
[Federal Register: November 13, 2009 (Volume 74, Number 218)]
[Rules and Regulations]               
[Page 58783-58832]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no09-13]                         


[[Page 58783]]

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Part III





Environmental Protection Agency





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40 CFR Part 112



Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure 
(SPCC) Rule--Amendments; Final Rule


[[Page 58784]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8979-8]
RIN 2050-AG16

 
Oil Pollution Prevention; Spill Prevention, Control, and 
Countermeasure (SPCC) Rule--Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On December 5, 2008, EPA amended the Spill Prevention Control, 
and Countermeasures (SPCC) rule to provide increased clarity with 
respect to specific regulatory requirements, to tailor requirements to 
particular industry sectors, and to streamline certain rule 
requirements. The Agency subsequently delayed the effective date of 
these amendments to January 14, 2010, to allow the Agency time to 
review the amendments to ensure that they properly reflect 
consideration of all relevant facts. EPA also requested public comment 
on the delay of the effective date and its duration, and on the 
December 2008 amendments. Having reviewed the record for the amendments 
and the additional comments, EPA has decided to make only limited 
changes to the amendments. With respect to the majority of the December 
amendments, EPA is either taking no action or providing minor technical 
corrections. EPA is, however, removing the following provisions in the 
December 2008 amendments: the exclusion of farms and oil production 
facilities from the loading/unloading rack requirements; the exemption 
for produced water containers at an oil production facility; and the 
alternative qualified facility eligibility criteria for an oil 
production facility.

DATES: This final rule is effective on January 14, 2010.

ADDRESSES: The public docket for this rulemaking, Docket ID No. EPA-HQ-
OPA-2007-0584, contains the information related to this rulemaking, 
including the response to comment document. All documents in the docket 
are listed in the index at http://www.regulations.gov. Although listed 
in the index, some information may not be publicly available, such as 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Certain other material, 
such as copyrighted material, will be publicly available only in hard 
copy. Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy at the EPA 
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number of the Public Reading Room is 202-566-1744, and the telephone 
number to make an appointment to view the docket is 202-566-0276.

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

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Final Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
    A. Final Amendments Effective without Change
    1. Hot-Mix Asphalt (HMA)
    2. Pesticide Application Equipment and Related Mix Containers
    3. Applicability of Mobile Refueler Requirements to Farm Nurse 
Tanks
    4. Residential Heating Oil Containers
    5. Definition of Facility
    6. Facility Diagram
    7. Loading/Unloading Racks
    8. General Secondary Containment
    9. General Secondary Containment for Non-Transportation-Related 
Tank Trucks
    10. Security
    11. Integrity Testing
    12. Integrity Testing Requirements for Animal Fats and Vegetable 
Oils
    13. Oil Production Facilities
    a. Definition of Production Facility
    b. Modifications to Sec.  112.9 for Drilling and Workover 
Facilities
    c. Exemption for Certain Intra-Facility Gathering Lines
    d. Flowlines and Intra-facility Gathering Lines
    (i) Compliance Alternative in Lieu of Secondary Containment for 
Flowlines and Intra-facility Gathering Lines
    (ii) Contingency Plan for Flowlines and Intra-facility Gathering 
Lines
    (iii) Requirements for a Flowline and Intra-Facility Gathering 
Line Maintenance Program
    e. Flow-Through Process Vessels
    (i) Exemption from Sized Secondary Containment for Flow-Through 
Process Vessels
    (ii) Additional Requirements in Lieu of Sized Secondary 
Containment for Flow-Through Process Vessels
    (iii) Reportable Discharge from Flow-Through Process Vessels
    f. Alternative Compliance Measures for Produced Water Containers
    g. Clarification of the Definition of Permanently Closed 
Containers
    14. Man-made Structures
    15. Wind Turbines
    16. Technical Corrections
    B. Technical Corrections to Provisions of the December 2008 
Amendments
    1. Tier I Qualified Facilities and Appendix G Plan Template
    2. Underground Emergency Diesel Generator Tanks at Nuclear Power 
Stations
    3. SPCC Plan Preparation and Implementation for New Oil 
Production Facilities
    4. Compliance Date Provisions Specific to Farms
    C. Provisions Removed from Final Rule
    1. Exclusions for Oil Production Facilities and Farms from 
Loading/Unloading Rack Requirements
    2. Alternative Qualified Facility Eligibility Criteria for an 
Oil Production Facility
    3. Exemption for Produced Water Containers
    D. Oil and Natural Gas Pipeline Facilities
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order--13132 Federalism
    F. Executive Order 13175--Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

    On December 5, 2008, the Environmental Protection Agency (EPA or 
the Agency) amended the Spill Prevention, Control, and Countermeasure 
(SPCC) rule to address a number of issues raised by the regulated 
community (73 FR 74236). EPA is now amending the December

[[Page 58785]]

2008 amendments to make technical corrections. In addition, EPA has 
decided to remove three provisions from the SPCC rule it had adopted in 
December 2008. In all other respects, the amendments have not been 
changed. The following provisions, which are intended to clarify, 
tailor, and streamline certain requirements for those facility owners 
or operators who are required to prepare and implement an SPCC Plan (or 
``Plan''), will become effective without modification:
     Exemption for hot-mix asphalt (HMA);
     Exemption for pesticide application equipment and related 
mix containers, regardless of ownership or where used, that may 
currently be subject to the SPCC rule when crop oil or adjuvant oil is 
added to pesticide formulations;
     Exemption for residential heating oil containers, which 
applies to aboveground containers, as well as completely buried heating 
oil containers, at single-family residences, including those located at 
farms;
     Clarification that the definition of mobile refueler 
includes a nurse tank, which is a mobile/portable container used at 
farms to store and transport fuel for transfers to or from farm 
equipment (such as tractors and combines) to other bulk storage 
containers (such as containers used to provide fuel to wellhead/relift 
pumps) at the farm;
     Amendment of 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 reaffirm that the ``facility'' 
definition governs the applicability of 40 CFR part 112;
     Amendment of the facility diagram requirement at Sec.  
112.7(a)(3) to clarify how containers, fixed and mobile, are identified 
on the facility diagram. EPA also clarified that 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 can include that information separately in the SPCC 
Plan in an accompanying table or key. For any mobile or portable 
containers located in a certain area of the facility, an owner or 
operator can mark the area on the diagram, as well as indicate the 
potential range in number of containers and the anticipated contents 
and capacities of the mobile or portable containers;
     Definition of the term ``loading/unloading rack,'' and 
clarification that this definition governs the applicability of the 
provisions for facility tank car and tank truck loading/unloading racks 
at Sec.  112.7(h);
     Amendment of the general secondary containment 
requirements at Sec.  112.7(c) to clarify the scope of secondary 
containment so that an owner or operator need only take into 
consideration the typical failure mode, and most likely quantity of oil 
that would be discharged, consistent with current Agency guidance. This 
amendment also provides additional examples of prevention systems for 
onshore facilities found at Sec.  112.7(c)(1);
     Extension of the exemption from the sized secondary 
containment requirement for mobile refuelers provided in the December 
2006 SPCC rule amendments (71 FR 77266, December 26, 2006) to non-
transportation-related tank trucks at a facility subject to the SPCC 
rule;
     Amendment of the facility security requirements at Sec.  
112.7(g) to allow an owner or operator of a facility to tailor his 
security measures to the facility's specific characteristics and 
location;
     Amendment of the requirements at Sec. Sec.  112.8(c)(6) 
and 112.12(c)(6) to allow an owner or operator to consult and rely on 
industry standards to determine the appropriate qualifications for 
personnel performing tests and inspections, as well as the type and 
frequency of integrity testing required for a particular container size 
and configuration;
     Amendment of the integrity testing requirements at Sec.  
112.12(c)(6) for an owner or operator of a facility that handles 
certain types of animal fats and vegetable oils (AFVOs) so as to 
provide the Professional Engineer (PE) or an owner or operator self-
certifying an SPCC Plan with the flexibility to determine the scope of 
integrity testing that is appropriate for containers that store AFVOs, 
based on compliance with certain FDA regulations and other criteria 
relating to container construction and configuration;
     Amendment of the definition of ``production facility'' to 
be consistent with the amended definition of ``facility'';
     Clarification that drilling and workover activities are 
not subject to the provisions at Sec.  112.9;
     Alternative compliance option for flow-through process 
vessels at oil production facilities requiring general secondary 
containment and additional oil spill prevention measures in lieu of the 
sized secondary containment requirements that would apply to this 
equipment;
     Definition of the term ``produced water container'', and 
an alternative compliance option for these containers at oil production 
facilities requiring general secondary containment, a PE-certified 
process or procedure designed to remove free-phase oil that accumulates 
on the surface of the produced water container, and additional oil 
spill prevention measures in lieu of the sized secondary containment 
requirements that would apply to these containers;
     Exemption for certain intra-facility gathering lines 
subject to requirements of the U.S. Department of Transportation's 
(DOT's) pipeline regulations in 49 CFR parts 192 or 195;
     Specific requirements for a flowline/intra-facility 
gathering line maintenance program and an alternative compliance option 
of contingency planning for flowlines and intra-facility gathering 
lines in lieu of the general secondary containment requirements; and
     Clarification of the definition of ``permanently closed'' 
as it applies to oil production facilities and containers present at an 
oil production facility.

The following provisions of the 2008 amendments will become effective 
with technical corrections:
     Exemption for underground oil storage tanks that supply 
emergency diesel generators at nuclear power generation facilities, 
revising the provision to state that the exemption applies ``provided 
that such a tank is subject to any Nuclear Regulatory Commission 
provision regarding design and quality criteria, including but not 
limited to* * *'' (emphasis added);
     Designation of a subset of qualified facilities (``Tier I 
qualified facilities'') with a set of streamlined SPCC rule 
requirements. The owner or operator of a Tier I qualified facility has 
the option to complete a self-certified SPCC Plan template (found in 
Appendix G to 40 CFR part 112) in lieu of a full SPCC Plan. In Sec.  
112.6 and the Appendix G SPCC Plan template, technical corrections 
include clarifications and corrections of typographical and formatting 
errors; and,
     Amendment of the compliance date provision for new oil 
production facilities, so that it applies to new oil production 
facilities that begin operations after November 10, 2010. This change 
is necessary to align with the current compliance date for other 
facilities.

In this notice, EPA is also removing the paragraphs in Sec.  112.3 
specific to farms because on June 19, 2009 EPA established the same 
compliance dates for farms as for all other facilities (74 FR 29136); 
such differentiated provisions are no longer necessary.
    Additionally, EPA was particularly interested in receiving comments 
on

[[Page 58786]]

these provisions as indicated in the February 2009 notice. After 
consideration of all relevant facts and public comments, EPA is 
removing the following provisions which were promulgated on December 5, 
2008 from the SPCC regulation:
     The exemption for certain produced water containers that 
do not contain oil in amounts that may be harmful as certified by a PE; 
and
     The alternative criteria for an oil production facility to 
be eligible to self-certify an SPCC Plan as a qualified facility.

The Agency is also removing the specific exclusion of oil production 
facilities and farms from the loading/unloading rack requirements at 
Sec.  112.7(h). Finally, EPA commits to continue inter-Agency 
discussions with DOT to clarify jurisdiction over facilities as 
described in the joint memorandum ``Jurisdiction over Breakout Tanks/
Bulk Storage Tanks (Containers) at Transportation-Related and Non-
Transportation-Related Facilities'' (February 4, 2000).
    This rulemaking marks the completion of the SPCC action proposed on 
October 15, 2007 (72 FR 58378), finalized on December 5, 2008 (73 FR 
74236), and for which the Agency considered public comments again in 
February 2009 (74 FR 5900, February 3, 2009). Hereafter, comments 
addressing the December 5, 2008 amendments will be referred to as 
``comments from the 2009 comment period.'' However, EPA recognizes that 
because of the changes in this action, and specifically provisions that 
have been removed from the December 2008 Amendments, facilities may 
need additional time to comply with the SPCC amendments. For example, 
owners or operators of facilities with marginal wells may need a PE to 
certify amendments to their SPCC Plan if the facility does not meet the 
qualified facility eligibility criteria. Because of the uncertainty 
surrounding the final amendments to the December 5, 2008 rule and the 
delay of the effective date, the Agency will propose to extend the 
compliance date.

II. Entities Potentially Affected by This Final Rule

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               Industry sector                         NAICS Code
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Oil Production...............................                     211111
Farms........................................                   111, 112
Electric Utility Plants......................                       2211
Petroleum Refining and Related Industries....                        324
Chemical Manufacturing.......................                        325
Food Manufacturing...........................                   311, 312
Manufacturing Facilities Using and Storing                      311, 325
 Animal Fats and Vegetable Oils..............
Metal Manufacturing..........................                   331, 332
Other Manufacturing..........................                      31-33
Real Estate Rental and Leasing...............                    531-533
Retail Trade.................................      441-446, 448, 451-454
Contract Construction........................                         23
Wholesale Trade..............................                         42
Other Commercial.............................     492, 541, 551, 561-562
Transportation...............................                    481-488
Arts Entertainment & Recreation..............                    711-713
Other Services (Except Public Administration)                    811-813
Petroleum Bulk Stations and Terminals........                       4247
Education....................................                         61
Hospitals & Other Health Care................                   621, 622
Accommodation and Food Services..............                   721, 722
Fuel Oil Dealers.............................                      45431
Gasoline stations............................                       4471
Information Finance and Insurance............                     51, 52
Mining.......................................                        212
Warehousing and Storage......................                        493
Religious Organizations......................                     813110
Military Installations.......................                     928110
Pipelines....................................                4861, 48691
Government...................................                         92
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    The list of potentially affected entities in the above table may 
not be exhaustive. The Agency's goal is to provide a clear guide for 
readers to consider regarding entities that potentially could be 
affected by this action. However, this action may affect other entities 
not listed in this table. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding section titled FOR FURTHER INFORMATION CONTACT.

III. Statutory Authority and Delegation of Authority

    Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33 
U.S.C. 1321(j)(1)(C), requires the President to issue regulations 
establishing procedures, methods, equipment, and other requirements to 
prevent discharges of oil to navigable waters or adjoining shorelines 
from vessels and facilities and to contain such discharges. The 
President delegated the authority to regulate non-transportation-
related onshore facilities to EPA in Executive Order 11548 (35 FR 
11677, July 22, 1970), which was superseded by Executive Order 12777 
(56 FR 54757, October 22, 1991). An MOU between DOT and EPA (36 FR 
24080, November 24, 1971) established the definitions of 
transportation-related and non-transportation-related facilities. An 
MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59 
FR 34102, July 1, 1994) re-delegated the responsibility to regulate 
certain offshore facilities from DOI to EPA.

