treat agricultural retailers similarly. The Agency disagrees with the
commenter who requested that agricultural retailers also be excluded for
the loading/unloading requirements of §112.7(h) on basis of FIFRA
requirements because these regulations do not provide spill prevention
requirements equivalent to the SPCC requirements. If an agricultural
retail facility (which is not by definition a farm) conducts fuel
transfers with equipment that meets the definition of a
loading/unloading rack, then this facility would be subject to the
loading/unloading rack requirements at §112.7(h).

VI.E 	Alternative Option Considered

Issue: 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. 

COMMENTS

Support 

Generally Support. Several commenters indicated that no rule change is
necessary. (100, 111, 121, 125) One commenter suggested that EPA should
abandon the effort to define loading racks and drop the sized secondary
containment requirement from §112.7(h) based on what the commenter
believes is the apparent difficulty EPA is having in defining the scope
of the provision and because the commenter sees only marginal benefits
associated with these provisions. (121) Another commenter recommended
that EPA clarify in the regulations that loading/unloading racks are
subject solely to the general containment requirements. (100) 

Oppose

No comments were submitted on this topic.

Other Suggested Modifications

No comments were submitted on this topic.

RESPONSE

Generally support. EPA disagrees with the commenters and has finalized
the new definition and associated editorial changes to the rule to
provide additional clarity in describing the type of equipment and
facilities subject to the loading/unloading rack requirements under
§112.7(h). Additionally, EPA did not propose to eliminate the sized
secondary containment requirements for loading racks and to do so would
be outside the scope of the proposal. EPA does not agree that the effort
to define loading or unloading rack should be abandoned. The definition
finalized in today’s action provides clarity about the scope of
equipment regulated by the §112.7(h) provisions. 

VII.	Tier I Qualified Facilities

VII.A  	Eligibility Criteria

Issue: EPA proposed to establish a tiered approach for qualified
facilities with an option to allow the owners and operators of a subset
of qualified facilities (now designated as “Tier I qualified
facilities”) 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.  To be eligible as a
Tier I qualified facility, the owner or operator must meet the criteria
for a qualified facility (see (§112.3(g)) and have a maximum individual
aboveground oil storage container capacity of 5,000 U.S. gallons.  EPA
proposed to designate all other qualified facilities as “Tier II
qualified facilities.”

COMMENTS

Support 

Generally support.  Several commenters expressed general support for the
proposed amendments. (24, 29, 45, 55, 70, 71, 72, 84, 92, 98, 110, 113,
114, 119, 124, 128, 129, 142, 147) One commenter supported the approach
because it reduces requirements for facilities with between 1321 and
5000 gallons of oil storage capacity. (71) 

Oppose 

Proposed criteria do not reduce burden for oil and gas facilities. A
commenter stated that “[t]he proposed simplification of the
requirements for qualified Tier I facilities and the addition of a
template, as well as the additional Tier II qualified facility
category… would be useless to most oil and gas production facilities
because the owner or operator must include in the calculation of ‘oil
storage capacity’ the capacity of treated produced water storage.”
(123)  

Discharge criteria. One commenter stated that any discharge in the
previous 3 years should disqualify a facility from Tier 1 or Tier 2
eligibility and should require the development and implementation of a
P.E. certified Plan. (132)

Eliminate the qualified facility option.  One commenter requested that
EPA remove the special treatment by the qualified facility option and
require all small oil storage facilities to prepare a complete SPCC Plan
certified by a P.E. based on 1,320 gallon storage capacity. The
commenter believes that this will assure equal and fair treatment for
all owners and operators of oil tankage. (31) 

Alternative Approaches Suggested 

Alternative the threshold for Tier I qualified facilities. Several
commenters suggested increasing the Tier I individual tank threshold
requirement to 10,000 gallons. (104, 109, 112) One commenter stated that
“[c]ommon crude oil and produced water tank sizes typically come much
closer to storing 202 barrels for oil and 300 barrels for water. 
Therefore the proposed 119 barrels or 5,000 gallons for oil will not
allow most small operators to qualify for Tier 1 treatment.  To make the
proposed rules available to small operators, EPA should allow commonly
used oilfield tank sizes (two 202 barrel tanks and one 300 barrel water
tank, or 16,968 gallons oil and 12,600 gallons water) to use the
simplified Tier 1 rules for the oil portion of the unit.” (129)
Another commenter argued that “[d]ue to the standard size of oil
storage tanks in North Dakota, which is 400 barrels, operators in North
Dakota will not be able to take advantage of the increased flexibility. 
Consideration should be given to a standard oilfield sized tank and the
number of tanks on location in order to self-certify. It is suggested
that a location with one 400 barrel oil tank on location that is in
compliance with state or federal diking regulations fall into the Tier I
category.” (133) Another commenter asked EPA to consider raising the
level of 5,000 for Tier I and 10,000 gallons for Tier II. The commenter
stated that a single tank truck of AF/VO typically holds 6,000 gallons
of AF/VO forcing the facility in Tier I to purchase and have delivered a
smaller quantity than is typically delivered. The commenter argued that
the facility would be forced to be completely out of product before the
next load would fit into the tank without risk of overfilling the tank
or stop production until the product arrives. (102)

Facility proximity to sensitive environments. A commenter states that
the proposed rule “does not take into account the fact that some
facilities that meet the criteria proposed for Tier I or Tier II
facilities because they have less than 10,000-gallon aggregate storage
and/or no single aboveground storage tank (AST) with a capacity of
5,000-gallons are located immediately adjacent to environmentally
sensitive areas, such as lakes, rivers, and wetlands. It is recommended
that criteria be introduced that takes into consideration a facilities
proximity to environmentally sensitive environments either by distance
or some other logical means.”  (29)

Use actual volumes rather than capacity to determine eligibility. A
commenter suggests that “[t]o the extent that there is a move to
lessen regulatory burden for smaller operations by the ‘tiered
qualified facility’ approach, consideration to regulation of sites
based on actual oil storage, not container capacity should be done.” 
(82) 

Exclude the capacity of containers containing AFVO that would solidify
without heating. Commenters suggested that EPA should revise the SPCC
applicability provisions and the Tier II eligibility criteria for AFVO
facilities by modifying §112(d)(2) so that the capacity of AFVO storage
containers would not be counted toward the facility oil storage capacity
calculation.  The commenters also requested that EPA revise the Tier I
eligibility criteria to be consistent with these Tier II changes, and
exclude from the 5,000 U.S. gallon individual maximum those containers
of AFVO that would solidify without heating.” (51, 73, 102)

Increase the storage threshold capacity for Tier II. One commenter
requested that EPA raise the threshold capacity for qualified facilities
to 15,000 gallons, (112)

Confirm that facility oil-filled operational equipment is eligible for
Tier I status.  A commenter suggests that “EPA should confirm that
qualified facilities with oil-filled operational equipment are eligible
for the Tier I status. We suggest that the language be modified to read
‘has no individual oil storage container or oil-filled operational
equipment greater than 5,000 gallons.’” (121)

Define the term “terrorism” in the explanation of criteria.  A
commenter expressed concern that without a definition for the term
“terrorism” each Region will define the term differently, resulting
in confusion over the qualified facilities criteria.  (31)

Three-tiered approach to eligibility.  Several commenters expressed
support for a three-tiered approach to the tank threshold trigger for
qualified facilities and the use of a PE only in cases where the tank
capacity is above 20,000 gallons. The commenters argued that this fits
the nature of farming operations that are frequently spread out, remote,
and family-owned. (104, 109, 141)

RESPONSE

Support

Generally support.  EPA agrees with commenters who generally supported
the proposal. The Agency is amending the SPCC rule, with some changes in
response to comments received, to provide the Tier I option for the
owners and operators of a subset of qualified facilities that meet an
additional criterion to complete and implement a streamlined,
self-certified SPCC Plan template. For clarity, EPA is finalizing 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 (71 FR 77266, December 26, 2006). We
believe one commenter who supported the proposal may be under the
impression that the criteria for Tier I qualified facilities only
applies to facilities with less than 5,000 gallons of oil storage
capacity. Rather, a Tier I qualified facility is a facility that has a
maximum individual aboveground oil storage container capacity of 5,000
U.S. gallons and meets the Tier II qualified facility criteria (i.e.,
the reportable discharge criterion in §112.3(g)(2) and either has an
aggregate aboveground oil storage capacity of 10,000 U.S. gallons or
less; or meets alternative criteria for oil production facilities in
§112.3(g)(2)(ii)). 

Oppose

Proposed criteria do not reduce burden for oil and gas facilities. EPA
disagrees with the commenter that the qualified facility options would
not reduce the burden for oil and gas facilities. EPA has estimated that
the Tier II approach does allow approximately 13% of the smallest oil
and gas production stakeholders to qualify to self-certify their SPCC
Plans based on oil storage capacities below 10,000 U.S. gallons.
However, EPA is finalizing an alternative set of Tier II qualified
facility eligibility criteria specific for onshore oil production
facilities that does not rely on facility oil storage capacities. EPA
believes these alternative criteria are more appropriate to qualify the
oil production facilities for Plan self-certification. 

Any discharge in the previous 3 years should disqualify a facility from
Tier 1 or Tier 2 eligibility. EPA disagrees with the commenter
suggesting that the criterion for discharge history be more stringent.
Some discharges occur despite adherence to the SPCC Plan and do not
necessarily indicate a need for a PE to certify the SPCC Plan. EPA chose
a discharge history criterion similar to the reporting requirement in
§112.4(a) because a discharge smaller than what must be reported to the
EPA Regional Administrator (RA) under this section may result from
normal handling of oil at the facility and may not indicate a recurring
problem resulting from a deficiency in the Plan or improper Plan
implementation. In those circumstances, the RA would not likely require
the owner or operator to amend the Plan and therefore, the facility
owner/operator should be eligible to self-certify the SPCC Plan as a
qualified facility.

Eliminate the qualified facility option. The Agency did not propose to
eliminate the qualified facility option that was finalized in the
Federal Register on December 26, 2006 (71 FR 77266) and therefore is not
amending the regulation to remove this provision as suggested by a
commenter.

Alternative Approaches Suggested

Alternative threshold for Tier I qualified facilities. Commenters
suggested alternative threshold for Tier I qualified facilities based on
commonly used tank sizes in various industry sectors as well as the size
of tank trucks that deliver AFVO to SPCC-regulated facilities. EPA
considered these alternative thresholds for Tier I qualified facilities;
however, the Agency does not believe that alternative thresholds
identify a subset of the qualified facilities that the Agency finalized
in December 2006 (December 26, 2006, 71 FR 77266).. Many of the
commenters suggested thresholds that are larger than the 10,000 gallon
aboveground storage capacity threshold for Tier II qualified facilities.
Those commenters did not provide data to demonstrate how the alternative
threshold supports streamlined regulatory requirements appropriate for a
subset of qualified facilities. Therefore, EPA is finalizing the Tier I
qualified facilities criterion to require a maximum individual oil
container of 5,000 U.S. gallons as proposed. This criterion links an
operational characteristic of a facility (the maximum tank size) to
streamlined requirements for integrity testing of the bulk storage
containers based on industry consensus standards.

Facility proximity to sensitive environments.  EPA disagrees with the
commenter that criteria should be added to take into consideration
proximity to sensitive environments. Consideration of the impact of an
oil discharge to the environment is made when determining the
applicability of the SPCC regulation to the facility. The SPCC rule only
applies to a facility when it has a reasonable potential to discharge
oil in quantities that may be harmful to navigable waters or adjoining
shorelines. Furthermore, the Agency does not have data to support
establishing a minimum distance or other measure for a criterion to
consider proximity to sensitive environments. This type of criterion
would raise questions by the regulated community on what method to use
to calculate proximity to sensitive environments to determine
eligibility for Tier I status. Finally, the goal of the SPCC program is
to prevent, prepare for, and plan to respond to oil discharges to
navigable waters and adjoining shorelines, which may include lakes,
rivers and wetlands. The owner or operator of a qualified facility is
responsible to develop an SPCC Plan that meets these standards,
regardless of whether the facility is located near a sensitive
environment.  Therefore, EPA does not believe that an additional
criterion is appropriate for an SPCC-regulated facility that may impact
sensitive environments. 

Use actual volumes rather than capacity to determine eligibility.  EPA
disagrees with the commenter who suggested that EPA use the operational
volumes of oil storage at the facility rather than the shell capacity of
the oil storage containers. The applicability of the SPCC regulation has
always been based on using the shell capacity to calculate total oil
storage capacity of the facility and the same oil storage capacity is
then considered in determining applicability of the qualified facility
options for the facility. The operational volume at a facility may
change frequently and therefore create confusion on which SPCC
requirements apply to the facility and how to certify the SPCC Plan.

Exclude the capacity of containers containing AFVO that would solidify
without heating. EPA disagrees with commenters who requested that EPA
consider excluding from both qualified facility thresholds—that is,
Tier I and Tier II—the capacity of those containers containing AFVOs
that are solid at ambient temperatures. The Agency disagrees because,
similar to AC and other high viscosity oils, these AFVO containers are
typically maintained at elevated temperatures and thus, are capable of
flowing if there is a release from the container. The AFVO could still
spill, flow, and, depending on the location of the facility, could
potentially reach navigable waters or adjoining shorelines. 

Increase the storage threshold capacity for Tier II.  EPA disagrees with
the commenter requesting an increase in the Tier II threshold capacity.
EPA is not changing the Tier II threshold and is not amending the total
aboveground oil storage capacity for Tier II qualified facilities in
this final rule.  The Agency addressed the eligibility criteria for the
Tier II qualified facilities in the December 2006 rulemaking and did not
propose to amend the threshold capacity in this rulemaking.

Confirm that facility oil-filled operational equipment is eligible for
Tier I status.  EPA agrees with the commenter that oil-filled
operational equipment are eligible for Tier I status. To clarify, the
maximum individual oil storage container criterion applies to any
aboveground oil storage container at the facility. This includes bulk
storage containers, such as tanks and mobile or portable containers,
oil-filled operational equipment (such as transformers), and other
oil-filled equipment, such as flow-through process equipment.  

Define the term “terrorism” in the explanation of criteria. EPA
disagrees with the commenter that a definition of terrorism is needed.
EPA did not propose to define terrorism in the final rule. The Agency
defers to the Homeland Security Act of 2002 which defines terrorism as
“any activity that involves an act that is dangerous to human life or
potentially destructive of critical infrastructure or key resources; and
is a violation of the criminal laws of the United States or of any State
or other subdivision of the United States; and appears to be intended to
intimidate or coerce a civilian population, to influence the policy of a
government by intimidation or coercion or to affect the conduct of a
government by mass destruction, assassination, or kidnapping.” See
Section 2 (15), Homeland Security Act of 2002, P.L. 107−296, 116 Stat.
2135 (2002).  Furthermore, in the December 2006 amendments to the SPCC
rule, EPA identified reportable discharges caused by external factors
beyond the control of the facility owner or operator such as natural
disasters, acts of war, or terrorism. The Agency specifically excluded
vandalism and sabotage from consideration in the reportable discharge
history criterion for qualified facilities and qualified oil-filled
operational equipment. At that time, EPA excluded sabotage and vandalism
from the list of reportable discharge history extreme events because
these are not necessarily beyond the control or planning ability of the
facility owner or operator. (See 71 FR 77272, December 26, 2006.) The
security provisions in §112.7(g) require consideration for acts of
vandalism. The owner or operator of a facility must describe in the Plan
how he/she controls access to the oil-handling, processing and storage
areas and the appropriateness of lighting to both prevent acts of
vandalism and assist in the discovery of oil discharges.

Three-tiered approach to eligibility. EPA has established a three tiered
approach in this rulemaking, however, we do not agree with the 20,000
gallon threshold for Tier II qualified facilities that commenters
suggested. The Agency maintains that the focus of the qualified
facilities alternative is on facilities with simple configurations and
small quantities of oil stored or handled. The Agency recognizes that
regardless of the threshold quantity selected, there are likely to be
facilities just above that threshold that will be excluded. To the
extent that facility owners or operators want to meet the criteria for a
qualified facility, they have the option of reducing oil storage
capacity at their facility by either removing containers from the
facility inventory, or permanently closing containers in accordance with
§112.2. Although EPA acknowledges that farming operations typically
cover large areas, EPA does not believe it is necessary to raise the
threshold for qualified facilities to address the geographic footprint
of farming operations. Instead, EPA has clarified that a facility owner
or operator defines the boundaries of the facility and may separate
components of a facility into multiple facilities based upon
consideration of several factors (see Chapter 4 of this document for
more information on the Definition of Facility.)  

VII.B	Provisions for Tier I Qualified Facilities 

Issue: EPA proposed to provide the owner or operator of a Tier I
qualified facility with an 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. 

COMMENTS

Support 

Generally support. Many commenters expressed general support for the
proposed amendments. One commenter stated that “EPA proposes
establishing a self-certified template for some facilities to use if the
facility meets ‘qualified facility’ criteria.  Simpler SPCC Plans
should be allowed for simple facilities (so long as all important spill
prevention and spill response elements are addressed).” (132)

Alternative Approaches Suggested 

Certification and approval. One commenter indicated that Tier I
facilities should require PE certification to ensure compliance. (31)
Another commenter suggested that the regulations stipulate requirements
for “qualified personnel”   (e.g., someone who is certified (SP001
Certification, etc.) and familiar with various standards (e.g., UL-142,
UL-2085, API 650, etc.)) that would review and approve the SPCC Plan. 
The commenter argued that this would address the potential liabilities
and environmental impacts associated with self-certification by
inexperienced owners and operators. (48, 151) Another commenter asked
EPA to confirm that an Appendix G template may be certified by a PE.
(121)

All facilities should be required to have a facility diagram.  A
commenter suggested that if Tier I facilities are small and simple a
diagram should not be an excessive burden.  (132) 

Delete five-year review requirements.  Several commenters recommended
that EPA delete the five-year review requirement. (92, 114, 142)
Commenters recommended that the SPCC Plan should be updated whenever
there is a material change in the facility that may affect discharges;
the five-year review requirement is not necessary. (92, 114) 

All facilities should be eligible for streamlined provisions.  A
commenter supported “extension of ‘streamlined’ regulatory
provisions for all facilities.” (82)

All facilities should be able to use the template. One commenter
requested that EPA allow all regulated facilities to use the template.
(98)

Further simplified requirements. One commenter did not support these
proposals, arguing that because qualified facilities are by their very
nature small and less complicated operations, they should not be
required to comply with requirements of the proposed SPCC Plan template
(Appendix G) or prepare and self-certify a SPCC Plan.  The commenter
suggested that Tier I qualified facilities should only meet performance
standards in §112.7 and the lesser proposed security and tank integrity
standards.  (97)

Certification under oath.  Based on non-compliance information in the
docket, a commenter stated that some facilities may not be able to
provide evidence that they satisfy the requirements of 40 CFR Part
112.1(b) because these businesses may not have known about the discharge
reporting requirements.  The commenter suggested that Tier I and II
facility owners should have to demonstrate or certify under oath that no
reportable spill occurred while the facility was subject to Part 112. 
The commenter added that facilities could indicate that they satisfy the
regulatory requirements by providing a previous PE approved Plan since
PE certification was required for all facilities existing before August
16, 2002. (31)

Use of contingency planning for Tier I facilities with solid-at-ambient
temperature AFVOS. One commenter requested that EPA modify the Tier I
category requirements to allow contingency planning and on-site control
mechanisms in lieu of secondary containment for containers and flowlines
at qualified Tier I facilities producing, storing or handling
solid-at-ambient-temperature AFVO. (51)

Base the criteria for Tier I qualified facilities on the differentiated
rule requirements. EPA disagrees with the commenter who requested that
instead of eliminating compliance with §112.7(h), EPA should revise the
definition of “qualified facility” to include the absence of such a
rack. The commented added that similar modifications should be made for
all remaining requirements of §112.8 that are eliminated because they
are “not likely” or “tend not” to exist. (82)

RESPONSE

Support

Generally Support. EPA agrees with the commenters that generally
supported the proposal.  The final rule streamlines the requirements for
Tier I qualified facilities by eliminating and/or modifying several SPCC
requirements (for example, facility diagram (§112.7(a)(3)) and 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 (§112.7(h)). 

Alternative Approaches Suggested

Certification and approval.  EPA disagrees with the commenters who
requested that EPA require PE certification or “qualified personnel”
review and approval of Tier I Plans. EPA’s basis for developing a
self-certified Plan template which contains a streamlined set of
requirements for facilities that meet the Tier I eligibility criteria is
that the Agency believes that implementation of the requirements in the
template can provide adequate protection and prevent the release of oil
into navigable waters or adjoining shorelines. Due to the simplicity of
these facilities and other factors, EPA believes it is appropriate to
allow a facility owner or operator to self-certify the SPCC Plan. It is
the responsibility of the owner or operator of every SPCC-regulated
facility to ensure compliance with 40 CFR part 112 and ensure
implementation of the Plan. 

EPA also disagrees with the commenter who requested confirmation that an
Appendix G template may be certified by a PE. EPA recognizes that the
owner or operator of a Tier I qualified facility may decide to obtain
assistance in the development of an SPCC Plan and want to have a PE
certify the Plan; however, the only required certification for a Plan
following Appendix G is the self-certification completed by the owner or
operator of the facility. EPA is not making the PE certification an
additional option for compliance for Tier I qualified facilities because
the Agency believes that this may suggest that the Agency expects
PE-certified Plans for this subset of qualified facilities. The purpose
of establishing the “Tier I category” was to allow facilities that
satisfy the Tier I eligibility criteria to meet the requirements of the
SPCC rule in a streamlined manner. Therefore, we believe an option for a
PE certification of the Plan template would complicate the rule,
particularly if the owner or operator of the facility wants to develop a
hybrid Plan to allow for environmental equivalent determinations.
However, as we have noted previously, completion of the Appendix G
template is optional. The owner or operator of a Tier I qualified
facility may choose to have a PE-certified SPCC Plan following all the
requirements in §112.7 and subparts B and C, as applicable, or prepare
a hybrid Plan that includes all applicable provisions under the Tier II
requirements. Finally, when inexperience with the SPCC regulation causes
the owner or operator of a Tier I qualified facility concern regarding
potential liabilities and environmental impacts associated with
self-certifying the Plan he may instead choose to have a PE certified
SPCC Plan following all the requirements in §112.7 and subparts B and
C, as applicable.

All facilities should be required to have a facility diagram. The Agency
disagrees with the commenter that suggested that EPA require a facility
diagram for Tier I qualified facilities. Although the Agency does not
intend a facility diagram to be an excessive burden for an owner or
operator to develop, EPA believes the completed template provides the
same information that would be available on a facility diagram for a
Tier I qualified facility. The SPCC rule requirements for a facility
diagram are: (1) to mark the location and contents of each fixed oil
storage container (containers and piping) and the storage areas where
mobile or portable containers are located; and (2) to include all
transfer stations and connecting pipes. In the case of a Tier I
qualified facility, the visual representation of the diagram is not
necessary because EPA believes that these facilities would have few
aboveground oil storage containers with limited transfer areas and very
little piping (if any.) The Oil Storage Container table in Appendix G,
Section III (Table G-2) of the template requires that all oil storage
containers (such as aboveground containers, completely buried tanks, and
oil-filled equipment) be listed, including the contents and oil storage
capacity of each container. The Secondary Containment and Oil Spill
Control table in Appendix G, Section III (Table G-3) requests the
following information for transfer areas and piping: the volume of oil
that could potentially be discharged; and the flow direction of an
uncontained discharge (i.e., a description of where the discharge would
flow if secondary containment fails). A facility diagram for a Tier I
qualified facility would provide minimal additional planning benefit to
prevent an oil discharge from the facility. 

Delete five-year review requirements. EPA disagrees that it should
delete the five-year review requirements. The Agency agrees that the
SPCC Plan should be updated whenever there is a material change in the
facility that may affect discharges. However, Tier I qualified
facilities should remain subject to the same requirement to periodically
review and update the SPCC Plan to include more effective prevention and
control technology in order to reduce the likelihood of a discharge as
described in §112.1(b).

All facilities should be eligible for streamlined provisions. EPA agrees
that some streamlined provisions may be appropriate for all
SPCC-regulated facilities. While the Agency has amended the SPCC
regulation in the past (71 FR 77266, December 26, 2006) and in this
action to streamline certain SPCC rule requirements (e.g., security and
integrity testing) for all facilities, the streamlined provisions
included in the Plan template in Appendix G are limited to Tier I
qualified facilities based on the Agency’s judgment that eliminating
and/or modifying certain SPCC requirements was appropriate for
facilities that store or handle smaller volumes of oil and that meet the
eligibility criteria. Other facilities contain larger volumes of oil,
have large oil storage containers on-site, or are more complex and thus,
applying the streamlined requirements adopted for Tier I qualified
facilities would be inappropriate.

All facilities should be able to use the template. EPA disagrees that
the template in Appendix G of 40 CFR 112 should apply to all facilities.
The streamlined provisions included in the Plan template in Appendix G
are limited to Tier I qualified facilities because they were
specifically analyzed and designed for facilities that store limited
quantities of oil, in small oil storage containers and generally have
simple configurations. Other facilities contain larger volumes of oil,
have large oil storage containers on-site, or are more complex and thus,
applying the streamlined requirements adopted for Tier I qualified
facilities would be inappropriate. 

Further simplified requirements. EPA disagrees with the commenter that
suggested that EPA simplify the Plan requirements for a Tier I qualified
facility to include only the general requirements under §112.7 and the
security and integrity testing requirements. However, the commenter did
not provide any data to support, and EPA does not agree with,
eliminating the specific requirements under Subparts B and C, such as
those pertaining to facility drainage and bulk storage containers.
Therefore, EPA did not incorporate this change into the final action.

Certification under oath.  EPA agrees that with the commenter who
suggested that the owner or operator of a regulated facility be required
to certify under oath that he has met the SPCC requirements. Section
§112.6(a)(1) requires the owner or operator certify that: (i) he is
familiar with the applicable requirements of 40 CFR part112; (ii) he has
visited and examined the facility; (iii) he has prepared the Plan in
accordance with accepted and sound industry practices and standards;
(iv) he has established procedures for required inspections and testing
in accordance with industry inspection and testing standards or
recommended practices; (v) he will fully implement the Plan; (vi) the
facility meets the qualification criteria in §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. EPA believes that inclusion of the
self-certification statements in the Plan and signature of the owner or
operator is sufficient to demonstrate that he understands his
responsibilities under 40 CFR part 112. Regardless of whether the owner
or operator knew of his responsibility to report discharges to navigable
waters or adjoining shorelines from the facility as required under 40
CFR 110, the owner or operator of the facility should know about past
discharges of oil from the facility and therefore be able to attest to a
discharge history criterion for the facility. 

The owner or operator of a facility in operation prior to August 16,
2002 must maintain the PE certified Plan until he amends it prior to the
compliance date in §112.3(a)(1). EPA has revised the SPCC requirements
in 2002, 2006 and again in 2008. In order to comply with the rule, the
owner or operator of a Tier I qualified facility must ensure that the
SPCC Plan complies with the current regulatory requirements. A copy of a
previous PE certified Plan does not account for changes made to the SPCC
regulation since 2002. Furthermore, a copy of a past PE certified Plan
for the facility may not necessarily satisfy the current SPCC regulatory
requirements.

Use of contingency planning for Tier I facilities with solid-at-ambient
temperature AFVOS. EPA does not agree that Tier I qualified facilities
should be allowed to substitute contingency planning and on-site control
mechanisms for secondary containment for AFVOs that are
solid-at-ambient-temperatures. These oils have the potential to
discharge into navigable waters or adjoining shorelines because they are
generally stored at elevated temperatures and thus, are capable of
flowing if there is a release from the container. Therefore, the SPCC
requirements such as secondary containment should continue to apply to
these AFVOs.  However, it should be noted that the SPCC rule only
applies to facilities that, due to their location, can reasonably be
expected to discharge oil to navigable waters or adjoining shorelines.
In determining whether there is a reasonable expectation of discharge,
an owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. If a facility owner or
operator determines that there is a reasonable expectation of a
discharge of oil to navigable waters or adjoining shorelines from any
single oil container (including a container storing AFVOs), and other
rule applicability criteria are met, then all oil containers at the
facility are subject to the rule’s requirements (except as otherwise
exempted).

Base the criteria for Tier I qualified facilities on the differentiated
rule requirements. EPA disagrees with the commenter who suggested that
the Tier I qualified facility criteria be amended to require that the
owner/operator confirm the list of rule requirements eliminated from the
Plan template do not apply at the facility. EPA considered this
approach, however, the Agency is concerned that this adds unnecessary
complexity to the initial determination of eligibility for a Tier I
qualified facility. EPA believes that the current criteria identify
those facilities with simple operations and low oil storage capacities
for which the differentiated requirements are appropriate. 

VII.C 	SPCC Plan Template

Issue: The Agency sought 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 sought comments on the clarity and
ease-of-use of the Plan template.

COMMENTS

Support

Generally supportive of template format and/or content.  (51, 59, 61,
142)

Oppose

Generally oppose.  One commenter argued that the template provides no
assurance of compliance and will be ignored by small facilities; the
commenter suggested that EPA must require PE certification. (31) Another
commenter suggested that the template does not provide enough
instruction and will encourage facility operators that have little
knowledge of part 112 to develop SPCC Plans that are meaningless. (29)
Other commenters argued the template is burdensome and that facilities
should be able to demonstrate compliance by self-certifying and
referencing equivalent prevention plans and/or impracticability
determinations. (61, 70, 92, 104, 109, 114, 142) Commenters reasoned
that a self-certification would serve to maintain the same level of
environmental protection, but would represent a significant paper work
reduction for the smallest facilities.  (61, 92)

Alternative Approaches Suggested 

Increase availability of template. Commenters requested that EPA publish
the template as guidance or an educational primer for Tier I facilities
and make it readily available on the EPA website. (61, 92)  Another
commenter asked whether EPA intended to supply the template or would
owners and operators need to purchase it from an engineering firm or
some other outside entity. (24)

Allow for equivalent/flexible plan approach. Several commenters urged
EPA to allow for an equivalent plan not using the template. (29, 43, 72,
113, 142)  One commenter stated that “some Tier I-eligible facilities
may prefer to maintain a PE certified plan that does not follow the
proposed template. These facilities should be subject to the same relief
from specific requirements that is proposed for Tier I facilities, as
they present the same risk of a discharge if not less.” Two 
commenters suggested that the template could be slightly modified to
include SPCC requirements for the "Emergency Response and Contingency
Plans" (ER&C plans) submitted to both the Occupational Safety, and
Health Administration and the Department of Transportation. (45, 98) 
Another commenter stated that under the “one plan” approach,
construction site owners and operators of Tier I qualified facilities
could use their NPDES-required SWPPP materials to record/update their
spill prevention and response practices, supplementing these materials
as needed to ensure compliance with all applicable NPDES and SPCC
requirements. (142) Another commenter recommended that an Integrated
Contingency Plan (ICP) or other plan format is allowable to serve as a
facility spill prevention, control and countermeasures plan if it meets
all plan requirements identified in Appendix G, as such a facility would
not have to strictly follow the actual template in Appendix G. (72)

Clarify that the template is a model.  Commenters suggest that EPA
clearly indicate that the template may be modified as necessary to meet
industry or facility-specific needs and requirements, (61, 114, 142),
without losing Tier I status. (142) One commenter requested that EPA
finalize the template only after interaction with the agricultural
community to make the template user friendly. (68) Another commenter
requested that EPA revise the template and stated that this was being
addressed by an industry group working with the Small Business
Administration (SBA). (104, 141)

Environmental equivalence and Impracticability determinations.  A
commenter suggested that EPA allow, as part of the Appendix G template,
an owner/operator of a Tier II facility to use a “hybrid” approach,
as allowed for Tier II qualified facilities, to provide the flexibility
to deviate from the rule requirements when the owner or operator
determines that secondary containment is impracticable or when there is
an alternative measure that provides equivalent environmental protection
to an SPCC rule requirement. (141)

Multi-facility SPCC Plans.  Commenters stated that “multiple-facility
SPCC Plans covering individual facilities that would be Tier I-eligible
should also be allowed to use the template, and urge EPA to specifically
allow it in the regulation.” (31, 43)  One commenter recommended
modifications of §112.2 so that multiple facilities can be included
within a single Plan. (31)

Online submission.  A commenter suggests that EPA provide for online
submission of template-based plan for increased compliance, to provide
information to EPA in response actions and to avoid the generation of
paper copies. As an alternative, the commenter suggested that EPA
require submission of a notification or certification of SPCC Plan
completion similar to what is required for facilities that are exempt
from stormwater discharge permitting.  (82)

Use outline format. A commenter recommends “omitting the template
entirely and converting it into a proposed outline format that is
available in Microsoft Word and other commonly used programs.”  (29) 

Template is optional. A commenter urged EPA to clarify that qualified
Tier I qualified facilities may complete a full self- or PE-certified
plan should they choose.  (61) 

Navigable waters shorthand.  A commenter is concerned that in Appendix
G, by using the shorthand “…into navigable waters or adjoining
shorelines”, EPA is inappropriately limiting the scope of the
regulation.  The commenter recommends replacing current language with
“discharges as described in §112.1(b).”  (118)

State/local requirements. Commenters request that EPA add sections or
otherwise allow for coordination with state requirements within
template.  (77, 110, 119, 121, 142, 154, 157, 160, 161)

Refer to template as “document.”  A commenter suggests that EPA
refer to a complete template as “document” rather than template. 
(124)

Allow for self-certification statement only. Facilities should be able
to demonstrate compliance by self-certifying and referencing equivalent
prevention plans and/or impracticability determinations. (56, 61, 70,
92, 104, 109, 114, 142) Several commenters recommended significant
changes to the self-certification statement in Section I of the template
so that if could be used alone or as part of a comprehensive Tier I
model Plan template. (61, 92, 114) Commenters reasoned that a
self-certification would serve to maintain the same level of
environmental protection, but would represent a significant paper work
reduction for the smallest facilities.  (61, 92) 

Suggested Simplifications for Section I

Commenters made several recommendations to simplify or clarify the
template: 

Refer to Plan template as Self-Certification Statement. Revise the text
of the template to reference a self-certification statement wherever
“plan template is found: “Tier I facility owners and operators have
the option of completing just the Self-Certification Statement below or
the entire Plan template. The Self-Certification Statement or Plan
template constitutes the SPCC Plan for the facility. . . .” (61, 114)
Another commenter recommends taking out every reference to plan template
and replacing it with “self-certification statement.” (92)

Oil storage containers. In §I.6.a and §I.6.c, “oil storage” could
be modified by “aboveground” for clarity. (124)

Oil-filled equipment and other non-exempt oil storage containers.
Template Section I, Self-Certification Statement (112.6(a)(1)), Item 6.a
should be revised to read "The aggregate oil storage capacity, including
oil-filled equipment and all other non-exempt oil storage containers
described in Table III.2 of this Plan, is 10,000 U.S. gallons or less".
The commenter proposed this change to increase the likelihood that
self-certifying facilities correctly understand that the 10,000 gallon
limit does not apply to just conventional bulk storage containers (e.g.,
tanks) but to all non-exempt containers (including oil-filled
equipment). (132)

Discharge criteria. Template Section I, Self-Certification Statement
(112.6(a)(1)), Item 6.b should eliminate the excessive discharge
allowances to qualify as a qualified facility. The commenter believes
that no facility with multiple oil discharges involving hundreds or
thousands of gallons of oil should be afforded regulatory relief by EPA.
(132)

Secondary containment. Template Section I, Self-Certification Statement
(112.6(a)(1)), Item 7 should be amended to add the following language:
"Each bulk storage container is provided with secondary containment
adequate for the entire volume of the container plus a reasonable amount
for precipitation". The commenter proposed this addition asserting that
dedicated secondary containment for bulk storage containers is the most
important means of preventing oil discharges, and that EPA obfuscates
the requirement to provide this secondary containment in the proposed
certification by referring only to broad sections of the Part 112 rule
which few people at small facilities are likely to read, assuring a
continued high rate of non-compliance with the key requirement to
provide secondary containment for bulk storage containers. (132)

Template format. The last part of the Template Section I certification
includes a section of five additional bullet items pertaining to other
facility obligations.  These items should be numbered or lettered so
that they can be accurately referenced by EPA and regulated facilities,
for instance, items 9.a – 9.e.  (132)  

NRC notification. The first bullet item should be revised to read: 
“To immediately report an oil discharge causing a sheen, slick, or
sludge deposition in navigable waters and adjoining shorelines to the
National Response Center (NRC) and to other appropriate state or local
authorities. (132) The commenter believes this change is necessary so
that facilities know that immediate reporting is required under 40 CFR
110.6 and so they know what types of oil discharges must be reported.
(132)

Suggested Simplifications for Section II

Five-year reviews. Delete all of the text in Section II referencing the
five-year review requirement in §112.5(b). (61, 114)

Recertification of technical amendments.  Delete the following language
from the checklist in Section II: “Any technical amendments to this
Plan will be re-certified in accordance with Section I of this Plan
template. [§112.6(a)(2)] [See Technical Amendment Log in Attachment
1.2].” (61, 114)

Suggested Simplifications for Section III

Commenters made several recommendations to simplify or clarify the
template: 

Types of oil storage containers. In §III.1, the sentence describing the
table provides helpful simplified guidance about the types of storage
containers to be listed. The commenter argued that as proposed, the
simplified guidance provides only one criterion—“55 gallons or
more”—for including “aboveground containers and completely buried
tanks” in the list; however, because of its simplified format, the
guidance inadvertently includes for listing a motive power container,
which is categorically exempted under §112.1(d)(7), that is 55 gallons
or larger. To avoid general inclusion of exempted aboveground containers
in the list, the commenter requested that the simplified guidance could
be modified as follows: “… all oil storage containers (i.e.,
completely buried tanks and non-exempted aboveground containers) …”
(124) Another commenter recommended change the parenthetical to
“(aboveground containers and completely buried tanks).” (61)

Failure mode.  At 72 FR 58434 in §III.2, ‘Secondary Containment…’
below the box and above the table, the form asks the facility to
identify ‘the mode of failure; the flow direction and quantity of the
discharge; and secondary containment method and containment capacity’
for the containers listed.  This is inconsistent with proposed Section
112.7(c), where owners of oil-filled equipment need only indicate ‘the
typical failure mode, and the most likely quantity of oil that would be
discharged.’  EPA should also include the subsequent phrase from this
section of the regulations, ‘Secondary containment may be either
active or passive.’  (77, 119)

Immediate NRC reporting. The Template Section III Part 7 heading should
be revised to read: “Immediate National Response Center (NRC)
Notification Procedure (40 CFR 112.7(a)(4) and (a)(5)”.  The commenter
stated that this change will enforce the expectation that NRC receive
immediate notification.  (132)

Clarify references to secondary containment. In the opening description
of §III.2, the references to secondary containment do not include the
word “secondary”; for clarity, “secondary” could be inserted as
appropriate.  (124)

Additional footnotes. The table in Template Section III Part 2 should be
revised as follows:  The table heading “Secondary containment capacity
(gallons)” should also have the ** superscript, although standard
numbered superscripts should be used.  Adding the footnote reference
increases the probability that facilities will understand the
requirement to provide full secondary containment (as opposed to the
less protective general secondary containment options) for bulk storage
containers. (132)

Emphasize information in Table III-2 footnotes. Commenters suggested
that the secondary containment information in the footnotes for table
III-2 be moved to the discussion preceding the tables. (61, 92) The
commenters believe that this information describes what is needed for
compliance and is valuable as a primer or learning tool. (61, 92, 114).