IV. Background

    The SPCC rule was originally promulgated on December 11, 1973 (38 
FR 34164). On July 17, 2002, EPA

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published a final rule amending the SPCC rule, formally known as the 
Oil Pollution Prevention regulation (40 CFR part 112). The July 2002 
rule amendments (67 FR 47042) included revisions to the requirements 
for SPCC Plans and for Facility Response Plans (FRPs). It also included 
new subparts outlining the requirements for various classes of oil; 
revised the applicability of the regulation; amended the requirements 
for completing SPCC Plans; and made other modifications. After 
publication of these rule amendments, several members of the regulated 
community filed legal challenges to certain aspects.\1\ All of the 
issues raised in the litigation have now been resolved; EPA published 
clarifications in the Federal Register to several aspects of the 
amended rule (69 FR 29728, May 25, 2004).\2\ In a separate Federal 
Register notice, the Agency published a final rule announcing the 
vacatur of the July 17, 2002 definition of ``navigable waters'' in 40 
CFR part 112,\3\ and restoring it back to the regulatory definition 
promulgated by EPA in 1973 (73 FR 71941, November 26, 2008).
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    \1\ American Petroleum Institute v. Johnson, 571 F.Supp. 2d 165 
(D.D.C. 2008). The only issue resolved through litigation was the 
challenge to the definition of navigable waters in the July 2002 
rule amendment.
    \2\ Several comments requested that the Agency codify the 
clarifications as part of the December 2008 rulemaking. To the 
extent the subject matter of the clarification were reflected in the 
rulemaking, the Agency either incorporated the clarification in the 
regulatory text or reaffirmed the Agency's position in the preamble. 
See 73 FR 74236, December 5, 2008.
    \3\ This action was taken in accordance with an order issued by 
the United States District Court for the District of Columbia 
(D.D.C.) in American Petroleum Institute v. Johnson, 571 F.Supp.2d 
165 (D.D.C. 2008).
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    Concerns were also raised about the ability to implement certain 
aspects of the July 2002 rule amendments. As a result, EPA proposed 
additional amendments to the SPCC rule in December 2005 and finalized 
them in December 2006 to address a number of issues, including those 
pertaining to certain ``qualified'' facilities, qualified oil-filled 
operational equipment, motive power containers, mobile refuelers, 
removal of provisions inapplicable to AFVOs, and the compliance date 
for farms (71 FR 77266, December 26, 2006). Additionally, EPA made 
available the SPCC Guidance for Regional Inspectors in December 2005. 
This guidance document is intended to assist regional inspectors, as 
well as members of the regulated community, in reviewing the 
implementation of the SPCC rule at a regulated facility. The guidance 
document is designed to provide more detail about the rule's 
applicability, to help clarify the role of the inspector in reviewing 
and evaluating a facility owner or operator's compliance with the 
performance-based SPCC requirements, and to provide a consistent 
national policy on several SPCC-related issues. The guidance is 
available on the Agency's Web site at http://www.epa.gov/emergencies. 
EPA intends to revise this guidance to address the regulatory 
amendments in this action and the December 2006 amendments (71 FR 
77266, December 26, 2006). EPA welcomes comments from the regulated 
community and the public on the guidance document at any time. 
Instructions for submitting comments are provided on the EPA Office of 
Emergency Management Web site.
    On December 5, 2008 (73 FR 74236), EPA again amended the SPCC rule 
to clarify certain provisions, to tailor requirements to particular 
industry sectors, and to streamline certain rule requirements. These 
requirements were to become effective on February 3, 2009. However, the 
effective date of the December 2008 rulemaking was delayed for 60 days 
from February 3, 2009 to April 4, 2009, in accordance with the January 
20, 2009 White House memorandum entitled ``Regulatory Review,'' and the 
January 21, 2009 memorandum from the Office of Management and Budget 
entitled ``Implementation of Memorandum Concerning Regulatory Review'' 
(M-09-08, January 21, 2009 OMB memorandum). (These memoranda are 
available for review in the docket for this rulemaking.) The Agency 
took this action to ensure that the rule properly reflected 
consideration of all relevant facts. Accordingly, EPA requested public 
comment on the delay of the effective date and its duration, and 
further comment on the regulatory amendments contained in the final 
rule amendments (74 FR 5900, February 3, 2009). On April 1, 2009, the 
Agency further delayed the effective date of the December 2008 
rulemaking until January 14, 2010 (74 FR 14736). The Agency took this 
action to allow sufficient time to address the comments received on the 
February 3, 2009 notice. EPA is now promulgating several limited 
revisions to the December 2008 amendments as a result of the Agency's 
review of comments and consideration of all relevant facts.
    Section V of this notice describes EPA's action on the December 
2008 amendments. For a complete discussion of the comments received 
during the 2009 comment period, see Comment and Response Document for 
2008 Final SPCC Amendments, Comment Period Ending March 2009, a copy of 
which is available in the docket for this rulemaking.
    Furthermore, EPA has extended the dates for preparing or amending, 
and implementing revised SPCC Plans in 40 CFR 112.3(a), (b), and (c) in 
a rule published on June 19, 2009 (74 FR 29136). In that action, the 
Agency also established dates for the owners and operators of farms to 
prepare or amend their SPCC Plans, and implement those Plans.

V. This Action

A. Final Amendments Effective Without Change

    EPA has not modified the following provisions of the December 2008 
amendments (73 FR 74236, December 5, 2008):
     Exemptions for HMA and HMA containers, pesticide 
application equipment and related mix containers, and heating oil 
containers at single-family residences, including those located at 
farms;
     Clarification that the definition of mobile refueler 
includes a nurse tank at farms;
     Amended definition of ``facility'' to clarify the existing 
flexibility associated with describing a facility's boundaries;
     Amended facility diagram requirements to provide 
additional flexibility;
     A definition of ``loading/unloading rack'' to clarify the 
oil transfer equipment subject to the provisions for facility tank car 
and tank truck loading/unloading racks, as well as amended provisions 
for this equipment;
     Amended general secondary containment requirements to 
provide more clarity;
     Exemption of non-transportation-related tank trucks from 
the sized secondary containment requirements;
     Amended security requirements;
     Amended integrity testing requirements to allow greater 
flexibility in the use of industry standards;
     Amended integrity testing requirements for containers that 
store AFVOs and meet certain criteria;
     Amended definition of ``production facility'';
     Clarification that drilling and workover activities are 
not subject to the provisions at Sec.  112.9;
     Exemption for certain intra-facility gathering lines at 
oil production facilities from the SPCC requirements;
     More prescriptive requirements for a flowline/intra-
facility gathering line maintenance program for all oil production 
facilities and an alternative

[[Page 58788]]

compliance option of contingency planning for flowlines and intra-
facility gathering lines in lieu of all secondary containment;
     Alternative compliance option for flow-through process 
vessels at oil production facilities to comply with the general 
secondary containment requirements and additional oil spill prevention 
measures in lieu of the sized secondary containment requirements;
     A definition of ``produced water container'';
     Alternative compliance option to sized secondary 
containment for produced water containers that includes general 
secondary containment, a PE-certified process or procedure designed to 
remove free-phase oil that accumulates on the surface of the produced 
water container, and additional oil spill prevention measures;
     Clarification of the definition of ``permanently closed'' 
as it applies to an oil production facility; and
     Technical corrections.
    This preamble discusses each of these provisions, and any related 
comments received during the 2009 comment period that raise substantive 
policy issues, in more detail below. For a complete discussion of the 
comments received in 2009, see Comment and Response Document for 2008 
Final SPCC Amendments, Comment Period Ending March 2009, a copy of 
which is available in the docket for this rulemaking.
1. Hot-Mix Asphalt (HMA)
    In the December 2008 amendments, EPA exempted HMA and HMA 
containers from SPCC rule applicability. HMA is a blend of asphalt 
cement (AC) and aggregate material, such as stone, sand, or gravel, 
which is formed into final paving products. All types of asphalt, 
including HMA, are petroleum products.
    EPA exempted HMA from SPCC rule applicability by adding a new 
paragraph (8) under the general applicability section, Sec.  112.1(d), 
and modifying Sec.  112.1(d)(2) so that the capacity of HMA containers 
is not counted toward the facility's oil storage capacity calculation. 
EPA took this action based on the fact that this material is unlikely 
to flow as a result of the entrained aggregate, such that there would 
be very few circumstances, if any, in which a discharge of HMA would 
have the potential to reach navigable waters or adjoining shorelines. 
This is particularly of concern at facilities subject to the SPCC 
requirements solely because of the presence of HMA. See Section V.A of 
the December 5, 2008 notice at 73 FR 74240 for more information about 
this amendment.
    EPA received one comment that recommended that EPA also extend the 
exemption to other products like paraffin wax, asphalt cement, certain 
resins, and various animal fats, and suggested the exemption be based 
on the unique ``self-containing'' characteristics of all these 
materials and the low probability of a spill reaching navigable waters 
or adjoining shorelines. The Agency disagrees with this comment. As EPA 
discussed in the December 5, 2008 amendments, these materials, unlike 
HMA, do have the potential to discharge in quantities that may be 
harmful 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. Conversely, HMA is 
unlikely to flow as a result of the entrained aggregate. The commenter 
did not provide new or compelling data supporting their position. 
Further, 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 no reasonable expectation of a 
discharge of oil to navigable waters or adjoining shorelines from every 
single oil container at the facility (excluding exempt containers), 
then the facility would not be subject to the rule's requirements. 
However, if the facility owner or operator determines that any oil 
container (excluding exempt containers) may have a reasonable 
expectation of a discharge of oil to navigable waters or adjoining 
shorelines, then the facility is subject to the rule provisions.
    Other comments generally supported the amendments to the exemption 
for HMA and HMA containers. Based on this and review of all relevant 
facts, the Agency is making no changes to this provision.
2. Pesticide Application Equipment and Related Mix Containers
    In the December 2008 amendments, EPA added a new paragraph (10) 
under the general applicability section, Sec.  112.1(d), to exempt all 
pesticide application equipment and related mix containers regardless 
of ownership or where used when crop oil or adjuvant oil is added to 
the pesticide formulation. EPA also modified Sec.  112.1(d)(2) so that 
the capacity of pesticide application equipment and related mix 
containers is not counted toward the facility's oil storage capacity 
calculation. Pesticide application equipment includes ground boom 
applicators, airblast sprayers, and specialty aircraft containers/
equipment that are used to apply measured quantities of pesticides to 
crops and/or soil. Related mix containers are those used to mix 
pesticides with water and, as needed, adjuvant oils, just prior to 
loading into the application equipment. EPA adopted this exemption 
because this type of pesticide use and related mix containers are 
already subject to regulation under the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA), as codified in 40 CFR part 165, to assure 
the safe use (including discharge), reuse, storage, and disposal of 
pesticide containers. Containers (55 U.S. gallons or greater in 
capacity) storing oil prior to mixing it with a pesticide, or 
containers used to store pesticides that contain oil (after mixing 
occurs), are considered bulk storage containers and are not exempt 
under the SPCC rule. See Section V.B of the December 5, 2008 notice at 
73 FR 74240 for more information about this amendment.
    Comments generally supported the exemption for pesticide 
application equipment and related mix containers. Based on this and 
review of all relevant facts, the Agency is making no change to this 
provision.
3. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
    In Section V.B. of the preamble to the December 2008 amendments (73 
FR 74241, December 5, 2008), EPA clarified that the definition of 
mobile refueler, as promulgated in the December 2006 amendments to the 
SPCC rule (71 FR 77266, December 26, 2006), includes a nurse tank, 
which is a mobile/portable container used at farms to store and 
transport fuel for transfers to or from farm equipment (such as 
tractors and combines) to other bulk storage containers (such as 
containers used to provide fuel to wellhead/relift pumps) at the farm. 
A nurse tank is often mounted on a trailer for transport around the 
farm, and thus its function is consistent with that of a mobile 
refueler. A nurse tank, like other types of mobile refuelers, is exempt 
from the sized secondary containment requirements at Sec. Sec.  
112.8(c)(2) and 112.12(c)(2), but is still subject to the general 
secondary containment requirements at Sec.  112.7(c).

[[Page 58789]]

    Comments generally supported the clarification regarding the 
applicability of mobile refueler requirements to farm nurse tanks. 
Based on this and review of all relevant facts, the Agency is making no 
change to this clarification.
4. Residential Heating Oil Containers
    In the December 2008 amendments, EPA added a new paragraph (9) 
under the general applicability section, Sec.  112.1(d), to exempt from 
SPCC applicability containers that are used to store oil for the sole 
purpose of heating single-family residences (including a residence at a 
farm). EPA also modified Sec.  112.1(d)(2) so that the capacity of 
single-family residential heating oil containers is not counted toward 
facility aggregate oil storage capacity. Thus, the owner or operator is 
not required to count any residential heating oil container (i.e., 
those at non-commercial buildings) as part of the facility's aggregate 
storage capacity for the purpose of determining SPCC applicability, and 
no SPCC requirements will apply to these exempt containers. The SPCC 
requirements continue to apply, however, to oil containers used to heat 
other non-residential buildings within a facility, because the 
exemption covers only residential heating oil containers at single 
family residences. See Section V.C of the December 5, 2008 notice at 73 
FR 74243 for more information about this amendment.
    Comments generally supported the amendments to the exemption for 
residential heating oil containers. The Agency did not intend for the 
presence of heating oil containers at a single-family residence to, by 
itself, trigger SPCC applicability. Based on this and review of all 
relevant facts, the Agency is making no change to this provision.
5. Definition of Facility
    In the December 2008 amendments, EPA amended the definition of 
``facility,'' as found in Sec.  112.2. (EPA defined both ``facility'' 
and ``production facility'' at Sec.  112.2 in the July 2002 amendments 
to the SPCC rule (67 FR 47042, July 17, 2002).) EPA modified the 
definition of ``facility'' in three ways: (1) To clarify that this 
definition alone governs the applicability of 40 CFR part 112; (2) to 
clarify that containers can be aggregated or disaggregated (i.e., 
counted separately), based on various factors in defining the 
``facility'' (in other words, the owner or operator has the discretion 
to identify which contiguous or non-contiguous buildings, properties, 
parcels, leases, structures, installations, pipes, or pipelines make up 
the facility); and (3) to add the qualifier ``oil'' before the term 
``waste treatment.''
    EPA maintains that under this provision, the owner or operator 
defines the boundaries of his facility, except as noted below. A 
facility may or may not be subject to the SPCC rule depending on how 
the facility owner or operator aggregates buildings, structures or 
equipment and associated storage or type of activity. EPA recognizes 
that this provision clarifies that a facility owner/operator may 
determine that he is no longer subject to the SPCC requirements. 
However, an owner or operator may not characterize a facility so as to 
simply avoid applicability of the rule (for example, defining separate 
facilities around oil storage containers that are located side-by-side 
or within close proximity, and are used for the same purpose). See 
Section V.D of the December 5, 2008 notice at 73 FR 74244 for more 
information about this amendment.
    Comments generally supported the amendments to the definition of 
``facility.'' Based on this and review of all relevant facts, the 
Agency is making no change to this provision.
6. Facility Diagram
    In the December 2008 amendments, EPA revised the requirement that 
the facility diagram include the location and contents of each 
container to provide additional flexibility. EPA amended Sec.  
112.7(a)(3) to clarify that the facility diagram must include all fixed 
containers (that is, those containers that are not mobile or portable). 
For any mobile or portable containers (such as drums or totes), a 
facility owner or operator must mark the storage area on the facility 
diagram for these containers. For the purposes of this provision, 
``storage area'' means the location of their out-of-service containers 
or designated storage area, primary storage area, or areas where mobile 
or portable containers are most frequently located. The facility owner 
or operator may mark the number of containers, contents and capacity of 
each container either on the facility diagram or in a separate 
description in the SPCC Plan. If the total number of mobile or portable 
containers changes, the owner or operator need only include an estimate 
in the Plan of the number of mobile or portable containers, the 
anticipated contents, and capacities of the mobile or portable 
containers maintained at the facility in the Plan.
    EPA also required that certain intra-facility piping (i.e., 
gathering lines) exempted from the SPCC requirements in the December 
2008 action be identified on the facility diagram and marked as 
``exempt.'' This will help facility and EPA personnel define the 
jurisdictional boundaries at the facility and provide emergency 
response personnel with information that can be used to identify 
hazards during a spill response activity. However, EPA has not required 
that all containers exempted from the rule be marked on the facility 
diagram because in many cases, it would be impracticable. For example, 
the mobility of motive power containers and mobile/portable containers 
with a capacity of less than 55 U.S. gallons makes them difficult to 
accurately represent on a facility diagram. See Section V.E of the 
December 5, 2008 notice at 73 FR 74246 for more information about this 
amendment.
    Comments generally supported the amendments to the facility diagram 
provision. One commenter claimed that his facility diagrams identify 
underground storage tanks, but do not label them as exempt from the 
SPCC requirements. The comment argued that marking them as ``exempt'' 
would be an unnecessary expense. The requirement to identify exempt 
USTs was finalized in July 2002 (67 FR 47042, July 17, 2002) and so 
antedates the December 2008 amendments; thus the comment is outside the 
scope of this rulemaking. However, in response, we would note that the 
facility diagram can be supplemented with a table or log that indicates 
which USTs are exempt from the SPCC requirements. Based on this and 
review of all relevant facts, the Agency is making no change to this 
provision.
7. Loading/Unloading Racks
    In the December 2008 amendments, EPA finalized a definition for the 
term ``loading/unloading rack,'' which governs whether a facility's oil 
transfer equipment and areas are subject to Sec.  112.7(h). Under this 
provision, the requirements described at Sec.  112.7(h) only apply to 
oil transfer areas of a regulated facility where a loading/unloading 
rack, as defined in Sec.  112.2, is located. EPA modified the 
definition to provide more clarity, and to indicate that a loading/
unloading arm is an essential component of a loading/unloading rack. 
Other components that may be found at a loading or unloading rack are 
described in the definition. Equipment present at a loading/unloading 
area where a pipe stand connects to a tank car or tank truck via a 
flexible hose, which is not equipped with a loading or unloading arm, 
is not considered a loading/unloading rack as defined by the December 
2008 amendments.