Simplify secondary containment information (Section III. Tables 1 & 2).
One commenter stated that simplification is appropriate because at the
smallest facilities, operations are generally straightforward and oil
storage may consist of a single container or a series of 55-gallon
drums. (92) Two commenters recommended that EPA move all of the
explanatory information for Table 1 and 2 to the beginning of Section
III. (61, 114) The same commenters requested that EPA revise Table 1 by
adding secondary containment information; rename Table 2
“Mobile/Portable Containers, Piping, Product Transfer Areas,
Operational Equipment” and eliminate 2 columns: “Direction of flow
for uncontained discharge” and “Secondary containment capacity
(gallons); remove the word “Secondary” from the column heading
“Secondary containment method; and add a column for “Location of
containment measures.”  (61, 114)  

Reports to the Regional Administrator. The Template Section III Part 6
second table should be revised as follows:  The heading should be
revised to read “You must submit the following to the EPA Regional
Administrator (RA).”  In EPA’s proposed language, “RA” appears
before it has been defined.  The Contact List table should be revised to
include the EPA Regional Administrator.  (132)  EPA should also explain
the differences and purposes of the NRC and RA notifications.  (132) The
untitled, solitary box that immediately precedes §III.7 contains
informational elements that are listed under §112.4(a). Below it on the
same page, §III.8 addresses the “SPCC Spill Reporting Requirements”
under §112.4; however, it does not list the informational elements to
be reported to the Regional Administrator. Because this box does list
these elements, it should be moved to §III.8, where it was likely
intended to be. (124)

Designation of tables and footnotes. All tables in the template should
be numbered or lettered (e.g., Table III.2) so they can be more directly
referenced by EPA and the facility.  Also, the notes appearing at the
bottom of some tables should be referenced using numbered superscripts,
rather than symbols such as *, **, +, etc., which quickly become
confusing when additional notes are added. (132)

NRC reporting of discharges via runoff. EPA should add NRC reporting
requirements if an oil discharge from a facility to navigable waters is
imminent by way of stormwater runoff from a facility that is not located
directly on the shores of a navigable water. (132)

Suggested Simplifications for Attachments

Five-year reviews. Delete Attachment 1 for five year reviews. (61, 114)

Simplify Attachment 2. Oil Spill Contingency Plan and Checklist. The
checklist shown in the table is too extensive for Tier I qualified
facilities. Focus on the need to have written emergency and notification
procedures in place in the event of a discharge, and the need to have
written record of who to notify and how to contact them. (61, 92, 114)
Remove this text from the checklist: “109.5–Development and
implementation criteria for State, local and regional oil removal
contingency plans.” (61, 114)  Remove the following items from the
checklist: (a); (b)(1); (b)(3); (b)(4); opening text of (c); (c)(1);
(c)(3); (d)(2)-(d)(6) and footnote at the end of the checklist. (61) 
Consolidate the following items on the checklist: opening text of (b)
and (b)(2) and opening text of (d) and (d)(1). (61, 114)

Revise the Onshore Facility Checklist. Amend the Onshore Facility
Checklist to indicate that not all provisions may be applicable to all
owner/operators.  (61, 114)   [Note: Commenters submitted revised model
templates.]

Category I tanks.  A commenter states that on Attachment 3.2 of Appendix
G to Part 112 (Tier I Qualified Facility SPCC Plan); the table implies
that ‘Container Size and Design Specification’ for 1,101 to 5,000
gallon with sized secondary containment requires that the tank be
elevated for visual inspection (and not trigger the requirement for
non-destructive testing). The commenter stated that according to Table
5.5 in STI SP-001 titled, ‘Table of Inspection Schedules’, a
Category 1 tank, described in Table 5.2 includes an ‘AST with
secondary containment dike/berm’ and only requires Visual Inspection
(This tank is not required to be elevated). The commenter stated that
the table in our example SPCC Plan still illustrates a conflict between
‘guidance’ and what is actually required by the standard. (28)

Visual inspection requirements. Attachment 3.2 (Bulk Storage Container
Inspection Schedule) lists inspection requirements for various sizes of
oil containers.  The inspection requirements should be revised to
include visual inspection for signs of container support deterioration,
evidence of leaking valves and piping, and secondary containment valves
being closed.  (132)

Discharge notification. Attachment 4 (Discharge Notification Form)
should be modified to make it clear that NRC reporting is required
immediately upon a discharge to navigable waters.  The last section of
the table should be revised to include a check box for local agencies. 
(132)

RESPONSE

Support

 

Generally supportive of template format and/or content.  The Agency
agrees with the commenters who supported the template format and
content.  However, EPA has modified the Plan template based on specific
comments received. The SPCC Plan template for Tier I qualified
facilities is found in Appendix G of the final rule. 

Oppose

Generally oppose.  EPA appreciates that some commenters find the Plan
template in Appendix G is too burdensome for Tier I qualified
facilities, while other commenters believe that it is too easy to use.
The Plan template is designed to be a simple and straightforward SPCC
Plan that includes only the requirements that should apply to Tier I
qualified facilities. EPA intends to provide supplementary guidance on
the Agency’s website to assist owners and operator of Tier I (and Tier
II) qualified facilities in the development of an SPCC Plan for these
facilities. We expect that such additional guidance will help those
facilities that choose to utilize the Appendix G template to comply with
the SPCC Plan requirement. 

Alternative Approaches Suggested

Increase availability of template. Owners and operators of Tier I
qualified facilities will not need to purchase the template from
engineering firms or other outside entities. The template will be
available as Appendix G to 40 CFR 112 and can be accessed in the Federal
Register action finalizing these amendments as well as the CFR. EPA
agrees with commenters about the need for additional guidance. EPA
intends to provide supplementary guidance for Tier I (and Tier II)
qualified facilities to assist in the development of an SPCC Plan for
these facilities which will be available on the Agency’s website.  We
expect that such additional guidance will help those facilities that
choose to utilize the Appendix G template to comply with the SPCC Plan
requirement. 

Allow for equivalent/flexible plan approach. EPA agrees that it is
appropriate to allow the use of a flexible Plan format for Tier I
qualified facilities that, for example, want to combine multiple local,
state or federal regulatory requirements into one Plan, as long as a
cross-reference is provided. Therefore, EPA is amending the rule
language in §112.6(a)(1) to allow for a flexible Plan format for owners
or operators of Tier I qualified facilities that do not choose to use
the template provided in Appendix G of the rule. The amended rule text
states that if you do not follow the sequence specified in this section
for the Plan, you must prepare an equivalent Plan acceptable to the
Regional Administrator that meets all of the applicable requirements
listed in this part, and you must supplement it with a section
cross-referencing the location of requirements listed in this part and
the equivalent requirements in the other prevention plan. However, if
the Appendix G template is not used, then an equivalent Plan must be
prepared in writing, and include all requirements applicable to Tier I
qualified facilities.  For example, the owner or operator of a facility
that has developed a Stormwater Pollution Prevention Plan (SWPPP) under
the National Pollutant Discharge Elimination System (NPDES) that meets
all of the applicable SPCC regulatory requirements in §112.6(a)(3) and
Appendix G may use the SWPPP as the SPCC Plan. However, the SWPPP must
include a cross-reference and the self-certification statements in
§112.6(a)(1) and Appendix G. An owner or operator of a Tier I qualified
facility may use the template in Appendix G to comply with the
regulation or use it as a model and modify it as necessary to meet the
facility-specific needs, as long as all applicable rule requirements are
included in the SPCC Plan. The following sample cross-reference is
intended to be an example of the owner/operator’s development of such
a cross-reference.

Sample Cross Reference for Plans Using Local, State or Other Federal
Regulations to Satisfy SPCC Requirements

SPCC Provision	Description of Requirement	Plan Page

§112.4	Spill reporting requirements	 

§112.5(b)	Five-year Plan review	 

§112.6(a)(1)	Preparation and self-certification of the Plan	 

§112.6(a)(2)	Certification of technical amendments	 

§112.6(a)(3)(i)	Failure analysis	 

§112.6(a)(3)(ii)	Bulk storage container secondary containment	 

§112.6(a)(3)(iii)	Overfill prevention	 

§112.7(a)(3)(i)	Address the type of oil in each container and its
storage capacity	 

§112.7(a)(3)(iv)	Address countermeasures for discharge discovery,
response, and cleanup	 

§112.7(a)(3)(vi)	Provide contact list and phone numbers for those to be
contacted in case of a discharge	 

§112.7(a)(4)	Provide NRC notification information	 

§112.7(a)(5)	Describe procedures you will use when a discharge occurs
 

§112.7(c)	Provide appropriate containment and/or diversionary
structures or equipment to prevent a discharge as described in
§112.1(b)	 

§112.7(e)	Conduct inspections and tests in accordance with written
procedures that you develop for the facility	 

§112.7(f)	Train oil-handling personnel in the operation and maintenance
of equipment to prevent discharges; discharge procedure protocols;
applicable pollution control laws, rules, and regulations; general
facility operations; and the contents of the facility Plan.	 

§112.7(g)	Implementation of security measures to prevent unauthorized
access to oil handling, processing, and storage area	 

§112.7(k)	Requirements related to oil-filled operational equipment	 

§§112.8(b)(1), 112.12(b)(1)	Restrain drainage from diked storage areas
 

§§112.8(b)(2), 112.12(b)(2)	Use valves of manual, open-and-closed
design for the drainage of diked areas; if facility drainage drains into
a watercourse, inspect and drain uncontaminated retained stormwater	 

§§112.8(c)(1), 112.12(c)(1)	Do not use a container for oil storage
unless its material and construction are compatible with the material
stored and conditions of storage such as pressure and temperature	 

§§112.8(c)(3), 112.12(c)(3)	Drainage of uncontaminated rainwater from
the diked area into a storm drain or discharge of an effluent into an
open watercourse 	 

§§112.8(c)(4), 112.12(c)(4)	Protect completed buried storage tanks
from corrosion and regularly leak test buried metallic storage tanks.	 

§§112.8(c)(5), 112.12(c)(5)	Do not use partially buried or bunkered
metallic tanks for the storage of oil unless protected from corrosion.
 

§§112.8(c)(6), 112.12(c)(6)	Administer integrity testing for storage
tanks	 

§§112.8(c)(10), 112.12(c)(10)	Promptly correct visible discharges
which result in a loss of oil from the container	 

§§112.8(d)(4), 112.12(d)(4)	Regularly inspect all aboveground valves,
piping and appurtenances	 

§112.9(b)	Requirements for oil production facility drainage	 

§112.9(c)(1)	Material compatibility requirements for containers at oil
production facilities	 

§112.9(c)(2)	Secondary containment requirements for tank battery,
separation, and treating facility installations at oil production
facilities.

	§112.9(c)(3)	Container inspection requirements at oil production
facilities.

	§112.9(c)(4)	Overfill prevention requirements at oil production
facilities.

	§112.9(c)(5)	Requirements for flow-through process vessels at oil
production facilities.

	§112.9(d)(1)	All aboveground valves and piping associated with
transfer operations are inspected periodically and upon a regular
schedule.  	 

§112.9(d)(3)	For flowlines and intra-facility gathering lines that do
not have secondary containment in accordance with §112.7(c), prepare an
oil spill contingency plan and a written commitment of resources (except
when the facility has submitted a Facility Response Plan in accordance
with §112.20)	 

§112.9(d)(4)	Prepare and implement a written program of
flowline/intra-facility gathering line maintenance	 

§112.10(b)	Position or locate mobile drilling or workover equipment so
as to prevent a discharge as described in §112.1(b)	 

§112.10(c)	Provide catchment basin or diversion structures to intercept
and contain discharges	 

§112.10(d)	Install a blowout prevention assembly and well control
system before drilling	 



Clarify that the template is a model. EPA agrees that an owner or
operator of a Tier I qualified facility may use the template in Appendix
G to comply with the regulation or use it as a model and modify it as
necessary to meet the facility-specific needs, without losing Tier I
status, as long as all applicable rule requirements are included in the
SPCC Plan. EPA is finalizing the template in this action following
review and comments from members of the regulated community, including
agriculture. The Agency will develop additional guidance on the template
for Tier I qualified facilities to assist in the completion of the
template.

Environmental equivalence and impracticability determinations. EPA
disagrees with the commenter and has decided not to allow Tier I
facilities to utilize a “hybrid approach,” since the primary purpose
of developing the “Tier I category” is to allow those facilities
with simple oil storage configurations to have a relatively simple means
to comply with the SPCC requirements. Allowing Tier I facilities to
utilize a hybrid approach would seem to defeat that purpose. If a
facility qualifies to use the Appendix G template but has site-specific
factors that make it difficult to use the template as written, then the
Appendix G Plan template may not be an appropriate tool for the facility
to address the oil spill planning elements for the facility. Instead,
the facility could elect to comply with the SPCC requirements as a Tier
II qualified facility—that is, self-certify that they comply with the
full set of rule requirements in §112.7(c) and subparts B and C, as
applicable rather than the differentiated requirements designed
specifically for facilities with simple oil storage configurations. For
example, if the owner or operator cannot provide secondary containment
for a bulk storage container at a Tier I qualified facility because it
is impracticable, then it is appropriate that the Plan include a
facility diagram (§112.7(a)(3)) to show where the container is located
at the facility and a prediction of the direction, rate of flow and
quantity of oil that may be discharged from the container
(§112.7(b)).); however, these are two provisions that are amended in
the Tier I qualified facility requirements. In this case, EPA believes
it is appropriate to require the owner or operator to comply with
requirements that would not otherwise apply to Tier I qualified
facilities because this information may be necessary as part of the
spill prevention practices for the facility. Therefore, the owner or
operator of the facility may choose to develop a hybrid Plan following
the Tier II qualified facility requirements in §112.6(b) or a
PE-certified SPCC Plan following §112.7 and subparts B and C, as
applicable.

Multi-facility SPCC Plans. EPA does not agree that a modification to
§112.2 is necessary to allow multiple facilities to be included in a
single SPCC Plan. A multi-facility Plan accomplishes this objective by
allowing the owner/operator of multiple SPCC-regulated facilities to
develop one SPCC Plan that combines the similar elements of individual
facilities into one Plan as long as the Plan also addresses the
site-specific information for each facility. EPA agrees with commenters
that it is appropriate to allow the owner or operator of several
facilities that each individually meets the criteria for a qualified
facility to develop a multi-facility SPCC Plan in accordance with the
Tier I requirements. The final rule allows flexibility in the Plan
format to accommodate a multi-facility Plan approach for Tier I
qualified facilities. The owner or operator of the facility is still
required to meet all applicable rule requirements in the Plan as
described in §112.6(a)(3) and Appendix G. 

Online submission.  EPA disagrees with the commenter that online
submission of the template-based Plan will increase compliance with the
SPCC regulation. Plan implementation is essential to compliance with the
SPCC requirements while submission of the Plan or notification of
completion of the Plan may only demonstrate compliance with Plan
preparation requirements and does not guarantee implementation of the
Plan.  Additionally, there is currently no requirement for the owner or
operator of any regulated facility to submit an SPCC Plan to the Agency,
unless requested to do so by the Regional Administrator. The Agency
requires that owners and operators maintain a copy of the Plan at the
facility, in accordance with §112.3(e). The Agency did not propose this
modification to the rule and this change is outside the scope of this
action.

Use outline format. EPA does not agree with the comment to omit the
template from the regulation because it includes the minimum
requirements for a Plan for Tier I qualified facilities. However, EPA
will be developing guidance to aid in the completion of the template and
will consider making it available in an electronic format that can be
completed such as in Microsoft Word. 

Template is optional. The Agency agrees with the commenter and
emphasizes that use of the Plan template approach is optional. An owner
or operator of a Tier I qualified facility can 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 §112.6(b) in order to
comply with the requirements under 40 CFR part 112. 

Navigable waters shorthand. EPA disagrees with the commenter and did not
adopt the recommendation to amend the template to change “navigable
waters or adjoining shorelines” to “discharges as described in
§112.1(b).” EPA refers to navigable waters or adjoining shorelines in
the template to make the document easier to understand and more
user-friendly; the Agency does not consider this to be a limitation in
the scope of the rule. The language in §112.7 also applies to these
facilities and uses the term “discharges as described in
§112.1(b).”

State/local requirements. EPA does not agree with the recommendation to
amend the template to include a section for state and local
requirements. The Agency does not believe that it is necessary for the
owner or operator of a facility to address state or local requirements
as part of the SPCC Plan. However, the Agency is amending the rule
language to allow for a flexible Plan format for Tier I qualified
facilities. This will allow those facility owners or operators to
address local, state and/or other federal requirements in one Plan for
oil spill prevention planning purposes if they so choose. The Agency
will also clarify in rule text that §112.7(j) does not apply to Tier I
qualified facilities.

Refer to template as “document.”  EPA agrees with the commenter that
once the owner or operator completes Appendix G to include site-specific
information, the document generated is an SPCC Plan for the facility. 
However, EPA did not adopt the recommendation to amend the template to
refer to the Plan format in Appendix G as document rather than
“template.” 

Allow for Self-Certification statement only. EPA disagrees with
commenters who maintain that a self-certification statement alone is
sufficient to replace a SPCC Plan that includes description of equipment
and procedures to prevent, prepare for and respond to oil discharges to
navigable waters and adjoining shorelines. The SPCC Plan template is
designed to address streamlined SPCC requirements for Tier I qualified
facilities while reducing the paperwork burden for these facilities. The
Agency stated in the preamble to the December 26, 2006 amendments (71 FR
77266) that EPA “believe[s] that a facility owner or operator cannot
effectively implement an oil spill prevention program, or any other
program (business or otherwise), without documentation of that
program’s action items. As a matter of practice, it would be extremely
difficult for a facility owner or operator to be able to follow the
regulatory requirements and to comply with all the recordkeeping
components without the documentation that is the Plan itself. The Plan
also serves as an important communication and training tool for both
management and oil-handling personnel at the facility. The sole action
of having to document compliance with all of the requirements can assist
in uncovering flaws in the program’s implementation, and may serve as
a tool to correct them. Additionally, the documentation of compliance
with the rule’s requirements in a written Plan serves as a
facility-specific oil spill response and prevention planning exercise
which is designed to improve oil spill prevention.” However, an owner
or operator of a Tier I qualified facility has the flexibility to use
the template in Appendix G to comply with the regulation or use it as a
model and modify it as necessary to meet the facility-specific needs.
The owner or operator may also use other oil spill prevention plans
developed for the facility and amend them as necessary to comply with
the SPCC requirements for a Tier I qualified facility. For example, the
owner or operator of a facility that has developed a Stormwater
Pollution Prevention Plan (SWPPP) under the National Pollutant Discharge
Elimination System (NPDES) that meets all of the applicable SPCC
regulatory requirements in §112.6(a)(3) and Appendix G may use the
SWPPP as the SPCC Plan. However, the SWPPP must include a
cross-reference and the self-certification statements in §112.6(a)(1)
and Appendix G.

Suggested Simplifications for Section I. 

EPA agrees with several of the commenters that recommended revisions to
the text proposed as Appendix G of 40 CFR part 112 to either simplify or
clarify use of the template.  EPA has made the following amendments:

 

Oil storage containers. EPA will clarify that it is referring to
aboveground oil storage capacity in Section I, Part 6.a and 6.c of
Appendix G.

Oil-filled equipment and other non-exempt oil storage containers. EPA
will clarify which oil storage containers at the facility must be
included when calculating the total facility oil storage capacity to
determine eligibility of the facility for Tier I and II requirements -
that is, any aboveground container at the facility that contains oil and
that is not otherwise exempt from the rule. This includes bulk storage
containers, such as tanks and mobile or portable containers; oil-filled
operational equipment (such as transformers); and other oil-filled
equipment, such as flow-through process equipment. Exempt containers
that are not included in the capacity calculation include: any container
with a storage capacity of less than 55 U.S. gallons of oil; storage
containers used exclusively for wastewater treatment; permanently closed
containers; motive power containers; hot-mix asphalt containers; heating
oil containers used solely at a single-family residence; pesticide
application equipment or related mix containers; and certain produced
water containers.

Template format. EPA will include formatting suggestions that make the
template easier to use and technical corrections, such as providing
letter references for the owner or operator’s obligations in the
certification statement; numbering tables; using numbered or lettered
superscripts; identifying acronyms when they are first used in the
document (for example, Regional Administrator (RA) in Section III, Part
6); and moving the spill reporting requirements to the correct section
in the template (from Section III, Part 6 to Section III, Part 8.)

NRC notification. EPA will clarify that the notification mentioned in
the first of five bullets before the signature block must be conducted
immediately following identification of a discharge to navigable waters
or adjoining shorelines. However, the Agency is not adding the phrase
“causing a sheen, slick or sludge deposition” in reference to
discharges to navigable waters or adjoining shorelines because this
phrase does not fully characterize discharges of oil that may be harmful
as described in 40 CFR 110.3. Discharges of oil in such quantities that
may be harmful include discharges of oil that violate applicable water
quality standards, or cause a film or sheen upon or discoloration of the
surface of the water or adjoining shorelines or cause a sludge or
emulsion to be deposited beneath the surface of the water or upon
adjoining shorelines. 

Suggested Simplifications for Section II

EPA did not make any modifications to the template in response to
comments on Section II of the template.

Suggested Simplifications for Section III. 

EPA agrees with several of the commenters that recommended revisions to
the text proposed as Appendix G of 40 CFR part 112 to either simplify or
clarify use of the template.  EPA has made the following amendments:  

Types of oil storage containers. EPA will clarify which containers are
exempt from the regulation and not required to be included in the table
in Section III, Part 1. Exempt containers that are not included in the
capacity calculation include: any container with a storage capacity of
less than 55 U.S. gallons of oil; storage containers used exclusively
for wastewater treatment; permanently closed containers; motive power
containers; hot-mix asphalt containers; heating oil containers used
solely at a single-family residence; and pesticide application equipment
or related mix containers. Although the criteria to determine
eligibility for qualified facilities focuses on the aboveground oil
storage containers at the facility, completely buried tanks at a
qualified facility, unless they are otherwise exempt, such as USTs that
are subject to all of the technical requirements of 40 CFR part 280 or a
State program approved under 40 CFR part 281, are still subject to the
rule requirements and must be addressed in the template; however, they
are not counted towards the qualified facility threshold because they
are not aboveground containers. Finally, certain produced water
containers are exempt from the rule, however, this exemption is based on
certification by a PE and therefore would not be included in a
self-certified Tier I qualified facility SPCC Plan. The owner or
operator of a Tier I qualified facility would not be eligible to develop
a self-certified SPCC Plan following the template in Appendix G and have
a produced water container exempt from the regulation because the
exemption requires a PE certification. (See section M of this preamble
for further discussion on produced water containers.) 

Failure mode. EPA will not remove mode of failure in the Secondary
Containment table in Appendix G. This table addresses rule requirements
for both §112.7(b) and (c) along with the more specific secondary
containment requirements under Subparts B and C. Therefore, the Agency
believes it is appropriate to have the owner or operator identify ‘the
mode of failure; the flow direction and quantity of the discharge; and
the secondary containment method and containment capacity’ for the
containers listed. The owner or operator may use either active or
passive approaches for complying with the secondary containment
requirements (for more information, see the SPCC Guidance for Regional
Inspectors).

Immediate NRC reporting. EPA will clarify that the NRC Notification
Procedures in Section III, Part 7 must be conducted immediately
following identification of a discharge to navigable waters or adjoining
shorelines.

Clarify references to secondary containment. EPA will revise the
discussion in Section III, Part 2 to include the word “secondary.”

Reports to the Regional Administrator. EPA will incorporate formatting
suggestions that make the template easier to use and technical
corrections, such as identifying acronyms when they are first used in
the document (for example, Regional Administrator (RA) in Section III,
Part 6); and moving the spill reporting requirements to the correct
section in the template (from Section III, Part 6 to Section III, Part
8.) The untitled, solitary box that contains informational elements that
are listed under §112.4(a) preceding §III.7 will be moved below
§III.8 “SPCC Spill Reporting Requirements.” (124)

Designation of tables and footnotes. EPA will incorporate formatting
suggestions that make the template easier to use, such as numbering
tables and using numbered or lettered superscripts. 

Suggested Simplifications for Attachments.

EPA agrees with several of the commenters that recommended revisions to
the text proposed as Appendix G of 40 CFR part 112 to either simplify or
clarify use of the template.  EPA has made the following amendments:

Revise the Onshore Facility Checklist. EPA will amend the Onshore
Facility Checklist to indicate that not all provisions may be applicable
to all owners or operators, as appropriate, and will provide
instructions to indicate on the checklist when a provision is not
applicable.

Category I tanks. EPA agrees with the commenter and will modify the text
to ensure the Table in Attachment 3.2 of Appendix G is consistent with
the STI-SP001 requirements for Category I Tanks.

Visual inspection requirements. EPA will clarify the scope of the
inspection requirements for bulk storage containers in the Inspection
Log in Attachment 3 of Appendix G. 

Discharge notification. EPA will clarify that the NRC Notification
Procedures in Attachment 4 must be conducted immediately following
identification of a discharge to navigable waters or adjoining
shorelines.

EPA considered, but did not agree with the following recommendations to
amend the template:

Refer to Plan template as Self-Certification Statement. EPA disagrees
with the commenters who suggested that EPA refer to the Plan template as
the self-certification statement. The self-certification statement is
one section of the template included in Appendix G and to refer to the
template as a self-certification statement may raise questions on
whether EPA is referring to a section of the Plan in Appendix G or the
full Plan. Therefore, EPA continues to refer to Appendix G as the Plan
template. Additionally, as discussed above, EPA disagrees with
commenters who maintain that a self-certification statement alone is
sufficient to replace a SPCC Plan. The SPCC Plan template is designed to
address streamlined SPCC requirements for Tier I qualified facilities
while reducing the paperwork burden for these facilities.

Discharge criteria. The current discharge history criterion is the same
as the criterion finalized for qualified facilities in the December 2006
rule amendments (71 FR 77266, December 26, 2006). EPA did not propose to
change the criteria for qualified facilities and since Tier I qualified
facilities are a subset of qualified facilities (now identified as
“Tier II qualified facilities”) then the discharge criterion also
applies to Tier I qualified facilities. Furthermore, the discharge
history criterion is similar to the reporting requirement in §112.4(a).
A discharge smaller than what must be reported to the EPA Regional
Administrator (RA) under this section may result from normal handling of
oil at the facility and may not indicate a recurring problem resulting
from a deficiency in the Plan or improper Plan implementation. In those
circumstances, the RA would not likely require the owner or operator to
amend the Plan and therefore, the facility owner/operator should be
eligible to self-certify the SPCC Plan as a qualified facility.

Secondary containment. EPA did not amend the table heading: “Secondary
containment capacity (gallons)” with the superscript that identifies
the secondary containment requirements for bulk storage containers. The
Agency believes that the table appropriately identifies the secondary
containment requirements for bulk storage containers and mobile/portable
containers. Additionally, the Agency will provide guidance that
describes the secondary containment requirements of the regulation in
more detail in the SPCC Guidance for Regional Inspectors.

Recertification of technical amendments. EPA disagrees with commenters
that requested that we delete the reference in the template that directs
the owner or operator to complete technical amendments in accordance
with the self-certification statement in Section I. of the template. The
Agency believes that this language serves as a reminder for the owner or
operator to self-certify technical amendments once completed. 

Five-year reviews. EPA disagrees that it should delete the five-year
review requirements and has retained the discussion of five-year review
requirements in Section II and Attachment 1.1 of the template. Tier I
qualified facilities should remain subject to the same requirement to
periodically review and update the SPCC Plan to include more effective
prevention and control technology in order to reduce the likelihood of a
discharge as described in §112.1(b).

Additional footnotes. EPA disagrees with the commenter that suggested
the table in Section III Part 2 of the template be revised to add a
superscript that references the secondary containment requirements only
for bulk storage containers to the column heading “Secondary
containment capacity (gallons).” The table already references the
secondary containment requirements under the header for bulk storage
containers. The column for “Secondary containment capacity
(gallons)” applies to multiple types of equipment including piping and
oil-filled equipment and referencing only the requirements for bulk
storage containers in this column may raise questions on how to include
information in this column for other types of equipment.

Emphasize information in Table III-2 footnotes. The Agency did not agree
with the commenter who requested that EPA move the footnotes to the
discussion preceding the tables in the Appendix. The Plan template is
organized to be a model SPCC Plan for Tier I qualified facilities and is
not designed to be a training tool. Instead, the Agency will provide
guidance to assist in the completion of the SPCC Plan template in a
separate document

Simplify secondary containment information (Section III. Tables 1 & 2).
The Agency disagrees that additional simplification is appropriate for
these tables. The tables are designed to address the various oil storage
containers, equipment and oil-handling areas where secondary containment
is required. For Tier I qualified facilities with only one or two oil
storage containers, the tables should be easy to complete.

NRC reporting of discharges via stormwater runoff. The bullets in the
table cite the current regulatory requirements in §112.7(a)(4), which
also conforms with the type of information that is collected by the NRC.


Simplify Attachment 2. Oil Spill Contingency Plan and Checklist. EPA did
not propose to amend the contingency plan requirements under 40 CFR part
109 and the checklist is intended as a reminder for the owner or
operator to address these requirements when developing the contingency
plan for the facility (when applicable). This contingency plan checklist
is intended as a guide to assist the owner or operator of a Tier I
qualified facility to prepare a contingency plan in lieu of the general
secondary containment requirements for qualified oil-filled operational
equipment or as an alternative to sized secondary containment for
specific equipment at an oil production facility (such as flowlines). 

VII.D 	Self-Certification and Plan Amendments

Issue: The Agency sought comments on the eight conditions that an owner
or operator of a qualified Tier I facility would be required to
self-certify, as well as the requirements for amending a Plan due to a
change in facility design, construction, operation, or maintenance that
materially affects its potential for a discharge as described in
§112.1(b). 

COMMENTS

Support

No comments were submitted on this topic.

Oppose

Engineering judgment.  One commenter stated that the “regulation
should be rewritten to simplify, correct and clarify conditions for
users who may only need to address this requirement a limited number of
times.” (82) Additionally, the self-certification statement “should
not be modeled after what EPA desires to see a Licensed PE provide.” 
The commenters noted that promoting or encouraging development of
qualified facility SPCC Plans by non-licensed engineers violates codes
in many states. (81, 82) 

RESPONSE

Engineering judgment.  Although EPA agrees that the owner/operator of a
facility should not be making engineering determinations without proper
credentials, we believe that there are elements of those attestations
that are appropriate for an owner or operator, such as acknowledging
that they are familiar with the requirements of the regulation. EPA also
included additional attestations for the owner or operator of the
facility pertaining to the qualification criteria and management
approval of the SPCC Plan. While the owner or operator of a qualified
facility may choose to self-certify the SPCC Plan in lieu of a PE
certified Plan, he is still required to comply with all of the SPCC
requirements and to develop and implement a spill prevention program in
accordance with good engineering practices. The owner or operator may do
so by following guidance, industry standards, industry design
specifications or industry recommended or best management practices.
This is analogous to how a person with no accounting experience is
expected to comply with applicable state and federal tax laws. Many
people choose to have a Certified Public Accountant (CPA) prepare their
annual tax documents; however, the Internal Revenue Service (IRS) does
not require that a CPA conduct this activity. A person that chooses to
complete the tax forms on his own is not relieved from the liability to
do so in accordance with all federal and state requirements. That person
is expected to understand the tax laws and regulations and prepare the
documents following all applicable requirements. He may choose to use
the forms and guidance provided by the IRS or State agency, or use
software or other publicly available guidance to aid him in the correct
completion of the tax forms. 

	

For SPCC, the Agency believes that an owner or operator who follows
guidance; standard design and operational protocols; industry standards
or recommended practices; or guidance developed by professional
associations is following “good engineering practices” to comply
with the SPCC rule requirements. Where operational changes at a facility
are necessary to comply with the rule requirements, the owner or
operator must follow all appropriate state and local requirements (such
as for permitting and construction) and, if necessary, obtain the
appropriate professional assistance. However, in the case of a qualified
facility, EPA believes that the development of the SPCC Plan itself is
not an engineering function and an owner or operator can prepare an SPCC
Plan that describes how the facility complies with the SPCC rule
requirements. For a qualified facility, the Agency believes it is
appropriate for the owner or operator to attest that the information in
the SPCC Plan is true and accurate following the self-certification
language in §112.6. EPA modeled the certification statements after the
PE certification provision in §112.3(d) with amendments to remove
language specific to engineering certification. 

	

Finally, to the extent that a State has adopted a law, regulation, or
policy, such as one based on the National Council of Examiners for
Engineering and Surveying, that requires a PE to perform certain
functions, including certifying Plans, nothing in this action affects
whether a facility owner or operator would be required to utilize a PE
to meet the State or local requirements because this action does not
pre-empt any State or local requirements. Therefore, in States where the
engineer licensing boards have prohibited SPCC Plan self-certification,
the owner or operator may not be able to utilize the Tier I and Tier II
options to self-certify the SPCC Plan to comply with the SPCC
requirements. 

VII.E 	Tier II Qualified Facility Requirements

Issue: The Agency proposes to designate qualified facilities that do not
meet the additional criterion for Tier I qualified facilities (i.e., no
individual aboveground 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
§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.

COMMENTS

Support

No comments were submitted on this topic.

Oppose

No comments were submitted on this topic.

Alternative Approaches Suggested

Develop a Tier II template.  Two commenters expressed support for Tier
II facility use of a template. (55, 82)

RESPONSE

Alternative Approaches Suggested

Extend template to Tier II.  EPA did not propose a template for Tier II
qualified facilities. The requirements for Tier II qualified facilities
remain the same as they were when they were promulgated in December
2006. 	

	

VII.F	Alternative Options

Issue: 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). 

COMMENTS

Support

No comments specifically addressed this issue.	

Oppose

No comments specifically addressed this issue.	

	

VIII.	General Secondary Containment

VIII.A	Revisions to the General Secondary Containment Requirement

Issue: EPA proposed to amend the general secondary containment
requirement at §112.7(c) to make clear that the scope of secondary
containment takes into consideration the typical failure mode, and most
likely quantity of oil that would be discharged, consistent with current
EPA guidance. Moreover, this proposed amendment would also provide
additional examples of prevention systems for onshore facilities found
at §112.7(c)(1). EPA requested comments on the appropriateness of
amending the general secondary containment provision to expand the list
of example secondary containment methods found in §112.7(c)(1).

COMMENTS

Support 

Generally Support. Many commenters expressed general support for the
proposed amendments. 

Oppose

Inconsistent with the statute. A commenter suggested that allowing
secondary containment for most likely quantity of oil discharged instead
of worst case discharge is inconsistent with 33 U.S.C. 1321(j)(5)(D).
(127)

Calculations for removal scenarios and flexibility. Two commenters
challenged as impractical the need to include calculations for every
potential release scenario. (111, 113)  The commenters argued that this
implied additional requirement is burdensome, will increase the cost of
plan preparation and is not practical for larger facilities with many
potential scenarios. The commenters added that the  determination of
adequate secondary containment is performance based and should be
determined by the P.E. EPA needs to clarify that the actual calculations
are not required to be included in the SPCC Plan. (111, 113)  A
commenter suggests that EPA provide latitude to the certifying PE in
developing the different release scenarios and secondary containment
requirements that are appropriate for the facility. (111) Another
commenter believes that the Plan should only address the worst case
scenario of the most likely discharges. (113)

Alternative Approaches Suggested 

Allow common collection area. A commenter requested that EPA allow the
use of a common collection area or containment area rather than
individual containment along gathering lines and when there are several
tanks located in close proximity to each other. (129)

Clarify requirements for buried piping. EPA should clarify in the
regulations (not just the guidance) whether general secondary
containment is required for buried piping. (25)

Suggested language change. Two commenters suggested changes to the
language in proposed text at 40 CFR 112.7(c). The commenters edited the
text to replace the word “tank” in the following sentence with
“piping or oil-filled 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 piping or oil-filled equipment, will not escape the
containment system before cleanup..." (111, 113)

Specific examples. Commenters requested that EPA clarify that the
proposed list of secondary containment methods is not all-inclusive.
(111, 113) Another commenter requested additional examples on the
elements that can comprise an acceptable [secondary containment] system;
for example, the circumstances where surface impoundments, on their own,
or in connection with other elements such as oil/water separators or
certain aspects of water treatment would constitute appropriate
secondary containment. (84)  Another commenter recommended that EPA add
wording to the list of secondary containment measures such as this
language from the proposal: “other containment measures may be used,
consistent with good engineering practice.”  (113)

RESPONSE

Generally Support. EPA agrees with commenters who supported the proposed
amendments. EPA is amending the general secondary containment
requirement at §112.7(c) in three ways: (1) by adding text regarding
the method, design and capacity of secondary containment; (2) by
specifically allowing both active and passive measures of secondary
containment; and (3) by including additional examples of prevention
systems.  Section M of this notice describes an additional modification
to the provision to address flowlines and intra-facility gathering lines
at an oil production facility.

Oppose

Inconsistent with the statute. EPA does not agree with the commenter’s
suggestion that this amendment is inconsistent with 33 U.S.C.
§1321(j)(5)(D).  The Agency’s authority to promulgate the SPCC rule
is found in 33 U.S.C. §1321(j)(1)(C) and requires the Agency to
promulgate regulations establishing procedures, methods, equipment and
other requirements for equipment to prevent discharges of oil and to
contain those discharges. The statutory provision gives the Agency broad
discretion to establish the requirements under the SPCC rule. Nowhere in
this statutory provision is a requirement that the SPCC regulations
address worst case discharges. Section 1321(j)(5)(D), however, directs
the Agency to issue regulations to require owners or operators to
prepare and submit plans to respond to worst case discharges. Consistent
with this statutory provision, EPA has promulgated facility response
plan regulations in 40 CFR part 112 Subpart D.  Therefore, we do not
agree with the commenter who suggested that this amendment is
inconsistent with 33 U.S.C. 1321(j)(5)(D).

Calculations for removal scenarios and flexibility. EPA agrees with
commenters that including the calculations in the SPCC Plan is not
required.  However, in order to determine that the facility has provided
appropriate secondary containment that complies with §112.7(c), an EPA
inspector may review the supporting documentation in the SPCC Plan (see
the SPCC Guidance for Regional Inspectors, Chapter 4, Version 1.0,
November 28, 2005). If calculations are not included with the SPCC Plan,
and the inspector suspects the general secondary containment is
inadequate, the inspector may request supporting documentation from the
owner or operator. Industry guidance recommends that facility owners or
operators include any secondary containment capacity calculations and/or
design standards with the Plan. API Bulletin D16, “Suggested Procedure
for Development of Spill Prevention Control and Countermeasure Plans,”
contains example calculations to which inspectors may refer (see Exhibit
E of “Suggested Procedure for Development of Spill Prevention Control
and Countermeasure Plans,” API Bulletin D16. Third Edition, December
2002). Calculations may be provided as part of the documentation to
support the adequacy of containment measures employed at the facility,
though, they are not required. Nevertheless, the Plan preparer must
include enough detail in the SPCC Plan to describe the efficacy of the
measures used to comply with the general secondary containment
requirements in §112.7(c). 

Commenters suggested that EPA should require that general secondary
containment address the worst case of the most likely discharge. EPA
disagrees that planning for a worst case discharge in all cases is
necessary. There are various provisions in the rule that specify design
requirements for secondary containment for different types of equipment.
The general secondary containment provision does not include design
specifications except that the general secondary containment must be
appropriate to prevent a discharge as described in §112.1(b). The owner
or operator can determine what capacity of secondary containment is
needed, and design the containment method accordingly based on
site-specific conditions to prevent discharges to navigable waters or
adjoining shorelines. In contrast, the rule does include more specific
secondary containment requirements for loading/unloading racks and bulk
storage containers  (e.g., §§ 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 minimum  design,
sizing and freeboard capacity specifications to account for a major
container failure. 

Alternative Approaches Suggested 

Allow common collection area. EPA agrees with the commenter about the
use of common containment systems. The Agency wants to make clear that
it is not necessary to provide separate containment systems for each
individual container or equipment. Instead, the Plan preparer may choose
to design facility drainage to provide a common collection area for
multiple containers, piping or oil-filled equipment located at the
facility. In order to comply with the general secondary containment
requirements, the owner or operator must first identify the typical
failure mode and quantity of oil that could be discharged. Based on
site-specific conditions, he can determine what capacity is needed and
design the secondary containment system accordingly. 

Clarify requirements for buried piping.  EPA disagrees that a regulatory
change is necessary to address general secondary containment
requirements for buried piping. The general secondary containment
provision in §112.7(c) is intended to address the potential for oil
discharges from all regulated parts of a facility. Containment method,
design, and capacity are determined by good engineering practice to
contain an oil discharge until cleanup occurs. This determination should
consider all areas of the facility with a potential to discharge oil,
including, but not limited to, piping (both aboveground and buried),
transfer areas and oil-filled operational equipment. 

Suggested language change. The Agency does not agree that it is
necessary to replace the word “tank” with “piping or oil-filled
equipment” in §112.7(c), as suggested. Tanks, piping and oil-filled
equipment are all examples of primary containment systems and the Agency
does not believe it is necessary to replace one example with another in
the rule language. However, the word “secondary” is being added for
clarity and addresses the point raised by the commenter. 

Specific examples. EPA agrees with the commenters and is amending the
language in §112.7(c)(1) to include additional examples of secondary
containment methods, as proposed. Section 112.7(c) states that “at a
minimum, you must use one of the following prevention systems or its
equivalent....” EPA clarified in Chapter 4 of the SPCC Guidance for
Regional Inspectors (Version 1.0, November 28, 2005) that the list of
secondary containment methods in §112.7(c) are examples only and not
meant to be all-inclusive. Other containment methods may be used,
consistent with good engineering practice. For example, a facility could
use an oil/water separator, combined with a drainage system, to collect
and retain discharges of oil within the facility. Surface impoundments,
oil/water separators, and wastewater treatment systems that are designed
and maintained in a way to meet the requirements of §112.7(c) to
prevent a discharge as described in §112.1(b) would also serve as
equivalent prevention systems. Additionally, certification of the SPCC
Plan verifies that secondary containment methods are appropriate for the
facility and that they follow good engineering practice. EPA disagrees
with the commenters who recommended that EPA add wording to the list of
secondary containment measures stating “other containment measures may
be used, consistent with good engineering practice.” The addition of
this language is redundant, because §112.7 requires that the SPCC Plan
be developed in accordance with good engineering practices.
Additionally, EPA has clarified in Chapter 4 of the SPCC Guidance for
Regional Inspectors (Version 1.0, November 28, 2005) that the list of
secondary containment methods in §112.7(c) are examples only and not
meant to be all-inclusive.  

VIII.B	General Secondary Containment for Non-Transportation Related Tank
Trucks

Issue: EPA requested comment on whether the regulatory relief provided
to mobile refuelers in 2006 (i.e., an exemption from the sized secondary
containment requirements) should be extended to
non-transportation-related tank trucks at a facility subject to the SPCC
rule.

COMMENTS

Support 

Generally Support. Many commenters expressed general support for
extension of regulatory relief to non-transportation-related tank
trucks.  

Oppose 

Oppose regulatory relief to non-transportation-related tank trucks. A
commenter believes that non-transportation tank trucks should not be
exempted from any SPCC requirements because (1) double-lined tanks have
been readily available for many years making compliance technically
feasible; (2) the proposal effectively punishes the facilities that
incurred extra costs conforming with the current rule (by purchasing
double-lined tanks), and rewards those who chose not to comply with the
requirements; and (3) tank trucks are high-risk oil containers often
employed at sites  where security is minimal or non-existent, where the
tank/tank truck is exposed to severe service conditions (such as
impacts), and where frequent changes in operating/maintenance personnel
occur, elevating the risk of accidental tank failure and oil discharges.
 The commenter believes that relaxing the SPCC requirements for these
tanks is counterprotective to the environment. (132)

Other Suggested Options

 Expand exemption. A commenter suggested that EPA expand the exemption
to include small truck mounted refueling and oil tanks, up to 220
gallons, that are used to transport oils and fuels to various remote
facilities and construction sites because the small size of the bulk
storage tanks limits the amount of fuel or oil that could be
discharged.” (154)  One commenter suggested exempting all trucks, or,
at a minimum, providing the same requirements for the mobile refueling
tank trucks at drilling and workover facilities and oil production
facilities as the mobile refuelers in other industry sectors. (85)  One
commenter urged EPA “to expand the exemption from sized secondary
containment to cover vehicles transporting all types of oils for use in
oil-filled operational equipment.” (121) 

Exemptions for other vehicles. A commenter suggested that EPA expand
exemption to include non-transportation related tank cars that may be
staged on leased or privately owned rail tracks.  (111)

Mobile/portable containers.  A commenter suggested expanding the
exemption to cover mobile/portable containers used for maintenance
activities associated with oil-filled electrical equipment with the
condition that adequate general secondary containment measures are
available to address the most likely volume of oil discharge. (110) 

Transloading. Commenters suggested that EPA should amend the definition
of mobile refueler to include additional examples of mobile refuelers
and clarify that these tank trucks and tank cars are exempt from the
sized secondary containment requirements of §112.8. (111, 113) A
commenter recommended defining mobile refueler as including “a bulk
storage container onboard a vehicle or towed, that is designed or used
solely to store and transport oil for transfer or transloading (as
defined in 49 CFR 171.8) into or from an aircraft, motor vehicle,
locomotive, vessel, ground service equipment, tank car, tank truck or
other oil storage container.” (111)

Example in preamble.  A commenter believes that the example given in the
preamble of a truck used to refill oil-filled equipment at an electrical
substation is an example of a vehicle that typically is
transportation-related. (43)

RESPONSE

Support 

Generally Support. EPA agrees with the commenters who argued that
non-transportation-related tank trucks at a facility subject to the SPCC
rule should exempted from the sized secondary containment requirements,
but should remain subject to the general secondary containment
requirements. 

Oppose

Oppose regulatory relief to non-transportation-related tank trucks. EPA
disagrees with the commenter who opposed exempting
non-transportation-related tank trucks from sized secondary containment.
 EPA believes that sized secondary containment is generally
impracticable for tank trucks and therefore EPA is extending the
exemption for sized secondary containment to non-transportation-related
tank trucks for the same reasons we exempted mobile refuelers from the
sized secondary containment requirements in the December 2006 SPCC
amendments (71 FR 77266, December 26, 2006). However, the general
secondary requirement in §112.7(c) still applies, which provides
adequate flexibility for the prevention of oil discharges as described
in §112.1(b). For example, active measures to respond to an oil
discharge from a vehicular accident may be used to comply with the
general secondary containment requirement. EPA disagrees that this
revision punishes owners and operators who have complied with the sized
secondary containment requirement because those owners and operators
should not need to modify their facilities (or incur costs) to ensure
that their secondary containment meets the general secondary containment
requirements. For example, a double-lined tank truck would likely comply
with the general secondary containment requirements for the rule,
although, the owner/operator would also need to ensure that there are
secondary containment measures in place to address transfers to or from
the tank truck. In response to the point that these containers pose a
high risk of a discharge and may be located at facilities with minimal
security requirements, EPA believes this action balances the
impracticability concerns with sized secondary containment for these
mobile units with the risk of discharge, by tailoring the rule
requirements to these unique containers.  Despite the exemption from
sized secondary containment requirements, the facility owner/operator is
still responsible to prevent oil discharges as described in §112.1(b)
from these containers. Additionally, the revision to the secondary
containment requirements for these tank trucks does not relieve the
owner/operator of his responsibility to comply with the security and
personnel training requirements of the rule.  

Other Suggested Options

Expand exemption. EPA agrees with commenters who suggested that the
exemption from the sized secondary containment requirements should cover
small truck-mounted oil tanks and other tank trucks, such as bulk
chemical trucks and vacuum trucks. These trucks are similar to mobile
refuelers and are included in the exemption from sized secondary
containment when the truck-mounted oil tank is used to refill a fuel
container, an electrical transformer, or a hydraulic reservoir on a
combine or piece of mining equipment.  Similarly, mobile refueling tank
trucks at drilling and workover facilities are included in the exemption
from the sized secondary containment requirements.

Exemptions for other vehicles. EPA disagrees with commenters that the
exemption should be extended to tank cars or rail cars. EPA believes
that tank cars and rail cars typically operate in fixed areas of a
facility where sized secondary containment can be provided given the
land area that is generally dedicated to a rail spur. 

Mobile/portable containers.  EPA disagrees with the commenter who
requested that the exemption be extended to include mobile/portable
containers. The exemption is not being extended to mobile/portable
containers because the Agency believes that sized secondary containment
can be provided for containers that generally operate in fixed locations
at a facility, but are occasionally moved to other fixed locations
within the facility for similar service. 

Transloading.  EPA does not agree that a specific exemption is
necessary. The Agency’s intent in this rulemaking is to clarify SPCC
requirements applicable to non-transportation-related trucks. EPA does
not agree with the suggested revisions to the definition of mobile
refueler and did not propose revisions to this definition. Additionally,
if the transloading activity is meant to supplement storage, EPA may
have jurisdiction over the operation in addition to DOT. 

Example in preamble. The Agency disagrees with the commenter who stated
that the example in the preamble was of a vehicle that is typically
transportation-related. The example of a tank truck used to refill
oil-filled equipment at an electrical station was included in the
preamble at 72 FR 58399 (October 15, 2007) to illustrate that there are
tank trucks that refill equipment and thus, perform a similar function
as mobile refuelers. But in this example, mineral oil would typically be
used to refill the electrical equipment versus fuel as in the case of an
airport mobile refueler.  An SPCC-subject facility could have a tank
truck or truck with a bed-mounted tank used to refill electrical
equipment that acts in the same vein as a mobile refueler; this would be
considered a non-transportation tank truck.  However, a utility may also
have a tank truck that travels to various electrical substations that
are subject to SPCC to refill equipment; in this case, the tank truck
would be considered transportation-related.

IX. 	Extend Security Requirements for Qualified Facilities to All
Facilities

Issue: EPA proposed to amend the facility security requirements at
§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.

COMMENTS

Support Proposal

Generally Support. Many commenters expressed general support for the
proposed amendments.

Oppose Proposal

No comments were submitted on this topic.

Other Suggested Options

Safety during emergency.  One commenter stated that “[i]n the case of
oil and gas operations, locking every fence on a piece of property could
require as many as 100 locks. The commenter added that in the event of
an emergency, fire or medical assistance, unlocking and re-locking all
the gates could cost lives and requested that EPA let the operator
decide the security and lighting requirements. (31)

Clarify limited benefit of fencing / Inconsistency between requirements
for small and medium sized facilities. A commenter reported that many
operators are incurring multiple thousand-dollar expenses to needlessly
fence sites to prevent vandalism/terrorism.  The commenter added that
this combined with the relatively small potential and undocumented
history of significant discharges due to vandalism/terrorism indicates
that smaller facilities are being forced to provide and plan for a
relatively unjustifiable expense. The commenter believes that even with
the proposed modification of required security measures, additional
clarification needs to be provided to identify that fencing may serve
limited security benefits and that limited resources can be better used
elsewhere. The commenter added that inconsistency in application of
fencing requirements has been seen between adjacent EPA regions. The
commenter believes this raises two issues:  inconsistency in agency
application of the regulation resulting from the absence of an objective
standard and, onerous and financially burdensome security requirements
that produce limited benefit. The commenter believes that refining the
requirements for security for smaller facilities might be appropriate to
address those issues. The commenter added that the distinction on level
of security should be applied to all small and medium sized facilities
not just to “qualified facility” status.(82) 

Let the Department of Homeland Security set requirements. One commenter
stated, “[t]he Department of Homeland Security (DHS) has just
published one rule affecting the security of farms and is working on
more. EPA has no business in this regulatory arena and should leave
security up to the department that was created for that express purpose.
 EPA's attempts will help to create costly, burdensome and duplicative
requirements for a low risk industry.” (56) Another commenter stated
that, “[f]lexibility is especially warranted given the fact that
facilities may have implemented security measures as per requirements
from the Department of Homeland Security (DHS) or the Department of
Transportation (DOT).” (72)

EPA should reference existing security requirements. Several commenters
suggested that EPA avoid duplication of security requirements if
existing security plans are in place as required by other federal or
state regulations.  These commenters specifically referenced 33 CFR
154.105 and 49 CFR 172.800. (108, 111, 113)

Alternative Approaches

No comments were submitted on this topic.

RESPONSE

Generally Support. The Agency agrees with the commenters’ general
support for the amendment and is finalizing the amendment to the
security requirements, as proposed. With this amendment, the Agency
recognizes that there is no one single approach to ensure proper
facility security. 

Safety during emergency / Clarify limited benefit of fencing. The Agency
agrees with comments calling for the owner or operator to have the
flexibility to distinguish between levels of security regardless of the
size of the facility, and that this flexibility not be limited to
qualified facilities. The application of the SPCC security requirements
is often determined by the facility’s geographical/spatial factors,
such that there is no “one-size-fits-all” answer to this
requirement. The Agency’s amendments allow the owner or operator to
design the security arrangements at the facility to address the specific
circumstances that apply. The amended requirements replace the more
prescriptive fencing and other requirements, previously found in
§112.7(g)(1) through (5), and allow the facility owner or operator to
determine how best to secure and control access to areas where a
discharge to navigable waters or adjoining shorelines may originate. The
Agency does not believe it needs to provide additional clarification to
identify the security benefits of fencing, as the flexibility in this
rule allows that determination to be made by the owner/operator based on
his facility’s specific circumstances. 

Let the Department of Homeland Security set requirements / EPA should
reference existing security requirements.  Security requirements are an
essential component of SPCC, and are meant to prevent discharges of oil,
as defined in §112.1(b), that could result from acts of vandalism or
other unauthorized access to oil-filled containers or equipment. A
facility owner or operator may achieve the security objective through
alternative measures, as appropriate for the facility, if these measures
provide environmental protection equivalent to the measures described in
the SPCC rule. The Agency believes, however, that replacing the more
prescriptive fencing and other security requirements, previously found
at §112.7(g), will allow the facility owner or operator to determine
how best to secure and control access to oil handling and storage areas
at the facility. This approach provides the added flexibility suggested
by several commenters to prevent unauthorized access to the facility
using whatever method is most appropriate. Thus, the owner or operator
of the facility can refer to compliance with DHS security requirements,
other existing federal, state or local security requirements, or an
industry recommended practice and describe these measures in the Plan to
comply with the SPCC security requirement.

X.	Extend Integrity Testing Use of Industry Standards 

for Flexibility to All Facilities

Issue: EPA proposed to amend the requirements at §§112.8(c)(6) and
112.12(c)(6) to provide flexibility in complying with bulk storage
container integrity testing requirements. Specifically, EPA proposed 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. The 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.

COMMENTS

Support Proposal

Generally Support. Many commenters expressed general support for the
proposed amendments. 

Oppose Proposal

Proposal’s requirements too prescriptive. Two commenters suggested
that EPA’s proposal is too prescriptive, and not performance-based;
and that the proposal detracts from a PE’s ability to provide
appropriate measures based on site-specific conditions.  (108, 111)

Industry standards should not be used.  Three commenters suggested
removing references to “industry standards” from this section of the
rule. (75, 111, 113) Two commenters disagreed with using industry
standards in setting environmental regulations. However, these
commenters agreed with EPA that the PE should determine appropriate
testing/inspection requirements that are appropriate for each container,
and industry standards should be used as appropriate. (111, 113) 

Industry standards are burdensome. One commenter objected to the use of
the language “industry standards” for inspector qualifications and
integrity testing methods because these standards are burdensome.  (75)

Inconsistent with the statute.  One commenter suggested that the
proposed amendment is inconsistent with 33 U.S.C. §1321(J)(5)(D).  The
commenter believes that reduced regulatory requirements for the oil
industry are inappropriate given “the testing mandate of 33 U.S.C.
§1321(J)(5)(D), the performance of the industry, and the absence of a
showing of need or impracticability”.  (127)

Operators should be qualified to inspect. Several commenters objected to
the language in the proposed rule that a facility should “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”. Commenters believe that production sites inspected by lease
operators following requirements included in the PMAA settlement
agreement letter are qualified, through experience and training, to
visually examine containers and tanks at a production facility. (75,
111)

Alternative Approaches

No comments were submitted on this topic.

No Action

No comments were submitted on this topic.

Other Suggested Options

Visual inspection.  One commenter suggested that tank integrity testing
criteria should be limited to visual inspections, because irrigation
fuel tanks on a farm are visually inspected daily during irrigation
season. (56) One commenter suggested extending “environmental
equivalence of visual-only testing to all elevated tanks and tanks on
release prevention barriers, regardless of volume,” because such
releases are easily seen and this capability does not depend on the
volume of the tank. (111)  One commenter suggested that EPA should allow
visual inspection documented at a regular frequency determined by the
facility operator and a PE based on site-specific conditions. (108)  A
commenter also suggested that visual inspections with weekly or monthly
frequency is impracticable; and the practice of documenting visual
inspections should be based upon PE judgment.  (75)  

Acceptable industry standards.  One commenter suggested that EPA should
clarify acceptable industry standards for all integrity test procedures,
including test procedures detailed by those standards. (82)  One
commenter suggested that EPA should codify the integrity testing
language in the settlement agreement letter to PMAA.  A commenter
believes that these standards allow operators who are not certified tank
inspectors, but have training and experience, to visually inspect tanks
at petroleum production facilities, refineries, and terminals. (75) 
Several commenters provided support specifically for Steel Tank
Institute SP001 and American Petroleum Institute Standard 653. (64, 110,
121, 156) One commenter urged EPA to maintain a list of references for
all applicable industry standards. (121)

”Qualified personnel.” One commenter suggested that EPA should
eliminate any language using the phrase “qualified personnel” from
the proposed rule and allow the operator and P.E. to establish a spill
prevention program. (108)

Codify litigation settlement. Two commenters suggested that the API/EPA
litigation settlement language should be included in the regulation.
(111, 113) One commenter suggested that the settlement language should
be used as a new subsection for smaller containers similar to the
proposed rulemaking for animal fats and vegetable oils and provided
proposed revised guidance language. (113) Another commenter pointed to
EPA’s reference of SPCC Settlement Issues, Oil Program Staff, March
31, 2004. The commenter requested the proposed integrity testing
language be clarified to include the following language from this
document:  

“…..shop-built containers with a shell capacity of 30,000 gallons or
under, combining appropriate visual inspection with measures described
below would generally provide the environmental protection equivalent to
that provided by visual inspection plus another form of testing.” 

“…..visual inspection plus elevation of a shop-built container in a
manner that decreases corrosion potential and makes all sides of the
container, including the bottom, visible during inspection would be
considered equivalent.” (131)  Another commenter quoted the same
language in its request that EPA codify the settlement language.  (111)

Regulatory relief for indoor tanks. One commenter suggested that EPA
should allow the owner/operator of a facility with indoor tanks to adopt
different inspection requirements (not outlined by industry standards)
without the need for environmental equivalence determinations to be
certified by a P.E. The commenter questions industry (Steel Tank
Institute) practice that requires facilities to hire third-party
inspectors, which is not cost effective given the low probability of
environmental harm from indoor tanks. (143)

Corrosion rates. A commenter disputed EPA’s generalizations concerning
rates of corrosion for indoor versus outdoor tanks. (143)

RESPONSE

Support

Generally Support.  EPA agrees with those commenters who support the
proposed amendment. EPA is replacing the previous regulatory
requirements at §§112.8(c)(6) and 112.12(c)(6) with the integrity
testing requirements finalized in December 2006 for qualified facilities
(§112.6(c)(4)).

Oppose Proposal

Proposal’s requirements too prescriptive.  EPA disagrees that the
amendments are too prescriptive. The amended integrity testing
requirements are intended to provide more flexibility to the owner or
operator of an SPCC-regulated facility in the selection of the
appropriate scope and frequency of integrity testing for all classes of
bulk storage containers, including indoor and outdoor tanks and portable
containers (such as 55-gallon drums and totes). The July 2002 rule
revisions (67 FR 47042, July 17, 2002) amended the integrity testing
requirements in §§112.8(c)(6) and 112.12(c)(6) to require visual
inspections, plus some other form of testing, for each bulk storage
container 55 U.S. gallons or greater; this amendment allows the owner or
operator to determine the frequency and type of testing and inspections
that are appropriate, according to site-specific conditions (for
example, type and age of tanks, condition of tanks, and overall
tank/secondary containment configuration), while also considering
relevant integrity testing standards.

Industry standards should not be used / Industry standards are
burdensome.  EPA disagrees with commenters on the use of industry
standards.  EPA maintains that inspection of containers storing oil in
accordance with recognized industry inspection (integrity testing)
standards is an important aspect of oil spill prevention. Industry
standards are technical guidelines created by experts in a particular
industry for use throughout that industry.  These guidelines assist in
establishing common levels of safety and common practices for
manufacture, maintenance, and repair and in this context, are generally
used as the basis for the development of site-specific container
inspection programs that are required by company standard operating
procedures, insurance requirements and/or regulatory requirements.
Created by standard-setting organizations using a consensus process, the
standards establish the minimum accepted industry practice. EPA
recognizes that some industry standards now provide differentiated
inspection requirements for various container sizes and configurations
that may allow for visual inspection of certain types of oil storage
containers, such as drums and totes and certain tanks up to 5,000 U.S.
gallons. EPA’s amendments to the integrity testing requirements are
intended to allow the use of these industry standards without the need
for environmental equivalence determination discussions in an SPCC Plan
when a recognized industry inspection standard is followed. EPA notes
that use of a particular standard is voluntary; however, when a standard
(or parts of a standard) is incorporated into a facility’s SPCC Plan,
then adherence to that standard is mandatory for implementation of the
SPCC Plan.  It should also be noted that these amendments do not
restrict the use of environmental equivalence, including establishing
differentiated inspection requirements for shop-built tanks versus
field-erected tanks, and other alternatives suggested by commenters.
Owners or operators still have the ability to develop alternative,
environmentally equivalent integrity testing procedures for bulk storage
containers in accordance with §112.7(a)(2). These equivalent measures
must be in accordance with good engineering practice and are subject to
certification by a PE.

EPA described the environmental equivalence flexibility available to a
PE with respect to integrity testing in a letter to the PMAA. While the
policy and approach for the use of environmental equivalence described
in this letter is still valid, the approach taken in this final rule
amending the integrity testing requirements allows inspection
requirements outlined in industry standards to be used without the need
for environmental equivalence determinations certified by a PE. A major
industry standard for integrity testing (STI SP001) was modified since
the letter to PMAA was written to outline “good engineering
practice” for integrity testing of shop-built containers. This may
affect a PE’s decision whether to certify an environmentally
equivalent approach as described in the PMAA letter, or to follow the
industry standard as provided by the amendment finalized in this rule.

Inconsistent with the statute.  EPA disagrees that this amendment is
inconsistent with the Clean Water Act (CWA).  EPA’s authority to
promulgate the SPCC regulations is found in 33 U.S.C. § 1321(j)(1)(C),
not 33 U.S.C. § 1321(j)(5) which delineates the requirements for tank
vessel, nontank vessel and facility response plans (FRP).  The
Agency’s FRP regulations are found in 40 CFR 112 Subpart D and have
not been revised in this rulemaking.  The purpose of this amendment to
the integrity testing requirements was to provide increase flexibility
to the owner/operator to use existing industry consensus inspection
standards without the need for an environmental equivalence
determination by a PE, when the owner/operator follows the standard
verbatim. The regulatory requirement to test or inspect each aboveground
container remains in place. 

Operators should be qualified to inspect.   EPA agrees with the comment
about inspection of production facility containers by lease operators. 
EPA is amending the integrity testing provisions that appear at
112.8(c)(6) and 112.12(c)(6), which apply to onshore facilities,
excluding production facilities.  Production facilities are subject to
112.9, and the inspection requirements for tanks in production service
are explained in 112.9(c)(3); thus, the amendments do not affect the
container inspection requirements for production facilities.   A lease
operator may perform the regularly scheduled visual container inspection
outlined in 112.9(c)(3), if identified in the SPCC plan for the
facility.

 

Other Suggested Options

Visual inspection.  EPA disagrees with commenters’ suggestion that EPA
limit container inspection requirements to visual inspections only.  EPA
believes that this amendment to the integrity testing requirements
provides considerable flexibility to the owner/operator to use the
latest industry inspection standards which may allow visual inspections
by the owner/operator as the inspection requirement for certain tank
sizes and configurations.  EPA amended the integrity testing
requirements at 112.8(c)(6) to allow the owner/operator to use industry
inspection standards without the need for an environmental equivalence
determination by a PE, which would be required under the previous rule
language.  However, the amended requirements do not prohibit an owner or
operator from consulting a PE to determine the appropriate integrity
testing program for his facility.

Acceptable industry standards. EPA does not agree that they should
clarify acceptable industry standards for all integrity testing
procedures. The Agency provided a list of organizations that may be
helpful in the identification and explanation of industry standards in
the Federal Register notice for the July 2002 SPCC rule revisions (67 FR
47058, July 17, 2002).  In addition, EPA also provided an overview and
description of the scope and key elements of pertinent industry
inspection standards in Chapter 7 of the SPCC Guidance for Regional
Inspectors. While the Agency is allowing facility owners and operators
to rely on industry standards to develop the inspection and integrity
testing scheme, EPA does not believe that any specific industry
standards should be incorporated, by reference, into the rule.  As EPA
noted in the preamble to the July 2002 SPCC rule revisions (67 FR 47070,
July 17, 2002), while facility owners or operators should look to
specific industry standards as a guide for preparing SPCC Plans, EPA
does not believe that incorporating specific standards into this rule is
appropriate. Such incorporation effectively freezes standards into
rules, which may become outdated or obsolete. The decision in every case
as to the applicability of any industry standard will be one for the PE,
or the owner or operator of the facility who self-certifies an SPCC
Plan.  

”Qualified personnel.” EPA disagrees with the commenter who
suggested the deletion of the reference to “qualified personnel” for
personnel conducting inspections and tests of containers.  EPA maintains
that existing industry consensus standards already specify the
qualifications for personnel conducting container tests and inspections,
so EPA’s rule language does not impose any additional qualification
requirements beyond existing standards.