[[Page 58790]]

    EPA also changed all references from loading/unloading ``area'' to 
loading/unloading ``rack,'' including modifications to the language in 
Sec.  112.7(h)(1), and corrected the word ``break'' to ``brake'' in 
Sec.  112.7(h)(2). Finally, EPA clarified that Sec.  112.7(h) applies 
to a loading/unloading rack associated with a container that is 
exempted from the rule, such as underground storage tanks (USTs) that 
are subject to all of the technical requirements of 40 CFR part 280 or 
a State program approved under part 281. Additionally, EPA clarified 
that transfer areas (equipped with dispensers or other transfer 
equipment) that are associated with exempted USTs, at an otherwise 
regulated SPCC facility, are subject to the requirements of Sec.  
112.7(c). See Section V.F of the December 5, 2008 notice at 73 FR 74248 
for more information about this amendment.
    EPA agrees with the comment that EPA's definition of ``loading/
unloading rack'' does not apply to a flexible hose used to load and/or 
unload oil from a tanker truck or railcar unless the flexible hose is 
connected to a loading/unloading arm. The Agency does not intend this 
definition to include areas where loading or unloading is achieved 
using only flexible hoses. However, the presence of flexible hoses on 
oil transfer equipment does not always indicate that the equipment is 
exempt from the definition of loading/unloading rack because some top 
and bottom loading/unloading racks consist of a combination of steel 
loading arms connected by flexible hoses.
    Comments generally supported the ``loading/unloading rack'' 
definition and amendments to the requirements for a ``loading/unloading 
rack.'' Based on this and review of all relevant facts, the Agency is 
making no change to these provisions.
 8. General Secondary Containment
    In the December 2008 amendments, EPA amended the general secondary 
containment requirement at Sec.  112.7(c) in three ways:
     By adding text regarding the method, design and capacity 
of secondary containment-- to make it clear that the scope of the 
general secondary containment requirements takes into consideration the 
typical failure mode, and most likely quantity of oil that would be 
discharged, consistent with EPA guidance (SPCC Guidance for Regional 
Inspectors);
     By specifically referencing both active and passive 
measures of secondary containment to make it clear that general 
containment requirements allows for the use of both active and passive 
secondary containment measures to prevent a discharge to navigable 
waters or adjoining shorelines. Active containment measures are those 
that require deployment or other specific action by an operator. These 
measures may be deployed either before an activity involving the 
handling of oil starts, or in reaction to a discharge, as long as the 
active measure is designed to prevent an oil discharge from reaching 
navigable waters or adjoining shorelines. Passive measures are 
permanent installations and do not require deployment or action by the 
owner or operator. The design and capacity flexibility described in 
paragraph Sec.  112.7(c) is specifically for equipment and containers 
subject to this paragraph and not for other secondary containment 
provisions of this rule; and.
     By including the following additional examples of 
prevention systems for onshore facilities: drip pans, sumps, and 
collection systems. Drip pans are typically used to isolate and contain 
small drips or leaks until the source of the leak is repaired. They are 
commonly used with product dispensing containers (such as drums), when 
uncoupling hoses after bulk transfer operations, and for pumps, valves, 
and fittings. Sumps and collection systems generally involve a 
permanent pit or reservoir connected to troughs/trenches that collect 
oil. By expanding the list of examples of secondary containment 
methods/prevention systems found in Sec.  112.7(c)(1), EPA intended to 
increase the clarity and better represent current prevention practices. 
EPA emphasizes that the list of containment methods/prevention systems 
are examples only; other containment methods may be used, consistent 
with good engineering practice. See Section V.H of the December 5, 2008 
notice at 73 FR 74261 for more information about this amendment.
    As EPA discussed in the December 5, 2008 amendments, the Plan 
preparer should include enough detail in the SPCC Plan to describe the 
efficacy of the measures used to comply with the general secondary 
containment requirements (see the SPCC Guidance for Regional 
Inspectors, Chapter 4). While EPA does not require that calculations be 
kept in the Plan, it recommends the facility owner or operator maintain 
them such that if questions arise during the inspection, the 
calculations which serve as the basis for the capacity of the secondary 
containment system will be readily available for review.
    Comments generally supported the amendments to the general 
secondary containment requirements. Based on this and review of all 
relevant facts, the Agency is making no change to these provisions.
9. General Secondary Containment for Non-Transportation-Related Tank 
Trucks
    In the December 2008 amendments, EPA extended the exemption from 
the sized secondary containment requirements provided to mobile 
refuelers in the December 2006 amendments (71 FR 77266, December 26, 
2006) to non-transportation-related tank trucks at a facility subject 
to the SPCC rule. Other non-transportation-related tanker trucks may be 
transferring non-fuel oils (i.e., transformer oils, lubrication oils, 
or certain AFVOs) and operate similarly to mobile refuelers; therefore, 
they may not be able to comply with the sized secondary containment 
requirements. Specifically, EPA amended Sec. Sec.  112.6(a)(3)(ii), 
112.8(c)(2), 112.8(c)(11), 112.12(c)(2), and 112.12(c)(11) to include 
the phrase ``except mobile refuelers and other non-transportation-
related tank trucks.'' Such non-transportation-related tank trucks 
include those used to store and transport fuel, crude oil, condensate, 
non-petroleum, or other oils for transfer to or from bulk storage 
containers; for example, a truck used to refill oil-filled equipment at 
an electrical substation or a pump truck at an oil production facility. 
Under this approach, the general secondary containment requirements at 
Sec.  112.7(c) still apply. See Section V.I of the December 5, 2008 
notice at 73 FR 74262 for more information about this amendment.
    EPA agrees with comments supporting the exemption from the sized 
secondary containment requirements for non-transportation-related tank 
trucks at a facility subject to the SPCC rule. One comment noted that 
the exemption from sized secondary containment should be rescinded, 
given the use of truck and skid mounted tanks as storage containers at 
temporary sites and the high risks associated with these tanks. EPA 
disagrees with the comment. As stated in the preamble to the December 
5, 2008 amendments, the Agency concluded that it is generally not 
practicable to provide sized secondary containment for non-
transportation-related tank trucks because they are moving from 
location to location within a facility. A non-transportation-related 
tank truck that only operates in a single or fixed location within the 
facility (i.e., it does not move within the facility for

[[Page 58791]]

purposes of transferring oil) is not eligible for this provision and 
would still be subject to the sized secondary containment requirement. 
Based on this and review of all relevant facts, the Agency is making no 
change to this provision.
10. Security
    In the December 2008 amendments, EPA amended the facility security 
requirements at Sec.  112.7(g) to be performance-based and allow an 
owner or operator of a facility to tailor its security measures to the 
facility's specific characteristics and location. This provision 
extended the streamlined security requirements that EPA provided to 
qualified facilities in the December 2006 SPCC rule amendments (71 FR 
77266, December 26, 2006) to all facilities subject to the security 
requirements.
    Specifically, EPA modified the security requirements at Sec.  
112.7(g) to allow an owner or operator to design the security 
arrangements at the facility to address the specific circumstances that 
apply. This provision allows an owner or operator to describe in his 
SPCC Plan how he will:
     Secure and control access to all oil handling, processing 
and storage areas;
     Secure master flow and drain valves;
     Prevent unauthorized access to starter controls on oil 
pumps;
     Secure out-of-service and loading/unloading connections of 
oil pipelines; and
     Address the appropriateness of security lighting to both 
prevent acts of vandalism and assist in the discovery of oil 
discharges.
    A facility owner or operator is required to document in the SPCC 
Plan how these security measures are implemented. These requirements 
replace the more prescriptive fencing and other requirements, 
previously found in Sec.  112.7(g)(1) through (5). Because the revised 
requirements at Sec.  112.7(g) apply to all facilities (excluding oil 
production facilities), EPA removed the security requirements 
previously found at Sec.  112.6(c)(3) for qualified facilities; the 
provision would be redundant. See Section V.J of the December 5, 2008 
notice at 73 FR 74263 for more information about this amendment.
    Comments generally supported the amendments to the provision for 
security requirements. Based on this and review of all relevant facts, 
the Agency is making no change to this provision.
11. Integrity Testing
    In the December 2008 amendments, EPA amended the requirements at 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) to provide flexibility in 
complying with the bulk storage container integrity testing 
requirements. Specifically, EPA modified the 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 and frequency of integrity testing required for 
a particular container size and configuration. Thus, EPA extended the 
streamlined bulk storage container integrity testing requirement that 
EPA provided to qualified facilities in the December 2006 SPCC rule 
amendments (71 FR 77266, December 26, 2006) to all facilities subject 
to the integrity testing provision.
    Specifically, EPA replaced the previous regulatory requirements at 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6) with the requirement for a 
facility owner or operator to:
     Test/inspect each aboveground container for integrity on a 
regular schedule and whenever material repairs are made.
     Determine, in accordance with industry standards, the 
appropriate qualifications of personnel performing tests and 
inspections and the frequency and type of testing and inspections, 
which take into account container size, configuration, and design.
    These revised provisions allow, for example, an owner or operator 
to adopt visual inspections for certain types of containers, as 
outlined in industry standards, to satisfy the integrity testing 
requirements without the need for environmental equivalence 
determinations certified by a PE. However, EPA notes that certain 
containers may not fall within the scope of an industry standard or may 
not have an applicable industry standard; in this case, the owner or 
operator of the facility may develop an environmentally equivalent 
inspection and testing program in accordance with Sec.  112.7(a)(2) to 
comply with the integrity testing requirements described in Sec. Sec.  
112.8(c)(6) and 112.12(c)(6) (for more information, see Chapter 7 of 
the SPCC Guidance for Regional Inspectors). In the case of a Tier II 
qualified facility, the environmentally equivalent integrity testing 
program will require PE certification. See Sec.  112.6(b)(3)(i) and 
112.6(b)(4) for more information on PE certification of environmental 
equivalence for Tier II qualified facilities.
    An owner or operator is still required to keep comparison records 
(records of inspections and tests kept under usual and customary 
business practices will suffice) and to inspect the container's 
supports and foundations. The owner or operator must also conduct 
frequent inspection of the outside of the container for signs of 
deterioration, discharges, or accumulation of oil inside diked areas. 
Because the revised requirements at Sec. Sec.  112.8(c)(6) and 
112.12(c)(6) apply to all facilities (excluding oil production 
facilities), EPA removed the integrity testing requirements previously 
found at Sec.  112.6(c)(4) for qualified facilities. See Section V.K of 
the December 5, 2008 notice at 73 FR 74264 for more information about 
this amendment.
    EPA agrees with the comments supporting the provision for integrity 
testing requirements. However, several comments generally opposed these 
amendments, and one comment questioned the need for more flexibility 
with regard to the integrity testing requirements. EPA recognizes that 
certain containers do not have applicable industry standards and notes 
that the rule already provides flexibility to integrity testing in that 
the owner or operator can rely on a PE to provide an environmentally 
equivalent method of integrity testing in Sec.  112.7(a)(2). 
Nonetheless, the December 2008 amendments address broader concerns with 
the integrity testing requirements by revising the rule text under 
Sec. Sec.  112.8(c)(6) and 112.12(c)(6). No new or compelling 
information or data was provided by comments that supported changing 
EPA's position. Based on this and review of all relevant facts, the 
Agency is making no change to this provision.
12. Integrity Testing Requirements for Animal Fats and Vegetable Oils
    In the December 2008 amendments, EPA differentiated the integrity 
testing requirements at Sec.  112.12(c)(6) for an owner or operator of 
a facility that handles certain types of AFVOs. Specifically, EPA 
provided the PE or an owner or operator self-certifying an SPCC Plan 
with the flexibility to use a visual inspection program for integrity 
testing for containers that store AFVOs and that meet certain criteria 
identified in Sec.  112.12(c)(6)(ii). This flexibility applies to those 
bulk storage containers that are subject to the applicable sections of 
the Food and Drug Administration (FDA) regulation 21 CFR part 110, 
Current Good Manufacturing Practice in Manufacturing, Packing or 
Holding Human Food, as well as meet the following additional criteria: 
(1) The