Codify litigation settlement language.  EPA disagrees with the commenter
on the need to codify the litigation settlement language with respect to
integrity testing.  EPA believes that codification is unnecessary since
the amendments to the integrity testing requirements allow the
owner/operator to use inspection requirements outlined in industry
standards without the need for environmental equivalence determinations
certified by a PE.  For certain tank sizes and configurations, including
for those tanks identified by the commenter, alternative inspection
requirements are available to the owner/operator depending on the
inspection standard used (e.g. API 653 versus STI SP001).         

Regulatory relief for indoor tanks.   EPA disagrees with the commenter
on the need for differentiated requirements for indoor tanks versus
outdoor tanks. Industry consensus standard organizations establish the
appropriate inspection scope and frequency for all classes of
containers.  Where these standards differentiate between indoor and
outdoor tanks, then the owner/operator can incorporate those
differentiated requirements into the SPCC plan.  In the absence of any
such differentiation, the owner/operator can consult with a PE to
establish a differentiated inspection program for indoor tanks via an
environmental equivalence determination under 112.7(a)(2).  

Corrosion rates.  EPA agrees with the commenter that the discussion of
corrosion rates in the preamble was general in nature.  However, EPA’s
intent in the preamble section at 72 FR 58420 (October 15, 2007) was
only to discuss common conditions that could reduce or accelerate
container corrosion. EPA consulted API- and STI-certified tank
inspectors to better understand the corrosion mechanisms for indoor
versus outdoor tanks. Specific corrosion rates were not discussed and
were not relevant to a general discussion about potential conditions
that could affect shell or bottom plate corrosion.  

XI.	Animal Fats and Vegetable Oils

XI.A	General	

Issue: EPA proposed to differentiate the integrity testing requirements
at §112.12(c)(6) for an owner or operator of a facility that handles
certain types of animal fats and vegetable oils (AFVOs). Specifically,
EPA proposed to provide the PE or an owner/operator certifying an SPCC
Plan with the flexibility to use a visual inspection program for
integrity testing that is appropriate for containers that store AFVOs
that meet certain criteria. 

COMMENTS

Support 

Generally Support. Several commenters expressed support for EPA’s
efforts to provide regulatory relief to AFVOs because the commenters
believe these substances are different from petroleum oils in terms of
toxicity and potential environmental impact. (73, 90, 102, 113)

Certain AFVOs Solidify at Room Temperature. Commenters expressed support
for EPA’s clarification regarding reasonable expectation of discharge
for animal fat and food, feed and industrial byproducts that are solid
at room temperature and would quickly solidify in the event of a spill.
(73) However, commenters challenged the position that if one oil
container at a facility is subject to the rule, all containers are,
including a container holding oils that solidify at ambient
temperatures. (51, 126)  Commenters wanted EPA to specifically clarify
that containers storing or holding solid at ambient temperature AFVOs
are exempt from the rule’s requirements. (51, 126)  One commenter
stated the rationale that there is not a reasonable expectation the
AFVOs in such containers would discharge to navigable waters or
adjoining shorelines. (126)

Take additional action to reduce burden.  Several commenters suggested
that EPA take further action to reduce the regulatory burden of
requirements for facilities that store and handle AFVOs (73, 102, 126). 
One commenter suggested the current criteria are too limiting to provide
relief as many AFVO storage containers would not qualify (102).  

Generally oppose. Another commenter indicated the current proposal is
overly lax and should be reconsidered, particularly for fiberglass tanks
and vessels, because it would forego integrity testing of bulk storage
containers, would allow visual inspection and does not require annual
inspections by inspectors familiar with the equipment and FTPI 2007-1.
(156)

RESPONSE

Generally Support.  EPA agrees with comments supporting this alternative
option tailored to AFVOs. The alternative approach to differentiating
AFVOs from other oils is not based on an oil’s toxicity and its
inherent physical/ chemical properties, but rather it is based on the
way some AFVOs are stored and handled at some facilities. Because this
is an alternative option, EPA is not requiring that an owner or operator
use this option. Instead, EPA is providing additional flexibility in
meeting the provisions set forth in §112.12(c)(6) to address
stakeholder concerns. In addition, an owner or operator may make an
environmental equivalence determination, in accordance with
§112.7(a)(2) for integrity testing of a bulk storage container.

Certain AFVOs Solidify at Room Temperature. EPA disagrees with the
commenters who requested that the Agency clarify that all containers
containing oil that is solid at ambient temperature are exempt from SPCC
requirements.  EPA notes that the alternative compliance option for
facilities handling AFVOs is based not on the differences between
petroleum oil and AFVOs, but on the way these oils are stored and
handled at a facility. Applicability of the SPCC rule must be made in
accordance with the provisions set forth in §112.1. 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. However, if a facility
owner or operator determines that there is a reasonable expectation to
discharge oil to navigable waters or adjoining shorelines for any single
oil container, all oil containers at the facility are subject to the
rule’s requirements, except as otherwise exempted. The applicability
of the SPCC regulation is based on a determination that a reasonable
expectation of discharge of oil in quantities that may be harmful to
navigable waters or adjoining shorelines can occur from the facility as
a whole.  EPA did not propose to change the applicability of the SPCC
regulation to allow an individual oil container that otherwise must be
counted toward applicability to be excluded at a facility that has a
reasonable expectation of a discharge of oil in quantities that may be
harmful to navigable waters or adjoining shorelines. Thus, the
alternative approach cited by the commenter is outside the scope of this
rulemaking.  The Agency intends for this clarification regarding
reasonable expectation of discharge for AFVOs that are solid at room
temperature, but may be stored at elevated temperatures, to assist the
regulated community in determining the applicability of SPCC
requirements.

Generally Oppose.  The Agency acknowledges comments on the criteria
being both too limiting and also overly lax, but we believe that the
criteria developed strikes the appropriate balance between regulatory
requirements and environmental protection.   EPA disagrees with comments
asserting that the alternative option foregoes integrity testing of bulk
storage containers, particularly for fiberglass bulk storage containers.
 Instead, EPA recognizes that an owner or operator of a facility may
rely on the appropriate use of industry standards for integrity testing
requirements, and that in certain circumstances, visual inspection may
be appropriate and sufficient for compliance with the integrity testing
requirement. 

XI.B	Criteria for Proposed Alternative Approach for Integrity Testing 

Issue: EPA proposed to provide the PE, or an owner or operator
certifying an SPCC Plan with the flexibility to use a visual inspection
program for integrity testing that is appropriate for containers that
store AFVOs that meet certain criteria. This flexibility would apply to
those bulk storage containers subject to the applicable sections of 21
CFR part 110 and that meet the additional criteria of being elevated,
made from austenitic stainless steel, have no external insulation, and
are shop-built.

XI.B.i 	Use of FDA Requirements Under 21 CFR 110

COMMENTS

Generally Support.  One commenter agreed with the logic that container
foundations and support structures meeting FDA requirements would also
meet the intent and practicality of the SPCC requirements. (113)

Jurisdiction/Sufficiency of FDA Regulations.  One commenter wondered
whether EPA’s jurisdiction for smaller vegetable oil tanks (cooking
oil) located in process buildings was relevant, especially with EPA
citing FDA regulations 21 CFR part 110 as sufficient guidelines and
procedures for smaller tanks to be protective of navigable waters of the
United States. (87)  

Use of Other Industry Standards.  One commenter agreed that offering
options for environmental equivalence is a good step, but the options
should go beyond the FDA standards and include other well-conceived
industry standards that offer equivalent protection. (113)  The
commenter added that incorporating specific standards in the SPCC rule
presents an opportunity for non-compliance if a standard is revised.
(113)

RESPONSE

Generally Support. EPA agrees with the those comments supporting the use
of FDA’s regulations as a basis for establishing qualifying criterion
for differentiated integrity testing requirements for AFVOs.

Jurisdiction/Sufficiency of FDA Regulations. EPA acknowledged that FDA
regulatory requirements for food oils that are intended for human
consumption may provide a basis for an alternative approach for
integrity testing. However, EPA believes other criteria are necessary in
addition to FDA regulatory requirements to provide equal environmental
protection.   

Use of Other Industry Standards. The Agency agrees that compliance with
industry standards and requirements other than the alternative option
may also meet the SPCC inspection, evaluation, and testing requirements.
Today’s final rulemaking provides an alternative option to comply with
the integrity testing requirements in §112.12(c)(6) for certain AFVOs. 
EPA believes that industry standards today represent good engineering
practice and generally are environmentally protective. However, as under
the current rule, if an industry standard changes in a way that would
increase the risk of a discharge of oil as described in § 112.1(b),
owners and operators should revise their Plans to incorporate standards
and practices that protect the environment, rather than the less
protective industry standard. In preamble to the July 2002 SPCC rule
amendments, EPA provided examples of industry standards that may
constitute good engineering practice for assessing the integrity of
different types of containers for oil storage (67 FR 47120, July 17,
2002).  Additionally, the SPCC rule provides flexibility regarding the
integrity testing requirements of bulk storage containers, as long as
the alternatives provide equivalent environmental protection per
§112.7(a)(2). 

XI.B.ii	Elevated AFVO Bulk Storage Containers 

COMMENTS

Non-Elevated Tanks. Several commenters suggested including non-elevated
containers in EPA’s proposed criteria for the integrity testing
provision. (51, 73, 90, 102, 134) Commenters stated that many food
industry facilities use non-elevated tanks; these tanks comply with FDA
requirements, which allow tanks to be positioned on pads as long as the
area can be adequately cleaned and kept in good repair. (51, 90) 
Another commenter recommended that EPA “extend alternative integrity
testing provisions to AFVO storage vessels that are not elevated,
provided that these vessels meet FDA requirements and incorporate a
bottom-discharge design which eliminates the build-up of water and
materials in the bottom of the tank and prevents corrosion.” (134)

RESPONSE

Non-Elevated Tanks. While EPA recognizes similarities between elevated
and bottom-discharge designs, the Agency does not agree with the request
to expand the scope of the AFVO alternative criterion to include
non-elevated bulk storage containers. Although some food industry
facilities may use non-elevated tanks, food equipment is generally
designed to be elevated (for example, to stand on legs); this elevated
design allows the space between the plant equipment and the floor to be
easily cleaned. FDA also recommends that all equipment should be so
installed and maintained so as to facilitate cleaning of the equipment
and of all adjacent spaces. 

Bottom-discharge designs similarly eliminate the build-up of water and
materials in the bottom of the tanks. However, the Agency believes that
having the tanks elevated facilitates maintenance, inspections, and
monitoring for oil discharges all around the bulk storage container, all
of which are critical in allowing for the differentiated requirements.
It is important to note that the differentiated requirements are an
available alternative. The owner or operator may choose to include bulk
storage container designs that provide equivalent environmental
protection in their SPCC Plan, in accordance with §112.7(a)(2). For
example, bulk storage containers built according to industry standards
(such as 3-A Sanitary Standards) may provide additional features that
facilitate visual inspection (such as manholes for internal inspection)
that may provide comparable environmental protection.  

XI.B.iii	Containers Made of Austenitic Stainless Steel

COMMENTS

Support for Proposal. A commenter supported that EPA limit consideration
of alternative integrity testing to homogenous austenitic stainless
steel tanks and vessels.  The commenter noted that carbon steel tanks
that are interior lined may pose more significant requirements. (156)

Carbon Steel Tanks. Several commenters suggested EPA consider including
carbon steel tanks in the eligibility criteria for the flexibility to
determine the scope of integrity testing, especially considering the
widespread use of these containers and consistency with EPA’s current
SPCC guidance  (51, 73, 87, 90).  Commenters stated that since EPA’s
current SPCC guidance allows visual inspection for shop-built containers
with a shell capacity of 30,000 gallons or less that are elevated with
all sides visible, to require AFVO tanks to be made of stainless steel
would impose a more stringent requirement on such tanks than currently
applies to petroleum tanks. (87, 90)

Burden of Compliance with Stainless Steel.  One commenter opposed the
rule because one of the requirements to be in compliance with the
proposed rule is that tanks must be constructed of stainless steel and
the commenter believes this is a burden that will limit the majority of
the feed industry.  The commenter stated that the cost difference of
$35,000 per tank for a 10,000 gallon tank between a mild steel tank
commonly used in the industry and a stainless steel tank will make this
portion of the proposed rule cost prohibitive for the majority of the
industry. (102)

RESPONSE

Support for Proposal. EPA agrees with the commenter who supported
limiting the alternative integrity testing requirements to bulk storage
containers made of austenitic stainless steel. Carbon steel tanks that
are interior-lined may pose more significant inspection requirements
because the interior lining may fail to adhere to the tank, and not
provide the intended protection of the carbon steel.

Carbon Steel Tanks. Some commenters believe that limiting alternative
testing requirements to austenitic stainless steel would limit the
usefulness of the alternative option. While this assertion may be
correct, the Agency nevertheless believes that expanding this
alternative to include carbon steel containers is not appropriate,
because non-austenitic stainless steels, including but not limited to
carbon steel, are not as inherently corrosion resistant as austenitic
stainless steel to the materials stored or handled in them (that is,
they are more susceptible to internal corrosion) or to the operating
environment (that is, they are more susceptible to external corrosion).
Furthermore, non-austenitic stainless steel containers may require a
liner; these liners can fail or delaminate, promoting the potential for
internal or external corrosion. Thus, the Agency believes the austenitic
stainless steel criterion is an integral part of the criteria for
differentiated requirements. 

Today’s final rulemaking provides an alternative option to comply with
the integrity testing requirements in §112.12(c)(6), and thus does not
require AFVO containers to be made of stainless steel to comply with the
integrity testing requirements in §112.12(c)(6). The alternative option
is tailored to bulk storage containers that store AFVOs intended for
human consumption and meet certain criteria. Again, these differentiated
requirements are an available alternative that the owner or operator may
choose to include in their SPCC Plan. The owner or operator may choose
to make an environmental equivalence determination, in accordance with
§112.7(a)(2), for similar corrosion resistant materials. The 2005 SPCC
Guidance for Regional Inspectors document provides example scenarios of
environmental equivalence in which visual inspection may provide
equivalent environmental protection when accompanied by certain
additional actions. It should also be noted that these amendments do not
restrict the use of environmental equivalence, including establishing
differentiated inspection requirements for shop-built tanks versus
field-erected tanks, and other alternatives. An owner or operator still
has the ability to develop alternative, environmentally equivalent
integrity testing procedures for bulk storage containers in accordance
with §112.7(a)(2). These equivalent measures must be in accordance with
good engineering practice and are subject to certification by a PE.

Burden of Compliance with Stainless Steel.  The Agency is not requiring
that an owner or operator install austenitic stainless steel bulk
storage containers. However, facilities that these bulk storage
containers for AFVOs and meet other criteria can take advantage of the
alternative compliance option.  As mentioned above, today’s final
rulemaking provides an alternative option to comply with the integrity
testing requirements in §112.12(c)(6), and thus does not require AFVO
containers to be made of stainless steel.  EPA recognizes that not all
AFVO bulk storage containers may benefit from the alternative option. 
The Agency believes that the criteria developed, including austenitic
stainless steel, strikes the appropriate balance between regulatory
requirements and environmental protection.  Some commenters indicate
that bulk storage containers made from is austenitic stainless steel
cost more than a similar bulk storage container that is made from carbon
steel.  EPA also believes that those cost difference is indicative of
the inherent corrosion resistance that austenitic stainless steel
provides over carbon steel.

XI.B.iv	Containers with No External Insulation 

COMMENTS

Support for Limiting Criterion to Containers with No External
Insulation.  One commenter stated that effective visual examination is
difficult for tanks with external insulation. The commenter also noted
that he is familiar with insulated tank ruptures occurring after an
exterior inspection.  Therefore, the commenter stated that alternative
integrity testing should only be applied to tanks with no external
insulation. (156)

Insulation as Industry Practice. Several commenters suggested EPA
include tanks with external insulation in the proposed criteria for
integrity testing due to their need to maintain product viscosity;
commenters noted that there is an established industry practice allowing
for visual inspection of insulated tanks. (51, 73, 90, 102) In addition,
one commenter suggested that insulation is very prevalent in the
industry and the increased energy cost for non-insulated containers
would be prohibitive. (102)  Commenters argued that insulated tanks can
be visually inspected through access ports installed permanently in the
insulation at key locations making EPA’s proposed requirement
inconsistent with necessary industry practice and unnecessary to assure
adequate inspection.  The commenter requested that EPA revise its AFVO
alternate integrity testing criteria to permit jacketed tanks as long as
there are sufficiently access ports installed in key locations to
observe an appropriate quantity of the exterior of the tank. (90)  

RESPONSE

Supports Limiting Criterion to Containers with No External insulation. 
The Agency agrees with those commenters who supported limiting the
alternative criterion to bulk storage containers that have no external
insulation, because external insulation is a barrier to visual
examination, making effective visual inspection difficult.  At the same
time, EPA recognizes that some AFVO bulk storage containers need
insulation to maintain temperatures and, therefore is not requiring
facilities to replace insulated containers. 

Insulation as Industry Practice. The Agency disagrees with the
commenters who suggested this criterion should be expanded to include
“jacketed tanks” that have sufficient access ports installed at
“key locations.” The Agency believes it is important that the
criteria for differentiated requirements account for the effect of
corrosion under the thermal insulation, including but not limited to,
the effect of moisture, chloride leaching, and/or temperature.  The
effects of corrosion under thermal insulation are well documented in the
technical literature. (See, for example, National Association of
Corrosion Engineers (NACE) Standard RP0198-2004.) Thus, because external
insulation covering the outside of a bulk storage container acts as a
barrier to effective visual examination, EPA believes this is a minimum
criterion for this alternative, the Agency is limiting the alternative
criterion to those containers that have no external insulation. However,
bulk storage containers that store food oil and are built according to
industry standards (such as 3-A Sanitary Standards) may have additional
design features that provide equivalent environmental protection and
thus meet the intent of the criteria. For example, container
configurations built according to 3-A Sanitary Standards typically
include “manholes” that facilitate complete access for examination
of the entire internal surface. These containers also typically have an
outer shell (that is, a double wall in which both inner and outer walls
are stainless steel) that is sealed completely (for example, with
completely welded seams) so that the container integrity is maintained
by removing any potential for the insulation to be exposed to moisture.
In addition, some AFVO bulk storage containers that are refrigerated may
suppress corrosion potential, whereas containers that are heated to
facilitate oil flow may promote corrosion potential. Thus, bulk storage
containers that store food oil and are built according to industry
standards (e.g., 3-A Sanitary Standards) may have additional features
that provide equal environmental protection and meet the intent of this
criteria.  Additionally, the Agency believes the rule provides the
facility owner or operator with significant flexibility to make an
environmental equivalence determination, in accordance with
§112.7(a)(2), which may be used to address those insulated bulk storage
containers that have alternative configurations, including access ports.


XI.B.v	Shop-Fabricated Containers 

COMMENTS

Field-Erected Tanks. Two commenters suggested EPA modify the proposed
rule to clarify that tanks that are pre-fabricated in sections, and then
field-erected in a limited number of places, would qualify for the
alternative provisions, since many AFVO facilities utilize these tanks
and the number of field weldings is much lower than a completely
field-erected tank.  These commenters stated that pre-fabricated tanks
may be in halves or in three or four pre-rolled sections and would not
require large welds or being bolted together with air wrenches at the
site. (73, 90)  In addition, one commenter suggested that these partial
field-assembled tanks are not necessarily the large capacity containers
that EPA may seek to exclude from the integrity testing provision. (90) 
One commenter questioned EPA’s rationale for excluding field-erected
tanks from the alternate integrity testing options. (156) The commenter
indicated that while field-erected tanks are larger than shop-fabricated
tanks, they are designed to meet industry standards and there are no
data to support a higher failure rate.  The commenter added that
industry standards for visual inspections apply to field-erected tanks;
therefore, the Agency should not limit consideration of alternative
integrity testing to only shop-fabricated containers. (156)

RESPONSE

Field-Erected Tanks. EPA disagrees with the commenters who suggested
that the alternative integrity testing criteria should include
field-erected tanks.  EPA believes it is appropriate to limit the
alternative integrity testing criterion to shop-fabricated containers
because they are simpler in design and construction in relation to
field-erected containers, including those containers that are partially
field assembled. EPA believes this criterion distinguishes between more
complex bulk storage containers, which may require greater integrity
testing scrutiny, and smaller less complex containers. 

EPA disagrees with the commenter who questioned whether this criterion
was relevant, asserting that the industry standards for visual
inspection apply to field-erected tanks. While visual inspection may be
a component of an integrity testing program for field-erected tanks, EPA
is unaware of any industry standard which limits integrity testing for a
field-erected bulk storage container to visual inspection only. Industry
standards typically incorporate visual inspection into a broader
integrity testing program which typically also includes non-destructive
testing on a regular schedule and includes inspection of the tank’s
shell and bottom plate. EPA believes this criterion, in combination with
the others, limits the applicability of the integrity testing relief to
those AFVO containers that, because of equipment design and handling
requirements already provide environmentally equivalent protection. In
contrast, containers that are partially shop-fabricated and then
finalized in the field may be subject to additional inspection
requirements to bring these containers into service and for continued
service beyond the requirements for fully shop-fabricated containers. It
should also be noted that the rule provides sufficient flexibility to
make an environmental equivalence determination, in accordance with
§112.7(a)(2) of the SPCC rule, which may be used to address
fielded-erected containers that may vary in complexity, including
field-erected containers comprised of pre-fabricated sections.

XI.B.vi	Other Suggested Criteria and Options

COMMENTS

Extend Inspection Frequency for AFVO ASTs. Two commenters suggested
extending the testing frequency for AFVO ASTs based upon the internal
corrosion differences between AFVO and petroleum-based oils. (90, 102)
Two commenters believe that visual inspection should be allowed for AFVO
storage tanks. (73, 90, 102) One commenter stated that this type of
inspection program has proven effective in the food industry, allowing
potential leaks or spills to be detected early.  (90) Two commenters
stated that AFVO tanks are bottom-discharge, thus eliminating the
buildup of water in the bottom of the tank and preventing corrosion from
the inside out.  The commenters believe that based on the internal
corrosion differences between AFVOs and petroleum-based oils, the
inspection frequency should be extended for ASTs storing AFVOs.  (90,
102)

Apply Visual Inspection Instead of Integrity Testing to all AFVO Storage
Containers.  One commenter suggested that EPA allow AFVO storage
containers that are in compliance with secondary containment provisions
and which undergo visual inspection on a routine basis to be exempted
from integrity testing.  The commenter noted that a leak would be
discovered before it could escape into the environment due to the
inspection frequency. (102)   

Allow Use of Hybrid Approach.  One commenter requested that the EPA
“[a]llow the Professional Engineer certifying the site plan to decide
if the standard or method chosen by the facility offers equivalent
protection.”  The commenter recommended that EPA use the same approach
as in the SPCC Guidance for Regional Inspectors (Chapter 7-38): “The
EPA refers here to a specific industry and its associated standards. 
Although this example is offered, it is intended that other design
approaches, other industry standards, or other good engineering
practices may be used alone or as a ‘hybrid’ program where
equivalent results in meeting the SPCC requirements is obtained.”  The
commenter asserted that this is also a good option for and requested
that the language be expanded to allow the same alternatives for similar
containers of all oil covered by the regulation. (113) 

However, another commenter noted that the fiberglass vessel and tank
integrity testing standard in FTPI 2007-1 limits certification to
inspectors with experience inspecting fiberglass tanks or vessels.  The
commenter concluded that this standard would preclude a P.E.-certified
explanation of environmental equivalence and deviation from an industry
standard. (156)

FTPI 2007-1. One commenter asked EPA to include the fiberglass industry
aboveground tank integrity standard FTPI 2007-1 in the rule itself or in
the preamble of the final rule.  The commenter recommended a certified
external tank and vessel inspect[ion] every 10 years for tanks/vessels
greater than 10,000 gallons capacity when non-hazardous substances are
stored and annual inspections by a preventive maintenance inspector who
was shown to be familiar with the equipment and the FTPI 2007-1 content.
 The commenter argued that while “the FDA requires the initial design,
construction and use to preclude adulteration of food, there is no
assurance that it is ‘likely to prevent the corrosion of the internal
contact surface...’ as stated.” Thus, the commenter continued, FTPI
2007-1 recommends an integrity inspection after 20 years for tanks and
vessels greater than 10,000 gallons capacity or when other warning signs
appear, a requirement of more significance for carbon steel tanks that
are interior lined. The commenter indicated that its experience shows
that manufacturing defects, overheating or other processing problems
will over time reduce the integrity of tank and vessel interior[s] such
that an integrity inspection is required. The commenter discussed the
industry standards for integrity testing of fiberglass tanks and vessels
and indicates that whether they are located indoors or outdoors does not
affect the frequency with which they should be inspected. (156)

Do not Include AFVOs in SPCC Plans.  One commenter stated that, “as an
end user of AFVO, there does not appear to be a justification for
inclusion of AFVO in SPCC plans since the majority of the tanks are
small and both tanks and frying equipment are within a wastewater
treatment system that are sized to contain spills.” 

Commenters requested that EPA specifically clarify that containers
storing or holding solid at ambient temperature AFVOs are exempt from
the rule’s requirements. (51, 126)  One commenter stated the rationale
that there is not a reasonable expectation the AFVOs in such containers
would discharge to navigable waters or adjoining shorelines. (126)

RESPONSE

Extend Inspection Frequency for AFVO ASTs. The Agency disagrees with
commenters who believe the internal corrosion differences between AFVOs
and petroleum-based oils are enough to justify a different inspection
frequency for AFVO bulk storage containers.  The rule does not establish
a required inspection frequency and the owner or operator of the
facility or PE can establish an inspection schedule that accounts for
the chemical and physical characteristics of the oil being stored and
for any other factors which may affect the integrity of a bulk storage
container, including those factors that may affect external corrosion.
AFVOs and non-AFVOs, including oil mixtures, may have similar corrosive
properties.  In addition, there are factors that affect the integrity of
a bulk storage container other than the corrosive properties of the oil
that is being stored which may affect the inspection frequency of bulk
storage containers, such as exposure of the external container wall to
moisture and chloride-leaching insulation.

Apply Visual Inspection Instead of Integrity Testing to all AFVO Storage
Containers / Allow Use of Hybrid Approach.  EPA disagrees with the
commenter who wanted an exemption from integrity testing requirements
for AFVO storage containers that undergo routine visual inspection and
are in compliance with secondary containment requirements. EPA notes
that the revisions to §112.12(c)(6) may allow the owner or operator to
conduct visual inspections to satisfy the integrity testing
requirements.  EPA is finalizing changes to §112.12(c)(6) incorporating
industry standards into an integrity testing program for AFVO bulk
storage containers (consistent with the provision finalized at
§112.8(c)(6) for other oils). EPA also believes there is sufficient
flexibility provided in §112.7(a)(2) to make an environmental
equivalent determination with respect to developing a hybrid integrity
testing program. Therefore, EPA believes that the rule already allows
other design approaches, other industry standards, or other good
engineering practices to be used alone or as a ‘hybrid’ program
where equivalent results in meeting the SPCC requirements is obtained.
The Agency agrees with the commenter that when an industry standard is
incorporated into a facility’s SPCC Plan, adherence to that standard
is mandatory for implementation of the Plan, including the standard’s
requirements on qualification for personnel. However, the Agency does
not mandate the use of any particular standard. 

FTPI 2007-1 EPA disagrees with the suggestion that specific industry
standards should be included in the final rule or its preamble. 
Industry standards may include, but are not limited to, FTPI 2007-1 or
other standards listed the 2005 SPCC Guidance for Regional Inspectors
document.  EPA does not believe it is appropriate to list specific
industry standards in the rule itself since EPA does not mandate the use
of any specific industry standard. EPA also disagrees with the comments
suggesting that integrity testing should follow specific fiberglass tank
and pipe industry standards (FTPI 2007-1). The SPCC rule
(§112.3(d)(1)(iii)) requires that the Plan be prepared in accordance
with good engineering practices, including consideration of applicable
industry standards. An owner or operator may follow the fiberglass tank
and pipe standards, if appropriate, for the particular facility’s
characteristics. Thus, the rule already provides for this.  However, it
should be noted that when a standard (or part of a standard) is
incorporated into a facility’s SPCC Plan, then adherence to that
standard is mandatory for implementation of the Plan.  

Do not Include AFVOs in SPCC Plans.  The Agency disagrees that the
presence of containment justifies not including AFVOs in SPCC Plans, as
these oils pose a risk when discharged in quantities that may be harmful
to navigable waters or adjoining shorelines, similar to other oils.  An
owner or operator of a facility that has secondary containment in place
that meets the requirements under SPCC can take advantage of that and
document it in the facility’s Plan. 

EPA disagrees, and also did not propose, that AFVOs that are solid at
ambient temperature should be exempt from SPCC regulation.  AFVOs that
are solid at ambient temperature may be stored at elevated temperatures
to facilitate oil flow, which increases the potential for oil spills.
The applicability of the SPCC regulation is based on a determination
that a reasonable expectation of discharge of oil in quantities that may
be harmful to navigable waters or adjoining shorelines can occur from
the facility as a whole.  EPA did not propose to change the
applicability of the SPCC regulation to allow an individual oil
container that otherwise must be counted toward applicability to be
excluded at a facility that has a reasonable expectation of a discharge
of oil in quantities that may be harmful to navigable waters or
adjoining shorelines. If there is not a reasonable expectation of
discharge of oil in harmful quantities to navigable waters or adjoining
shorelines from a facility that includes AFVO containers, then that
facility would not be subject to the SPCC rule.  

XI.B.vii	Exemption for Milk Containers

COMMENTS

Exempt Milk Storage Containers.  Several commenters suggested exempting
milk storage containers from SPCC requirements (50, 60, 107, 120) One
commenter stated that the Agency personnel have agreed with his
assertion that fluid milk, that is approximately 3.6% fat, does not fall
within the published definition of oil and while butter, which is 80%
fat, does. (50) However other commenters stated their understanding that
milk falls within the definition of oil due to its fat content ranging
from 0.5 – 4.5%. (107, 120)  The commenters urged EPA to exempt all
on-farm milk storage containers from the SPCC rule since the storage and
tank integrity issues for on-farm milk storage containers are already
addressed by other regulations. (107, 120)  The commenters also urged
EPA to consider the significant economic impact on the dairy industry if
milk storage tanks are included as part of the SPCC requirements. (107,
120)  Two commenters urged EPA to exempt milk storage as the dairy
industry is regulated under a model ordinance that is maintained through
a cooperative agreement between the states, the U.S. Food and Drug
Administration and the industry to address the interstate shipment of
milk.  The commenters stated that the Grade ‘A’ Pasteurized Milk
Ordinance contains several references to milk storage which they feel
not only addresses the need to maintain a safe and wholesome product,
but also ensures the integrity of storage containers to prevent leaks
and spills. (60, 120)  A commenter added that while it fully expected
that a number of operations in the dairy industry will still fall under
SPCC regulations because of on-farm storage of fuel, the commenter
contended that the strict regulations, inspections and verifications of
the PMO are enough to exempt dairy farm storage tanks, specifically,
from the requirements of the SPCC. (120)

RESPONSE

Exempt Milk Storage Containers. EPA did not propose to exempt milk from
the SPCC rule.  Thus, an exemption of milk from the SPCC rule is outside
the scope of this rulemaking.  The statutory definition of oil includes
oil of any kind and in any form, (33 U.S.C. section 1321(a)(1)), and
does not exclude oil mixtures or establish a de minimis oil content. 
EPA has found that discharges of oil mixtures to navigable waters or
adjoining shorelines may be harmful as set forth in 40 CFR part 110.  In
considering dairy industry comments about milk mixtures and milk
storage, EPA evaluated whether the unique handling requirements and
standards for milk could provide a basis for an exemption of milk
containers and their associated piping and appurtenances from SPCC
regulation.  EPA found that milk containers should be constructed
according to current applicable 3-A Sanitary Standards, and are subject
to the current applicable Pasteurized Milk Ordinance (PMO) or a State
dairy regulatory requirement equivalent to the current applicable PMO.
The Agency understands that PMO is a model ordinance maintained through
a cooperative agreement between the States, the FDA, and the regulated
community and that States typically adopt it either by reference or by
directly incorporating its requirements into statutes or regulations. 
Although these measures to prevent milk spoilage and contamination are
not specifically intended for oil spill prevention, control and
countermeasure purposes, they may nonetheless serve to prevent
discharges of oil in quantities that are harmful. Thus, EPA intends to
propose an exemption for milk containers and associated piping and
appurtenances subject 3-A Sanitary Standards and the current applicable
PMO from SPCC requirements. 

 

XI.B.viii	Other

cOMMENTS 

Terminology. Some commenters requested EPA clarify between the terms
“spill” and “discharge”. (51, 73)  The commenters believe that
the Agency mistakenly uses the terms interchangeably, especially in
describing “spills” that do not have “discharge” potential due
to geographical considerations.  (51, 73)

Mixtures. Two commenters requested clarification of the term “product
mixtures” including AFVOs as it relates to SPCC rules. The commenters
questioned how a liquid product containing as little as one percent AFVO
in the finished product would be defined under the existing regulations.
(51, 102)  A commenter stated that he did not believe that EPA intended
to regulate materials which contain a minimal amount of AFVO. (51)  The
commenters requested that mixtures where the properties of oil are no
longer present due to minimal concentrations should be exempt from SPCC.
The commenters also recommended that the SPCC rule apply only to the
portion of a mixture that is AFVO rather than to the entire product.
(51, 102)  A commenter stated that exemption is appropriate because fats
and oils are considered safe, by the International Maritime
Organization, for bulk shipment by ocean vessels based on an evaluation
of hazard profiles showing that AFVOs pose minimal environmental
pollution threats. (102)

RESPONSE

	

Terminology.  EPA agrees that the Agency has used the terms “spill”
and “discharge” interchangeably.  EPA responded to similar inquiries
in a previous SPCC rulemaking with respect to how these terms are used
in the SPCC rule (67 FR 47073).  The term “discharge” is defined in
the Clean Water Act section 1321(a)(2) as including, but not limited to,
“any spilling, leaking, pumping, pouring, emitting...” Therefore a
spill is a type of discharge.  Clean Water Act section 1321(b)(3)
prohibits the discharge of oil to navigable waters, adjoining
shorelines, etc.  SPCC prevention, control and countermeasure
provisions, when effectively implemented, should prevent “spills”
from resulting in “discharges” in violation of the statute. However,
EPA has used the term “spill,” which is commonly used in the
scientific literature, in guidance documents such as the 2005 SPCC
Guidance for Regional Inspectors and previous Federal Register notices.
(62 FR 54508, 54530, October 20, 1997)

Mixtures. EPA does not agree that product mixtures that include AFVOs
should be exempted from the SPCC rule. The statutory definition of oil
includes oil of any kind and in any form, (33 U.S.C. section
1321(a)(1)), and does not exclude oil mixtures or establish a de minimis
oil content.  EPA has found that discharges of oil mixtures to navigable
waters or adjoining shorelines may be harmful as set forth in 40 CFR
part 110.  EPA did not propose to amend the applicability of the SPCC
rule to address oil mixtures.  Thus, amending the applicability of the
SPCC rule to address oil mixtures is outside the scope of this
rulemaking.

XI.C	Recordkeeping Requirements

cOMMENTS 

No comments were submitted in reference to this request for comments. 