[[Page 58792]]

containers are elevated; (2) the containers are made from austenitic 
stainless steel; (3) the containers have no external insulation; and 
(4) the containers are shop-built. That is, an owner or operator with 
containers meeting these criteria can use visual inspection of these 
containers equivalent to industry standards, in lieu of the revised 
integrity testing requirements found at Sec.  112.12(c)(6)(i), without 
having to document the reasons for using an environmentally equivalent 
measure in accordance with Sec.  112.7(a)(2). The owner or operator is 
required to document the procedures for inspections and testing in the 
SPCC Plan, including those for AFVO bulk storage containers that are 
eligible for the differentiated requirements described in this 
provision.
    EPA does not require that an owner or operator use this alternative 
compliance option. This alternative provides additional flexibility in 
meeting the provisions set forth in Sec.  112.12(c)(6) to address 
stakeholder concerns. EPA recognizes that certain types of containers 
do not have applicable industry standards. The December 2008 amendments 
revised the SPCC rule to provide an environmentally equivalent approach 
to comply with the integrity testing requirements for AFVO containers 
or have a PE provide an environmentally equivalent method of integrity 
testing in accordance with Sec.  112.7(a)(2). See Section V.K of the 
December 5, 2008 notice at 73 FR 74264 for more information about this 
amendment.
    EPA agrees with comments supporting the differentiated integrity 
testing requirements for an owner or operator of a facility that 
handles certain types of AFVOs. One comment requested greater 
flexibility in determining the appropriate integrity testing measures 
for bulk AFVO storage containers, including an extension of the 
inspection frequency for tanks storing AFVO. The owner or operator can 
identify the appropriate integrity testing measures for bulk AFVO 
storage containers following either Sec.  112.12(c)(6)(i) or Sec.  
112.12(c)(6)(ii). Additional flexibility may be achieved when a PE 
provides an environmentally equivalent method of integrity testing in 
accordance with Sec.  112.7(a)(2). The SPCC rule requires that 
inspections of AFVO bulk storage containers be conducted on a regular 
schedule, but does not otherwise specify an inspection frequency for 
these containers. The owner or operator can identify the appropriate 
inspection frequency for the AFVO containers and document the 
inspection frequency in the SPCC Plan. No new or compelling information 
or data was provided by comments that would cause the Agency to change 
its position. Thus, based on this and review of all relevant facts, the 
Agency is making no change to this provision.
13. Oil Production Facilities
    Since its original promulgation in 1973, the SPCC rule has included 
differentiated requirements for oil production facilities (Sec.  
112.9), as compared to other types of facilities (Sec. Sec.  112.8, 
112.10, 112.11, and 112.12). Based on issues presented by the regulated 
community, in the December 2008 amendments EPA adopted certain 
revisions that further streamline, tailor or clarify the SPCC 
requirements for oil production facilities (see Section V.M of the 
December 5, 2008 notice at 73 FR 74270). EPA has decided not to modify 
the following provisions: amended definition of ``production 
facility''; clarification that drilling and workover activities are not 
subject to the provisions at Sec.  112.9; exemption from the SPCC 
requirements for certain intra-facility gathering lines subject to the 
DOT pipeline regulations in 49 CFR parts 192 or 195; specific 
requirements for a flowline/intra-facility gathering line maintenance 
program and an alternative compliance option of contingency planning 
for flowlines and intra-facility gathering lines at oil production 
facilities in lieu of secondary containment requirements; an 
alternative compliance option for flow-through process vessels at oil 
production facilities that requires general secondary containment and 
additional oil spill prevention measures in lieu of the sized secondary 
containment requirements; definition of ``produced water container'' 
and alternative compliance measures for these containers which requires 
general secondary containment, a process or procedure certified by a PE 
designed to remove free-phase oil on the surface of the produced water 
container and compliance with additional oil spill prevention measures 
in lieu of sized secondary containment requirements; and clarification 
of the definition of ``permanently closed'' as it applies to an oil 
production facility.
a. Definition of Production Facility
    Consistent with the revisions to the definition of ``facility'' (as 
described in Section V.D of the December 2008 amendments (73 FR 
74236)), EPA also modified the definition of ``production facility.'' A 
``production facility'' is a type of ``facility'' as defined in Sec.  
112.2. With the December 2008 amendments, EPA added a sentence at the 
end of the definition 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 
sections of the rule may apply at a particular facility. (The sections 
for administrative and general rule requirements continue to apply at 
all facilities under 40 CFR part 112.) This change to the definition of 
production facility addresses concerns raised during litigation 
challenging the July 2002 rule amendments and discussed in the May 25, 
2004 Federal Register notice (69 FR 29728). EPA also modified the 
phrase ``and located in a single geographical oil or gas field operated 
by a single operator'' to clarify that a production facility ``is 
located in an oil or gas field.'' This is consistent with the revisions 
to the definition of ``facility'' that emphasize the flexibility in how 
a facility owner or operator can determine the boundaries of a 
facility. See Section V.M.1 of the December 5, 2008 notice at 73 FR 
74270 for more information about this amendment.
    EPA agrees with comments supporting the revisions to the definition 
of ``production facility.'' One comment, however, suggested that the 
Agency refer specifically to petroleum oil in the definition, to 
clarify that the term does not apply to vegetable oil production 
facilities. EPA disagrees with the comment; the addition of the term 
``petroleum'' is unnecessary because the definition itself makes clear 
that the type of facilities addressed under ``production facility'' are 
those 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 addresses 
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 associated with upstream petroleum crude oil/gas production, 
not AFVO production or processing facilities. Furthermore, the 
definition specifies that certain structures, piping, or equipment be 
located in an oil or gas field. The term ``oil or gas field'' is used 
exclusively in upstream crude oil and gas production, not in AFVO 
production; therefore the definition of production facility does not 
apply to AFVO production facilities.
    Based on this and review of all relevant facts, the Agency is 
making no change to this provision.

[[Page 58793]]

b. Modifications to Sec.  112.9 for Drilling and Workover Facilities
    To clarify that drilling and workover activities are not subject to 
the provisions at Sec.  112.9, in the December 2008 amendments, EPA 
revised the title of Sec.  112.9 to read ``Spill Prevention, Control, 
and Countermeasure Plan requirements for onshore oil production 
facilities (excluding drilling and workover facilities).'' EPA also 
amended the introductory sentence of the section accordingly. See 
Section V.M.2 of the December 5, 2008 notice at 73 FR 74272 for more 
information about this amendment.
    Comments generally supported the amendments to Sec.  112.9 for 
drilling and workover facilities. Based on this and review of all 
relevant facts, the Agency is making no change to this provision.
c. Exemption for Certain Intra-Facility Gathering Lines
    In the December 2008 amendments, EPA provided an exemption for 
intra-facility gathering lines subject to DOT requirements at 49 CFR 
parts 192 (Transportation of Natural and Other Gas by Pipeline) or 195 
(Transportation of Hazardous Liquids by Pipeline). EPA recognizes that 
the DOT requirements for pipelines may be similar in scope to the SPCC 
regulations, so that compliance with certain DOT requirements is 
considered environmentally equivalent to certain SPCC requirements. For 
example, DOT has the statutory authority over onshore gas or hazardous 
liquid gathering lines in a non-rural area, as well as ``regulated 
rural gathering lines'' (including certain gathering lines in or within 
one-quarter mile of environmentally sensitive rural areas, defined as 
``unusually sensitive areas''), and certain low-stress pipelines 
transporting hazardous liquids. While many gathering lines are under 
DOT's statutory authority, only a subset of them is subject to the DOT 
regulatory requirements.
    EPA recognizes that gathering lines can be outside the Agency's 
jurisdiction because they ``transport'' oil outside of an oil 
production facility. EPA has jurisdiction over non-transportation-
related facilities, which includes pipelines used to move oil within a 
facility. Any inter-facility pipeline, including a gathering line, that 
transports oil between facilities or from a facility to a vessel, or 
from a facility to a transportation-related pipeline facility, such as 
a transmission line, or a pipeline breakout tank, when used for this 
purpose, is considered transportation-related and is therefore outside 
EPA's jurisdiction and not subject to the SPCC rule. However, the 
definition of ``facility,'' as it applies to the SPCC rule is flexible. 
Depending upon how an owner/operator defines his facility under the 
SPCC rule, an oil production facility may also include intra-facility 
gathering lines.
    While gathering lines within the SPCC facility boundaries are 
intra-facility piping, EPA maintained the term intra-facility gathering 
lines because it is a term that is well recognized within the 
production sector. For those intra-facility gathering lines that are 
regulated by DOT under 49 CFR part 192 or 195, EPA exempted them from 
the SPCC requirements. In other words, the exemption is for intra-
facility gathering lines present at a facility where the piping 
otherwise is subject to both EPA and DOT jurisdiction and regulations. 
EPA's focus with the SPCC rule is the regulation of oil storage and 
handling at facilities engaged in activities related to drilling, 
producing, gathering, processing, refining, storing, transferring, 
distributing and using oil, while DOT's focus is to regulate 
transportation-related pipelines. Although EPA has jurisdiction over 
these lines, EPA has concluded that it is appropriate to defer to DOT's 
regulations, when applicable to intra-facility gathering lines, in lieu 
of EPA's requirements. At the same time, the Regional Administrator has 
the option under Sec.  112.1(f) to require owners and operators of 
facilities, including those with exempt intra-facility gathering lines, 
to prepare and implement an SPCC Plan or any applicable part, if a 
determination is made that it is necessary to prevent a discharge of 
oil into navigable waters or adjoining shorelines.
    Only intra-facility gathering lines that are subject to these DOT 
regulations are eligible for the exemption. Intra-facility gathering 
lines located at a facility that are not subject to the regulatory 
requirements at 49 CFR parts 192 or 195 remain subject to the 
requirements at 40 CFR part 112. Other non-transportation-related 
equipment and piping at an oil production facility (such as flowlines), 
remain subject to the SPCC requirements. In addition, this exemption 
requires that owners or operators of a facility identify and mark as 
``exempt'' on the facility diagram the location of exempt piping. This 
requirement will assist facility and EPA personnel in defining the 
boundaries of EPA and DOT jurisdiction and provide response personnel 
with information used to identify potential hazards during a spill 
response activity. See Section V.M.4.a of the December 5, 2008 notice 
at 73 FR 74273 for more information about this amendment.
    Comments generally supported the exemption for intra-facility 
gathering lines subject to the regulatory requirements at 49 CFR parts 
192 or 195. Based on this and review of all relevant facts, the Agency 
is making no change to this provision.
d. Flowlines and Intra-Facility Gathering Lines
    EPA is making no changes to the following provisions related to 
flowlines and intra-facility gathering lines.
(i) Compliance Alternative in Lieu of Secondary Containment for 
Flowlines and Intra-Facility Gathering Lines
    EPA has determined that secondary containment is, in most cases, 
impracticable for flowlines and intra-facility gathering lines. 
Therefore, in the December 2008 amendments, the Agency revised Sec.  
112.7(c) to provide an optional compliance alternative consisting of 
contingency planning and a written commitment of manpower, equipment, 
and materials in lieu of the general secondary containment requirements 
for flowlines and intra-facility gathering lines that are subject to 
the SPCC regulation. The Agency tailored the requirements in an effort 
to provide additional compliance options and enhance environmental 
protection. See Section V.M.4.b of the December 5, 2008 notice at 73 FR 
74274 for more information about this amendment.
    EPA agrees with comments supporting the provision of an alternative 
option to the secondary containment requirements for flowlines and 
intra-facility gathering lines at an oil production facility. A few 
comments specifically opposed any reduction in secondary containment 
requirements, but no new or compelling information or data was provided 
by comments that supported revising the requirements. While EPA 
understands that flowlines and intra-facility gathering lines are 
typically a source of discharges, secondary containment is often 
impracticable. In the December 2008 amendments, EPA provided an 
alternative compliance option to secondary containment which combines 
the development of a contingency plan and a written commitment of 
manpower, equipment, and materials to respond to discharges from 
flowlines and intra-facility gathering lines. In addition, EPA has also 
established requirements to add specificity to the flowline and intra-
facility gathering line maintenance program. Finally, if this method of 
spill prevention does not accomplish the goal of protecting

[[Page 58794]]

navigable waters or adjoining shorelines, under Sec.  112.1(f) the RA 
may request that the facility amend the SPCC Plan and provide secondary 
containment for this piping.
    Based on this and review of all relevant facts, the Agency is 
making no change to this provision.
(ii) Contingency Plan for Flowlines and Intra-Facility Gathering Lines
    In the December 2008 amendments, EPA revised Sec. Sec.  112.7(c) 
and 112.9(d)(3) to provide a compliance alternative to the general 
secondary containment requirements under Sec.  112.7(c) for flowlines 
and intra-facility gathering lines at an oil production facility. 
Specifically, in lieu of general secondary containment, a facility 
owner or operator may opt to develop and 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. The Agency amended this 
provision in an effort to provide additional compliance options and 
enhance environmental protection. The use of a contingency plan does 
not relieve the owner or operator of liability associated with an oil 
discharge to navigable waters or adjoining shorelines that violates the 
provisions of Section 311(b)(3) of the CWA, 33 U.S.C. 1321(b)(3). EPA 
also amended Sec.  112.7(a) to make it clear that the contingency plan 
provisions under Sec.  112.9(d)(3) are not subject to the environmental 
equivalence provision. See Section V.M.4.c of the December 5, 2008 
notice at 73 FR 74275 for more information about this amendment.
    EPA agrees with comments supporting the provision to require an oil 
spill contingency plan in lieu of general secondary containment. 
However, one comment suggested that a contingency plan should not be 
used in lieu of secondary containment, because the purpose of the SPCC 
rule is to prevent spills, not to clean them up after they occur. While 
EPA understands that although these lines can be the source of 
discharges, the Agency also recognizes that secondary containment is 
often impracticable. EPA has provided an alternative compliance option 
to secondary containment which combines the development of a 
contingency plan and a written commitment of manpower, equipment, and 
materials to respond to discharges. In addition, EPA has also 
established requirements to add specificity to the flowline and intra-
facility gathering line maintenance program. These additional measures 
are intended to enhance the primary integrity of the flowlines and 
intra-facility gathering lines to prevent the discharges of oil in the 
first place, and thus, EPA is not solely relying on a contingency plan. 
Finally, if this method of spill prevention does not accomplish the 
goal of protecting navigable waters or adjoining shorelines, then under 
Sec.  112.1(f), the RA has the authority to request that the facility 
amend the SPCC Plan and provide secondary containment for this piping.
    Another comment suggested that the burden for this alternative 
option is excessive. EPA disagrees. First, as already noted, this 
alternative provision for flowlines and intra-facility gathering lines 
is optional; some facilities may choose to provide secondary 
containment for these lines. Flowlines and intra-facility gathering 
lines can be a source of discharges and when secondary containment is 
not provided then it is appropriate for the facility to have a 
contingency plan and a written commitment of manpower, equipment, and 
materials in place to respond to these discharges. Additionally, by 
removing the need to determine impracticability, the Agency has reduced 
the burden to allow for contingency planning for these flowlines and 
intra-facility gathering lines. Therefore, EPA has concluded that the 
requirements are not excessive. Furthermore, by removing the 
requirement that a PE make the determination of impracticability (Sec.  
112.7(d)), the cost of preparing a contingency plan should decrease.
    Another comment suggested that in lieu of the secondary containment 
requirements for flowlines and intra-facility gathering lines, EPA 
should require annual physical inspections of the lines and 
installation of isolation valves on the ends of lines. EPA agrees that 
some form of enhanced inspection program is appropriate to assure the 
primary integrity of the flowlines and intra-facility gathering lines 
and to implement a contingency plan. However, EPA has concluded that 
inspection frequency is a site-specific determination and setting a 
prescriptive (``one-size fits all'') timeframe is inappropriate. 
Although the Agency agrees that the installation of isolation valves 
may be appropriate in some cases, it did not include this as a 
requirement because it may be impracticable for some oil production 
facilities. However, an owner or operator may choose to install 
isolation valves as an environmentally equivalent measure to comply 
with the flowline/intra-facility gathering line maintenance 
requirements in accordance with Sec.  112.7(a)(2).
    No new or compelling information or data was provided by comments 
that support modification of the provision. Based on this and review of 
all relevant facts, the Agency is making no change to this provision.
(iii) Requirements for a Flowline and Intra-Facility Gathering Line 
Maintenance Program
    In the December 2008 amendments, EPA revised the requirement for an 
owner or operator to prepare and implement a written flowline and 
intra-facility gathering line maintenance program under Sec.  
112.9(d)(4) to add specificity to the existing provision. This 
provision specifies that the requirements apply to non-transportation-
related intra-facility gathering lines, as well as to flowlines at an 
oil production facility. Intra-facility gathering lines pose the same 
potential for discharge as flowlines. EPA never intended to regulate 
the two types of piping differently. In response to industry concerns, 
EPA has established requirements to add specificity to the existing 
flowline/intra-facility gathering line maintenance program provision, 
because there are no industry standards for maintenance of this 
equipment. 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. Finally, EPA believes that it 
is appropriate to establish a minimum set of requirements for a 
flowline and intra-facility gathering line maintenance program in order 
to facilitate consistent compliance. Under the amended provisions, a 
maintenance program must address procedures to:
     Ensure that such 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.
     Visually inspect and/or test flowlines and intra-facility 
gathering lines and associated appurtenances on a

[[Page 58795]]

periodic and regular schedule for leaks, oil discharges, corrosion, or 
other conditions that could lead to a discharge as described in Sec.  
112.1(b). The frequency and type of testing must allow for the 
implementation of a contingency plan, as described under part 109 of 
this chapter, if there is no secondary containment.
     Take corrective action or make repairs to any flowlines 
and intra-facility gathering lines and associated appurtenances as 
indicated by regularly scheduled visual inspections, tests, or evidence 
of a discharge.
     Promptly remove or initiate actions to stabilize and 
remediate any accumulations of oil discharges associated with 
flowlines, intra-facility gathering lines, and associated 
appurtenances.
    The Agency concludes that if the requirement for general secondary 
containment for these lines is eliminated, then some minimal 
prescriptive requirements for discharge prevention to ensure the 
integrity of the primary containment of the pipe itself are 
appropriate. However, the facility owner or operator may deviate from 
the flowline and intra-facility gathering line maintenance program 
requirements if an environmentally equivalent alternative measure is 
implemented in accordance with Sec.  112.7(a)(2). 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. An effective flowline and intra-facility gathering line maintenance 
program includes timely detection of an oil discharge so that response 
operations described in the contingency plan may be implemented 
effectively. See Section V.M.4.d of the December 5, 2008 notice at 73 
FR 74276 for more information about this amendment.
    A comment suggested that the amended requirements for a flowline 
and intra-facility gathering line maintenance program are excessive. 
The Agency disagrees. As noted previously, if the requirement for 
general secondary containment is eliminated, then some minimal 
requirements that add specificity to the flowline and intra-facility 
gathering line maintenance program are appropriate, particularly since 
there are no industry standards for the maintenance of flowlines and 
intra-facility gathering lines. To the extent that an owner and 
operator of a facility cannot comply with this provision, he can 
deviate from these requirements if an environmentally equivalent 
alternative is implemented in accordance with Sec.  112.7(a)(2). No new 
or compelling information or data was provided in comments that would 
cause the Agency to change its position. Based on this and review of 
all relevant facts, the Agency is making no change to this provision.
e. Flow-Through Process Vessels
    EPA is making no changes to the following provisions related to 
flow-through process vessels.
(i) Exemption From Sized Secondary Containment for Flow-Through Process 
Vessels
    Flow-through process vessels, such as horizontal or vertical 
separation vessels (for example, a heater-treater, free-water knockout, 
gun-barrel, etc.) have the primary purpose of separating the oil from 
other fractions (water and/or gas) and sending the separated fluid 
streams to the appropriate container. In the December 2008 amendments, 
EPA revised the requirements in Sec.  112.9(c)(2) to remove the 
requirement to provide sized secondary containment for flow-through 
process vessels at oil production facilities without making an 
impracticability determination, and to allow the facility owner or 
operator the option to comply with the alternate requirements in Sec.  
112.9(c)(5) instead (see Section ii, below).
    EPA agrees with concerns regarding the impracticability of 
providing sized secondary containment around certain flow-through 
process vessels at production facilities. EPA also recognizes that 
similar flow-through process equipment at non-production facilities are 
not subject to the more stringent sized secondary containment and 
inspection requirements for bulk storage containers; only the general 
secondary containment requirements at Sec.  112.7(c) apply. However, 
due to the unattended (and in some cases remote) nature of oil 
production operations, EPA concluded that it was appropriate to require 
additional measures in lieu of sized secondary containment for this 
equipment. Thus, in the December 2008 amendments, EPA provided an 
alternative compliance option to address these concerns.
    It is important to note that although the Agency provided an option 
that allows the owner and operator to not provide sized secondary 
containment for flow-through process vessels at oil production 
facilities, the general secondary containment requirement of Sec.  
112.7(c) still applies to these vessels. See Section V.M.5.a of the 
December 5, 2008 notice at 73 FR 74277 for more information about this 
amendment.
    EPA agrees with comments supporting the provision to exempt flow-
through process vessels from the sized secondary containment 
requirement. However, two comments suggested that any exemption from 
the secondary containment requirement for flow-through process vessels 
would cause a greater risk for discharges of harmful quantities of oil 
to reach navigable waters or adjoining shorelines. EPA agrees that some 
form of secondary containment is required for these vessels. EPA also 
agrees that sized secondary containment is generally preferable to 
general secondary containment because these flow-through process 
vessels operate at unattended facilities and often at remote locations. 
However, there are instances where providing such sized secondary 
containment is not always practicable. To address this concern, EPA 
provided the owner or operator with a choice to comply with either the 
sized secondary containment requirements, or the general secondary 
containment requirements along with additional measures for inspection 
and corrective action. These compliance options allow the owner or 
operator to tailor the SPCC Plan to meet the facility's operational 
needs while maintaining environmental protection.
    No new or compelling information or data was provided in comments 
that supported modification of the provision. Based on this and review 
of all relevant facts, the Agency is making no change to this 
provision.
(ii) Additional Requirements in Lieu of Sized Secondary Containment for 
Flow-Through Process Vessels
    Oil production facilities are generally unattended. EPA recognizes 
that process equipment at other types of facilities is typically 
attended during hours of operation and there is a greater potential to 
immediately discover and correct a discharge. Therefore, in the 
December 2008 amendments, EPA required additional measures for flow-
through process vessels at oil production facilities that do not have 
sized secondary containment. EPA provided requirements in Sec.  
112.9(c)(5) that include the following: Periodic inspection and/or 
testing for leaks, corrosion, or other conditions that could lead to a 
discharge as described in Sec.  112.1(b); corrective action or repairs 
to flow-through process vessels and any associated components as 
indicated by regularly scheduled visual inspections, tests, or evidence 
of an oil discharge; and prompt removal or initiation of

[[Page 58796]]

actions to stabilize and remediate any accumulations of oil discharges 
associated with flow-through process vessels. See Section V.M.5.b of 
the December 5, 2008 notice at 73 FR 74278 for more information about 
this amendment.
    Comments generally supported the additional requirements in lieu of 
sized secondary containment for flow-through process vessels. One 
comment, however, suggested that the risk of discharge from flow-
through process vessels is so low that there should be no additional 
requirements. EPA disagrees with the comment because flow-through 
process vessels contain oil and therefore pose a potential threat of a 
discharge (e.g., failure of a dump valve). Additionally, this 
alternative compliance option removes the sized secondary containment 
specification for flow-through process vessels that are located at 
unmanned facilities, which are often remotely located, and constantly 
operating. Therefore, EPA has established alternative prevention 
measures along with the general secondary containment requirement in 
order to maintain environmental protection. However, the Agency 
provided the owner or operator with a choice to comply with either the 
sized secondary containment requirements, or the general secondary 
containment requirements along with the additional measures for 
inspection and corrective action. Based on this and review of all 
relevant facts, the Agency is making no change to this provision.
(iii) Reportable Discharge From Flow-Through Process Vessels
    In the December 2008 amendments, EPA finalized a provision to 
require that if an oil production facility owner or operator has a 
discharge as described in Sec.  112.9(c)(5)(iv) from a flow-through 
process vessel, then he must ensure that all flow-through process 
vessels using general secondary containment comply with the sized 
secondary containment requirements of Sec.  112.9(c)(2) and periodic 
inspection requirements of paragraph (c)(3) within six months of the 
discharge discovery. A discharge, as described in Sec.  
112.9(c)(5)(iv), is either a single discharge of more than 1,000 U.S. 
gallons of oil or two discharges within any twelve month period, each 
of more than 42 U.S. gallons of oil. The amount of oil specified in 
this criterion refers to the amount of the discharge that actually 
reaches navigable waters or adjoining shorelines, not the total amount 
of the discharge released from the container. Owners and operators do 
not need to include the amount of oil discharges that are the result of 
natural disasters, acts of war, or terrorism when evaluating this 
criterion. See Section V.M.5.c of the December 5, 2008 notice at 73 FR 
74279 for more information about this amendment.
    No comments specific to reportable discharges from flow-through 
process vessels were received in the 2009 comment period. Based on this 
and review of all relevant facts, the Agency is making no change to 
this provision.
f. Alternative Compliance Measures for Produced Water Containers
    Produced water containers are typically located within a tank 
battery at an oil production facility where they are used to store well 
fluids that result after marketable crude oil is separated from the 
fluids extracted from the reservoir and prior to disposal, subsequent 
use (e.g., re-injection or beneficial reuse), or further treatment. 
Under normal operating conditions, a layer of oil may be present on top 
of the fluids in these produced water containers. The amount of oil by 
volume observed in produced water containers varies, but based on EPA's 
understanding, is generally estimated to range from less than one to up 
to ten percent, and can be greater. These produced water containers are 
typically at the end of the oil treatment process and often accumulate 
emulsified oil not captured in the separation process.\4\
---------------------------------------------------------------------------

    \4\ Considerations for the Regulation of Onshore Oil Exploration 
and Production Facilities Under the Spill Prevention, Control, and 
Countermeasure Regulation (40 CFR part 112)) found in the docket for 
this rulemaking at EPA-HQ-OPA-2007-0584-0015; and Supplemental DOE 
Information Relating to Oil and Gas Industry Relief from Some SPCC 
Requirements, found in the docket for this rulemaking at EPA-HQ-OPA-
2007-0584-0175.
---------------------------------------------------------------------------

    In the December 5, 2008 SPCC rule amendments, EPA adopted two 
alternatives for produced water containers at oil production 
facilities. Under the first alternative, EPA exempted produced water 
containers at oil production facilities from the requirements of the 
SPCC rule if a PE certified, as part of the SPCC Plan, that the 
contents of a produced water container, if completely discharged, would 
not contain oil in amounts that may be harmful (as described in 40 CFR 
part 110) based on the efficiency of the oil/water separation 
technology used. Under this alternative, the capacity of the exempted 
containers would not count towards the facility aggregate oil storage 
capacity. EPA is removing this exemption. See the discussion in section 
V.C.3 of this notice.
    For those produced water containers that were not eligible for the 
exemption, the facility owner/operator could comply with the general 
secondary containment requirements in lieu of sized secondary 
containment and conduct visual inspections, maintenance and corrective 
action, if a PE described in the SPCC Plan and certified that a 
practice was established that was designed to remove the amount of 
free-phase oil from the produced water container on a scheduled and 
routine basis. These containers would count toward the aggregate oil 
storage capacity. If the production facility had certain types of oil 
discharges or failed to meet the requirements of this part of the rule, 
the facility would no longer be eligible for the exemption or the 
streamlined requirements. EPA also promulgated a definition of produced 
water container to clarify which containers were eligible for these 
rule provisions.
    In this action, EPA is not making any changes to the definition of 
produced water container in Sec.  112.2 or the alternative compliance 
measures for produced water containers in lieu of sized secondary 
containment as finalized in the December 5, 2008 notice. The 
alternative measures to sized secondary containment requirements and 
inspections under Sec.  112.9(c)(2) and (c)(3) for produced water 
containers include: compliance with general secondary containment 
requirements; implementation of a procedure or process to remove free-
phase oil (e.g., skimming program) as certified by a PE; visual 
inspection; corrective action or repairs to the container; and prompt 
removal or remediation of oil discharges.
    EPA acknowledges comments that expressed general support for, as 
well as opposition to, the alternatives for produced water containers 
finalized in the December 2008 notice (73 FR 74236, December 5, 2008). 
Good general secondary containment practices can be successfully 
implemented in lieu of sized secondary containment, if such practices 
are designed by a PE in consideration of site-specific factors and in 
combination with additional oil spill prevention practices including 
inspections, procedures to minimize the amount of free-phase oil in the 
container, and procedures to remove/remediate discharged oil. The 
Agency acknowledges that skimming operations at produced water 
containers may operate similarly to separation operations at flow-
through process vessels when free phase oil is being removed or 
recovered from them on a regular basis. Therefore, including the 
additional compliance measures for produced water containers with 
procedures to minimize the amount of

[[Page 58797]]

free-phase oil, including remediation and inspections, is appropriate 
and consistent with alternative compliance options provided for other 
bulk storage containers (i.e., flow-through process vessels) which 
separate oil and water mixtures. As with flow-through process vessels 
at oil production facilities, EPA remains concerned that these produced 
water containers are typically located at unattended, often remote 
facilities, and therefore has retained the additional provisions for 
maintenance, inspection, and remediation to maintain environmental 
protection. The Agency agrees with comments that expressed concern 
regarding the threat of discharges from produced water containers. Oil 
may be present not only in free phase, but also in other forms, such as 
in a dissolved phase, emulsion or sludge at the bottom of the produced 
water container. EPA is addressing these concerns by retaining the 
additional spill prevention measures in addition to general secondary 
containment for these containers.
    A comment noted that it is common practice to locate produced water 
bulk storage containers with other bulk storage containers in the tank 
battery surrounded by sized secondary containment. EPA agrees that some 
oil production facilities already provide sized secondary containment 
around their bulk storage containers, including around their produced 
water containers. Engineered secondary containment measures, such as 
dikes or berms, are particularly appropriate for oil production 
facilities (including produced water containers) since these facilities 
can be remotely located and are often unattended, and thus there may be 
delays in detecting and mitigating an oil spill. In fact, the data 
referenced in comments show that a number of spills from produced water 
containers were specifically contained by a sized secondary containment 
berm or other man-made structure which prevented the migration of the 
fluids offsite and to waters. Therefore, the alternative measures for 
produced water containers under Sec.  112.9(c)(6) are optional. An 
owner or operator may choose to comply with the sized secondary 
containment requirements in Sec.  112.9(c)(2) along with the inspection 
requirements in Sec.  112.9(c)(3). However, because the alternative 
removal procedure is essential for reducing the amount of free-phase 
oil in the produced water container, if it is not implemented as 
described in the Plan or no records are maintained, then the owner/
operator must comply with Sec.  112.9(c)(2) and (c)(3).
    Additionally, if the facility experiences a discharge of more than 
1,000 U.S. gallons of oil in a single discharge as described in Sec.  
112.1(b), or discharges more than 42 U.S. gallons of oil in each of two 
discharges as described in Sec.  112.1(b), occurring within any twelve 
month period (excluding discharges that are the result of natural 
disasters, acts of war, or terrorism) from a produced water container, 
then the facility owner or operator may no longer take advantage of 
this alternative option and must comply with the sized secondary 
containment requirements at Sec.  112.9(c)(2) and the inspection 
requirements at Sec.  112.9(c)(3) within six months. Section 
112.9(c)(6)(v) has been retained to provide this requirement. As stated 
in the December 2008 amendments, a produced water container must 
already comply with Sec.  112.9(c)(1) and Sec.  112.9(c)(4) and 
therefore these requirements were not added to Sec.  112.9(c)(6)(v). 
See Section V.M.7.b of the December 5, 2008 notice at 73 FR 74287 for 
more information about this amendment.
    Based on this and review of all relevant facts, the Agency is 
making no change to this provision or to the definition of produced 
water container.
g. Clarification of the Definition of Permanently Closed Containers
    In the preamble to the December 2008 amendments, the Agency 
addressed concerns expressed by the regulated community over the 
requirements for permanently closing a container, as described in the 
definition of ``permanently closed'' at Sec.  112.2. There, EPA 
clarified that the permanent closure requirements under the SPCC rule 
are separate and distinct from the closure requirements in regulations 
promulgated under Subtitle C of the Resource Conservation and Recovery 
Act (RCRA). Consequently, an oil production facility does not have to 
undergo the expense of permanent closure under 40 CFR part 264 or 265 
of RCRA, because the drilling fluids, produced waters, and other wastes 
associated with the exploration, development, or production of crude 
oil are not subject to those regulations. See Section V.M.8 of the 
December 5, 2008 notice at 73 FR 74290 for the full text of this 
preamble clarification.
    No comments were received in the 2009 comment period addressing the 
clarifying language and therefore, EPA maintains its position on this 
clarification.
14. Man-Made Structures
    In the preamble to the December 2008 amendments, EPA clarified 
that, consistent with statements made in the preamble to a 1976 
amendment to the SPCC rule (41 FR 34164, December 11, 1976), manmade 
features, such as drainage control structures and dikes, cannot be used 
to conclude that there is no reasonable expectation that a discharge 
from the facility will reach navigable waters or adjoining shorelines. 
That is, if there is a reasonable expectation that a discharge from the 
facility would reach navigable waters or adjoining shorelines in the 
absence of such containment or other structures, the facility is 
subject to the SPCC requirements. However, EPA noted that it may be 
appropriate for a facility owner or operator to consider man-made 
structures (for example, dikes, equipment, buildings, basements or 
other containment structures) to determine how to comply with the SPCC 
rule. See Section V.N of the December 5, 2008 notice at 73 FR 74292 for 
the full text of this preamble clarification.
    EPA agrees with the comment that generally supported the 
clarifications on man-made structures. Based on this and review of all 
relevant facts, the Agency is making no change to this clarification.
15. Wind Turbines
    In the preamble to the December 2008 amendments, EPA clarified that 
wind turbines meet the definition of oil-filled operational equipment 
adopted in the December 2006 SPCC rule amendments (71 FR 77266, 
December 26, 2006). Thus, the alternative compliance option provided 
for this type of equipment in Sec.  112.7(k) is available for wind 
turbines, to the extent that the wind turbines meet the oil storage 
capacity threshold in the rule. The amendments to the SPCC rule 
promulgated in December 2006 allow owners and operators of facilities 
with qualified oil-filled operational equipment the option of preparing 
an oil spill contingency plan and a written commitment of manpower, 
equipment, and materials to expeditiously control and remove any oil 
discharged that may be harmful without having to make an individual 
impracticability determination as required in Sec.  112.7(d). If an 
owner or operator chooses this option, he is also required to establish 
and document an inspection or monitoring program for this qualified 
oil-filled operational equipment to detect equipment failure and/or a 
discharge in lieu of providing secondary containment. See Section V.P 
of the December 5, 2008 notice at 73 FR 74294 for the full text of this 
preamble clarification.
    No comments were received in the 2009 comment period on the