XII. Production

XII.	Tailored Requirements for Oil Production Facilities 

XII.A	Definition of Production Facility

Issue: EPA proposed to amend the definition of “production
facility,” as found in §112.2, in two ways, consistent with the
proposed revision to the definition of “facility.”  First, 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 facility
type-specific sections of the rule may apply at a particular facility,
in addition to the general rule sections. Second, EPA proposed to modify
the definition of “production facility” to clarify the flexibility
allowed in determining the extent of the facility and to be consistent
with the litigation settlement. The proposed definition included the
phrase ‘‘and may be located in a single geographical oil or gas
field operated by a single operator.”

COMMENTS

Support Proposal

General support. Several commenters expressed general support for
EPA’s proposed amendment to the definition of “production
facility”. (43, 75, 76, 133)

Other Suggested Options

Application to petroleum-based oils.  Two commenters suggested revising
the definition to ensure that it applies strictly to “petroleum”
oil. (51, 90) “To reduce the potential for misinterpretation of this
term and the associated definition as inclusive of facilities which
store vegetable oils, [the commenter] recommends that EPA revise the
definition to ensure that it applies strictly to ‘petroleum oil’.”
(51)

Remove reference to “single geographic oil or gas field.”  Several
commenters suggested removing the reference to a single geographic oil
or gas field to reduce confusion and that, with the addition of “may
be”, this phrase becomes ambiguous. (108, 111)  One commenter noted
that because tank batteries are constructed similarly within a given
geographic region, and given the cost of generating multiple Plans for
the same client, the use of a single oil or gas field is too restrictive
to allow the aggregation of multiple production sites. (31)  The
commenter requested that EPA clarify that individual ‘production
facilities’ may exist within fields that are much larger than the
individual pad sites where production is located so that producers can
define these separate and distinct sites in order to manage production
operations efficiently. (122)

Multi-facility Plans. Several commenters expressed concerns regarding
multi-facility Plans for production facility operations. (43, 111)

Remove gathering lines from definition and add natural gas. A commenter
stated that the deletion of the phrase “gathering lines” would
increase the clarity of the definition and reduce confusion.
Furthermore, the commenter suggested that the addition of the phrase,
‘and or natural gas’ following ‘the separation of treating of
oil’ would add further clarity to the definition. (108)

Add a definition for “dry gas production facility.”  A commenter
stated that the definition for the term ‘production facility’ will
cause confusion for operators of natural gas production facilities, some
of which produce crude oil or condensate and some of which produce no
crude oil or condensate (i.e., dry gas production facility). The
commenter argued that ‘dry gas’ production facilities were included
in the wastewater treatment settlement agreement and as such are exempt
from the SPCC regulation. The commenter suggested that EPA add a
definition for ‘dry gas production facility’, modify its definition
for ‘production facility’ and amend the beginning of §112.9.”
(150)

Facility primary function test.  A commenter recommended that the
applicability of specific sections of the SPCC rule to a facility should
depend on the ‘primary function’ (or similar concept/test) of the
facility. The approach described by the commenter would “entail taking
a holistic view of the facility.” Under the commenter’s recommended
approach, the primary purpose of the entire facility would be considered
in determining whether §112.9 or §112.8 applies.  The commenter stated
that their operations include "wells, flowlines, equipment, tanks and
containers normally associated with upstream operations. The commenter
added that because of geographic considerations, Alaska operations also
include other activities and equipment that support production
operations (i.e., base camps, airports, vehicle/equipment repair
operations, electrical generating facilities, construction). The
commenter stated that these additional operations are necessary because
the infrastructure is not available to provide these services.
Therefore, the commenter recommended that EPA clarify that oil storage
containers at these ancillary sites meet the definition of production
facility used to determine which of the type-specific sections of the
rule apply. (75)

Remove catchment provision. A commenter stated that he understands that
the revised definition of production facility may include tank batteries
in more than one field, and includes flowlines.  He noted that operators
may lease surface rights for well pads and flowlines, but surface rights
are of restricted size, because the landowner often uses the land for
grazing or crops. Therefore, the commenter was concerned that if
§112.9(c)(2) requires catchment basins to be constructed for equipment
not within containment; such construction would be in conflict with the
landowner’s use of the land. The commenter recommended that the
catchment provision in §112.9 be removed. (31)  

RESPONSE

Support Proposal

General support. EPA agrees with those commenters who supported the
modifications to the definition, and is finalizing revisions to the
definition of “production facility.”   

Other Suggested Options

Application to petroleum-based oils.  EPA disagrees with the commenter
who suggested that the addition of the term “petroleum” to the
definition of production facility is necessary. The addition of the term
“petroleum” is unnecessary because the definition itself indicates
that the type of facilities addressed in the definition is one that is
involved with petroleum crude oil production and not any other type of
oil production, such as AFVO production. EPA’s intent has always been
that the definition of production facility address petroleum crude oil
production, extraction, recovery, lifting, stabilization, separation or
treatment and associated storage or measurement. For example, the
definition includes terms associated with petroleum crude oil
production, such as gathering lines and flowlines which are exclusively
associated with upstream petroleum crude oil/gas production, not AFVO
production or processing facilities. The term “oil or gas field” is
used exclusively in upstream crude oil and gas production, not in AFVO
production. The production facility requirements do not apply to AFVO
facilities because they do not usually produce crude petroleum oil
extracted from an underground oil reservoir.

Remove reference to “single geographic oil or gas field.”  The
Agency agrees that the phrase “may be located in a single geographical
oil or gas field” in the definition may be confusing. To provide
further clarity, EPA has removed the phrase from the production facility
definition, and replaced it with “is located in an oil or gas field,
at a facility.”  This change, together with the other modifications
finalized in this action, make it clear that an owner or operator is not
compelled by the definition of production facility to aggregate separate
facilities located in a “single geographic” oil production field
into a single facility. If an owner or operator has several distinct
operations in one oil field, he is not required to consolidate these
operations into a single facility. On the other hand, the owner or
operator does have the flexibility to consolidate these operations if he
so chooses.  EPA notes that consolidating several production operations
into a single facility may trigger applicability of the FRP requirements
and the requirements for intra-facility gathering lines which are
considered facility piping in under the SPCC rule.  Furthermore, the
operator may define several individual operations as discrete facilities
but address the SPCC Plan requirements by developing a multi-facility
Plan, as discussed below.

Multi-facility Plans. Several commenters expressed concern regarding the
use of multi-facility Plans for oil production operations. The Agency
does not intend to require an owner or operator who uses one SPCC Plan
to address multiple SPCC-regulated facilities to aggregate the storage
capacity of the individual facilities covered in the multi-facility SPCC
Plan. However, the method in which an owner or operator defines the
boundaries of individual facilities must be consistent in determining
both FRP and SPCC applicability. The Agency believes that the changes to
the definitions of “facility” and “production facility” will not
discourage the use of multi-facility Plans because the Agency does not
require the aggregation of individual facility capacities covered under
a multi-facility Plan.   SEQ CHAPTER \h \r 1 Multi-facility Plans must
include all elements required for individual Plans.  Site-specific
information would be required for all production equipment included in
each Plan.  General information that applies to all facilities would
only need to be addressed once in a multi-facility Plan. 

Remove gathering lines from definition and add natural gas. To address
the commenter’s concerns that EPA is adding the terms
“intra-facility” in front of the term gathering line, the Agency
notes that the addition of this term clarifies that EPA only regulates
those gathering lines located within a production facility (facility
piping), as determined by the owner or operator. The Agency disagrees
with commenters who suggested removing the term “gathering lines”
from the production facility definition to avoid dual jurisdiction.
Gathering lines that are located within the boundaries of an
SPCC-regulated facility are considered to be “intra-facility gathering
lines” and are subject to EPA’s jurisdiction because they constitute
facility piping under the rule. However, EPA is exempting intra-facility
gathering lines subject to the regulatory requirements of DOT’s
pipeline regulations in 49 CFR parts 192 or 195 from this regulation.
These lines which are subject to the exemption can be brought back into
the requirements of the SPCC rule by actions initiated by the Regional
Administrator. 

	While it is true that separation includes both gas and oil phases, EPA
did not add the phrase “natural gas” as it leads readers to believe
that the Agency regulates natural gas which it does not. 

Add a definition for “dry gas production facility.”  EPA does agree
that clarification on how these rules address natural gas facilities is
necessary.  In some cases, natural gas production facilities may store
condensate (petroleum oil) in quantities that meet the applicability
criteria for the SPCC requirements and should be considered a production
facility when determining applicability of specific requirements in the
rule (such as §112.9). In this rule, therefore, EPA is adding the
phrase “(including condensate)” to the definition. This change is
consistent with the current definition and provides additional clarity.
Gaseous phase hydrocarbons, such as natural gas, present at
SPCC-regulated facilities are not regulated under the SPCC rule. A
detailed explanation of this interpretation can be found at 69 FR
29729-29730, May 25, 2004.

Facility primary function test. EPA does not agree with the “primary
function” approach to determine the facility’s applicability to
specific sections of the SPCC regulation, or the commenters’
interpretation that, where geographic considerations warrant, the
definition of production facility should include all infrastructure
associated with activities and equipment that support operations (such
as base camps, airports, vehicle/equipment repair operations, electrical
generating facilities, construction equipment). The definition of
“production facility” is used to determine which of the
type-specific sections of the rule apply for these support operations. 
The definition of production facility extends to all containers and
equipment directly related to the production of crude oil; it does not
include infrastructure (containers and equipment) not uniquely
associated with or in support of the crude oil production. This is
consistent with the approach the Agency has taken in other EPA
regulations, such as the Resource Conservation and Recovery Act (RCRA)
Subtitle C regulations for oil and natural gas exploration, development
and production (53 FR 25447, July 6, 1988). Thus, the Agency is
clarifying in this action that only the infrastructure of containers and
equipment uniquely associated with the production of crude oil is
subject to the specific requirements for a production facility
(§112.9). Containers, equipment and piping containing crude oil used in
the production, extraction, recovery, lifting, stabilization, separation
or treatment of oil or gas condensate, or their associated storage or
measurement is considered part of an oil production facility and subject
to the specific requirements of §112.9. Specific examples of
containers, piping or equipment uniquely associated with or in support
of the production of crude oil include, but are not limited to: well
heads; flowlines and intra-facility gathering lines; manifolds; heater
treaters, free-water knockout or other primary separation vessels; bulk
storage containers for crude oil or condensate; produced water
containers; containers or pits storing drilling fluids; drilling oil
storage/use; containers used for drilling completion operations; and
hydraulic, dielectric, and lubrication oils used exclusively to support
oil production operations. All other infrastructure or equipment that
indirectly support crude oil production must meet the specific bulk
storage requirements under §112.8 or specific AFVO requirements under
§112.12, as applicable. (Any infrastructure and equipment at a facility
subject to the SPCC rule, whether in direct support of crude oil
production operations, or not, are also subject to the general rule
requirements of §§112.1-112.7.) 

	

	For example, containers storing oil that support vehicle movement,
repair or maintenance (such as gasoline, lubricating oil) at a
production facility are subject to both the general rule requirements
and the specific requirements of §112.8 because they are not directly
or uniquely associated with crude oil production. Similarly, heating oil
storage containers that support offices, oil storage to support
construction activities, oil storage in transformers or electrical
utility stations, or oil storage/processing to support refining
operations (for example, topping/refining facilities) and other bulk
storage or operational use of oil in containers, equipment and piping
not used in the production, extraction, recovery, lifting,
stabilization, separation or treatment of oil or gas condensate, or
their associated storage or measurement are not considered part of an
oil production facility and therefore are subject to both the general
rule requirements and the rule requirements for onshore facilities under
§112.8 (or §112.12 for animal fats and vegetable oils).

Remove catchment provision. EPA does not agree with the commenter who
suggested removing the provisions associated with §112.9(c)(2). EPA has
finalized an additional optional set of requirements in lieu of
secondary containment for flow and intra-facility gathering lines. 
Therefore, EPA has provided a reasonable option to containment that
addresses the concerns expressed by the commenter.  Additionally, the
Agency did not propose to remove the provisions associated with
§112.9(c)(2) and therefore, such an action would be outside the scope
of this final rulemaking.   

XII.B	Modifications to §112.9 for Drilling and Workover Facilities

Issue: To clarify that drilling and workover activities are not subject
to the provisions at §112.9, EPA proposed to amend the title of §112.9
to read ‘‘Spill Prevention, Control, and Countermeasure Plan
requirements for onshore oil production facilities (excluding drilling
and workover facilities).’’ EPA also proposed to amend the
introductory sentence of the section accordingly.

COMMENTS

Support Proposal

 

General support. Two commenters expressed support for EPA’s
clarification excluding drilling and workover facilities from the
provisions at §112.9. (31, 43)

RESPONSE

General support. The Agency agrees with the commenters and is finalizing
the amendment as proposed.

XII.C	SPCC Plan Preparation and Implementation 

Issue: EPA proposed to allow a new oil production facility that becomes
operational after July 1, 2009 a period of six months after the start of
operations to prepare and implement an SPCC Plan.

COMMENTS

Support Proposal

General support. A number of commenters expressed support for EPA’s
proposed amendment to allow new production facilities six months to
prepare and implement a Plan. (43, 75, 85, 86, 96, 103, 105, 108, 111,
122, 123, 133)

Oppose Proposal

 Inconsistent with statute.  A commenter asserted that the proposed
amendment to extend the time in which an oil production facility must
prepare and implement an SPCC Plan is inconsistent with 33 U.S.C.
§1321(j)(5)(F). The commenter argues that the statute prohibits the
operation of a facility or vessel that requires an SPCC Plan unless the
facility or vessel has adopted and is in compliance with an approved
plan, and states that EPA may not extend this timeframe. (127)

Other Suggested Options

One-year timeframe.  Two commenters suggested that EPA allow owners and
operators one year to allow sufficient time for preparation and
implementation of SPCC Plans. (31, 76)  

Provide extension for inability to obtain a PE.  One commenter noted
that acquiring a PE would be a limiting factor after promulgation of
revisions to part 112, because most operators use external and
independent PEs.  The commenter recommended allowing operators an
automatic extension of time based on an inability to obtain the services
of a PE. (31)

RESPONSE

General support. The Agency agrees with those commenters supporting an
extension of six months to the timeframe by which an oil production
facility must prepare and implement an SPCC Plan.

 

Inconsistent with statute. EPA disagrees with commenter who asserted
that the proposal is inconsistent with 33 U.S.C. §1321(j)(5)(F).   SEQ
CHAPTER \h \r 1 Section 311(j)(1)(C) of the Clean Water Act (CWA or
Act), 33 U.S.C. § 1321(j)(1)(C), is the Agency’s authority to
promulgate the SPCC regulations. Under this statutory provision, the
Agency has broad discretion in prescribing the scope and requirements
under this rule, including implementation and compliance dates. 
Additionally, 33 U.S.C. 1321(j)(5), is the statutory authority for the
FRP rule which the Agency has promulgated as 40 CFR Part 112, Subpart D.
 The statutory provision cited by the commenter applies to facilities
subject to the FRP rule and not to SPCC-regulated facilities.

One-year timeframe. The Agency disagrees with the suggested alternative
of one-year for the owner or operator to prepare and implement an SPCC
Plan after the start of production operations. The Agency recognizes the
unique characteristics of an oil production facility, but given that an
oil production facility is likely to stabilize operations within six
months from start-up, a one-year time period for Plan preparation and
implementation is inappropriate.

Provide extension for inability to obtain a PE.  The Agency does not
agree that an extension is necessary based on PE availability.  If a
facility owner or operator needs additional time to prepare and
implement the SPCC Plan, the existing rule already provides the owner or
operator the opportunity to request an extension of time to come into
compliance in accordance with §112.3(f) when circumstances are beyond
his control. This may occur, for example, when there are no qualified
personnel available or if there are equipment delivery delays.

XII.D	Flowlines and Intra-Facility Gathering Lines 

XII.D.i	Definition of Flowline and Intra-Facility Gathering Line and
Exemption 

Issue: EPA requested comments as to whether regulatory definitions for
‘‘flowline’’ and ‘‘intra-facility gathering line’’ are
necessary, and if so, suggestions for an appropriate definition.

COMMENTS

Support for Providing Regulatory Definitions

Define “flowline.”  A commenter stated that the use of the term
flowline seems to define different pipeline functions, and some
clarification of the term would be useful. (158) One commenter
recommended that EPA develop one definition for a flowline that
transfers oil and well fluid from the wellhead to the tank battery for
oil and water separation, and another, distinct definition for a
flowline that connects a tank battery at the last point of separation to
an injection or disposal well or other disposal or reuse facility. The
commenter further recommended that EPA exempt from the SPCC rule the
second category of flowlines. (123)

Oppose Regulatory Definitions

Definition not needed. One commenter stated that definitions for
flowlines and intra-facility gathering lines are not needed because the
common understanding of the meaning of ‘flowline’ and ‘gathering
line’ negates any need for EPA to craft a definition of these terms
for this rule. (105)

Other Suggested Options

Eliminate “gathering lines” term.  Several commenters suggested
eliminating reference to gathering lines” with flowlines, claiming
that using the term is confusing, and noting that the Memorandum of
Understanding (MOU) with the Department of Transportation (DOT)
specifically limits EPA’s jurisdiction of these lines. (43, 75, 85,
105, 111, 122, 123, 150) One commenter stated that all gathering lines,
including intra-facility gathering lines, are under the exclusive
jurisdiction of the Pipeline and Hazardous Materials Safety
Administration (PHMSA). The commenter stated that in 1992, Congress
provided DOT specific authority to define gathering for purposes of
safety regulation, and to change the scope of regulation by defining
“regulated gathering” (See Pub. L. 102–508, section 109; now 49
U.S.C. 60101(a)(21) and 60101(b)). The commenter added that a pipeline
safety standard must be practicable and designed to meet the need for
pipeline safety and for protection of the environment. (75)  Another
commenter requested that EPA follow the MOU and clarify that only piping
from wellheads to oil separators are subject to the SPCC rule. (85)  One
commenter suggested that if EPA does not agree that gathering lines
should be completely exempted, EPA should make it clear that
jurisdiction belongs to EPA alone and joint jurisdiction with DOT does
not apply. 

Exempt post-separation gas gathering lines. A commenter suggested that
EPA should clarify that post-separation gas gathering lines and
post-separation produced water lines are exempt from the rule.” (111)

RESPONSE

Define “flowline.”  EPA disagrees with those commenters who
suggested there is a need to define the term “flowline.” EPA
believes the oil production sector has a common understanding of both
the terms “flowline” and “gathering line” and that specific
definitions are not needed. “Flowlines” are piping that transfer
crude oil and well fluids from the wellhead to the tank battery where
separation and treatment equipment are typically located. Flowlines may
also connect a tank battery to an injection well. Depending on the size
of the oil field, flowlines may range in diameter and run from hundreds
of feet to miles between the wellheads and the tank batteries or primary
separation operations. The term “gathering lines” refers to piping
or pipelines that transfer crude oil product between tank batteries,
within or between facilities. Gathering lines often originate 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 considers gathering
lines subject to EPA’s jurisdiction if they are located within the
boundaries of an otherwise regulated SPCC/FRP facility (i.e.,
intra-facility gathering lines).  Therefore, to address the concerns
raised by commenters, the Agency is including the phrase
“intra-facility” in front of the term gathering lines to clarify
that EPA only has the authority to regulate piping, in this case
intra-facility gathering lines, which are located within a facility
boundary.   

Definition not needed. EPA agrees that specific definitions for the
terms “flowline” and “gathering line” are not needed.  EPA
believes the oil production sector has a common understanding of these
terms. 

Eliminate “gathering lines” term.  EPA agrees that minimizing dual
regulation, where appropriate, is beneficial to the regulated community;
however, the Agency does not want create a regulatory “gap” with
this action. Gathering lines, as well as flowlines are a source of oil
spills, as demonstrated in EPA’s study of the exploration and
production sector, “Considerations for the Regulation of Onshore Oil
Exploration and Production Facilities Under the Spill Prevention,
Control, and Countermeasure Regulation” (May 30, 2007; located in the
docket for this rulemaking: EPA-HQ-OPA-2007-0584-0015). To address the
concerns raised by commenters, however, the Agency is including the
phrase “intra-facility” in front of the term gathering lines to
clarify that EPA only has the authority to regulate piping, in this case
intra-facility gathering lines that are located within a facility
boundary. The Agency also is finalizing an amendment that excludes from
regulation those “intra-facility” gathering lines subject to both
EPA and DOT regulatory requirements. Specifically, one commenter
suggested that EPA modify 40 CFR 112.1(d) to include an exemption for
all gathering lines. While EPA does not agree that all intra-facility
gathering lines, located within a production facility, should be
excluded from the SPCC requirements, the Agency does agree that
minimizing dual regulation, where appropriate, is beneficial to the
regulated community. Therefore, EPA is finalizing a new exemption under
§112.1(d)(2)(i) and §112.1(d)(11) for intra-facility gathering lines
subject to DOT regulation. EPA agrees that a change to the rule language
is appropriate and is a logical outgrowth of the proposal and several
comments regarding jurisdiction of intra-facility gathering lines. 

	

	Currently, EPA has only a limited set of requirements for flowlines and
intra-facility gathering lines, whereas DOT has more comprehensive
requirements for pipelines (which are only applicable to a subset of
gathering lines within DOT jurisdiction). Additionally, there are no
industry standards for flowline or gathering line maintenance.
Therefore, intra-facility gathering lines located at a facility that are
not subject to the regulatory requirements under 49 CFR parts 192 or 195
remain subject to EPA’s SPCC regulations under 40 CFR part 112. These
lines also remain subject to EPA jurisdiction and the Agency, if
appropriate, can use existing rule mechanisms under §112.1(f) to bring
exempted intra-facility gathering lines back under the SPCC rule
requirements

Exempt post-separation gas gathering lines.  One commenter requested
that EPA clarify that post-separation gas gathering lines are exempt
from the rule. EPA maintains its position that hydrocarbons in a gaseous
phase under ambient temperature and pressure, such as natural gas, are
not regulated under the SPCC rule. However, production facilities can
include piping with both oil and gas phases. In this instance, such a
facility’s dual-phase flowlines and intra-facility gathering lines
(that is, those carrying both gas and liquid phase hydrocarbon) are
subject to the SPCC requirements (unless they are subject to 49 CFR
parts 192 or 195 and are therefore exempt) because if the lines were to
rupture or leak, they may discharge oil to navigable waters or adjoining
shorelines in quantities that may be harmful as defined in 40 CFR part
110. However, EPA has provided an exemption for flowlines and other
appurtenances downstream of a produced water tank that is exempted by
the new produced water container exemption, as these lines and
appurtenances are subject to a PE evaluation certifying that any
discharge, including a complete failure of the line will not result in a
discharge in harmful quantities as defined in 40 CFR part 110. However,
flowlines and appurtenances connected to a nonexempt produced water
container could cause a discharge in quantities that may be harmful as
described in 40 CFR part 110 and thus are subject to the rule’s
requirements. Additionally, EPA has provided and exemption for certain
intra-facility gathering lines having technical requirements under 49
CFR part 192 or 195.

XII.D.ii	Exemption from Secondary Containment 

Issue: EPA proposed an amendment to §112.7(c) that would remove
secondary containment requirements for flowlines and intra-facility
gathering lines at an oil production facility, and instead require
alternate measures.

COMMENTS

Support Proposal

Generally support. Several commenters expressed support for EPA’s
proposed amendment to remove secondary containment requirements for
flowlines and intra-facility gathering lines at an oil production
facility. (31, 43, 75, 76, 86, 103, 105, 108, 111, 122, 123, 129, 150,
154)  Several commenters added that EPA should acknowledge the option
for owners or operators to select sized secondary containment based on
site conditions and recommendations of the PE under certain
circumstances (75, 108, 111, 154). 

Oppose Proposal

Oppose reduced requirements. Several commenters expressed opposition to
all or most reduced requirements for production facilities. (33, 127,
and 140)

Inconsistent with statute. A commenter stated that the proposed
amendment to exempt flowlines and intra-facility gathering lines at oil
production facilities from secondary containment requirements is
inconsistent with 33 U.S.C. 1321(j)(5)(D). The commenter asserted that
EPA proposes to exempt these flowlines and gathering lines from
secondary containment requirements in exchange for the implementation of
inappropriately broad contingency plans and a commitment to do what 33
U.S.C. 1311(a) and 33 U.S.C. 1321(j)(5) already require. (127)  

Other Suggested Options

Collection areas. One commenter suggested a modification to allow
collection areas rather than individual containment along gathering
lines. (129) 

RESPONSE

Generally support. EPA agrees with the majority of commenters that
secondary containment for flowlines and intra-facility gathering lines
is, in most cases, impracticable and that providing secondary
containment for these lines can be difficult for an owner/operator.
Flowlines and intra-facility gathering lines are often several miles
long, can be buried, can extend far from the main facility, and are
often placed across land that is not owned by the owner or operator of
the oil production facility. Providing secondary containment structures
for these lines may result in soil erosion and negative impacts to the
land (such as when they are located in farm fields). 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 lines.

The Agency also recognizes that some facilities have already installed
containment for flowlines and intra-facility gathering lines and
therefore, should not be required to provide a contingency plan in
addition to secondary containment. Therefore, EPA agrees with commenters
who suggested that the requirement for a contingency plan in lieu of
secondary containment should be an option. The Agency is amending
§112.7(c) to provide an alternative (which is optional) to the general
secondary containment requirements for flowlines and intra-facility
gathering lines.

Oppose reduced requirements. EPA disagrees with the commenters who
oppose reduced regulatory requirements for production facilities.
Today’s action provides a regulatory option for secondary containment
that should improve compliance and overall environmental protection.  As
discussed above, in many cases providing containment is impracticable.
EPA believes that today’s action provides an appropriate compliance
option that maintains environmental protection.

Inconsistent with statute.  The Agency disagrees with the comment
arguing that a contingency plan requirement is somehow inconsistent with
the intent of the law (33 U.S.C. 1321(j)(5)(D)). Contingency planning is
one of the many tools that the Agency has provided in the SPCC
regulatory requirements. The Agency’s authority to promulgate the SPCC
regulations is found in Section 311(j)(1)(C) of the Clean Water Act, 33
U.S.C. 1321(j)(1)(C). Section 311(j)(1)(C) requires the President to
issue regulations establishing procedures, methods, equipment, and other
requirements to prevent discharges of oil to navigable waters or
adjoining shorelines from vessels and facilities and to contain such
discharges. The statutory provision gives the Agency broad discretion to
establish the requirements under the SPCC rule. Also, Section
311(j)(5)(D), 33 U.S.C. 1321(j)(5)(D), lists the requirements for
facility response plans.  The Agency has promulgated regulations for
facility response plans in 40 CFR 112.20 and 21.  The purpose of the
SPCC program is to prevent and control oil discharges from reaching
navigable waters or adjoining shorelines. However, it is important to
recognize that despite best prevention efforts, discharges may occur.
The contingency plan requirements under the SPCC program have dual
purposes. They include components to prevent oil that has escaped its
container or secondary containment from reaching navigable waters or
adjoining shorelines, and also include components that address the
timely and appropriate response actions to be implemented when an oil
discharge does impact navigable waters or adjoining shorelines. 

Collection areas. EPA provided an alternative to secondary containment
for flowlines and gathering lines in the final action due to the fact
that such containment is often impracticable.  However, a facility may
choose to provide general secondary containment in accordance with
§112.7(c) for flowlines and intra-facility gathering lines. While the
rule provides many examples of general containment options, the list is
not exhaustive. Therefore, the rule does not preclude the use of remote
impounding in “collection areas.”  While this method of containment
may be beneficial from a fire prevention standpoint, it allows the oil
to travel a distance from primary containment (tank or pipe), which can
result in an increased area that must be remediated. The owner or
operator should provide the appropriate method of containment as a
matter of good engineering practice.

XII.D.iii Contingency Plan Requirements in Lieu of Secondary Containment


Issue: EPA proposed, as a requirement instead of secondary containment
requirements for flowlines and intra-facility gathering lines at an oil
production facility, the 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.

COMMENTS

Support Proposal 

Generally support.  Several commenters expressed support for EPA’s
proposal to require an oil spill contingency plan in lieu of secondary
containment. (105, 123, 133)  

Other Suggested Options 

Inspection and isolation valves.  A commenter suggested that the
requirement for secondary containment on flowlines and gathering lines
be eliminated altogether; and that operators should instead be
encouraged to perform annual physical inspections of the lines and
install isolation valves on the ends of the line. The commenter argued
that such measures are commensurate with the limited risk presented by
flowlines and gathering lines, and that they are practical responses to
a minimal threat. (76)

Excessive documentation. Two commenters suggested EPA reduce the burden
of using this alternative option. (85, 103) A commenter noted that an
oil spill contingency plan would “be a ‘plan within an SPCC Plan’
and would be required for every flowline on every well.” The commenter
asserted that this documentation effort would be excessive, especially
for marginal wells. The commenter also expressed concern that EPA’s
inspectors will use the example contingency plan found in the SPCC
Guidance for Regional Inspectors as the standard, although EPA has
stated that this example is “above and beyond” what is required. The
commenter requested that EPA remove the contingency plan requirement and
provide a more practical approach that would allow operators to
implement a flexible maintenance program that would address site
specific issues and risks. The commenter added that the general elements
provided in EPA’s proposed maintenance program (minus the contingency
plan) would be more reasonable as long as the documentation requirements
are not excessive or onerous. (85)  

RESPONSE

Generally support.  EPA agrees with commenters who expressed support for
the proposed alternative measure. EPA is amending §§112.7(c) and
112.9(d)(3) to provide an alternative to the secondary containment
requirements for flowlines and intra-facility gathering lines at an oil
production facility. In lieu of secondary containment for flowlines and
intra-facility gathering lines, a facility owner or operator may opt to
implement an oil spill contingency plan in accordance with 40 CFR part
109 (Criteria for State, Local and Regional Oil Removal Contingency
Plans) and prepare 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. 

Inspection and isolation valves. The Agency does not agree that annual
physical inspections and the installation of isolation valves are
appropriate because this could prove to be impracticable for some lines,
specifically those that are buried. 

Excessive documentation. With respect to the comments regarding the
additional burden that a contingency plan requirement would impose on
facilities, the Agency recognizes that this amendment would require
additional documentation. However, EPA believes that a contingency plan
is necessary when secondary containment is not provided. This final rule
allows the owner or operator of the facility to develop a contingency
plan as an option to general secondary containment. The contingency plan
required when secondary containment is not practicable for flowlines and
intra-facility gathering lines should rely on strong maintenance,
corrosion protection, testing, recordkeeping, and inspection procedures
to prevent and quickly detect discharges from such lines. It should also
ensure quick availability and deployment of response equipment. The
complexity or simplicity of a facility’s contingency plan is subject
to good engineering practice as determined by the certifying PE. EPA
developed a model contingency plan as part of the SPCC Guidance for
Regional Inspectors. This model plan is intended only as an example and
inspectors should only use the document for this purpose. 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
the DOT requirements (for example, 49 CFR part 194) for these gathering
lines may be considered to satisfy the contingency planning requirement.
Therefore a contingency plan developed for 49 CFR part 194 may serve to
meet the SPCC Plan requirements. In addition, as previously discussed,
the Agency is exempting intra-facility gathering lines that are subject
to the regulatory requirements under 49 CFR part 192 or 195 from 40 CFR
part 112. Furthermore, the owner or operator of an oil production
facility who has prepared an FRP under §112.20 satisfies the
contingency planning requirement for flowlines and intra-facility
gathering lines because an FRP is more comprehensive than a contingency
plan under 40 CFR part 109. If such a facility owner or operator has
already developed an FRP to comply with §112.20, then he does not need
to develop a contingency plan in accordance with 40 CFR part 109. The
certifying PE must ensure that the FRP is adequate for the facility and
prepared in accordance with good engineering practice. Similarly, the
owner or operator of an oil production facility who has prepared a state
spill or pollution prevention contingency plan that meets the
requirements of 40 CFR part 109 may opt to use this state plan to comply
with the SPCC contingency plan requirements.

XII.D.iv Requirements for a Flowline and Intra-Facility Gathering Line
Maintenance   

             Program 

Issue: EPA proposed to move the requirement for a flowline maintenance
program to §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.

COMMENTS

Support Proposal

Generally support. Two commenters expressed support for EPA’s proposal
to include a preventative maintenance program with a contingency plan in
lieu of secondary containment. (105, 133)  A commenter urged the Agency
to build flexibility into the rule for developing preventive maintenance
plans and inspection schedules. The commenter stated that each facility
and situation will be unique, and the rule should provide flexibility to
operators as they prepare a site-specific plan. (105) Two commenters
expressed support for requiring additional discharge prevention
measures, including ensuring that flowlines and intra-facility gathering
lines and associated equipment are compatible with production fluids,
visually inspecting and testing these lines, taking corrective actions
and making repairs and promptly removing any oil discharges from these
lines with a contingency plan indicating this may be an effective
prevention alternative to providing secondary containment for these
lines. The commenters also suggested that the addition of corrosion
protection for these lines should be included since that is the major
cause of spills from flowlines and gathering lines. (41, 138)

Oppose Proposal

Generally oppose. Several commenters expressed opposition to all or most
reduced requirements for production facilities. (33, 127, and 140) 

Compatibility phrase too vague.  A commenter emphasized that operations
should continue to be designed, developed and maintained in accordance
with good engineering practices, and stated that the proposed provision
at §112.9(d)(4)(i) both vague and unnecessary in the face of the PE's
responsibility to properly develop and implement a specific flowline
maintenance program tailored to the engineering concerns and constraints
of the particular facility. (111)

Alternative Approaches Suggested 

Increase flexibility. Several commenters suggested that the requirement
for a contingency plan and maintenance program would be burdensome (31,
75, 86, 103, 108, 111, 157), particularly pressure testing of the lines
(31) and the cost of compliance. (75, 111) Several commenters suggested
using a more flexible maintenance program which facility owners and
operators can determine based on risk levels and good industry practices
(75, 86, 103, 111, 157), as determined by a PE. (75, 108, 111)  

Adjust removal of accumulations phrase. Several commenters suggested
alternative language for this phrase. (86, 108, 111) One commenter
expressed concern that the use of the phrase, ‘Promptly remove any
accumulations of oil discharges associated with flowlines’ could limit
the response options. The commenter suggested that using a phrase like
‘initiate appropriate response actions to contain and stabilize
accumulations of oil discharges associated with flowlines’ would imply
the same sense of action without limiting the type of response. (86) 
Another commenter thought that the use of the word ‘promptly’ is too
vague and does not properly acknowledge other potential methods of
immobilizing hydrocarbons in soil matrices such as physical, chemical,
and/or biological treatment methods. The commenter recommended that the
language should refer to the effort required to contain and stabilize
any accumulations of oil discharges to prevent a discharge as described
in 40 CFR 112.1(b). (111)

RESPONSE

Generally support.  EPA is finalizing the amended requirements for a
flowline and intra-facility maintenance program under §112.9(d)(4),
specifying that the requirements apply to intra-facility gathering
lines, as well as flowlines at an oil production facility. The Agency
believes that an effective flowline maintenance program is necessary to
detect a discharge in a timely manner so that the oil discharge response
operations described in the contingency plan may be implemented
effectively. Additionally, eliminating the requirement for secondary
containment necessitates more prescriptive requirements for discharge
prevention to ensure the integrity of the primary containment of the
pipe itself. 

Generally oppose. EPA disagrees with the commenters who expressed
opposition to this action, as the action does not completely remove
requirements for flowlines and intra-facility gathering lines. EPA is
providing tailored compliance options in lieu of the existing
requirements. EPA is exempting intra-facility gathering lines already
subject to DOT regulatory requirements. However, the DOT requirements
offer sufficient protections for pipelines as related to safety and the
environment. If these DOT requirements prove inadequate, EPA can require
a facility to comply with the applicable requirements for intra-facility
gathering lines. EPA is finalizing requirements under §112.9(d)(4) to
require a performance-based program of flowline and intra-facility
gathering line maintenance that addresses the facility owner or
operator’s procedures, and that must be documented in their SPCC Plan.
EPA agrees with several comments on the language associated with these
requirements and has made several changes to the proposed rule language
in response to these comments.

Compatibility phrase too vague. EPA is finalizing the requirement under
§112.9(d)(4)(i) with some modifications to the proposed language, in
response to comments. The finalized rule text states: “Ensure that
flowlines and intra-facility gathering lines and associated valves and
equipment are compatible with the type of production fluids, their
potential corrosivity, volume, and pressure, and other conditions
expected in the operational environment.” 

This measure is intended to preserve the integrity of the lines, valve
and equipment and reduce the potential effects of corrosion or other
factors that may lead to a discharge. The performance-based language
added in response to comments illustrates that a PE may tailor the
program to address site specific concerns.

Increase flexibility. EPA believes that variations in production
facility piping design, layout and location makes flexibility important
in order to encourage compliance with this requirement, and believes
that this flexibility is already available. Additionally, the flowline
and intra-facility gathering line maintenance program requirements are
also subject to the environmental equivalence provision found at
§112.7(a)(2). That is, the facility owner or operator may deviate from
the requirements if an environmentally equivalent alternate measure is
implemented. EPA recognizes that other Federal or state requirements may
be environmentally equivalent to certain SPCC requirements, including
the flowline and intra-facility gathering line maintenance program
requirement. An environmental equivalence determination is subject to
review and certification by a PE. 

Adjust removal of accumulations phrase. EPA is also finalizing the
requirement under §112.9(d)(4)(iv) with some modifications to the
proposed language. The finalized rule text states: “Promptly remove or
initiate actions to stabilize and remediate any accumulations of oil
discharges associated with flowlines, intra-facility gathering lines,
and associated appurtenances.” This measure is intended to ensure the
removal of oil accumulations in order to prevent a discharge. The Agency
disagrees with the comment that suggested replacing “Promptly
remove” with “Upon discovery.” “Promptly remove” indicates
that the owner or operator of the facility has both the responsibility
and flexibility to outline an inspection program under §112.9(d)(4)(ii)
which puts the timeframe for “prompt removal” in the context of the
inspection frequency. Commenters also suggested adding language that
would acknowledge that other methods of immobilizing hydrocarbons in
soil matrices, such as physical, chemical and/or biological treatment
methods can be used. The Agency agrees that other methods may be used to
stabilize and remediate, and thus, the regulatory text has been revised
by adding the phrase, “remove or initiate actions to stabilize and
remediate” to the rule to address this concern. EPA considers the
removal of oil-contaminated soil as a method to prevent oil from
becoming a discharge as described in §112.1(b). Disposal of oil must be
in accordance with applicable Federal, state, and local requirements;
under §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,
EPA believes that the removal of recoverable oil can 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 §112.1(b).

XII.E	Flow-Through Process Vessels 

XII.E.i	Exemption from Sized Secondary Containment

Issue: EPA proposed an amendment that would remove the requirement to
provide sized containment for flow-through process vessels without
making an impracticability determination. The general secondary
containment requirement of §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.

COMMENTS

Support Proposal

Generally support. Several commenters expressed support for EPA’s
alternative option for flow-through process vessels in lieu of sized
secondary containment. (31, 43, 75, 76, 86, 108, 150) 

Oppose Proposal

Generally oppose. Several commenters expressed opposition to all or most
reduced requirements for production facilities. (33, 127, and 140) 

Effects of discharge. One commenter expressed concern that flow-through
process vessels at production facilities cause pollution that can not be
remediated to the pre-spill condition and recommended that EPA regulate
the production sector more stringently due to an increasing number of
oil spills. (33) One commenter expressed concerned that not only can the
contents of these vessels be discharged, but oil may be constantly
flowing into these vessels from the wells, so oil will continue to be
discharged from these vessels until that flow is stopped.  The commenter
suggested that these vessels need secondary containment larger than
their contents because production facilities are typically unattended
and a failure of these vessels may not be detected for hours or days.
(140)

Additional measures are excessive or unnecessary. One commenter
requested that EPA reconsider the necessity of additional measures in
lieu of secondary containment. The commenter encouraged EPA to
reconsider whether the additional measures proposed in lieu of secondary
containment are necessary given existing state regulatory programs and
oversight of oil production operations. (96) Another commenter suggested
that the amendment is excessive. The commenter stated that most of the
facilities that will be impacted by the amendment will be marginal well
facilities. The commenter asserted that regular management of these
facilities is conducted by lease operators and contract pumpers, and
that current management procedures meet the proposed EPA requirements.
(86)

Inconsistent with statute. One commenter expressed concern that the
proposed exemption from sized secondary containment is inconsistent with
33 U.S.C. 1321(j)(5)(D). The commenter asserted that the statute
requires an SPCC Plan to identify the resources necessary to “mitigate
or prevent a substantial threat of” a worst case discharge. The
commenter expressed concern that general secondary containment for a
“most likely” spill would fail to prevent the worst case discharge
as required by the statue. The commenter noted that flow-through process
vessels contain a variety of pollutants and, due to their geographically
remote nature, are typically unattended, so that spill detection and
response takes more time than at other facilities. The commenter added
that the proposed alternative requirements for flow-through process
vessels already apply to these facilities. (127)

Alternative Approach Suggested

Secondary containment as alternative. A commenter suggested that
operators should be allowed to determine whether to implement sized
secondary containment or to comply with EPA’s additional proposed
requirements if secondary containment is not implemented. The commenter
asserted that if secondary containment is implemented, then no
additional measures should be required. (85)  Two commenters suggested
EPA clarify whether secondary containment is an alternative to the
proposed option. (111, 150)  

RESPONSE

Generally support. The Agency agrees with the commenters who expressed
support for EPA’s alternative option for flow-through process vessels
in lieu of sized secondary containment. EPA is finalizing rule
provisions to meet this end. EPA is taking this action because the
Agency agrees with concerns regarding the requirement to provide sized
secondary containment around flow-through process vessels, such as
heater-treaters, due to a potential fire hazard if spilled oil collects
around such equipment. EPA also 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 non-production
facilities are not subject to the more stringent sized secondary
containment and integrity/inspection requirements required for bulk
storage containers; only the general secondary containment requirements
at §112.7(c) apply. However, EPA recognizes that process equipment at
non-production facilities, such as at manufacturing facilities, is
typically attended during hours of operation and there is a greater
potential to immediately discover and correct a discharge at
non-production facilities than at oil production facilities, which are
generally unattended. Therefore, EPA is requiring additional measures
for flow-through process vessels at oil production facilities that do
not have sized secondary containment, including inspection or testing of
components, prompt removal or initiation of actions to stabilize and
remediate any oil accumulations, and corrective action.

Generally oppose.  EPA disagrees with commenters, because this action
does not eliminate requirements for this equipment, but rather provides
a compliance option that reduces containment requirements while
increasing other spill prevention requirements. This trade-off should
offer an alternative that provides equivalent environmental protection
to the existing containment requirements.

Effects of discharge. EPA agrees with the commenter who expressed
concern regarding the effects of a discharge from flow-through process
vessels, but the Agency believes that this alternative approach, which
requires general secondary containment in accordance with §112.7(c) and
the additional requirements to inspect, repair equipment, and address
oil accumulations that may occur following a discharge from flow-through
process vessels, addresses this concern. EPA also believes the
alternative requirements for flow-through process vessels address the
concern that these facilities are constantly operating and have constant
flow of fluids through this equipment because the owner or operator must
inspect the equipment and take corrective action to address a discharge
following procedures described in the SPCC Plan.

Additional measures are excessive or unnecessary. The Agency also
disagrees with those commenters who characterized the amended
requirements as excessive, and the requests for EPA to reconsider the
necessity of additional measures in lieu of sized secondary containment.
The amendments allow an owner or operator to provide general secondary
containment for flow-through process vessels and requires new prevention
measures as an alternative to the rule’s existing sized secondary
containment requirement. The alternative measures are optional—that
is, the owner or operator may still choose to comply with the sized
secondary containment requirement. The facility owner or operator
decides which option is best suited to the design and operation of the
facility. The Agency believes that the alternative approach finalized in
this rule for flow-through process vessels allows the owner or operator
of an oil production facility flexibility in how to design secondary
containment for this equipment and in how to comply with the additional
requirements that maintain environmental protection. As part of this
action, EPA considered whether existing state regulatory programs could
satisfy the amended requirements. Although a number of states do have
requirements for oil production facilities to prevent spills, they do
not provide a comprehensive, national approach that would be equivalent
to the SPCC requirements, as these programs have been developed to meet
states’ individual goals. Therefore, EPA believes that relying solely
on state programs would not provide nationwide consistent requirements
for spill prevention. However, the Agency recognizes the benefits of
allowing the owner or operator of a regulated facility to take credit
for compliance with state program requirements when these serve to meet
certain SPCC requirements and can be referenced in accordance with 40
CFR part 112.

Inconsistent with statute. The Agency disagrees with the commenter who
argued that the revised option for flow-through process vessels at
production facilities is inconsistent with the intent of 33 U.S.C.
1321(j)(5)(D). The Agency’s authority to promulgate the SPCC
regulations is found in Section 311(j)(1)(C) of the Clean Water Act, 33
U.S.C. 1321(j)(1)(C). Section 311(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 statutory provision gives the Agency broad discretion to
establish the requirements under the SPCC rule. The purpose of the SPCC
program is to prevent and control oil discharges from reaching navigable
waters or adjoining shorelines. Also, Section 311(j)(5)(D), 33 U.S.C.
1321(j)(5)(D), lists the requirements for Facility Response Plans (FRP).
The Agency has promulgated regulations for FRPs in 40 CFR 112.20-21 and
this action does not impact the requirement for an owner or operator to
prepare and implement an FRP when the facility meets the substantial
harm criteria in §112.20(f). Therefore, this amendment does not
conflict with the requirements under 33 USC 1321(j)(5)(D). 

Secondary containment as alternative. EPA agrees with commenters that
facility owners or operators who have provided sized  secondary
containment in accordance with §112.9(c)(2) for flow-through process
vessels should not be required to comply with the additional
requirements for these vessels. Therefore, EPA is amending the rule to
indicate that flow-through process vessels currently equipped with sized
secondary containment in accordance with §112.9(c)(2) and (c)(3) are
not required to comply with the alternate requirements under
§112.9(c)(5). In response to the commenter who asked about the size of
containment required, EPA notes that in determining how to provide
appropriate general secondary containment for flow-through process
vessels, a production facility owner/operator may consider the typical
failure mode and most likely quantity of oil that would be discharged
(see §112.7(c)). 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 design for general
secondary containment should address site-specific factors, including,
but not limited to, frequency of site visits, rate of flow of the wells,
flow rate of liquids through the separation process, capacity of the
containers, and whether the facility is equipped with automatic shut-off
devices to prevent an overflow. However, as indicated elsewhere in this
action, general secondary containment is based on the most likely
discharge, not the worst case discharge.   

XII.E.ii	Additional Requirements

Issue: Because oil production facilities are typically unattended during
the hours of operation, EPA proposed to add provisions at
§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.

COMMENTS

Inspections

Remove periodic inspection language. A commenter stated that the lease
operator visits the flow-through area daily and therefore, the
flow-through vessels are inspected while the lease operator takes
readings and switches wells to test. The commenter added that in the
Rocky Mountain region, heavy snow prevents the lease operator from
visiting the well during winter so many Rocky Mountain region operators
provide weekly fly-overs to check on the wells. The commenter stated
that if a problem is observed, weather permitting; a crew will attempt
to visit the well or tank battery. The commenter stated that mandating
routine inspections of facilities during hurricanes would not be prudent
since hurricanes produce dangerous conditions offshore for persons in
small boats. The commenter recommended that EPA not mandate routine
inspection of flow-through vessels, since oil and gas operators
routinely visit tank batteries and wells and the lease operator would
observe leaks from the vessels. (31)  

Inspection documentation. One commenter suggested that EPA should
clarify that visual inspections required by a standard or regulatory
requirement be documented based on the PE’s engineering judgment, in
order to avoid maintaining inspection documentation on each periodic
inspection. (75) 

Prompt Removal of Oil Discharges

Removal of accumulations. A commenter suggested that the use of the word
‘promptly’ is too vague and does not properly acknowledge other
potential methods of immobilizing hydrocarbons in soil matrices such as
physical, chemical, and/or biological treatment methods. Instead, the
commenter suggested that the language should refer to the effort
required to contain and stabilize any accumulations of oil discharges to
prevent a discharge as described in 40 CFR 112.1(b). (111)  

RESPONSE

Remove periodic inspection language. EPA disagrees with the commenter
who requested EPA remove the inspection requirement for flow thru
process vessels. The requirement of periodic inspection and/or testing
of 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 §112.1(b) is intended to increase
the likelihood that a discharge will be prevented or detected promptly.
This is especially true for components that typically cause discharges,
such as dump valves. These requirements are consistent with the
inspection requirements for bulk storage containers under §112.9(c)(3).
EPA recognizes that because oil production facilities are typically
unattended, remote, and have a constant flow of oil and well fluids,
sized secondary containment measures provide environmental protection
for any potential discharge. EPA does not intend inspections to create a
public safety concern for personnel conducting inspections and expect
that the SPCC Plan will include provisions to address weather related
concerns that may impact the inspection schedule. Because EPA is
revising the rule such that flow-through process vessels are subject to
the general secondary containment requirement (§112.7(c)) instead of
the sized secondary containment requirement, the Agency 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. Therefore, EPA believes it is important to require that
inspections be completed and documented in accordance with the
requirements in §112.7(e). 

Inspection documentation. EPA did not propose to modify the
recordkeeping requirement of the rule under §112.7(e). The SPCC rule
requires that the owner or operator must keep written procedures and a
record of inspections (including those that are visual) which must
signed by the appropriate supervisor or inspector, and maintained for a
period of three years (records of inspections and tests kept under usual
and customary business practices will suffice). Changes to this
provision would be outside the scope of this rulemaking.

Removal of oil accumulations.  EPA is amending the requirement under
§112.9(c)(5)(iii) with some modifications to the proposed language, in
response to comments regarding removal of oil accumulations.
Specifically, commenters suggested adding language that would
acknowledge that other methods of immobilizing hydrocarbons in solid
matrices, such as physical, chemical and/or biological treatment methods
should be allowed. EPA agrees that other methods may be used to
stabilize and remediate and thus, the Agency is adding language that
would acknowledge other methods of immobilizing hydrocarbons in soil
matrices such as physical, chemical and/or biological treatment methods.
EPA added the phrase, “remove or initiate actions to stabilize and
remediate” to address this concern. EPA considers the removal of
oil-contaminated soil as a method to prevent oil from becoming a
discharge as described in §112.1(b). Disposal of oil must be in
accordance with applicable Federal, state, and local requirements; under
§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 §112.1(b). However, the Agency disagrees with
the comment that suggested replacing “Promptly remove” with “Upon
discovery.” “Promptly remove” indicates that the owner or operator
of a facility has both the responsibility and flexibility to outline an
inspection program under §112.9(c)(5)(i) which puts the timeframe for
“prompt removal” in the context of the inspection frequency. 

XII.E.iii Reportable Discharge

Issue: EPA proposed a provision at §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 §112.1(b), or discharged more
than 42 U.S. gallons of oil in each of two discharges as described in
§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).

COMMENTS

Oppose Provision

Regional Administrator report.  Two commenters expressed concern with
the reportable discharge criterion because §112.4 already requires a
facility with a discharge as described in this provision to submit a
report to the Regional Administrator within 60 days. The commenters
noted the Regional Administrator may require sized secondary
containment, but there is also an appeal procedure if the facility
owner/operator disagrees with the amendment. (75, 111)  

RESPONSE

Regional Administrator report. While the Agency acknowledges that EPA
continues to require a facility that has had a discharge as described in
§112.1(b) to submit a report to the Regional Administrator within 60
days, EPA believes that the owner or operator of a facility that has had
such a discharge, as described in this criterion, should be required to
comply with the sized secondary containment requirement because it would
appear that the facility was not able to prevent discharges to navigable
waters or adjoining shorelines by complying with the alternative
standard—that is, general secondary containment with additional
measures. If a facility owner or operator is unable to successfully
prevent oil discharges using general containment requirements and
additional measures, EPA believes that requiring sized secondary
containment provides a fail-safe method to address the risk of
discharges. The Agency’s preferred method for preventing discharges
from flow-through process vessels at these constantly-flowing,
unattended facilities is the use of sized secondary containment. Sized
secondary containment provides a buffer to allow for containment of
fluids from these vessels until a discharge is discovered. Thus, the
owner or operator would be required to automatically amend the SPCC Plan
and provide sized secondary containment for all flow-through process
vessels at the production facility within six months of the discharge.
This containment must be sized to contain the contents of the single
largest container, with sufficient freeboard for precipitation.
Additionally, the owner or operator must submit a report to the EPA
Regional Administrator as required under §112.4(a). 

The discharge criterion is well established in the SPCC rule. This
discharge criterion is similar to the provision in §112.4(a) for
discharges that must be reported to the EPA Regional Administrator.
Under §112.4, a facility owner or operator must report certain
information to the Regional Administrator whenever the facility
experiences a discharge reportable under §112.4. The Agency has used
this criterion for eligibility for alternative measures in the past,
such as to allow the owner or operator of a qualified facility to
self-certify the SPCC Plan and to allow the use of contingency planning
and other measures in lieu of secondary containment for qualified
oil-filled operational equipment (see 71 FR 77266, December 26, 2006).
The Agency believes that finalizing this criterion to trigger the
requirement to redesign secondary containment is consistent with other
spill history criteria used elsewhere in the SPCC rule. 

XII.F	Small Oil Production Facilities as Qualified Facilities 

XII.F.i	 Alternative Qualified Facility Eligibility Criteria for Oil
Production Facilities

Issue: EPA requested comment on an approach that identified 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
was shaped by the specific characteristics of production facilities and,
as such, could result in the application of SPCC requirements in a
manner better suited to these facilities.

COMMENT

Support

Generally support.  Two commenters expressed support for an approach
that would identify specific criteria for small oil production
facilities to be considered qualified facilities. (76, 105)    

Oppose 

“Qualified Facilities” should apply only to small facilities. One
commenter was opposed to any alternative eligibility criteria for
production facilities because the idea behind Qualified Facilities is to
provide an alternative for the truly small operator to not be burdened
with high PE costs for certifying their SPCC Plan. The commenter stated
that the docket (EPA-HQ-OPA-2007-0584-0015) shows that most oil
production facilities are not small, they have more than 10,000 gallons
of oil storage and make up 61% of the facilities with 10,000-42,000
gallons oil storage capacity. The commenter continued that tanks at oil
production facilities range from 300 barrels (12,600 gallons) to 1,000
barrels (42,000 gallons) with some even larger. The commenter concluded
that a spill from any of these tanks would be considered a major spill
(10,000 gallons) under the National Contingency Plan. The commenter also
argued that production facilities are not simple facilities, but have
lots of complex operations, including wells, separators, heater
treaters, pumps, tanks and injection wells. (140) 

Relief should be expanded. One commenter stated that regulatory relief
for small oil production facilities as proposed by EPA is from our
perspective overly constrained and alternatives to expand such relief
should be considered in the development of the final rule. (96) One
commenter expressed concern that the use of “four wells” as part of
the definition of marginal production is not well-established and would
restrict the applicability of this option. (76)

No injection wells. Several commenters expressed concern with the
condition that there be no injection wells as part of the criteria for
marginal production (76, 105, 123) noting that “no injection wells”
is not part of an established definition (76); this action would
eliminate small facilities that utilize injection for secondary or
tertiary recovery (105); and that the produced water that would flow
from the container to the injection wellhead has already been through
oil-water separation and treatment and should contain little oil. (123) 

Other Suggested Eligibility Criteria

Reduce rate and well number.  One commenter stated that if EPA provides
any lesser requirements for stripper facilities, such as allowing them
to be considered qualified facilities, then the definition adopted
should only apply to very small producing operations (less than 5
barrels per day per well) with very simple operations consisting of no
more than 3 wells flowing to one tank battery and no injection wells.
(140)

Alternative tier thresholds.  Several commenters suggested alternative
thresholds for production facilities. The commenter suggested
alternative definitions for Tiers I, II and III, which would exempt all
stripper well facilities, require inspections and training in accordance
with the 2002 SPCC rule for non-stripper facilities with less than 1,200
barrels of oil storage capacity, and an SPCC Plan for non-stripper well
facilities with more than 1,200 barrels of oil storage capacity. (31) 
Commenters suggested alternative thresholds of 15,000 gallons for
applicability, with no storage container greater than 8,820 in capacity
(76), or a maximum container capacity of 5,000 gallons (105). 

RESPONSE

Generally Support.  EPA agrees in principle with the commenters who
supported alternative qualified facility eligibility criteria for oil
production facilities and is finalizing the option described in the
proposal with some modifications.  EPA has finalized two additional
“qualified” facility criteria specifically tailored to the unique
characteristics of production facilities. A qualified oil production
facility is one that meets all of these conditions: (1) no more than two
producing wells per single tank battery if the facility has an injection
well; or no more than four producing wells per single tank battery with
no injection wells at the facility; (2) each well  produces no more than
ten barrels of crude oil per day; and (3) the facility has not had a
single discharge as described in §112.1(b) exceeding 1,000 U.S. gallons
or two discharges as described in §112.1(b) each exceeding 42 U.S.
gallons within any twelve month period in the three years prior to Plan
certification, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than three years. Facilities
with no more than two producing wells are eligible to be a qualified
facility regardless of whether they have injection wells. Discharges as
described in §112.1(b) that are the result of natural disasters, acts
of war, or terrorism do not disqualify a facility owner or operator from
the alternative option described above.

Based on the comments received, and the Agency’s evaluation of this
industry sector, EPA is finalizing in this rule an amendment that
provides alternative criteria for identifying qualified facilities in
the oil production sector for onshore facilities. EPA believes that
alternative eligibility criteria for identifying a qualified facility
for certain onshore oil production facilities is appropriate because,
notwithstanding their simple configurations, many of these small oil
production facilities cannot meet the 10,000 gallon aggregate
aboveground oil storage capacity threshold for Tier I and II qualified
facility designation. Given (1) the large number of marginal or stripper
wells in the U.S.; (2) that they contribute a significant portion of the
country’s oil production; and (3) EPA’s understanding of the
particular aboveground oil storage container capacities and the nature
of the fluids handled at certain small oil production facilities, other
criteria beyond oil storage container capacity are more appropriate in
determining whether an owner or operator of such a facility should
self-certify his SPCC Plan. These other criteria, unique to small oil
production facilities, serve to identify a qualified facility consistent
with the intent of this approach as promulgated on December 26, 2006 (71
FR 77266), by identifying the simplest operations by factors other than
strictly capacity. 

The following table illustrates the tiers, criteria, and options for
production facilities meeting the qualified facilities eligibility
criteria and all other production facilities, as described in this
notice:

Production facilities that are qualified facilities	All other production
facilities

Tier I	Tier II

	Oil production facility and:

(1) No more than two producing wells per single tank battery / ten
barrels or less of crude oil per well per day / if the facility has an
injection well; or 

(2) No more than four producing wells per single tank battery / ten
barrels or less of crude oil per well per day / no injection wells; or 

(3) The facility has10,000 U.S. gallons or less aggregate aboveground
oil storage capacity; and

	Oil production facility with an aggregate aboveground oil storage
capacity greater than 10,000 gallons and:  

	(1) More than two producing wells per single tank battery with one or
more injection wells;

(2) More than four producing wells per single tank battery; or

(3) More than ten barrels of crude oil produced per well per day; or

Within any twelve-month period, three years prior to the Plan
certification date, or since becoming subject to the SPCC rule if in
operation for less than three years, there has been:

(1) No single discharge of oil to navigable waters or adjoining
shorelines exceeding 1,000 U.S. gallons; and

(2) No two discharges of oil to navigable waters or adjoining shorelines
each exceeding 42 U.S. gallons *; and

	Within any twelve-month period, three years prior to the Plan
certification date, or since becoming subject to the SPCC rule if in
operation for less than three years, there has been:

(1) A single discharge of oil to navigable waters or adjoining
shorelines exceeding 1,000 U.S. gallons; or 

(2) Two discharges of oil to navigable waters or adjoining shorelines
each exceeding 42 U.S. gallons *; or



No individual aboveground oil containers greater than 5,000 U.S.
gallons;

	Has individual aboveground oil containers greater than 5,000 U.S.
gallons; or

Owner or operator eligible for Tier I qualified facility status, but
decides not to take the option or chooses to develop a “hybrid”
Plan;	Owner or operator eligible for qualified facility status, but
decides not to take the option;



Then: Complete and self-certify Plan template (Appendix G to 40 CFR part
112) in lieu of a full PE-certified Plan.	Then: Prepare a self-certified
Plan in accordance with all applicable requirements of §112.7 and
subparts B and C of the rule, in lieu of a PE-certified Plan.	Then:
Prepare a PE-certified Plan in accordance with all applicable
requirements of §112.7 and subparts B and C.

* This criterion does not include discharges as described in §112.1(b)
that are the result of natural disasters, acts of war, or terrorism.
Additionally, the gallon amount described in this criterion addresses
the amount of the discharge that actually reaches navigable waters or
adjoining shorelines.

EPA clarified that a natural gas production facility storing condensate
(petroleum oil), in quantities that meet the SPCC applicability
criteria, is considered an oil production facility. Since such an
onshore natural gas production facility, as described above, is
considered an onshore oil production facility, it may be eligible for
the qualified facility relief for marginal wells if it meets the other
new criteria finalized today in §112.3(g)(2)(ii). Additionally, since a
natural gas production facility can often store smaller quantities of
oil, the facility may already meet the existing “capacity based”
qualified facility criteria in §112.3(g)(2)(i), available to all
facility types. 

Finally, DOE did provide supplemental information to EPA after the
formal comment period has closed regarding this issue.  EPA reviewed and
evaluated this supplemental data during the Agency action development
process.  EPA drafted a paper evaluating the DOE data.  Both the DOE and
EPA document have been docketed.

Oppose 

“Qualified Facilities” should apply only to small facilities. The
Agency does not agree that PE certification should be required for all
facilities with more than 1,320 U.S. gallons oil storage capacity, given
that the Agency has already promulgated an approach allowing owners and
operators of facilities that meet certain criteria, including a total
aboveground oil storage capacity of 10,000 U.S. gallons or less to
self-certify Plans. A number of commenters pointed out that oil
production facilities are already subject to a differentiated set of
requirements under the SPCC rule. While the Agency recognizes this, it
continues to believe that a differentiated alternative for facilities
with simple configurations has merit, and that providing the added
flexibility of self-certification for the smaller oil handlers/simpler
operations, along with the other streamlined requirements tailored to
the unique features of this sector should improve overall spill
prevention and environmental protection. EPA believes that alternative
eligibility criteria for identifying a qualified facility for certain
onshore oil production facilities is appropriate because,
notwithstanding their simple configurations, many of these small oil
production facilities cannot meet the 10,000 gallon aggregate
aboveground oil storage capacity threshold for Tier I and II qualified
facility designation. These other criteria, unique to small oil
production facilities, serve to identify a qualified facility consistent
with the intent of this approach as promulgated on December 26, 2006 (71
FR 77266), by identifying the simplest operations by factors other than
strictly capacity. 

Relief should be expanded. Because the configuration of an oil
production facility is variable, complexity depends upon a number of
factors, including, but not limited to: the oil field, production rate,
type of fluid, operating equipment and conditions, and viscosity of the
oil. Because oil production facilities do not have a “typical”
configuration and based on comments received, the Agency has finalized
two sets of eligibility criteria tailored to the unique features of
production facilities intended to minimize the complexity of the
operations where self-certification seems appropriate. A qualified oil
production facility is one that meets all of these conditions: (1) no
more than two producing wells per single tank battery if the facility
has an injection well; or no more than four producing wells per single
tank battery with no injection wells at the facility; (2) each well 
produces no more than ten barrels of crude oil per day; and (3) the
facility has not had a single discharge as described in §112.1(b)
exceeding 1,000 U.S. gallons or two discharges as described in
§112.1(b) each exceeding 42 U.S. gallons within any twelve month period
in the three years prior to Plan certification, or since becoming
subject to 40 CFR part 112 if the facility has been in operation for
less than three years. Facilities with no more than two producing wells
are eligible to be a qualified facility regardless of whether they have
injection wells. Discharges as described in §112.1(b) that are the
result of natural disasters, acts of war, or terrorism do not disqualify
a facility owner or operator from the alternative option described
above.

No injection wells. EPA agrees with commenters that the relief provided
to small oil production facilities in this action should not be
restricted to facilities without injection wells. Facilities with no
more than 2 producing wells per single tank battery and one injection
well, which also satisfy all of the remaining criteria, are eligible for
qualified facility status. Additionally, facilities with no more than
two producing wells are eligible to be a qualified facility regardless
of whether they have injection wells. By limiting the number of
producing wells per single tank battery to two producing wells at
facilities that have injection, EPA believes that because of the smaller
oil storage capacities and the greater likelihood that those wells are
located near the tank battery, a marginal well oil production facility
with two producing wells is consistent with other qualified facilities. 

Other Suggested Eligibility Criteria

Reduce rate and well number. EPA disagrees with the commenter. However
by setting the maximum number of wells at four producing wells if there
are no injection wells at the facility, or two producing wells if there
are injection wells at the facility, there is a greater likelihood that
those wells are located near the tank battery. EPA believes that the
four-well criterion targets those oil production facilities with less
complex operations and configurations, consistent with other qualified
facilities. Similarly, the criterion that excludes underground injection
for a facility with four producing wells eliminates the complexity
associated with injection related equipment. By limiting the number of
producing wells per single tank battery to two producing wells at
facilities that have injection, EPA believes that because of the smaller
oil storage capacities and the greater likelihood that those wells are
located near the tank battery, a marginal well oil production facility
with two producing wells is consistent with other qualified facilities.
In addition, the reduced complexity in decreasing from four to two
producing wells is similar to the change in complexity associated with
injection wells. EPA believes a PE need not be involved in the SPCC Plan
at facilities with a limited number of wells and associated equipment
and piping. 

Alternative Tier Thresholds. EPA considered many of the different
threshold proposals but disagrees that the threshold should be based
solely on increasing the total storage. Instead EPA has chosen an
approach that identifies simple production operations by their unique
characteristics identified by commenters. Because the source of the oil
for production facilities is through extraction wells, the number of
wells better identifies the complexity of a production operation. Some
of these facilities are unique as they reinject fluids in the reservoir
for disposal purposes or for enhanced oil recovery. The presence of
these injection and production wells is a characteristic unique to oil
production facilities that can help to determine the complexity of the
operation. These characteristics, unique to the oil production sector,
provided the Agency with the basis for a tailored set of criteria to
identify oil production facilities with simple configurations.
Developing a criterion based solely on raising the oil storage capacity
criterion would be inconsistent with the rationale established for the
original 10,000-gallon criterion and would not necessarily maintain
environmental protection. Thus, while EPA does not agree that raising
the oil storage capacity threshold is appropriate, the Agency does agree
with commenters that the unique characteristics of an oil production
facility allow EPA to establish alternative criteria for a Tier II
qualified facility, and EPA has finalized provisions to that effect.

XII.F.ii	 Alternative Approaches for Addressing Small Oil Production
Facilities as Suggested by the Department of Energy 

Issue: The Department of Energy (DOE) requested that the EPA seek input
on several approaches that DOE believes may be more suited to address
the concerns of small oil production facilities including different
eligibility criteria for these facilities such as different aggregate
oil storage capacity thresholds or a stripper well definition for
identifying qualified facilities.  DOE also suggested the exemption of
existing stripper oil and natural gas wells from SPCC requirements and
the adoption of other regulatory programs to address the objectives of
the SPCC rules. Finally, DOE provided supplemental information to EPA
after the formal comment period has closed regarding this issue.  EPA
reviewed and evaluated this supplemental data during the Agency action
development process.  EPA drafted a paper evaluating the DOE data
(Summary of Supplemental DOE Comments and EPA Response, documents
prepared by Abt Associates Inc). Both the DOE and EPA documents have
been docketed.

COMMENTS

Aggregate Oil Storage Capacity Threshold

Increase the threshold.  Two commenters expressed concern that the
current threshold requirements are too low to provide significant
benefit for marginal oil production facilities.  One commenter suggested
50,000 gallons where no single container is greater than 21,000 gallons.
(85)  One commenter suggested removing consideration of this approach
unless produced water storage is eliminated from the threshold
calculation. (123)

Stripper Well Definition

Use IRS definition. Two commenters suggested using the Internal Revenue
Service tax code definition for marginal production to ease compliance.
(31, 86) The commenter argues that the EPA definition remains linked to
storage capacity at the facility, while the storage capacity at marginal
wells is not sized based on current production levels. The commenter
added that these facilities are designed when the wells are producing at
higher rates and a production declines and the wells become marginal,
the same equipment is used because it remains functional and it is too
expensive to replace as the well generates lower income. (86)

Exemption of Stripper Oil and Natural Gas Wells from All SPCC
Requirements

Generally support.  Three commenters expressed support for exempting
existing stripper oil and natural gas wells from all SPCC requirements.
(43, 105, 158)  

Regulate only crude oil and condensate containers. One commenter
suggested regulating only crude oil and condensate containers, given
that the releases reported to the National Response Center are low and
EPA has never conducted a comprehensive environmental analysis of the
risks associated with these proposed regulations and whether they
significantly change from the current regulatory program to this
proposed one. (86)

Other Regulatory Programs Address the Objectives of the SPCC Rule

State and other Federal programs.  One commenter suggested that state
spill prevention regulatory programs should serve small production
facilities rather than one federal program. (76)  Two commenters
suggested that EPA consider other regulatory requirements, including DOT
Carrier Requirements for Spills, Spill Reporting, Transportation
Security Planning (82), and EPA Stormwater Discharge Permitting (82,
142). One commenter suggested allowing all SPCC facilities to have the
option of using other equivalent prevention plans to meet SPCC planning
requirements (142). 

One commenter noted that states in general simply do not address
equivalent requirements of the SPCC regulations and especially not to
the extent of the SPCC regulations with respect to prevention of oil
discharges, arguing that removing SPCC requirements would leave the
environment and waters of the United States exposed to increased
pollution. (140)

RESPONSE

Aggregate Oil Storage Capacity Threshold

Increase the threshold.  The Agency disagrees with commenters who
suggest establishing a new capacity-based Tier II criterion for oil
production facilities greater than the already established 10,000-gallon
threshold for all facilities.  While the Agency received a number of
comments regarding a wide variety of thresholds for defining a Tier II
qualified facility in the oil production sector, the comments did not
provide sufficient data to support the threshold numbers other than it
would increase the number of facilities that would be eligible as a
qualified facility and thus, self-certify their SPCC Plan. More
importantly, the commenters did not demonstrate how these new thresholds
would maintain environmental protection. EPA does not agree with the
commenters to base a new Tier II qualified facility threshold for oil
production operations solely on an increased capacity threshold, as
there was no justification for providing oil production facilities with
a higher threshold than non-production facilities or for how the higher
threshold relates to simplicity in facility configuration or operations.