[[Page 58798]]

clarification and therefore, EPA maintains its position.
16. Technical Corrections
    In the December 2008 amendments, EPA corrected the text of the 
introductory paragraph of Sec.  112.3 to move the phrase ``in writing'' 
after ``must prepare'' and then insert the phrase ``and implement'' 
after the phrase ``in writing,'' in order to make it explicit that a 
facility owner or operator must prepare and implement an SPCC Plan.
    EPA also amended the introductory paragraph of Sec.  112.12 to 
delete the phrase ``(excluding a production facility).'' This amendment 
corrected an inadvertent omission when EPA removed several sections in 
Subpart C of 40 CFR part 112 that were inappropriate for AFVOs in the 
December 2006 amendments to the SPCC rule (71 FR 77266, December 26, 
2006).
    Finally, the Agency amended the regulation to include ``U.S.'' 
before gallons in several places, to indicate that the Agency means the 
U.S. gallon unit of measure and not the Imperial unit of measure. See 
Section V.Q of the December 5, 2008 notice at 73 FR 74294 for more 
information about these technical corrections.
    Comments generally supported the technical corrections. Based on 
this and review of all relevant facts, the Agency is making no change 
to these provisions.

B. Technical Corrections to Provisions of the December 2008 Amendments

    EPA is correcting the text of several of the provisions promulgated 
on December 5, 2008. These corrections further clarify or update the 
provisions of the December 2008 amendments without making substantive 
changes to the regulatory requirements.
1. Tier I Qualified Facilities and Appendix G Plan Template
    As required in the December 2008 amendments, a Tier I qualified 
facility must meet all of the eligibility criteria for qualified 
facilities promulgated by EPA in December 2006 (71 FR 77266, December 
26, 2006), as well as not have any aboveground oil storage container 
with a capacity greater than 5,000 U.S. gallons. EPA developed this 
individual container capacity criterion in order to link any 
streamlined requirements with a reduced potential for oil discharge. 
The selection of the maximum individual aboveground container capacity 
threshold of 5,000 U.S. gallons is consistent with the applicable 
industry consensus standard that calls for varying levels of inspection 
requirements based on container size and configuration.
    EPA designated qualified facilities that have an individual 
aboveground oil storage container with a capacity greater than 5,000 
U.S. gallons as Tier II qualified facilities. Although the organization 
of the regulatory text in Sec.  112.6 was modified to accommodate the 
tiered approach, the requirements for Tier II qualified facilities 
remained the same as promulgated on December 26, 2006 (71 FR 77266).
    The December 2008 amendments eliminated and/or modified several 
SPCC requirements for Tier I qualified facilities. For example, the 
facility diagram requirements (Sec.  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 at 
loading racks (Sec.  112.7(h)) were removed. The list of applicable 
rule provisions for Tier I qualified facilities is included in Sec.  
112.6(a)(3).
    The Tier I self-certification requirement is similar in scope to 
that required for an owner or operator of a Tier II qualified facility 
who chooses to self-certify an SPCC Plan (as promulgated in December 
2006, 71 FR 77266). Consistent with the current requirement for 
qualified facilities, the owner or operator of a Tier I qualified 
facility is also allowed to self-certify any technical amendments to 
the Plan under Sec.  112.6(a)(2), and document this certification in 
the Plan template (or some other equivalent Plan).
    The December 2008 amendments provided the owner or operator of a 
Tier I qualified facility with the option to complete a self-certified 
SPCC Plan template (found in Appendix G to 40 CFR part 112) in lieu of 
a full SPCC Plan. The owner or operator can complete the SPCC Plan 
template, which is comprised of a set of streamlined SPCC rule 
requirements, and implement those streamlined requirements, to comply 
with the SPCC regulation. The SPCC Plan template for Tier I qualified 
facilities is intended to facilitate the development of SPCC Plans at 
Tier I qualified facilities. Once completed and certified by the owner 
or operator, the Plan template serves as the SPCC Plan for the 
facility. As for any facility subject to the SPCC rule, the owner or 
operator must maintain a written copy of the Plan--which in this case 
would be the completed and self-certified SPCC Plan template--at the 
facility or at the nearest field office if the facility is attended 
less than four hours per day (Sec.  112.3(e)(1)).
    The Agency 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 following all of the requirements of Sec.  
112.6(b) (for a Tier II qualified facility) in order to comply with the 
requirements under 40 CFR part 112. See Section V.G of the December 5, 
2008 notice at 73 FR 74256 for more information about these technical 
corrections.
    EPA is now further clarifying the earlier amendments, as well as 
correcting typographical and formatting errors in the following 
sections of the Appendix G SPCC Plan Template:
     Introduction--in the second sentence, the term ``meet'' 
was replaced by ``addresses'' for clarity; and a sentence was added to 
clarify that an owner or operator should follow State and local 
requirements (such as for permitting, design and construction) and 
obtain professional assistance, as appropriate;
     Section I, Self-Certification Statement (Sec.  
112.6(a)(1))--points 3c and 3d are combined and edited for increased 
clarity. The phrase ``By completing this Plan template'' was removed 
because this text is unnecessary; with this revision, EPA clarifies 
that completing the template represents the preparation of a Plan, but 
not its implementation.
     Section II, Record of Plan Review and Amendments. In the 
Five Year Review (Sec.  112.5(b)) paragraph, EPA inserted the term 
``SPCC Plan'' for clarity.
     Table G-2 Oil Storage Containers and Capacities--In the 
footnote to the table, EPA inserted the word applicability to the 
phrase ``qualified facility applicability threshold'' for clarity.
     Table G-3 Secondary Containment and Oil Spill Control--EPA 
added the phrase ``cleanup occurs'' which was unintentionally not 
printed in the Federal Register notice for the December 2008 
amendments;
     Table G-5 Inspections, Testing, Recordkeeping and 
Personnel Training--EPA added the word ``bulk'' to clarify that this 
provision only applies to aboveground bulk storage containers; added 
citations that were inadvertently omitted; corrected typographical 
errors; and removed an unnecessary blank row;
     Section A, Onshore Facilities (excluding production) 
(112.8(b) through (d). 112.12(b) through (d)). The title of this 
section was amended to correct a typographical error.
     Table G-10 General Rule Requirements for Onshore 
Facilities--

[[Page 58799]]

EPA added the requirement for manual activation of pumps or ejectors 
and inspection of accumulations prior to discharge, a rule requirement 
that was unintentionally omitted from this Table; fixed typographical 
errors; added the word ``bulk'' to clarify that certain provisions only 
apply to aboveground bulk storage containers; and defined the table 
border;
     Table G-11 General Rule Requirements for Onshore Oil 
Production Facilities--EPA defined the table border;
     Table G-15 Checklist of Development and Implementation 
Criteria for State, Local and Regional Oil Removal Contingency Plans 
(Sec.  109.5)--EPA removed inappropriate checkboxes and reformatted the 
table to be consistent with the other tables in Appendix G; and
     Table G-20 Information provided to the National Response 
Center in the Event of a Discharge--EPA deleted an unnecessary blank 
row.
    Additionally, EPA is providing technical corrections in Sec.  112.6 
and Appendix G to amend the self-certification requirements that refer 
to produced water containers, as discussed further in Section A.13.f 
and C.3 of this notice. EPA is also adding extra space in many of the 
tables and formatting them so that each table begins on a new page.
    EPA's amendments to the SPCC rule will have no effect on whether a 
facility owner or operator must use a PE to meet the State or local 
requirements, because the SPCC rule does not pre-empt any State or 
local requirements. In States where the engineer licensing boards have 
prohibited SPCC Plan self-certification, the owner or operator must 
have a PE certify the Plan. Although this may limit the relief for Tier 
II qualified facilities, the owner/operator can develop and certify a 
Tier I qualified facility Plan to comply with the SPCC rule and have a 
PE certify the SPCC Plan to meet the state requirements.
2. Underground Emergency Diesel Generator Tanks at Nuclear Power 
Stations
    In the December 2008 amendments, EPA exempted from SPCC 
applicability underground oil storage tanks deferred from regulation 
under 40 CFR part 280, as originally promulgated, that supply emergency 
diesel generators at nuclear power generation facilities licensed by 
the Nuclear Regulatory Commission (NRC) and that meet the NRC design 
criteria and quality assurance criteria. EPA amended Sec.  
112.1(d)(2)(i) and Sec.  112.1(d)(4) to include an exemption applicable 
to both tanks that are completely buried and tanks that are below-grade 
and vaulted. Under NRC regulations, a nuclear power generation facility 
must meet certain design criteria to ensure that the plant will be 
operated in a manner protective of the public's health and safety, 
including a requirement to provide redundant standby power systems (see 
10 CFR part 50, Appendix A). These NRC design criteria cover the 
design, fabrication, installation, testing and operation of structures, 
systems and components important to safety. NRC Regulatory Guide 1.137 
describes an acceptable method to comply with NRC requirements 
regarding fuel oil systems for standby diesel generators and assurance 
of adequate fuel-oil quality. See Section V. O. of the December 5, 2008 
notice at 73 FR 74293 for more information.
    The Agency agrees with comments supporting the exemption for 
emergency diesel generator tanks at nuclear power stations. EPA has 
further amended Sec.  112.1(d)(4) to clarify that this exemption 
applies to ``any underground oil storage tanks including below-grade 
vaulted tanks, deferred under 40 CFR part 280, as originally 
promulgated, that supply emergency diesel generators at a nuclear power 
generation facility licensed by the Nuclear Regulatory Commission, 
provided that such a tank is subject to any Nuclear Regulatory 
Commission provision regarding design and quality criteria, including 
but not limited to, 10 CFR part 50.'' (Emphasis added to show modified 
wording.) EPA has concluded that this revision makes this provision 
easier to understand. EPA has also amended Sec.  112.1(d)(2)(i) to 
include the phrase ``including but'' before ``not limited to 10 CFR 
part 50'' for consistency.
3. SPCC Plan Preparation and Implementation for New Oil Production 
Facilities
    The variables associated with the start of operations and the 
employment of green completion techniques at new oil production 
facilities could lead to significant changes in necessary storage 
capacity and facility design. In the December 2008 amendments, 
therefore, EPA finalized an amendment to allow a new oil production 
facility a period of six months after the start of operations to 
prepare and implement an SPCC Plan. EPA excluded oil production 
facilities from the current requirements at Sec.  112.3(b)(1), and 
added a new paragraph at Sec.  112.3(b)(3) to require the owner or 
operator of a new oil production facility to prepare and implement an 
SPCC Plan six months after the start of operations. See Section V.M.3 
of the December 5, 2008 notice at 73 FR 74272 for more information 
about this amendment.
    This provision does not apply to drilling or workover activities at 
existing oil production facilities. Drilling and workover operations 
are subject to the requirements at Sec.  112.3(c) for mobile 
facilities, and facility owners or operators may implement a general 
SPCC Plan. This provision also does not apply to an existing oil 
production facility in which a new well is drilled, and added to the 
existing tank battery/facility. In this case, the facility owner or 
operator must amend the SPCC Plan in accordance with Sec.  112.5(a), 
which requires the Plan to be amended within six months of the facility 
change, and implemented within six months of the amendment.
    EPA agrees with comments supporting the provision to allow new oil 
production facilities six months to prepare and implement a Plan. On 
June 19, 2009 (74 FR 29136), EPA amended the compliance date for the 
amended SPCC rule to November 10, 2010. When the December 2008 
amendments were promulgated, the provision applied at a new oil 
production facility that began operations after July 1, 2009, which was 
the applicable compliance date. In this action, EPA is making a 
technical correction to change the compliance date to November 10, 
2010, to align with the current SPCC Plan preparation and 
implementation compliance date for all other facilities.
4. Compliance Date Provisions Specific to Farms
    EPA is removing the paragraphs in Sec.  112.3 specific to farms 
(the current Sec.  112.3(a)(2) and (b)(2)) because on June 19, 2009 EPA 
established the same the compliance dates for farms as for all other 
facilities (74 FR 29136); such differentiated provisions are no longer 
necessary.
    This amendment does not remove any regulatory requirement for 
owners or operators of facilities, including farms, in operation before 
August 16, 2002, to develop, implement and maintain an SPCC Plan in 
accordance with the SPCC regulations then in effect. Such facility 
owners and operators continue to be required to maintain (that is, keep 
on-site and implement) their Plans during the interim until the 
November 10, 2010 date for revising and implementing their Plans under 
the new amendments.

C. Provisions Removed From Final Rule

    After review of comments received and consideration of all relevant 
facts, EPA is removing three of the provisions promulgated on December 
5, 2008.