Stripper Well Definition

Use IRS definition.  EPA agrees with commenters that the oil production
sector has unique characteristics and that other criteria may better
serve in defining a Tier II qualified facility. For example, the fact
that oil production facilities have flow-through process vessels
suggests that flow rate (in the form of an oil production rate) may be a
better approach for setting a new criterion for identifying the simplest
oil production facility operations. Additionally, the facility flow
rates are associated with the production and inject rate unique to this
sector EPA disagrees with commenters who argued that the IRS tax code
definition of 15 barrels or less of oil per day equivalence should be
used in defining flow rate. Specifically, the IRS definition of 15
barrels of oil or less per day equivalent is calculated by dividing the
average daily production of domestic crude oil and domestic natural gas
from producing wells on such property for such calendar year by the
number of such wells. Thus, under this approach, a facility will contain
wells with marginal production, such as 15 barrels of oil per day, but
also will likely contain wells that produce much greater quantities of
oil, because the IRS definition calculates the average daily production
of oil over all producing wells, as opposed to the amount of oil that
flows from any individual well. EPA believes that using such a
definition defeats the purpose of identifying a qualified facility,
which is to allow those small facilities that have relatively simple
operations to self-certify their SPCC Plans. Thus, the Agency has
adopted a per well approach that places a flow rate cap of ten barrels
or less of oil produced per well per day, as this is consistent with the
definition of “stripper well” codified at 40 CFR 435.60. 

Exemption of Stripper Oil and Natural Gas Wells from All SPCC
Requirements

Generally support. EPA disagrees with commenters who supported a overall
exemption for stripper oil and natural gas wells. While the majority of
comments the Agency received supported an outright exemption for
stripper oil and natural gas wells from the SPCC requirements, the
commenters did not provide sufficient data to justify an exemption or
demonstrate how an exemption would maintain environmental protection.
EPA believes the compliance alternative provided in today’s action
balances the concerns of the commenters while maintaining environmental
protection. EPA also disagrees with the commenters that the SPCC
requirements and compliance costs alone would cause small oil production
facilities to shut down, reducing U.S. oil production (see memorandum
dated April 11, 2008, Preliminary Assessment of SPCC Compliance Costs
and Energy Impacts on Oil Exploration and Production). As EPA has noted
elsewhere, these facilities, which are generally unattended, can store
large quantities of oil and oil/water mixtures in a variety of
containers that may have large capacities. These factors, as well as
others, highlight the hazard potential posed by these operations (see
Considerations 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 this
rulemaking (  HYPERLINK
"http://www.regulations.gov/fdmspublic/component/fdmsSearchResult/fdms_d
ocket_detail?d=EPA-HQ-OPA-2007-0584&docType=fdms_docket&returnUrl=http%3
A%2F%2Fwww.regulations.gov%2Fsearch%2F&Reload=1215718427291&__dmfFrameId
=FdmsPubMain_content_0" \o "EPA-HQ-OPA-2007-0584-0015" 
EPA-HQ-OPA-2007-0584-0015 )). Thus, based on this hazard, the Agency
believes it inappropriate to grant an outright exemption for such
stripper oil and natural gas wells from the SPCC requirements. However,
EPA does agree that performance-based requirements tailored to the
unique characteristics of marginal oil production facilities are
justified, as EPA has described previously.

Regulate only crude oil and condensate containers.  EPA disagrees with
commenters who suggested that EPA should only regulate crude oil and
condensate containers. Production operations typically have other
equipment and containers that store, process or transfer oil, which if
discharged, can cause harm, as described in 40 CFR part 110. The hazard
posed by these operations are also described in Considerations 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 this rulemaking (  HYPERLINK
"http://www.regulations.gov/fdmspublic/component/fdmsSearchResult/fdms_d
ocket_detail?d=EPA-HQ-OPA-2007-0584&docType=fdms_docket&returnUrl=http%3
A%2F%2Fwww.regulations.gov%2Fsearch%2F&Reload=1215718427291&__dmfFrameId
=FdmsPubMain_content_0" \o "EPA-HQ-OPA-2007-0584-0015" 
EPA-HQ-OPA-2007-0584-0015 ). However, EPA does agree that
performance-based requirements tailored to the unique characteristics of
marginal oil production facilities are justified, as EPA has described
previously, which the Agency believes will lead to the prevention of oil
spills.  

Other Regulatory Programs Address the Objectives of the SPCC Rule

State and other Federal programs. EPA disagrees with commenters who
suggested that the SPCC regulations are not needed because of other
regulatory programs, such as state programs, or the NPDES or UIC
programs. EPA conducted a comparison of a number of these programs with
the SPCC program and found that they were not nationally uniform (see
Review of State Regulations Pertaining to Oil Spill Prevention at
Onshore Production Facilities and Produced Water Containers and the
Summary of Supplemental DOE Comments and EPA Response, documents
prepared by Abt Associates Inc., and found in the docket for today’s
rulemaking). Further, under the Oil Pollution Act and CWA, EPA is
required to promulgate oil spill prevention regulations, and it cannot
delegate its responsibilities to other federal or state programs, but
has streamlined SPCC requirements or provided targeted exemptions from
SPCC regulation when such regulations provide comparable or equivalent
environmental protection. However, EPA has stated previously that, if a
facility owner or operator must comply with a state or Federal
requirement that also satisfies an SPCC requirement, the owner or
operator can include and reflect such effort in his SPCC Plan and not
duplicate it solely for SPCC. EPA wants to minimize duplicative
requirements where possible and is working to tailor requirements, where
appropriate. 

XII.G	Produced Water Containers 

XII.G.i	General

Issue: EPA considered 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.

COMMENT

Oil in produced water.  One commenter noted that produced water
containers are located within the secondary containment, and produced
water containers “always have an oil layer floating on top of the
water”. (31) Commenters noted that EPA has authority to regulate
discharges of oil, not water, and after separation, produced water
contains only minimal amounts of oil. (76, 85, 94, 103, 105, 133) One
commenter stated that from a practical viewpoint, a 1,319 gallon oil
tank would not be subject to SPCC regulation but a 1,321 gallon produced
water tank that may have a skim of oil present on top of the water,
would be subject to SPCC regulation. (133) Several commenters noted the
economic value of recovering oil ensures minimal concentrations of oil
in produced water. (85, 108) 

Spill data and potential for discharge.  One commenter expressed concern
that the spill data available shows that most spills are from facilities
EPA to which is proposing to provide relief. (32) Two commenters noted
that a release from the average size produced water container can
discharge 16,800 to 42,000 gallons. A commenter added that there are
produced water containers with 1,000,000 gallons or more capacity and
that a discharge from these produced water containers would be
devastating to the environment and waters. (140) 

Produced water is harmful.  One commenter was concerned that produced
water is harmful and contaminates surface waterways, groundwater and
drinking water; kills fish, birds, and wildlife; causes severe health
effects in humans and impacts wildlife habitats.  The commenter stated
that it only takes a small amount of oil to impact a large area; for
instance, 0.3 mm of oil can cover more than 3 acres. The commenter added
that it does not make a difference how thick the layer of oil is, it can
suffocate fish and birds can land in it and be coated with oil.  (140)
One commenter expressed concern that produced water pits had caused the
death of wildlife on their property, noting the hazard to the
environment. (36) 

Substantial harm.  One commenter suggested that produced water storage
should not be subjected to the same requirements for FRPs as are oil
storage containers. (94)

Supplemental proposal.  One commenter suggested EPA prepare a
supplemental proposal for any action on produced water containers as the
public has not had an opportunity to comment on proposed rule language
for this issue. (145)

RESPONSE

Oil in produced water. After evaluating the comments received, EPA is
modifying the requirements at §112.9(c) to exempt produced water
containers that meet certain conditions and to allow an alternative
management scheme (which is optional) for produced water containers that
are used for oil/water separation in lieu of sized secondary
containment. EPA is exempting produced water containers at oil
production facilities from the requirements of the SPCC rule when a PE
certifies, as part of the SPCC Plan, that based on the efficiency of the
oil/water separation technology used, the contents of a produced water
container, if completely discharged, does not contain oil in amounts
that may be harmful, as described in 40 CFR part 110; the capacity of
the exempted containers would not be counted in oil storage capacity.
The exemption extends to flowlines and other appurtenances downstream of
a produced water tank that is exempted by the new produced water
container exemption, as these lines and appurtenances are also subject
to a PE evaluation certifying that any discharge including a complete
failure of the line will not result in a discharge in quantities that is
harmful as defined in part 110 of this chapter. However, flowlines and
appurtenances connected to a nonexempt produced water container could
cause a discharge in quantities that may be harmful as described in part
110 and thus are subject to the rule’s requirements.

For those produced water containers that cannot meet the criterion for
the exemption under this rule, the facility owner/operator has the
option to apply general secondary containment requirements and conduct
visual inspections, maintenance and corrective action, in lieu of sized
secondary containment, when a PE describes in the Plan and certifies
that a practice is established that is designed to remove the amount of
free-phase oil from the produced water container on a scheduled and
routine basis. These containers are counted toward the aggregate storage
capacity.  The Agency believes that the approaches for produced water
containers promulgated in this rule amendment are a logical outgrowth of
the three approaches discussed in the proposal and the comments
received.

In deciding how to proceed, EPA acknowledges that the amount of oil by
volume observed in produced water storage containers varies depending on
a number of factors, including, but not limited to, separator
efficiency, age and formation of the oilfield, and use of heat or
chemical separation. EPA agrees with commenters that after separation,
the amount of oil remaining in produced water can be minimal given the
characteristics of the oilfield and facility/separator configuration.
Therefore, EPA agrees with commenters that a limited number of produced
water containers with minimal amounts of oil may be eligible for
exemption, and that certain produced water containers that are used for
oil/water separation should be subject to differentiated requirements
and is allowing a PE to make the determination whether a given produced
water container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii).  EPA
believes the exemption criteria address the commenters’ concerns about
regulating produced water containers that do not contain oil in harmful
quantities.  Additionally, if the production facility has certain types
of oil discharges or fails to meet the requirements of this part of the
rule, the facility will no longer be eligible for the exemption or the
streamlined requirements.

Further, EPA believes the approach for non-exempt containers, featuring
a compliance option with differentiated requirements and general
secondary containment, provides appropriate regulatory requirements for
these produced water containers. The alternate requirements finalized in
this action take into consideration the commenters suggestions regarding
the proposed alternatives. The finalized set of requirements include:
implementation of a procedure designed to separate the free-phase oil
that may accumulate on the surface of the produced water, inspection or
testing of the produced water container and components, prompt removal
of or initiation of actions to contain and stabilize any oil
accumulations, and corrective action should a discharge occur. The
Agency did not include integrity testing in the finalized set of
additional requirements.  Produced water containers used specifically
for oil/water separation serve the same purpose as separators or
flow-through process vessel and thus, EPA is applying similar
requirements to these containers.

EPA also agrees with the comment that when an oil layer in a produced
water container becomes recoverable, the oil is typically skimmed and
pumped.  Consequently, EPA’s final rule requiring removal and
reduction of free-phase oil from the produced water container is
consistent with industry practice. Whatever procedure is used must be
developed by a PE, described in the Plan, and implemented by the owner
or operator to reduce the amount of free-phase oil which may accumulate.
Records of implementation of these procedures must be maintained in
accordance with §112.7(e).

Spill data and potential for discharge. EPA presented data on oil
discharges for production facilities which has a number of limitations. 
These facilities are a source oil discharges; however, EPA is balancing
environmental concerns with the unique properties of these facilities in
an effort to develop appropriate requirements for this sector. Thus, EPA
is tailoring the requirements for produced water containers by providing
an alternative containment requirement coupled with an oil skimming
program and providing an exemption for produced water containers at
production facilities, certified by a PE, that will not cause harm upon
a discharge from the container. EPA is concerned with the risk that
these facilities pose and will be reviewing and evaluating the efficacy
of the relief finalized in this action. DOE did provide supplemental
information to EPA after the formal comment period has closed regarding
this issue.  EPA reviewed and evaluated this supplemental data during
the Agency action development process.  EPA drafted a paper evaluating
the DOE data.  Both the DOE and EPA document have been docketed.

Produced water is harmful.  EPA agrees that produced water can pose a
threat to the environment.  EPA also agrees that the SPCC regulations
should not regulate the storage of oil if the discharge of that oil is
not a violation of Section 311 of the Clean Water Act. Section 311(b)(3)
prohibits the discharge of oil into or upon navigable waters of the
United States or adjoining shorelines in such quantities as may be
harmful, as determined by the President. That determination is made in
40 CFR part 110. EPA does not agree that produced water containers are
eligible for the wastewater treatment exemption. However, the Agency
recognizes that, depending on the use, some produced water containers
may serve as oil/water separators, rather than bulk storage tanks, and
such containers should be regulated in a similar fashion as other
oil/water separators.  To address these concerns, EPA is providing an
exemption for certain produced water containers holding oil that would
not violate section 311(b)(3) if discharged, and a differentiated set of
requirements for other produced water containers at oil production
facilities that are used for oil/water separation.  EPA is also
promulgating a definition of produced water container to clarify which
containers will be eligible for this rule amendment. 

Substantial harm. EPA did not propose to revise FRP requirements for
produced water containers or any other type of oil storage container and
therefore that change would be outside the scope of today’s final
action.

Supplemental proposal. The Agency does not agree that a supplementary
proposal is necessary.  The Agency believes that the approaches for
produced water containers promulgated in this rule amendment are a
logical outgrowth of the three approaches discussed in the proposal and
the comments received. The Agency believes that it provided adequate
descriptions of potential components of regulatory provisions to address
produced water containers to provide a meaningful opportunity for
comment by interested parties. The Agency believes that the options
finalized in this action incorporate the appropriate elements from the
three approaches discussed in the proposal, based on the Agency’s
review and consideration of the comments received. 

XII.G.ii	 Distinguishing Characteristics from Other Containers Holding
Oil Mixtures 

Issue: EPA requested 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.

COMMENT

Low oil production.  One commenter noted that large amounts of water or
brine with extremely low oil content, “perhaps 0.1% or less,” are
produced from wells in West Virginia. (103)  

Other oil mixtures.  One commenter questioned why EPA regulates
agricultural mixes (e.g., pesticides) more strictly than produced water,
which can contain up to 10% oil.  The commenter further notes that in
the event of a spill, the water will carry the oil further, and onto the
property not owned by the oil company. (67)

NPDES-permitted ponds.  One commenter suggested that due to the very low
oil content in its NPDES-permitted ponds, they should not be subject to
the SPCC rule requirements and should not be included in the storage
capacity calculations for FRP applicability. (137) The commenter also
noted that the produced water ponds should be exempt from the SPCC rule
requirements and should not be included as storage capacity as the
burden of compliance with SPCC and FRP requirements creates only minimal
reduced risk from harmful quantities of oil, and the permitted
discharges from these ponds can be put to beneficial use. (137) One
commenter was concerned that few NPDES permits are issued for production
facilities so pollutants from these facilities are in fact not being
addressed. (140)

RESPONSE

Low oil production.  EPA agrees with commenters that certain produced
water containers with minimal amounts of oil may be eligible for
exemption and certain produced water containers that are used for
oil/water separation should be subject to differentiated requirements
and is allowing a PE to make the determination whether a given produced
water container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii). EPA believes
the exemption criteria (certification by the PE that no discharge from
the produced water container, including a complete loss of the capacity
of the container, could cause a discharge in quantities that may be
harmful as described in 40 CFR part 110) addresses the commenters’
concerns about regulating produced water containers that do not contain
oil in harmful quantities.  Further, EPA believes the approach for
non-exempt containers, featuring differentiated requirements and general
secondary containment, provides appropriate regulatory requirements for
these produced water containers.

Other oil mixtures. EPA agrees that in certain discharge situations, oil
may be transported farther when it is part of an oil/water mixture than
a discharge of pure oil. For this reason, EPA has finalized an exemption
that requires a PE to evaluate a whether a discharge from a produced
water container has the ability to cause harm to navigable waters or
adjoining shorelines.  The PE must take into account, among other
factors, the ability of the water phase to transport oil, when
certifying this exemption. EPA is also exempting certain pesticide
mixtures contained in certain tanks and equipment that are regulated
under other Federal environmental programs.

NPDES-permitted ponds. EPA disagrees with the comment that all
NPDES-permitted ponds should be exempt from SPCC regulation. EPA is
finalizing an exemption for certain produced water containers. The
exemption requires that a PE certify that a discharge from each produced
water container (in this case a pond) will not cause harm to navigable
waters or adjoining shoreline. Certain ponds, containers and equipment
at NPDES-permitted facilities storing, treating, recycling, and
recovering crude oil from produced water would remain regulated under
the SPCC program if the facility does not satisfy the exemption criteria
for produced water containers. 

XII.G.iii Oil and Water Separation/Skimming Treatment and Efficiency

Issue: EPA requested 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, and the
efficiency of oil skimming on oil volume.

COMMENT

Produced water same as wastewater.  One commenter stated that once
primary separation has occurred, “there is no difference between
produced water treatment at a production facility and wastewater
treatment at a non-production facility. (75)  Another commenter
indicated that the amount of oil remaining in the water after treatment
is minimal and therefore should be exempt from all SPCC requirements.
(122) Similarly, another commenter indicated that “some states believe
that after the last separation of the oil from the produced water, SPCC
regulations should no longer apply. The commenter added that these
produced waters are of minimal threat to the environment and the SPCC
requirements are, in some states' opinion, ‘overkill.’ The commenter
stated that there are numerous studies that analyze oil content in
produced water that are available from state and federal agencies and
that the inclusion of treated produced water that is being stored prior
to injection is an expansion of EPA's jurisdiction under oil pollution
law. (158)

Residence time and formation age.  One commenter suggested the most
important factor in oil-water separation is the residence time since
“the longer the mixture is given to separate, the more oil will be
released.”  The commenter adds that as the production formation ages,
secondary recovery using water is applied so that by the end a well may
produce as little as 10 percent oil before separation. (86) 

Inefficiency of separation and treatment.  One commenter noted that 90%
of produced water is transferred to a separate facility to be reinjected
(57%) or for disposal (36%) where the amount of oil recovered is
significant enough for states to define this type of oil in their
regulations and to impose a severance tax at rates similar to the rates
imposed on primary crude. The commenter also noted that this transferred
oil has already gone through some separation and/or treatment at the
production facility. (140)

 

DOE and effluent limitation sources.  One commenter noted that as
pointed out by the U.S. Department of Energy (DOE), 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 ppm, with a
maximum of 200 ppm in samples taken. The commenter added that a study
found a mean value of total recoverable oil and grease settling effluent
concentration 52,956 micrograms/liter and that Best Practicable Control
Technology Currently Available (BPT) effluent limitations restrict the
oil and grease concentrations of produced water to a maximum of 72 mg/l
for any one day and to a 30-day average of 48 mg/l. The commenter added
that published information used to establish national effluent
limitations for coastal oil and gas production facilities discuss the
efficiency of control and treatment technologies and found that numerous
end-of-the-pipe treatment methods that can achieve this level of
effluent quality. (123)

RESPONSE

Produced water same as wastewater. EPA disagrees that produced water
treatment is the same as wastewater treatment.  The production process
is an effort to maximize oil recovery by eliminating the water and gas
phases. This separation process involves primary physical and at times
chemical separation methods to segregate the water from the oil phase to
maximize oil recovery. Wastewater treatment is the treatment of water
not oil.  Wastewater treatment does involve primary separation and
treatment methods, but diverges from produced water treatment in that
additional secondary (biological) and tertiary treatment of the water
phase is used to remove dissolved and suspended oil concentrations. 
While a production facility will not typically be eligible for the
existing wastewater treatment exemption, EPA has finalized an exemption
for certain produced water containers, so long as they are certified by
a PE to ensure that a discharge from the produced water container will
not cause harm as defined in 40 CFR part 110.  

Residence time and formation age. EPA agrees with commenters’
assertions regarding the impact of the formation age and that as the
formation ages often oil to water ratios decrease. EPA also agrees that
residence time is a major factor in separation efficacy. The effect of
residence time is precisely the reason EPA continues to regulate
produced water containers holding oil and water mixtures.  As the
commenter points out, the production liquids may have 10 percent or
lower oil to water mixtures. While production equipment is designed to
maximize oil recovery, certain amounts of dissolved and emulsified oil
pass through the separation equipment. This oil then comes out of
solution in the produced water container after residence time in the
container, which can result in significant accumulations of oil even if
the produced water entering this storage container contains only a small
percentage of oil. Thus, as the commenter points out, the impact of this
residence time on the amount of free-phase oil accumulating in a
produced water container (which is often the final storage container in
the production process) is significant. This accumulated oil and its
potential to cause harm is why EPA is not providing an outright
exemption for all produced water containers.     

Inefficiency of separation and treatment.  EPA agrees that there may be
inefficiency in oil water separation and treatment of oil water mixture.
However, EPA acknowledges that the amount of oil by volume observed in
produced water storage containers varies depending on a number of
factors, including, but not limited to, separator efficiency, age and
formation of the oilfield, use of heat or chemical separation and
residence time. EPA agrees with commenters that after separation, the
amount of oil remaining in produced water can be minimal given the
characteristics of the oilfield and facility/separator configuration.
EPA recognizes that some oil production facilities may have (or may want
to install) separation equipment that performs at a highly efficient
rate. In these cases, the contents of the produced water containers
downstream of such separation equipment may not contain oil in
quantities that may cause harm, as described in 40 CFR part 110.
Therefore, EPA agrees with commenters that certain produced water
containers with minimal amounts of oil may be eligible for exemption,
and that certain produced water containers that are used for oil/water
separation should be subject to differentiated requirements; EPA is
allowing a PE to make the determination whether a given produced water
container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii). EPA believes
the exemption criteria (certification by the PE that no discharge from
the produced water container, including a complete loss of the capacity
of the container, could cause a discharge in quantities that may be
harmful as described in part 110) addresses the commenters’ concerns
about regulating produced water containers that do not contain oil in
harmful quantities.  Further, EPA believes the approach for non-exempt
containers, featuring differentiated requirements and general secondary
containment, provides appropriate regulatory requirements for these
produced water containers. 

 DOE and effluent limitation sources. EPA acknowledges that the amount
of oil by volume observed in produced water storage containers varies
depending on a number of factors, including, but not limited to,
separator efficiency, age and formation of the oilfield, use of heat or
chemical separation and residence time. EPA agrees with commenters that
after separation, the amount of oil remaining in produced water can be
minimal given the characteristics of the oilfield and facility/separator
configuration. EPA recognizes that some oil production facilities may
have (or may want to install) separation equipment that performs at a
highly efficient rate. In these cases, the contents of the produced
water containers downstream of such separation equipment may not contain
oil in quantities that may cause harm, as described in 40 CFR part 110.
Therefore, EPA agrees with commenters that certain produced water
containers with minimal amounts of oil may be eligible for exemption,
and that certain produced water containers that are used for oil/water
separation should be subject to differentiated requirements; EPA is
allowing a PE to make the determination whether a given produced water
container should be eligible for an exemption from the rule or for
alternative requirements as described in §112.9(c)(6)(ii). EPA believes
the exemption criteria (certification by the PE that no discharge from
the produced water container, including a complete loss of the capacity
of the container, could cause a discharge in quantities that may be
harmful as described in part 110) addresses the commenters’ concerns
about regulating produced water containers that do not contain oil in
harmful quantities.  The exemption for flowlines and other appurtenances
downstream of a produced water tank that is exempted by the new produced
water container exemption, is appropriate, as these lines and
appurtenances are subject to a PE evaluation certifying that any
discharge including a complete failure of the line will not result in a
discharge in quantities that is harmful as defined in part 110 of this
chapter. Further, EPA believes the approach for non-exempt containers,
featuring differentiated requirements and general secondary containment,
provides appropriate regulatory requirements for these produced water
containers.

XII.G.iv Equipment Failure Frequency and Consequences 

Issue: EPA requested comment and supporting data on the frequency and
consequences of equipment failure.

COMMENT

State data.  One commenter suggested EPA review data on the source and
cause of oil spills from produced water containers in Texas from 2001
through the present.  The commenter stated that Texas regulations
require reporting of any oil spill of five barrels or greater and all
spills of oil to water. The commenter added that in Texas, with 151,205
producing oil wells and 72,237 producing gas wells, there were 36 spills
of oil to ‘water’ in calendar year 2004, four of which were caused
by lightening, hail and other ‘Acts of God’.  The commenter further
stated that in calendar year 2005, with 151,286 producing oil wells and
76,510 producing gas wells, there were 14 spills of oil to ‘water’
with one of the spills caused by an ‘Act of God’. (123)

RESPONSE

State data. EPA provided a review of national data regarding spills from
produced water containers, which included data from Texas. For more
information, consult the Considerations 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
this rulemaking (  HYPERLINK
"http://www.regulations.gov/fdmspublic/component/fdmsSearchResult/fdms_d
ocket_detail?d=EPA-HQ-OPA-2007-0584&docType=fdms_docket&returnUrl=http%3
A%2F%2Fwww.regulations.gov%2Fsearch%2F&Reload=1215718427291&__dmfFrameId
=FdmsPubMain_content_0" \o "EPA-HQ-OPA-2007-0584-0015" 
EPA-HQ-OPA-2007-0584-0015 ). 

XII.G.v	  Alternative Options

COMMENT

Exemption from Sized Secondary Containment with Additional Measures for
Produced Water Containers

Generally support. Several commenters expressed support for exemption
from sized secondary containment for produced water containers. (108,
111)

Inconsistent with statute.  A commenter asserts that an exemption of
produced water storage containers from sized secondary containment
requirements under 40 C.F.R. §112.9(c) is inconsistent with 33 U.S.C.
1321(j)(5)(D). (127)

Rulemaking procedure. A commenter asserts that at least some of the
proposed “approaches” to these amendments were not in the EPA
proposal (EPA-HQ-OPA-2007-0584-0021) sent to the Office of Management
and Budget, and that the EPA proposal (EPA-HQ-OPA-2007-0584-0015)
included a discussion of oil spill risks from produced water storage
tanks and the increasing frequency and/or volume of spills from this
sector. The commenter states that if this is true, then EPA omits
information that is material to the ability of the public to weigh the
statutory requirement against the arguments of the oil industry and the
U.S. Department of Energy that, at least in the case of produced water
containers, ‘these containers have only incidental amounts of oil and
a low risk of discharge.’ 72 FR 58414. (127)

RESPONSE

Generally support. The Agency is finalizing an alternative to sized
secondary containment requirements for a produced water container that
does not meet conditional exemption criteria. The alternate requirements
finalized in this action take into consideration the commenters
suggestions regarding the proposed alternatives. The finalized set of
requirements include: implementation of a procedure designed to separate
the free-phase oil that may accumulate on the surface of the produced
water, inspection or testing of the produced water container and
components, prompt removal of or initiation of actions to contain and
stabilize any oil accumulations, and corrective action should a
discharge occur. 

Inconsistent with statute. The Agency disagrees with the comment arguing
that an exemption for produced water containers is inconsistent with 33
U.S.C. 1321(j)(5)(D). The Agency’s authority to promulgate the SPCC
regulations is found in Section 311(j)(1)(C) of the Clean Water Act, 33
U.S.C. 1321(j)(1)(C). Section 311(j)(1)(C) requires the President to
issue regulations establishing procedures, methods, equipment, and other
requirements to prevent discharges of oil to navigable waters or
adjoining shorelines from vessels and facilities and to contain such
discharges. The statutory provision gives the Agency broad discretion to
establish the requirements under the SPCC rule. Also, Section
311(j)(5)(D), 33 U.S.C. 1321(j)(5)(D), lists the requirements for
facility response plans.  The Agency has promulgated regulations for
facility response plans in 40 CFR §§112.20 and 21.  

Rulemaking procedure. The Agency believes that the approaches for
produced water containers promulgated in this rule amendment are a
logical outgrowth of the three approaches discussed in the proposal and
the comments received. 

XII.G.vi  DOE Options

Issue: As requested by DOE, EPA sought comment on an exemption for
produced water treatment facilities or parts thereof from the SPCC
regulation.

COMMENTS 

Generally support. Several commenters expressed support for exemption of
produced water containers from SPCC regulation (43, 75, 76, 85, 105,
108, 111, 133, 154) and an exemption for produced water treatment
facilities. (86, 96, 105, 150)  One commenter added that treating
produced water like oil “substantially undermines the efforts made in
the proposal to address small producer concerns”. (76) One commenter
expressed concern with the cost of complying with SPCC requirements for
produced water containers. (105)  

Generally oppose.  Several commenters opposed any reduced requirements
for produced water containers (33, 69, 127, 138, and 140)

Include in wastewater treatment exemption.  Several commenters suggested
produced water located at oil and gas facilities should be subject to
the wastewater treatment exemption. (75, 85, 86, 94, 103, 111, 137)  One
commenter stated that produced water containers downstream of primary
separation should be included with the wastewater treatment exemption. A
commenter recommended that conventional oil and natural gas production
facilities and CBNG production facilities that treat produced water
prior to discharge via NPDES or state-equivalent (SPDES) permitted
outfalls be included in the Wastewater Treatment Facility Exemption. The
commenter added that the Beneficial Use Subcategory (Subpart E, 40 CFR
435.50) of the Oil and Gas Extraction Point Source Category (40 CFR 435)
establishes effluent limitations guidelines for the discharge of
produced water from conventional oil and natural gas production and that
these wastewater treatment facilities or parts thereof are subject to
NPDES or state-equivalent permitting requirements that involve operating
and maintaining the facility to prevent discharges (40 CFR 122.41(e)). 
The commenter added that conventional production facilities and CBNG
production facilities that produce dry gas are already included in the
Wastewater Treatment Facility Exemption as a result of the settlement
agreement and recommended that EPA include the settlement agreement
language concerning dry gas facilities in the final rule. (75)  

Discharges are regulated. Two commenters suggested that discharges are
already regulated by state law, the National Pollutant Discharge
Elimination System (NPDES) program, and the Safe Drinking Water
Underground Injection Control (UIC). (76, 85, 94, 111)  One commenter
stated that in UIC operations involving produced water or instances
where produced water has been piped to another location, the presence of
oil on top of the water is even less likely than in a produced water
tank. The commenter added that water that is transferred via pipeline is
extracted from near the bottom of a water tank so any oil that has
accumulated in the tank could not reach the pipeline unless the tank
level reached the intake pipe. The commenter continued that this is
unlikely since the tanks usually have level indicators that would shut
off the transfer pump. The commenter suggested that produced water tanks
and UIC operations that employ water be exempt from SPCC regulation and
that inspection criteria could be developed in order to qualify for
exemption. (133)

Remove secondary containment requirements.  One commenter suggested EPA
remove secondary containment for produced water containers, because
integrity testing of the typically closed top fiberglass would be
problematic, these containers are located in areas that make integrity
testing difficult and would require the shut-off of wells, and the cost
and limited availability of companies that perform vessel integrity
testing is a concern.  (85)

RESPONSE

Exemption for produced water treatment facilities or parts thereof

Generally support.  After evaluating the comments received, EPA is
modifying the requirements at §112.9(c) to exempt produced water
containers that meet certain conditions, and to allow an alternative
management scheme (which is optional) for produced water containers that
are used for oil/water separation in lieu of sized secondary
containment.  In deciding how to proceed, EPA acknowledges that the
amount of oil by volume observed in produced water storage containers
varies depending on a number of factors, including, but not limited to,
separator efficiency, age and formation of the oilfield, and use of heat
or chemical separation. EPA agrees with commenters that after
separation, the amount of oil remaining in produced water can be minimal
given the characteristics of the oilfield and facility/separator
configuration. Therefore, EPA agrees with commenters that certain
produced water containers with minimal amounts of oil may be eligible
for exemption, and that certain produced water containers that are used
for oil/water separation should be subject to differentiated
requirements; EPA is allowing a PE to make the determination whether a
given produced water container should be eligible for an exemption from
the rule or for alternative requirements as described in
§112.9(c)(6)(ii). EPA believes the exemption criteria (certification by
the PE that no discharge from the produced water container, including a
complete loss of the capacity of the container, could cause a discharge
in quantities that may be harmful as described in part 110) addresses
the commenters’ concerns about regulating produced water containers
that do not contain oil in harmful quantities.  Further, EPA believes
the approach for non-exempt containers, featuring differentiated
requirements and general secondary containment, provides appropriate
regulatory requirements for these produced water containers.

The Agency does not agree, however, with commenters that produced water
located at oil and gas facilities should be subject to the wastewater
treatment exemption. The basis for the conditional exemption in these
finalized amendments is whether oil is present in quantities that may be
harmful. As stated in the preamble to the 2002 amendments to the SPCC
rule, the goal of an oil production, recovery or recycling facility is
to maximize the production and recovery of oil, which presumes that oil
is present in quantities that may be harmful (67 FR 47068, July 17,
2002).  

Generally oppose. EPA disagrees with commenters because the Agency
believes that there are alternative options for produced water
containers that can provide the regulated community compliance
flexibility while continuing to effectively protect the environment from
discharges of quantities of oil that may be harmful. The options the
Agency is providing for produced water containers are based on the
facility’s site-specific characteristics. Many commenters claim that
the SPCC oil spill prevention requirements are inappropriately applied
to produced water containers, arguing that in certain cases these
containers hold mostly water with very low concentrations of oil or that
produced water containers should be exempt under the exemption for
wastewater treatment. EPA agrees that the SPCC regulations should not
regulate the storage of oil if the discharge of that oil is not
prohibited under section 311 of the Clean Water Act.  Section 311(b)(3)
prohibits the discharge of oil into or upon navigable waters of the
United States or adjoining shorelines in such quantities as may be
harmful, as determined by the President.  That determination is made in
40 CFR part 110.  

EPA believes that produced water containers should not be eligible for
the wastewater treatment exemption.  However, the Agency recognizes
that, depending on the use, some produced water containers may serve as
oil/water separators, rather than bulk storage tanks, and such
containers should be regulated in a similar fashion as other oil/water
separators.  To address these concerns, EPA is providing an exemption
for certain produced water containers holding oil that would not violate
section 311(b)(3) if discharged, and a differentiated set of
requirements for other produced water containers at oil production
facilities that are used for oil/water separation.  EPA is also
promulgating a definition of produced water container to clarify which
containers will be eligible for this rule amendment. The Agency believes
that the approaches for produced water containers promulgated in this
rule amendment are a logical outgrowth of the three approaches discussed
in the proposal and the comments received.

Include in wastewater treatment exemption.  The Agency does not agree
with commenters that produced water containers located at oil and gas
facilities should be subject to the wastewater treatment exemption. The
basis for the conditional exemption in these finalized amendments is
whether oil is present in quantities that may be harmful. As stated in
the preamble to the 2002 amendments to the SPCC rule, the goal of an oil
production, recovery or recycling facility is to maximize the production
and recovery of oil, which presumes that oil is present in quantities
that may be harmful (67 FR 47068, July 17, 2002).  The production
process is an effort to maximize oil recovery by eliminating the water
and gas phases.  This separation process involves primary physical and
at times chemical separation methods to segregate the water and gas
phases from the oil phase to maximize oil recovery. Wastewater treatment
is the treatment of water not oil.  Wastewater treatment does involve
primary separation and treatment methods, but diverges from produced
water treatment in that additional secondary (biological) and tertiary
treatment of the water phase is used to remove dissolved and suspended
oil concentrations.  While a production facility will not be eligible
for the existing wastewater treatment exemption, EPA has finalized an
exemption for certain produced water containers, so long as they are
certified by a PE to ensure that a discharge from the produced water
container will not cause harm as defined in 40 CFR part 110.  

Discharges are regulated. EPA agrees with commenters that oil production
facilities may be regulated under the NPDES, UIC, other Federal
regulations, and state regulations. However, the Agency’s review of
the scope of these programs and regulations indicates that these
regulations do not necessarily provide an equivalent level of protection
from accidental and incidental discharges of harmful quantities of oil
to those required under the national SPCC requirements. Therefore these
programs cannot serve solely as a substitute for an SPCC Plan at a
facility.  EPA acknowledges that onshore oil production facilities may
discharge directly to surface waters pursuant to an NPDES permit and
that technology-based discharge standards (effluent guidelines) for
onshore produced water is “zero discharge” (with two exceptions:
produced water generated west of the 98th meridian that is put to
beneficial use during the period of discharge (set to 35 mg/L) and
stripper wells). An NPDES permit typically includes the guideline that
the discharge “shall be free from substances in amounts which would
cause a visible sheen or visible deposits in the receiving water or
adjoining shoreline.” Because these permitted facilities are required
to eliminate harmful quantities of oil in produced water, a produced
water container at the facility may be eligible for the exemption
finalized in this notice. Additionally, the NPDES requirements may be
used by a PE to address certification elements (produced water
characteristics in the container and any associated piping and
appurtenances downstream of the container, procedures or maintenance)
required for the exemption. 

Remove secondary containment requirement.  After evaluating the comments
received, EPA is modifying the requirements at §112.9(c) to exempt
certain produced water containers, that must meet certain conditions and
to allow an alternative management scheme (which is optional) for
produced water containers that are used for oil/water separation in lieu
of sized secondary containment.  In deciding how to proceed, EPA
acknowledges that the amount of oil by volume observed in produced water
storage containers varies depending on a number of factors, including,
but not limited to, separator efficiency, age and formation of the
oilfield, and use of heat or chemical separation. EPA agrees with
commenters that after separation, the amount of oil remaining in
produced water can be minimal given the characteristics of the oilfield
and facility/separator configuration. Therefore, EPA agrees with
commenters that certain produced water containers with minimal amounts
of oil may be eligible for exemption and certain produced water
containers that are used for oil/water separation should be subject to
differentiated requirements and is allowing a PE to make the
determination whether a given produced water container should be
eligible for an exemption from the rule or for alternative requirements
as described in §112.9(c)(6)(ii).  EPA believes the exemption criteria
(certification by the PE that no discharge from the produced water
container, including a complete loss of the capacity of the container,
could cause a discharge in quantities that may be harmful as described
in part 110) addresses the commenters’ concerns about regulating
produced water containers that do not contain oil in harmful quantities.
 EPA believes that an exemption for flowlines and other appurtenances
downstream of a produced water tank that is exempted by the new produced
water container exemption, is also appropriate, as these lines and
appurtenances are subject to a PE evaluation certifying that any
discharge including a complete failure of the line will not result in a
discharge in quantities that is harmful as defined in part 110 of this
chapter. Further, EPA believes the approach for non-exempt containers,
featuring differentiated requirements and general secondary containment,
provides appropriate regulatory requirements for these produced water
containers.

XII.G.vi Other Suggested Approaches 

COMMENT

Separation of upstream and downstream.  Several commenters suggested
exempting produced water containers according to their location upstream
or downstream of separation (94, 111, 123, 129), including two
commenters that specifically suggested exemption using the wastewater
treatment exemption. (94, 111)  Two commenters cited the limited amounts
of oil after separation (123, 129), and the disproportionate risk of
discharge versus the cost of compliance (123).  One commenter added that
EPA’s inclusion of produced water is an expansion of EPA’s
jurisdiction under oil pollution law. (129)  One commenter recommended
that produced water facilities currently not covered under the
wastewater exemption be regulated as follows:  1. Downstream of primary
liquid separation, the produced water containers are subject to the
wastewater treatment exemption.  2. Upstream of and including primary
liquid separation, produced water containers are subject to bulk storage
requirements of §112.9(c) or flow-through process vessel requirements
subject to the general secondary containment §112.7(c). (111) Another
commenter agreed with this approach and stated that “if EPA is
unwilling to make that change, it should resolve the issue specifically
associated with produced water treatment ponds permitted under the NPDES
or a state-equivalent program by adopting the alternative regulatory
language to 40 C.F.R. §112.1(d)(6)” (94)  

Reportable discharge. A commenter notes that a facility is subject to
the FRP requirements if the facility has had a reportable oil discharge
in an amount greater than or equal to 10,000 gallons within the last 5
years (40 C.F.R. §112.20(f)(1)(ii)(D)) and suggests that EPA takes the
view that a discharge of an oil/water mixture triggers this requirement
to the same extent that a comparable, pure oil discharge would trigger
the requirement. The commenter suggests that a discharge of water would
have a significantly less impact than an equivalent discharge of oil and
so the regulations should not lump produced water with oil for purposes
of FRP requirements. Instead, the commenter stated that EPA should
consider only the oil volume of the discharge for purposes of deciding
whether an FRP is required. (94)

PE discretion.  One commenter urged  EPA to allow the certifying
engineer to make the determination whether a given produced water tank
or oil/water separator should have secondary containment, rather than
arbitrarily including tanks that may or may not include measurable
amounts of oil. (103)

RESPONSE

Separation of upstream and downstream.  EPA agrees with the commenter
that the location of the produced water container should be a factor in
determining the scope of an exemption for these containers, and to
clarify which containers are subject to the requirements of
§112.9(c)(6), EPA  provided a definition of a produced water container
in §112.2.  EPA did not propose a definition for produced water
containers in October 2007, but EPA believes that the definition
promulgated in this notice is a logical outgrowth of the proposal.  In
the October 2007 proposal, EPA described produced water containers as
bulk storage containers “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 reuse),
further treatment, or disposal.”  72 FR 58413.  EPA asked for and
received comments on the characteristics of produced water containers
(72 FR 58414) and crafted a definition to establish the specific
containers eligible for this exemption consistent with the description
in the proposal. A produced water container is a bulk storage container
at an oil production facility used to store the produced water after
initial oil/water separation, and prior to reinjection, beneficial
reuse, discharge, or transfer for disposal.   Piping and appurtenances
downstream of the produced water container may include flowlines and
other appurtenances associated with injection and discharge. Thus, the
definition of produced water serves as a factor, based on the containers
location, in determining the applicability of the exemption.

	The Agency does not agree with commenters that produced water located
at oil and gas facilities should be subject to the wastewater treatment
exemption. The basis for the conditional exemption in these finalized
amendments is whether oil is present in quantities that may be harmful.
As stated in the preamble to the 2002 amendments to the SPCC rule, the
goal of an oil production, recovery or recycling facility is to maximize
the production and recovery of oil, which presumes that oil is present
in quantities that may be harmful (67 FR 47068, July 17, 2002).  The
production process is an effort to maximize oil recovery by eliminating
the water and gas phases.  This separation process involves primary
physical and at times chemical separation methods to segregate the water
from the oil phase to maximize oil recovery. Wastewater treatment is the
treatment of water not oil.  Wastewater treatment does involve primary
separation and treatment methods, but diverges from produced water
treatment in that additional secondary (biological) and tertiary
treatment of the water phase is used to remove dissolved and suspended
oil concentrations.  While a production facility will not be eligible
for the existing wastewater treatment exemption, EPA has finalized an
exemption for certain produced water containers, so long as they are
certified by a PE to ensure that a discharge from the produced water
container will not cause harm as defined in 40 CFR part 110.

	Finally, EPA agrees with commenters that oil production facilities may
be regulated under the NPDES, UIC, other Federal regulations, and state
regulations. However, the Agency’s review of the scope of these
programs and regulations indicates that these regulations do not
necessarily provide an equivalent level of protection from accidental
and incidental discharges of harmful quantities of oil to those required
under the national SPCC requirements. Therefore these programs cannot
serve solely as a substitute for an SPCC Plan at a facility. 

Reportable discharge. EPA did not propose to amend the FRP requirements,
therefore any changes to the FRP rule would be outside the scope of the
proposal.

PE discretion.  EPA agrees that a certifying engineer should be allowed
a certain amount of discretion to make the determination whether a given
produced water tank should be regulated and/or the type of containment
that should be provided. Therefore, first, EPA is exempting produced
water containers (and associated flowlines and appurtenances downstream
of the produced water container) at oil production facilities from the
requirements of the SPCC rule when a PE certifies, as part of the SPCC
Plan, that based on the efficiency of the oil/water separation
technology used, the contents of a produced water container, if
completely discharged, does not contain oil in amounts that may be
harmful, as described in 40 CFR part 110.   Secondly, the facility
owner/operator has the option to apply general secondary containment
requirements and conduct visual inspections, maintenance and corrective
action, in lieu of sized secondary containment, when a PE describes in
the Plan and certifies that a practice is established that is designed
to remove the amount of free-phase oil from the produced water container
on a scheduled and routine basis.  

XII.H	Clarification of the Definition of “Permanently Closed”
Containers

 

Issue: EPA sought 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
§112.2.

COMMENT

Support 

Generally support.  Two commenters expressed support for EPA’s
proposed clarification that permanently closed containers need neither
be removed from facilities nor be rendered permanently out of use in the
future. (96, 114)  

Oppose 

Cost of removing liquid and sludge.  One commenter expressed concern
that the cost of closing a container would be prohibitive, causing
premature abandonment of the operation, and requiring a container to be
cleaned is not necessary since the container would remain within the
diked area. (31)  

Other Suggested Alternatives

Temporary closure.  One commenter suggested that small containers with a
capacity between 500 and 1,500 gallons used for fueling and maintenance
be allowed to be temporarily closed and exempt from SPCC requirements
when closed.  The commenter added that these containers are typically
used for special projects and when not in use are stored empty at a
construction site where they would pose no threat of a discharge. (154)
One commenter suggested additional clarification stating that containers
not in use can remain in place with a minimum of cleaning and
preparation after a retailer has permanently sealed unused oil
containers that remain on-site at the facility. (45)

Definition of production facility excludes closed containers. A
commenter suggests that per the definition of Production Facility
proposed by EPA, sealing an empty tank, removes the tank from being part
of the Production Facility. The commenter then argues that cleaning of
the tank or vessel is not required for Plan compliance. The commenter
added that a closed tank or vessel is not ‘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 recommended that EPA
concur with its interpretation of Production Facility so the removal
from service of a empty tank or vessel within or outside of a diked
enclosure removes the container from being part of the Production
Facility. The commenter also encouraged EPA to continue applying RCRA
Exploration and Production sector exemption to closed Production
Facilities. (31)  

Need for flexibility.  One commenter suggested EPA modify its position
on permanently closed containers so that a container removed from
service can be placed back into service with minimal operational effort
so that farmers and agribusiness can acquire storage capacity
flexibility in response to variable production rates and economic
conditions. (104)

RESPONSE

Generally support.  EPA reiterates the statement it made in the preamble
to the July 2002 amendments 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 §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).

Cost of removing liquid and sludge.   EPA does not agree that it is
appropriate to exempt containers from the SPCC requirements without
requiring that all liquid and sludge be removed, even if the container
remains in an area that is diked and it is for a temporary period of
time.  The Agency recognizes that variable economic conditions and
production rates at an oil production facility may cause certain
containers to be unused for long periods of time. One commenter
suggested that such containers would remain in the diked area and thus,
the potential for oil to be discharged would be minimal. However, if a
container was no longer subject to the SPCC rule, there would be no
requirement that it be contained in a diked area or that any precautions
be taken to prevent the discharge of oil to navigable waters or
adjoining shorelines.  Also, EPA does not agree that cleaning a tank is
cost-prohibitive and may shut in wells prematurely. The decision to
clean and close a container in accordance with the SPCC provision is
typically made by an owner or operator who can determine whether it is
cost-effective to close the tank or to let it remain in service and not
incur the costs associated with closure, including cleaning.

Temporary closure.  EPA did not propose a definition of temporary
closure and to finalize one would be outside the scope of this
rulemaking. A “temporary closure” would be intended for situations
where containers would only be closed for short periods of time, and
arguably need less stringent requirements than a permanent closure. The
significant difference in closure requirements between EPA’s current
closure “permanent” requirements and the suggested “temporary”
closure 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 creates the potential for a discharge, regardless of
the size of the container. However, a container that meets the
definition of permanently closed can be kept on site, if it is used on a
temporary basis.  If the container is returned to service, it must be
incorporated in the facility’s SPCC Plan.

Definition of production facility excludes closed containers.  The
Agency disagrees with the comments suggesting that the owner or operator
need only “seal” a tank without requiring that all liquid and sludge
be removed in an effort not to be subject to the SPCC rule. For a
container to be considered permanently closed at an oil production
facility, as well as at any other SPCC-regulated facility, 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 (such as secondary
containment).

Need for flexibility.  The definition of “permanently closed” does
not require that a container be removed from the facility; permanently
closed containers may be brought back into use as needed for variations
in production rates and economic conditions. However, a facility owner
or operator should review state and local regulations, which may have
additional requirements when the container is brought back into service.
EPA believes that the permanent closure provisions require actions that
render the container unavailable for oil storage, by requiring that all
connecting lines and piping must be disconnected from the container and
blocked off, and that all valves (except ventilation valves) must be
closed and locked, thus preventing accidental spills where the container
is inadvertently filled with oil. These provisions also serve as a clear
indicator as to the status of a container and whether it is considered a
regulated container under this rule and part of the storage capacity of
the facility. EPA believes that these requirements are reasonable and
provide the flexibility of allowing the container to remain on site for
future use.

XII.I	Oil and Natural Gas Pipeline Facilities 

Issue: EPA and the Department of Transportation (DOT) will continue to 
to address jurisdictional issues associated with the 1971 Memorandum of
Understanding (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.

COMMENT

Generally support.  Several commenters expressed support for EPA and DOT
in committing to a revision of the 1971 MOU, noting that a guideline
memorandum issued by EPA and DOT in 2000 failed to achieve its intended
purpose and has created confusion concerning the application of SPCC
requirements to breakout tanks that are subject to DOT’s pipeline
safety regulation (49 CFR part 195). (78, 84, 96, 101, 111, 154) Several
of these commenters urged EPA and DOT to withdraw or modify the 2000
memorandum and develop additional guidance, with industry input, for
eliminating dual regulation of pipeline systems.  One commenter
representing natural gas pipeline operators urged EPA and DOT to
designate the specific equipment and appurtenances that are part of
natural gas pipeline systems subject to the SPCC exemption in 40 CFR
112.1. (78) Two commenters suggested EPA avoid dual jurisdiction, as
being subject to two programs that overlap in coverage presents
difficulties for facilities trying to be in compliance. (84, 111)

Codify exemption for dry gas.  Several commenters suggested EPA include
the exemption for dry gas production facilities in the rule language to
ensure the language is not interpreted differently among the regions.
(94, 111, 137)

Secondary containment. One commenter expressed concern regarding EPA’s
proposed clarification regarding secondary containment for onshore
facilities, noting that in amending the general secondary containment
requirements in §112.7(c) to be consistent with the SPCC Guidance for
Regional Inspectors, EPA is extending jurisdiction to
transportation-related facilities that are outside the jurisdiction of
the Agency. (83) 

Primary function of facility.  Two commenters suggested EPA determine
Agency jurisdiction according to the primary function of the facility. 
One commenter noted that DOT should exert sole jurisdiction over
facilities that primarily provide breakout or pipeline terminus tankage
even if some product movement into and/or out of a facility is not by
pipeline. (101) Another commenter suggested a possible methodology for
determining a facility’s primary function based upon the percentage of
throughput by a particular mode to delineate jurisdiction. (111)

Inter- and intra-facility gathering lines. Several commenters suggested
that the jurisdiction for all gathering pipelines should be under the
sole jurisdiction of DOT, as these gathering pipelines would include
both pipelines transporting product from a production facility as well
as pipelines gathering production from satellite storage locations to a
central storage location. (101, 108, 150)

RESPONSE

Generally support. The Agency has consulted with DOT in the development
of this rulemaking, and will continue these consultations to address the
EPA/DOT jurisdictional issues.  EPA and DOT will revise the 2000
guidance memorandum, acknowledging that it has not provided a clear
basis for implementing the 1971 MOU or delineating EPA and DOT
jurisdiction. Both EPA and DOT will continue to work cooperatively to
minimize, where appropriate, dual jurisdiction. 

Codify exemption for dry gas.  With respect to a ‘dry gas production
facility,’ the Agency maintains its position that a dry gas production
facility is not an oil production, oil recovery, or oil recycling
facility, as described in the clarification published May 25, 2004 in
the Federal Register notice (69 FR 29728) regarding the applicability of
the wastewater treatment exemption to dry gas facilities. In that
notice, EPA stated, “A dry gas production facility is a facility that
produces natural gas from a well (or wells) from which it does not also
produce condensate or crude oil that can be drawn off the tanks,
containers or other production equipment at the facility.” As
discussed in the preamble to the July 2002 rulemaking, ‘the goal of an
oil production, oil recovery, or oil recycling facility is to maximize
the production or recovery of oil. * * *’ 67 FR 47068. A dry gas
facility does not meet this description.” As such, dry gas facilities
as defined here are not subject to the SPCC requirements and therefore,
do not need to be addressed in the EPA/DOT MOU.

Secondary containment. EPA disagrees with the commenter regarding a
perceived expansion of the Agency jurisdiction.  Today’s action and
the changes referenced in the comment are associated with the general
secondary containment provisions and not the Appendix A MOU or other
part of the rule dealing with the scope of EPA’s jurisdiction at
non-transportation related facilities. 

Primary function of facility. As part of EPA and DOT’s effort to
revise their 2000 guidance memorandum, the agencies are evaluating the
viability of a “primary function” approach as described by
commenters. EPA will continue work to improve guidance for pipeline
operators and will communicate the results of discussions in a manner
that affords public comment.

Inter- and intra-facility gathering lines. EPA disagrees with commenters
that all gathering lines should be under the jurisdiction of DOT. EPA
will continue to regulate only those intra-facility gathering lines
within a production facility not subject to DOT regulation. EPA is also
finalizing an exemption to address the concern of commenters regarding
dual regulatory requirements for these piping systems.

XIII. Manmade Structure

Issue: EPA requested comment on whether further clarification regarding
the use of building structures to meet the SPCC secondary containment
requirements is necessary, and whether further clarification regarding
requirements for integrity testing of containers located indoors, or a
regulatory amendment, is necessary.

COMMENT

General support. Several commenters supported the clarifications
regarding the consideration of manmade features to meet the secondary
containment requirements and integrity testing requirements of the rule.

Consistency across industries.  One commenter expressed concern that EPA
has “looked the other way” regarding farmers who kept active diesel
tanks without secondary containment. The commenter argued that EPA
should therefore consider all oil storage facilities the same way
(including those that store tanks within manmade structures). (31)

“Locationally exempt facilities.”  One commenter requested
additional discussion and clarification on locationally exempt
facilities—that is, facilities that may not be subject to SPCC
regulations because of their low likelihood of discharge to navigable
waters. The commenter recommended allowing consideration of manmade
features that predate construction of an otherwise regulated facility to
be considered for locational exemption. (82) 

Exempt buildings with oil-filled supporting equipment.  Two commenters
recommended exempting buildings that store, for instance, hydraulic oil
for an elevator, or an emergency generator with day tank. “Multi-story
office buildings with elevator(s) typically have hydraulic oil capacity
in excess of 1,320 gallons,” (111) and commenters do not believe it is
EPA’s intent to require office buildings with elevators to develop and
implement SPCC Plans. (75, 111) Similarly, one commenter requested that
“certain oil storage units located wholly within buildings, where such
buildings themselves effectively serve to prevent leaks or spills from
reaching navigable waters, should not be considered regulated unit
subject to SPCC requirements.” (114)

Exempt machining coolant systems.  One commenter suggested that EPA also
exempt machining coolant systems because the systems are entirely
indoors, represent no risk of discharge to the outdoor environment and
contain little or virtually no oil. (88)

Oil storage in a building compliant with NFPA 30 should be outside the
scope of SPCC requirements.  The commenter believes that “any oil
storage (or any product for that matter) in such well-designed buildings
should not be considered merely a compliance convenience (as EPA
asserts), but rather should factor directly on the fundamental
applicability of SPCC to the building and EPA's regulatory prerequisite
of reasonable expectation of discharge. Because storage in such a
building is not reasonably expected to discharge, such storage should be
outside the scope of the SPCC and OPA applicability requirements.”
(88)

Clarify rule text accordingly. One commenter recommended clarifying text
§112.1(d)(1)(i) to “allow consideration of such man-made features
when conducting a reasonable expectation to discharge determination. 
Providing clarifying text to the citation will eliminate any confusion
on the use of certain man-made features in the ‘reasonable expectation
to discharge’ determination.” (64)

RESPONSE

General support. EPA agrees with commenters who provided support for the
clarifications regarding the consideration of manmade features to meet
the secondary containment requirements and integrity testing
requirements of the rule. EPA is maintaining these clarifications.

Consistency across industries.  EPA disagrees with the commenter that
suggested that EPA does not consider all oil storage facilities the same
way, including those facilities that have oil storage containers inside
buildings. All onshore oil storage facilities are subject to the general
requirements under §112.7 and the requirements under Subpart B, §112.8
for onshore facilities (excluding production facilities) or the Subpart
C requirements for animal fats and vegetable oils in §112.12. 

“Locationally exempt facilities.”  With regard to the commenter who
requested clarification on “locationally exempt facilities,” in
1976, EPA amended the SPCC rule to clarify that when determining
applicability of the rule to a facility, consideration must be based
solely upon of the geographical aspects of the facility, and that
manmade features such as dikes, equipment, or other structures that may
serve to restrain, hinder, contain or otherwise prevent a discharge as
described in §112.1(b) should not be considered. When an owner or
operator determines that the facility could not reasonably be expected
to discharge oil in quantities that may be harmful to navigable waters
or adjoining shorelines based upon geographic and locational aspects of
the facility, then no SPCC Plan is required, such as when a facility is
located in a topographic low area or on flat land far from navigable
waters or adjoining shorelines. 

Exempt buildings with oil-filled supporting equipment / Oil storage in a
building compliant with NFPA 30 should be outside the scope of SPCC
requirements.  EPA disagrees with commenters who requested an exemption
for oil-filled equipment or other oil storage containers located inside
buildings. The requirements apply to all containers, unless otherwise
specifically exempted, whether they are located inside or outside a
building.  Thus, EPA does not agree that text be included in
§112.1(d)(1)(i) to allow the consideration of man-made features when
determining a reasonable expectation to discharge because, as discussed
above, the rule requires the facility owner or operator to only consider
geographical and locational aspects of the facility (such as proximity
to navigable waters or adjoining shorelines, land contour, drainage,
etc.) in the determination. However, the SPCC Plan preparer may consider
whether the building design provides adequate secondary containment to
meet the general secondary containment requirements under §112.7 for
oil storage containers located indoors at a regulated facility. The
owner or operator of a facility with oil-filled equipment may also be
eligible for alternative compliance measures under §112.7(k) for
qualified oil-filled operational equipment if it meets the criteria in
§112.7(k)(1). 

Exempt machining coolant systems. EPA did not propose to exempt machine
coolant systems as suggested by one commenter. In the proposed rule, EPA
clarified that the owner/operator cannot consider manmade structures in
determining applicability of the SPCC regulation. Once a facility is
subject to the rule, then all oil storage containers located at the
facility (unless otherwise exempt) are regulated regardless of whether
they are located indoors. Furthermore, an exemption would be
inappropriate because buildings often have drainage systems, which would
divert spills from the machining coolant systems, and may also pose a
reasonable expectation of discharge to navigable waters or adjoining
shorelines. However, for oil storage containers located indoors, an
owner/operator can consider the building in determining how to meet SPCC
rule requirements for secondary containment or integrity testing. 

As suggested by the commenter, these systems typically contain oil.
Machine coolant systems that have an oil storage capacity greater than
55 gallons and are located at an otherwise SPCC-regulated facility are
subject to the SPCC rule and machine coolant systems that do not contain
oil are not regulated. Finally, EPA has provided differentiated
requirements and an alternative compliance option for this equipment to
prevent oil spills. Machine coolant systems are oil-filled equipment and
are therefore not subject to the rule requirements for bulk storage
containers. These systems may also be eligible for alternative
compliance measures under §112.7(k) for qualified oil-filled
operational equipment if it meets the criteria in §112.7(k)(1).   	 

Clarify rule text accordingly. Secondary containment is required as part
of an SPCC Plan and manmade structures such as dikes, berms and
retaining walls are often used to meet this planning requirement. Unless
properly implemented and maintained (as required by the SPCC rule),
manmade structures may fail, thus putting the environment at risk in the
event of a discharge. Therefore, it would defeat the preventative
purpose of the rule to consider these structures (i.e., required by the
regulation) when determining applicability of the rule to a facility. 
However, EPA believes that it is appropriate for a facility owner or
operator to consider manmade structures (e.g., dikes, equipment,
buildings or other structures) to determine how to comply with the SPCC
rule. Several commenters supported the clarifications regarding the
consideration of manmade features to meet the secondary containment
requirements and integrity testing requirements of the rule.

XIV.	Underground Emergency Diesel Generator Tanks 

at Nuclear Power Stations

Issue: EPA proposed to exempt completely buried oil storage tanks at
facilities regulated by the Nuclear Regulatory Commission (NRC) that are
subject to the safety requirements under the NRC regulations. The
exemption would apply only to completely buried tanks as defined in
§112.2 of the SPCC regulation.

COMMENT

Support proposal

Generally Support.  Many commenters expressed general support for the
proposed amendments in order to avoid dual regulation by EPA and NRC.
(43, 66, 80,99, 100, 110, 121)

Remove reference to 10 CFR part 50.  Some commenters expressed concern
that EPA’s proposed language was too narrow, because NRC’s licensing
program includes plants licensed prior to 10 CFR part 50 (i.e.
grandfathered plants) and  new facilities that are likely to be
regulated under 10 CFR part 52. (66, 80, 89, 100, 121)  One commenter
suggested that EPA remove the specific reference to the text of 10 CFR
part 50, replacing with the general language “in the case of a nuclear
power generation facility, meets the Nuclear Regulatory Commission's
design criteria at 10 CFR part 50, Appendices A and B and operating
safety requirements…” (89) Another commenter suggested that
regulatory language be changed to “…in the case of a nuclear power
generation facility, is part of a system subject to Nuclear Regulatory
Commission regulatory inspection and oversight, except that such a tank
must be marked on the facility diagram as provided in §112.7(a)(3), if
the facility is otherwise subject to this part.” (66)  

Exempt below-ground and below-grade vaulted tanks.  Commenters suggested
that below-ground or below-grade tanks situated in vaults should be
exempted. One commenter pointed out that a significant number of EDG
tanks at nuclear power plants are located in below-grade structural
vaults where there is insufficient space for physical inspection of the
tank. In these cases, the tanks would remain within the definition of
“underground storage tank” in the UST rules (40 CFR §280.12) and
thus would qualify for the deferral for an “UST system that is part of
an emergency generator system at nuclear power generation facilities
regulated by the Nuclear Regulatory Commission under 10 CFR Part 50,
Appendix A.” 40 CFR §280.10(c)(3). (43, 66, 80, 121)  

Change language to “completely below-grade tank”.  One commenter
suggested that EPA can avoid confusion that would result from use of the
defined term ‘completely buried tank’ by using the descriptive
phrase ‘completely below-grade tank’ in §§112.1(d)(2)(i) and (4)
to identify the exempted tank universe. (121)

Oppose proposal

No comments were submitted on this topic.	

RESPONSE

Generally Support.  EPA agrees with commenters who provided support for
the proposed amendment.  However, EPA is expanding the exemption to
include all deferred underground storage tanks at nuclear power
generation facilities that are licensed by the Nuclear Regulatory
Commission (NRC) and that meet the NRC design criteria and quality
assurance criteria so that underground storage tanks located in
below-grade vaults would be included in the exemption.

Remove reference to 10 CFR part 50.  The Agency agrees with those
commenters that suggested this reference is too limiting, because
grandfathered and/or newly constructed underground storage tanks at
nuclear power generation facilities that are licensed by the NRC would
not be eligible for the exemption under the SPCC rule. The language may
also cause future confusion if NRC restructures its requirements or
imposes new ones; the narrow reference may render this amended language
obsolete. Therefore, EPA has modified the final rule language to address
these concerns. This change may also avoid future amendments to the SPCC
rule in the event that NRC modifies the specific regulatory citations
regarding design and/or operating requirements for completely buried
tanks.

Exempt below-ground and below-grade vaulted tanks. EPA agrees with
commenters who argued that the exemption should be extended to
underground storage tanks that are situated in below-ground or
below-grade vaults where there is insufficient space for physical
inspection of the tanks.  In the October 2007 proposal, we explained
that underground storage tanks associated with EDGs that are deferred
from regulation under certain subparts of parts 280 and 281, would be
regulated under SPCC as bulk storage containers, since they are not
subject to all of the technical requirements of part 280 or 281. In
response to stakeholders’ concerns related to possible dual EPA
regulation of these deferred tanks, we proposed to exempt completely
buried tanks associated with EDGs at nuclear power plants from SPCC
requirements on the basis that these tanks would continue to be
regulated under certain parts 280 and 281 (e.g., release response and
corrective action requirements under Subpart F, specifically §§ 280.60
through 280.67) and that NRC operating safety requirements address the
specific and unique operational aspects of these tanks.  However,
stakeholders have become aware that EDGs may also be served by tanks in
below-grade structural vaults, and advised EPA of this fact in comments.
 

Stakeholders requested these tanks be included in the exemption, because
the tanks are not listed in the exclusions from the definition of an
underground storage tank at §280.12.  In particular, EPA excluded
“storage tanks in an underground area (such as a basement, cellar,
mineworking, drift, shaft or tunnel) if the storage tank is situated
upon or above the surface of the floor.”  EPA also defined
“underground area” as “an underground room, such as a basement,
cellar, shaft or vault, providing enough space for physical inspection
of the exterior of the tank situated on or above the surface of the
floor.”  To assess the merits of the commenters’ request, EPA
re-evaluated the relevant definitions under §280.12 and the related
preamble discussion at 53 FR 37082 (September 23, 1988) and confirmed
that a tank located in a below-grade structural vault (i.e. underground
area), where there is insufficient space to enable a physical
inspection, would remain within the definition of an underground storage
tank, subject to 40 CFR part 280.  This type of tank would also be
deferred under §280.10(c)(3).  Since a tank situated in below-grade
structural vault would also be subject to the same NRC operating safety
requirements as a completely buried tank at a nuclear power plant, EPA
believes that extending the exemption to include a tank located in
below-grade structural vault, where there is insufficient space for
physical inspection, is a logical outgrowth of the proposal.  However, a
tank located in below-grade structural vault at a nuclear power plant
with sufficient space for physical inspection would fall within the
exclusion from the definition of an underground storage tank at
§280.12, and thus, would not be deferred from Part 280 and would remain
subject to SPCC.   In the same vein, a tank located in the basement of
building at nuclear power plant, such as a day tank, would also remain
subject to SPCC.

Change language to “completely below-grade tank.  EPA disagrees with
the commenter that this regulatory text change will address the
commenter’s concern.  The commenter suggested this change as a means
to exempt a tank located in below-grade structural vault.  As discussed
in the comment response above, EPA is extending the exemption to cover
an EDG tank located in below-grade structural vaults, where there is
insufficient space for physical inspection.  This regulatory text
modification is considered a logical outgrowth of the proposal and
should address the comment.  Other below-grade tanks, such as a tank in
a building basement with sufficient space for physical inspection,
remain subject to SPCC.

XV.	SPCC Applicability to Wind Turbines

Issue: EPA requested comment on whether the discussion in the preamble
to the proposed SPCC rule amendments provides adequate clarity on the
applicability of the SPCC rule to wind turbines, or whether further
clarification is needed.

COMMENT

General comment. Several commenters agreed that the discussion in
EPA’s proposal added sufficient clarity on the applicability of the
SPCC rule to wind turbines. (40, 96, 110, 113, 121)

Include language in guidance. One commenter suggested that the
discussion about turbines with gearbox capacities of 55 gallons or more
meeting the definition of oil-filled equipment should be included in
EPA’s SPCC Guidance for Regional Inspectors. (43)

A wind farm is a facility and should require an SPCC Plan. One commenter
considered a wind farm a facility and, because the total oil stored in
the turbine gear cases plus the lubricant replacement storage exceeds
the 1,320 gallon threshold, a full SPCC Plan is required. (31)

RESPONSE

General comment. The Agency agrees with those commenters who support
EPA’s clarification on the applicability of the SPCC requirements to
wind turbines. EPA is maintaining these clarifications.

Include language in guidance.  EPA agrees with the commenter and will
update the SPCC Guidance for Regional Inspectors to reflect the
clarifications regarding the applicability of the SPCC rule to wind
turbines that were discussed in the preamble to the proposed rule
amendments (72 FR 58378, October 15, 2007). 

A wind farm is a facility and should require an SPCC Plan. EPA agrees
that a wind farm may be a facility that is subject to the SPCC rule. The
owner or operator should refer to the definition of “facility” at
§112.2, to determine how to aggregate or disaggregate groups of
turbines in order to define the boundaries of his facility (or
facilities). A wind farm facility that meets the rule’s oil storage
capacity threshold and due to its location, could reasonably be expected
to have a discharge to navigable waters or adjoining shorelines is
subject to the SPCC rule and must prepare and implement an SPCC Plan. 
The clarification does not affect the applicability of the rule to wind
farm facilities, but explains how wind turbines are considered under the
rule and what provisions may apply to this type of equipment.

 

 This letter was submitted by Charlie Cott of MFA Incorporated.

 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.

E

V

g

l

hAV

hAV

hAV

hAV

hAV

hAV

hAV

摧噁

摧噁

	㜀$␸䠀$摧噁

␱㜁Ĥ␸䠁Ĥ摧噁

搒ð摧噁

摧挓Ù᐀l

~

á

hAV

hAV

hAV

ꐔx摧䔎3∋ሀĀ᐀¤㄀Ĥ摧噁

愀Ĥ欀ꅤ

愀Ĥ欀譤

摧ᦃí

hˆ

hˆ

hˆ

hîE

hîE

hîE

hîE

h›

j

;

Ç

9

# hý

⑛尀$摧᯻&ᰏ਀&䘋

⑛尀$葞ː摧᯻&

⑛尀$葞֠摧歵iᰏ਀&䘋

⑛尀$摧᯻&ᰏ਀&䘋

‹

‘

½

  hÝ

# hÝ

# hÝ

# hÝ

  hÝ

ò

û

X

ã

æ

ç

ó

ó

ý

/ h]U

  h]U

2 h]U

š

œ

B*

B*

q

r

hAV

hAV

hAV

hAV

hAV

hAV

hAV

hAV

hAV

 The Interstate Oil and Gas Compact Commission estimates that there are
422,255 marginal oil wells as of January 1, 2007 (IOGCC Marginal Wells:
2007 Report)

 PAGE   

 PAGE   7 

		