[[Page 58800]]

These are described in the section below.
1. Exclusions for Oil Production Facilities and Farms From Loading/
Unloading Rack Requirements
    In the December 2008 amendments, EPA specifically excluded onshore 
oil production facilities and farms from the loading/unloading rack 
requirements at Sec.  112.7(h). This is because the Agency believed, 
and comments supported, that loading and unloading racks are not 
typically associated with these types of facilities. See Section V.F.3 
of the December 5, 2008 notice at 73 FR 74251 for more information 
about this amendment.
    Based on review of comments and consideration of all relevant 
facts, EPA is removing the specific exclusion for farms and oil 
production facilities from the loading/unloading rack requirements of 
Sec.  112.7(h). Thus, EPA agrees with comments received on this 
amendment stating that certain facilities (i.e., farms and oil 
production facilities) should not be treated differently than other 
facilities, even if loading/unloading racks are not typically 
associated with these types of facilities. In particular, the new 
definition for loading/unloading rack (finalized in December 2008 at 
Sec.  112.2) clarifies the type of equipment that is subject to the 
requirements at Sec.  112.7(h), eliminating the uncertainty that may 
have existed at farms and oil production facilities. For facilities 
(including farms and oil production facilities) that do not have a 
loading/unloading rack as defined in Sec.  112.2, the provisions at 
Sec.  112.7(h) do not apply; therefore, a specific exclusion for 
facilities based on the assumption that they do not have loading/
unloading racks is unnecessary.
    EPA does not believe there is any basis to specifically exclude 
loading/unloading racks from the requirements at Sec.  112.7(h) simply 
because they are not typically associated at a facility within a 
specific industry sector.
2. Alternative Qualified Facility Eligibility Criteria for an Oil 
Production Facility
    In the December 2008 amendments, EPA finalized a provision that 
provided alternative criteria to identify qualified facilities in the 
onshore oil production sector. The alternative qualified facility 
eligibility criteria for an oil production facility were: (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 Sec.  112.1(b) exceeding 
1,000 U.S. gallons or two discharges as described in Sec.  112.1(b) 
each exceeding 42 U.S. gallons within any twelve month period in the 
three years prior to Plan certification, or since becoming subject to 
40 CFR part 112 if the facility has been in operation for less than 
three years. EPA developed these alternative criteria because most oil 
production facilities would not be eligible as Tier I or Tier II 
qualified facilities that would allow them the option to self-certify 
their SPCC Plans because they generally exceed the maximum oil storage 
capacity criterion.
    In this action, EPA is removing the alternative qualified facility 
eligibility criteria provision for oil production facilities in the 
December 2008 amendments (as described in Section V.M.6, 73 FR 74280) 
by amending Sec.  112.3 to remove (g)(2)(i) and (ii), and revising 
(g)(2). Paragraph 112.3(g)(2) is amended to state that: ``A Tier II 
qualified facility is one that has had no single discharge as described 
in Sec.  112.1(b) exceeding 1,000 U.S. gallons or no two discharges as 
described in Sec.  112.1(b) each exceeding 42 U.S. gallons within any 
twelve month period in the three years prior to the SPCC Plan self-
certification date, or since becoming subject to this part if the 
facility has been in operation for less than three years (other than 
discharges as described in Sec.  112.1(b) that are the result of 
natural disasters, acts of war, or terrorism), and has an aggregate 
aboveground oil storage capacity of 10,000 U.S. gallons or less.''
    EPA is taking this action based on review of all comments received, 
including those comments that raised serious questions with this 
specific exclusion and consideration of all relevant facts. In 
particular, the Agency has reconsidered its decision and concluded that 
the alternative qualified facility eligibility criteria for onshore oil 
production facilities will not effectively protect the environment from 
discharges of oil in quantities that may be harmful. The Agency also 
believes a PE should be involved in the development and certification 
of an SPCC Plan, unless the oil production facility is eligible to 
self-certify their Plans based on the qualified facilities criteria 
finalized in December 2006, because they typically have complex 
equipment and store large quantities of oil. These facilities are of 
further concern because they typically have operations in which oil 
flows continuously in unattended, remote locations and therefore pose 
an environmental threat.
    Allowing unrestricted oil storage capacity undermines the existing 
qualified facility eligibility criteria and may pose an environmental 
risk. Many small oil production facilities produce low quantities of 
oil on a daily basis. EPA intended to provide these small oil 
production facilities an alternative approach to the existing 10,000 
U.S. gallon aggregate aboveground oil storage capacity qualified 
facility eligibility criteria. The qualified facility eligibility 
criterion limits the oil storage capacity, restricting this option to 
only those facilities with a smaller discharge potential. Although a 
small oil production facility produces low quantities of oil on a daily 
basis, the Agency recognizes that the accumulated quantity stored can 
far exceed 10,000 U.S. gallons. Consequently, the Agency has determined 
that the alternative qualified facility eligibility criteria for oil 
production facilities are not as protective of the environment as the 
qualified facility criteria promulgated on December 26, 2006 (71 FR 
77266).
    Based upon EPA's understanding of the particular aboveground oil 
storage container capacities and the nature of the fluids handled at 
certain small oil production facilities, the Agency has concluded that 
the criteria established in the December 2008 amendments specific for 
oil production facilities are not an appropriate basis to determine 
whether an owner or operator of such a facility is a ``qualified 
facility,'' and be eligible to self-certify his SPCC Plan. The 
alternative eligibility criteria in the December 2008 amendments for 
oil production facilities (73 FR 74236) do not serve to identify a 
qualified facility consistent with the approach promulgated in the 
December 26, 2006 amendments (71 FR 77266), which focused on facilities 
with small oil storage capacities.
    The ten barrels or fewer of oil per day production rate criterion 
was used in the December 2008 rulemaking because it is consistent with 
the definition of a ``stripper well,'' as codified under the CWA in 
1979 (see 40 CFR 435.60) and used by the Interstate Oil and Gas Compact 
Commission (IOGCC).\5\ These wells are often referred to as ``marginal 
wells.'' This criterion limits the total flowrate of oil at the 
facility, but it does not restrict the storage capacity. An oil 
production facility with only marginal wells may accumulate large 
amounts of oil in a relatively short period of time due to the large 
amount of oil and water

[[Page 58801]]

mixtures typically stored at stripper well facilities. Without a limit 
on storage capacity, the Agency is concerned this approach increases 
the likelihood that relatively high-volume facilities will self-certify 
their SPCC Plan without the spill prevention benefits afforded by PE 
review and certification. This may also lead to certain oil production 
facilities that could reasonably be expected to cause substantial harm 
to the environment, and therefore subject to FRP requirements under 40 
CFR 112.20, to potentially qualify to self-certify SPCC Plans under the 
alternative criteria.
---------------------------------------------------------------------------

    \5\ See Interstate Oil and Gas Compact Commission, 2006: 
``Marginal Wells: Fuels for Economic Growth'', p. 4 (defining 
``stripper wells'' as wells that produce 10 barrels of oil per day 
or less).
---------------------------------------------------------------------------

    Finally, the production rate criterion does not include the 
associated fluids, such as produced water, which typically contains 
oil. Marginal or stripper wells are often older and near the end of 
their production life. The fraction of produced water generated by each 
stripper well may be far greater than that generated by other producing 
wells and will likely require significant storage container capacity 
prior to re-injection or removal from the facility. The Agency agrees 
with the comment that stated there may be containers storing produced 
water and oil in large quantities (e.g., up to one million gallons) at 
oil production facilities qualifying under these alternative criteria. 
The Agency has determined that establishing a threshold for the 
production rate per well does not limit the amount of oil storage, 
including oils in associated fluids.
    The alternative qualified facility eligibility criteria for 
production facilities includes more complicated facilities that may 
pose a higher risk of oil discharge. EPA intended the alternative 
qualified facility criteria for oil production facilities to identify 
simple, uncomplicated operations consistent with the approach used for 
all other qualified facilities. EPA reconsidered the type and scale of 
operations and the equipment involved at those oil production 
facilities that may meet the alternative criteria, and concluded that 
they are generally more complex than the non-production facilities 
eligible under the qualified facility approach in the December 26, 2006 
amendments (71 FR 77266).
    Although there may be some similarities across oil production 
facilities, each is unique and tailored to address factors, such as the 
oil field, production rate, type of fluid, location on a platform or 
onshore, fluid viscosity, separation process, and type of water 
injection or disposal. Given these factors, an oil production 
facility's configuration and degree of complexity is variable, 
regardless of flow rate.
    EPA agrees with the comment that stated that a small production 
facility is not necessarily less complex than any other oil production 
facility. Small oil production operations often require the same 
equipment, including pumping well heads, pump jacks, flowlines, 
separators, heater-treaters, crude oil and produced water containers, 
fittings, headers, valves, electrical lines and electrical motors. 
Failure of any of this equipment may cause an oil discharge.
    In the December 2008 amendments, EPA finalized a criterion that 
allows the owner or operator of a facility with no more than two 
producing wells per single tank battery and an injection well the 
option to self-certify his SPCC Plan. After review of relevant facts 
and comments, the Agency now has concluded that an oil production 
facility with injection wells, regardless of the number of producing 
oil wells, is more complex than the intended simplicity inherent in the 
qualified facility eligibility criteria. An oil production facility 
with injection would have equipment in addition to that found in the 
tank battery. One or more injection wells are typically used to inject 
produced water underground for disposal or to enhance recovery of the 
oil. The underground injection process adds additional piping to the 
oil production facility design and layout. The injection well process 
typically consists of piping extending from a produced water container 
to the injection wellhead, valves, and pumps and may include tank level 
indicators, floats, flow controls, and actuators/switches. This 
additional equipment offers more opportunity for a potential oil 
discharge.
    By setting a maximum number of wells as part of the alternative 
eligibility criteria, the Agency intended to increase the likelihood 
these wells were co-located with the tank battery or in relatively 
close proximity. However, an oil production facility with up to four 
wells may have long flowlines. Flowlines and intra-facility gathering 
lines may extend for long distances to reach a tank battery, may cross 
or be located closer to a navigable waterway or adjoining shorelines 
than the tank battery, and often runs over land owned by an entity 
other than the owner or operator of the oil production facility. The 
Agency has concluded that the criterion that limits the number of wells 
does not necessarily restrict the lengths of these lines, particularly 
with the amendment to the definition of ``facility,'' which provides 
the owner or operator of the facility with flexibility in defining the 
oil production facility, such that a formal PE certification and 
review, particularly for the flowline and intra-facility gathering line 
maintenance program, at these facilities is likely appropriate. 
Furthermore, the Agency recognizes that because there is currently no 
industry standard for flowline maintenance, the need for a PE to 
develop a flowline and intra-facility gathering line maintenance 
program in accordance with good engineering practice is even more 
significant.
    As EPA stated in the preamble of the December 2006 final rule, 
facilities handling smaller amounts of oil are typically simpler in 
layout and operation. Most facilities with an oil storage capacity of 
10,000 gallons or less are in industrial sectors that are end consumers 
of oil (i.e., farms, real estate, rental and leasing, retail trade, 
construction). These facilities generally tend to use oil on-site for 
heating purposes, or to fuel emergency power generators or heavy 
machinery. The configuration of the oil-related equipment tends to be 
relatively standard and simple. Oil is commonly stored in a few bulk 
storage containers which are often bought off-the-shelf from a tank 
manufacturer or installer (e.g., standard UL-142 tanks) and connected 
with few short lengths of piping (see December 26, 2006, 71 FR 77270). 
This is generally not the case at oil production facilities. Therefore, 
for the reasons discussed above, the alternative qualified facility 
criteria for oil production facilities finalized in the December 2008 
final rule did not achieve the result of limiting the eligibility to 
self-certify SPCC Plans to those facilities with simple configurations 
and operations.
    The volume of oil discharged from production facilities is 
increasing. As described in EPA's study of the oil production sector 
(found in the docket for this rulemaking at EPA-HQ-OPA-2007-0584-0015), 
there were 401,072 marginal oil wells (i.e., wells producing up to 10 
barrels per day) operating in 2005. The percent of marginal oil wells 
varies by State, from approximately 15 percent in South Dakota, to 100 
percent in several Appalachian and mid-Western States. While individual 
production rates may be small (an average of 2.2 barrels per day), 
marginal wells collectively represent a significant, and growing, share 
of U.S. oil production, due to the overall decline in domestic 
production, particularly from onshore fields. Again, as described in 
EPA's study of the oil production sector, according to the Department 
of Energy, as of 2005, about 19 percent of crude oil produced in the 
U.S. came from marginal wells. In the lower 48 States, marginal wells

[[Page 58802]]

represented approximately 30 percent of onshore oil production in 
2003.\6\
---------------------------------------------------------------------------

    \6\ Considerations for the Regulation of Onshore Oil Exploration 
and Production Facilities Under the Spill Prevention, Control, and 
Countermeasure Regulation (40 CFR part 112)) found in the docket for 
this rulemaking at EPA-HQ-OPA-2007-0584-0015, see page 9.
---------------------------------------------------------------------------

    The SPCC regulation is based on oil storage capacity and the 
potential for discharges of oil in quantities that may be harmful to 
navigable waters or adjoining shorelines. The Agency has concluded that 
small oil production facilities (i.e., those comprised of marginal 
wells) have and can continue to pose a threat of an oil discharge to 
navigable waters or adjoining shorelines. EPA has reviewed the spill 
data for the oil production sector contained in its 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 (40 CFR part 112)) 
found in the docket for this rulemaking at EPA-HQ-OPA-2007-0584-0015). 
While these data do not characterize the extent of environmental damage 
caused by oil discharges from small oil production facilities, they 
demonstrate that the volume of oil discharged from onshore oil 
production facilities are increasing, and the number of oil discharges 
on a yearly basis has remained the same, despite a decline in crude oil 
production. In addition, oil production facilities are often 
unattended, and typically located in remote areas, which potentially 
increases the risk of environmental damage from an oil discharge. 
Therefore, the combination of the potential for oil storage capacity 
greater than the 10,000 U.S. gallons threshold, identified risk factors 
and spill history leads EPA to conclude that these facilities need the 
benefit of PE review and certification of their SPCC Plans.
    Furthermore, information received by the Agency from other sources, 
which are summarized in the docket in EPA's ``Preliminary Assessment of 
SPCC Compliance Costs and Energy Impacts on Oil Production and 
Exploration'': Overall Conclusions and Response to Comments (EPA-HQ-
OPA-2007-0584-0173), indicate increased spill potential due to 
equipment failure as oil production equipment ages, particularly if 
maintenance has been inadequate. Much of the U.S. oil production 
infrastructure has been in place for decades. Marginal wells, in 
particular, are often older wells nearing the end of their production 
life, and may have older equipment that may be more prone to failure.
    EPA recognizes that several comments expressed general support for 
the alternative qualified facility eligibility criteria for an oil 
production facility. However, upon reconsideration of all relevant 
facts, including comments opposing the approach, EPA has decided for 
the reasons explained in detail above to remove the provisions related 
to alternative qualified facility eligibility criteria for an oil 
production facility in the final rule.
3. Exemption for Produced Water Containers
    In this action, EPA is amending or removing all rule elements 
associated with the exemption for produced water containers in the 
December 2008 amendments (Section V.M.7, 73 FR 74285) as described 
below:
     Amending Sec.  112.1 to remove paragraphs (d)(2)(ii)(F) 
and (d)(12);
     Amending Sec.  112.3 by removing paragraph (d)(1)(vi) and 
designating paragraph (d)(1)(vii) as (d)(1)(vi).
     Amending Sec.  112.5 by removing paragraphs (b) and (c), 
revising paragraph (d) to remove reference to deleted paragraphs, and 
redesignating paragraphs (d) and (e) as paragraphs (b) and (c);
     Amending Sec.  112.6 by revising paragraphs (a)(1)(vii), 
(b)(1)(vii), (b)(3)(iii), and (b)(4)(ii) to remove references to the 
produced water container exemption and associated appurtenances 
downstream from the container;
     Amending Sec.  112.7 by revising paragraph (a)(3) to 
remove reference to produced water containers;
     Amending Sec.  112.9 by revising paragraph Sec.  
112.9(c)(6); and
     Revising the reference to produced water containers in 
Appendix G--Tier I Qualified Facility SPCC Plan Template.
    EPA is taking this action after reviewing all of the relevant facts 
and all of the comments received on this issue for the October 2007 
proposed rule (72 FR 58378 October 15, 2007) and the December 2008 
amendments (73 FR 74236 and 74 FR 5900 February 3, 2009). Several 
comments expressed support for the exemption, with one comment arguing 
that regulation of produced water is outside the SPCC rule's 
jurisdiction. EPA also received comments that opposed the exemption for 
produced water containers. Based on this review, the Agency has 
determined that the exemption for produced water containers would not 
effectively protect the environment from discharges of quantities of 
oil that may be harmful. Comments submitted during the 2009 comment 
period also pointed out that the provisions for produced water 
containers were confusing and unnecessary, with one comment stating 
that the exemption lacked a supportable rationale. Other comments noted 
that discharges from produced water containers contain oil, and 
discharges occur and can cause harm. These comments are discussed in 
more detail below.
    Containers with no oil are not subject to the SPCC rule. The Agency 
agrees with comments that a fluid containing no oil is not subject to 
the SPCC requirements. A container that does not hold oil is not 
regulated under the SPCC rule; therefore, a specific exemption for 
produced water containers that holds no oil is unnecessary. However, 
EPA notes that generally, produced water containers may contain oil in 
sufficient quantity to cause a harmful discharge. In fact, the Agency 
received relatively little specific information on whether there are 
unique characteristics to differentiate produced water containers from 
other bulk storage containers found at onshore oil production 
facilities, and none that warrant differentiated treatment.
    Produced water containers typically contain oil. Several comments 
expressed support for an exemption of produced water containers from 
SPCC regulation. These comments stated that produced water containers 
should not be subject to the rule. Most of the comments received, 
however, focused on the composition of the produced water mixture and 
noted that produced water generally contains varying quantities of oil. 
While none of the comments offered detailed information on the amount 
of free-phase oil measured in produced water containers as requested by 
EPA, they generally confirm that the presence of oil in produced water 
is not exceptional, but rather can be expected as a matter of regular 
operations at oil production facilities. Oil may be recovered even 
after the produced water has undergone several separations at the 
onshore production facility, prior to reinjection of the produced water 
into the geological formation. Comments point out that produced water 
containers have an oil layer floating on top of the water. One comment 
indicated that produced water contains about 0.1 percent oil, but did 
not indicate whether this fraction represents oil dissolved or 
suspended in the produced water mixture and whether produced water 
containers may accumulate additional oil as a free-phase layer. 
Information received by the Agency from other sources, which are 
summarized in the docket (EPA-HQ-OPA-2007-0584-0015 and EPA-HQ-OPA-
2007-0584-0175), indicates that

[[Page 58803]]

while the fraction of oil dissolved or suspended within the aqueous 
phase may be low, additional oil is often found as a free-phase layer 
floating at the surface of the produced water container. In the event 
of a discharge, the aqueous phase of the produced water mixture may 
serve to carry the oil farther overland and into waters than cases 
where crude oil alone is discharged.
    The Agency received no additional data on the efficiency of 
separators typically found at onshore oil production facilities or 
comments on how the separation efficiency may vary over time. The 
Agency agrees that residence time is a key factor in achieving 
separation of the crude oil from other well fluids. Many oil production 
facilities rely on gravitational separation and long retention times to 
separate and recover the crude oil. Based on information reviewed by 
the Agency, included in the docket to the rule, separation equipment 
found at onshore oil production facilities are not perfectly efficient 
at separating oil from the produced fluids and residual oil may remain 
with the produced water and further separate in quiescent conditions 
present in the produced water container. Furthermore, separation 
equipment likely becomes less efficient with age and use, thus allowing 
more oil into a produced water container. It is therefore not 
exceptional for a layer of oil to accumulate in a produced water 
container.
    In some cases, produced water containers are used as part of the 
separation process. In the preamble to the December 2008 amendments, 
EPA suggested that produced water containers may be similar to flow 
through-process equipment when they are used as separators (71 FR 
74288, December 5, 2008). However, one comment pointed out that 
produced water containers are typically atmospheric storage tanks, 
whereas, process vessels have a pressure rating above atmospheric. EPA 
agrees with the comment and acknowledges that produced water containers 
are typically used as storage containers at the end of the separation 
process. Produced water containers are bulk storage containers and, 
therefore, are subject to the bulk storage container requirements under 
Sec.  112.9(c). However, the Agency acknowledges that owners and 
operators of these containers may use a process to remove free-phase 
oil on a regular basis. To address this, the Agency is retaining the 
option for owners and operators of produced water containers to comply 
with alternative measures in lieu of sized secondary containment when a 
PE describes in the Plan and certifies a procedure or process to remove 
free-phase oil (e.g., a skimming program) has been established and the 
facility complies with general secondary containment requirements; 
visual inspection; corrective action or repairs to the container; and 
prompt removal or remediation of oil discharges from produced water 
containers. For a further discussion of the alternative compliance 
option for produced water containers, see section V.A.13.f of this 
notice.
    Produced water containers are a source of oil discharges. EPA 
agrees with comments arguing that spill data shows that produced water 
containers are a source of oil discharges from onshore oil production 
facilities. The Agency's analysis of spill notification data compiled 
by the National Response Center (NRC) for the period of 2000 through 
2005, for example, identified 314 oil discharges described as having 
originated from tanks, including over a quarter specifically described 
as involving produced water containers, compared to 20 percent from 
crude oil stock tanks (the remaining 55 percent involved tanks holding 
unspecified fluids). The Agency believes that additional discharges may 
have been reported to State and local authorities.
    Produced water containers may be equally or even more likely to 
fail than other containers in the tank battery. Information reviewed by 
the Agency and presented in the public docket (EPA-HQ-OPA-2007-0584-
0015) showed corrosion as a common cause of oil and produced water 
discharges at onshore oil production facilities. The higher salt 
content of produced water fluids as compared to crude oil may lead to 
the increased corrosion rate of metallic components of the produced 
water storage system. The oil production process is configured to send 
continuously flowing and treated well fluids to the storage containers, 
with the produced water containers often located at the end of that 
process. The Agency's review of the circumstances of past oil 
discharges reported to the NRC shows that produced water containers 
often receive the additional well fluids when treatment equipment or 
appurtenances fail or when a pumper's scheduled visit is delayed, 
thereby increasing the amount of oil entering the produced water 
container and the probability that the tank will overflow, or otherwise 
discharge oil to navigable waters or adjoining shorelines.
    Discharges of produced water can cause harm. Produced water can 
cause harm to surface waters, flora, fauna, and other sensitive 
resources and ecosystems. As described in the Summary of DOE Comments 
and EPA Response (EPA-HQ-OPA-2007-1486-0175), and the Considerations 
for the Regulation of Onshore Oil Exploration and Production Facilities 
Under the Spill Prevention, Control, and Countermeasure Regulation (40 
CFR part 112) (EPA-HQ-OPA-2007-1486-0015) the impacts of produced water 
discharges are similar to the impacts observed following other oil 
discharges. Additionally, the co-location of oil production facilities 
with other land users, including farmers and ranchers, raises 
additional concern over potential contamination of water resources that 
are essential to agricultural production. One comment expressed concern 
that produced water could contaminate surface waterways, groundwater 
and drinking water; kill fish, birds, and wildlife; and cause severe 
health effects in humans and impact wildlife habitats. The comment also 
noted that it takes only a small amount of oil to affect a large area 
of water. EPA agrees with this comment. Under 40 CFR part 110, a 
discharge of oil in such quantities as ``may be harmful'' is defined as 
one that may 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. In the 
Federal Register notice published when EPA provided revisions to 40 CFR 
part 110, EPA stated that ``[e]vidence from reviews of laboratory 
studies further demonstrates that very small amounts of oil, e.g., less 
than 1 mg/L (1 ppm) can have lethal and sublethal effects on a wide 
variety of organisms.'' (52 FR 10716, April 2, 1987). Therefore, even 
if a produced water container has a very small amount of oil, the 
container still holds the potential to cause harm.
    Upon reconsideration of all relevant facts, including comments 
opposing the approach (as described above), EPA has decided for the 
reasons explained in detail above to remove the provisions related to 
the produced water containers exemption in the final rule.

D. Oil and Natural Gas Pipeline Facilities

    In Section V.M.9 of the December 2008 amendments (73 FR 74291, 
December 5, 2008), EPA provided preamble discussion regarding EPA and 
DOT jurisdiction. In this notice, EPA is further clarifying the 
jurisdiction between EPA and DOT to address confusion within the 
regulated community and to note that future inter-Agency discussions in 
the appropriate

[[Page 58804]]

forum on this issue will continue. The Agency continues to base its 
jurisdictional boundaries on Executive Order 12777 and the 1971 
Memorandum of Understanding (MOU) between DOT and EPA (36 FR 24080, 
November 24, 1971). Under Executive Order 12777, EPA has jurisdiction 
over non-transportation-related onshore and offshore facilities and DOT 
has jurisdiction over transportation-related onshore and offshore 
facilities. Under the 1971 MOU (See Appendix A of part 112), 
transportation-related activities regulated by DOT and non-
transportation-related activities regulated by EPA are defined.
    Equipment, operations, and facilities are subject to DOT 
jurisdiction when they are engaged in activities subject to DOT 
jurisdiction. If those same facilities are also engaged in activities 
subject to EPA jurisdiction (such facilities are considered a 
``complex''), such activities would subject the equipment, operation, 
or facility to EPA jurisdiction, as well. ``Complex'' is defined at 
Sec.  112.2 as a ``facility possessing a combination of transportation-
related and non-transportation-related components that is subject to 
the jurisdiction of more than one Federal agency under section 311(j) 
of the Clean Water Act.'' This definition was promulgated in 1994 (59 
FR 34070, July 1, 1994) when EPA first required certain facility owners 
and operators to prepare FRPs to respond to a worst-case discharge of 
oil and to a substantial threat of such a discharge. During the 
development of the FRP rule, EPA and other Federal agencies with 
jurisdiction under OPA and E.O. 12777 (including DOT) met to create an 
implementation strategy that minimized duplication, wherever 
practicable and recognized State oil pollution prevention and response 
programs. One of the critical outgrowths of these efforts was the 
development of a definition for, and a consistent approach to regulate 
``complexes.'' The jurisdiction over a component of a complex is 
determined by the activity involving that component. An activity at one 
time might subject a facility to one agency's jurisdiction, while a 
different activity at the same facility using the same structure, 
container or equipment might subject the facility to the jurisdiction 
of another agency.
    Owners and operators have questioned how to determine whether a 
container (e.g., a breakout tank), an activity (e.g., drag reducing 
agent storage/injection or other transfer activities) or a facility 
(e.g., a terminal or a pipeline facility) is considered 
``transportation-related'' or ``non-transportation-related,'' and, 
subsequently, whether DOT and/or EPA regulatory requirements apply. To 
clarify jurisdiction, particularly regarding jurisdiction over breakout 
tanks and activities at certain facilities, in February 2000, EPA and 
DOT signed a joint memorandum, ``Jurisdiction over Breakout Tanks/Bulk 
Storage Tanks (Containers) at Transportation-Related and Non-
Transportation-Related Facilities'' (February 4, 2000). Industry has 
raised questions and concerns about duplicative jurisdiction in the 
joint memorandum and for other oil storage containers and activities 
not specifically addressed by it. EPA will continue to work with DOT/
PHMSA to provide such clarification and to minimize dual regulation, 
where appropriate.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735, 
October 4, 1993), this action is an ``economically significant 
regulatory action'' because it is likely to have an annual effect on 
the economy of $100 million or more. Accordingly, EPA submitted this 
action to the Office of Management and Budget (OMB) for review under EO 
12866 and any changes made in response to OMB's recommendations have 
been documented in the docket for this rulemaking. In addition, EPA 
prepared a regulatory impact analysis (RIA) of the potential costs and 
benefits associated with this action entitled, ``Regulatory Impact 
Analysis for the 2008 and 2009 Final Amendments to the Oil Pollution 
Prevention Regulations (40 CFR part 112)'' (October 20, 2009). A copy 
of the RIA is available in the docket for this rulemaking and is 
briefly summarized below.
    EPA estimated the combined economic impact of the December 2008 
amendments and the changes made to it in this action. The SPCC rule 
requirements at 40 CFR part 112, as amended in July 2002 (67 FR 47042, 
July 17, 2002) is the baseline to estimate the potential cost savings 
to regulated facilities associated with these amendments. The RIA 
compares the compliance costs for owners and operators facilities 
affected by the 2008 and 2009 amendments to the costs associated with 
the 2002 SPCC rule revisions. EPA estimated cost savings from the 
following rule elements: (1) Exempt hot-mix asphalt (HMA) and HMA 
containers; (2) exempt pesticide application equipment and related mix 
containers when crop oil or adjuvant oil is added to pesticide 
formulations; (3) clarify the applicability of mobile refueler 
requirements to farm nurse tanks; (4) exempt residential heating oil 
containers, including those located at farms; (5) amend the definition 
of ``facility'' to clarify the currently existing flexibility 
associated with describing a facility's boundaries; (6) amend the 
facility diagram requirement to provide additional clarity; (7) define 
``loading/unloading rack''; (8) provide streamlined requirements for a 
subset of qualified facilities; (9) amend the general secondary 
containment requirement to provide more clarity; (10) extend the 
regulatory relief provided to mobile refuelers in 2006 to non-
transportation-related tank trucks at facilities subject to the SPCC 
rule; (11) amend the security requirements; (12) amend the integrity 
testing requirements to allow a greater amount of flexibility in the 
use of industry standards; (13) amend the integrity testing 
requirements for containers that store AFVOs that meet certain 
criteria; (14) tailor a number of requirements at oil production 
facilities; and (15) exempt underground oil storage tanks at nuclear 
power generation facilities. EPA also provided clarification in the 
preamble to the December 2008 amendments on two additional issues 
identified by the regulated community: (1) The consideration of man-
made structures in determining how to comply with the SPCC rule 
requirements and (2) the applicability of the rule to wind turbines for 
electricity generation.
    For each of these components, excluding those that only provide 
clarity, EPA estimated potential cost savings to regulated facilities 
that may result from reductions in compliance costs. The main steps 
used to estimate the compliance cost impacts of the rule amendments 
are:
     Develop the baseline universe of SPCC-regulated 
facilities;
     Estimate the number of facilities affected by the rule 
amendments;
     Estimate changes in unit compliance cost for each 
regulated facility affected by the rule;
     Estimate total compliance cost savings to owners and 
operators of potentially affected facilities; and
     Annualize compliance cost savings over a ten-year period, 
2010 through 2019, and discount the estimates using three and seven 
percent discount rates.
    In its RIA, EPA uses four key assumptions:
    1. Cost minimization behavior applies to all owners and operators 
of facilities that qualify for the reduced regulatory requirements, 
whereby all those affected would seek burden relief.

[[Page 58805]]

    2. Consistent with EPA's guidelines for conducting economic 
analyses, all existing owners and operators of facilities are in full 
compliance with the July 17, 2002 amendments to the SPCC rule (67 FR 
47042).
    3. Owners and operators of existing SPCC-regulated facilities would 
forgo compliance activities offered as alternatives where there is only 
a one-time initial investment because they would have already incurred 
the one-time cost. For example, EPA assumes that an owner or operator 
of an existing facility who qualifies for reduced security requirements 
under the rule amendment that allows facility owners or operators to 
tailor their security measures to the facility's specific 
characteristics and location, would have already provided the security 
measures under the July 2002 rule amendments or demonstrated 
environmental equivalence for tailored security measures. Therefore, 
owners and operators of existing facilities would not take advantage of 
the provided alternative.
    4. Compliance is nationally consistent, although EPA recognizes 
that there is variability in State regulations and the distribution of 
affected facilities.
    Exhibit 1 presents the estimated cost savings for each rule 
provision and for the rule amendments in total. For several rule 
amendments, such as the security requirements and facilities handling 
AFVOs, EPA did not have data on the number of affected facilities 
within a general industry sector; thus, it developed three scenarios to 
evaluate a range of cost savings.\7\ EPA estimates that the total cost 
savings for this action is about $95 million on an annualized basis 
(2007$). The total cost savings estimates range from a low of about $92 
million to a high of about $100 million on an annualized basis 
(2007$).These estimates are not necessarily additive, given that they 
do not account for interactions that might exist among the various 
components of the rule.\8\
---------------------------------------------------------------------------

    \7\ For example, to develop a range for the number of affected 
AFVO facilities, EPA contacted industry experts who determined that 
40 percent to 90 percent of containers at AFVO facilities are made 
of stainless steel and almost all containers have bottom drainage. 
Therefore, based on professional judgment, the Agency considered 
three scenarios: 40% (low), 65% (medium) and 90% (high) of all AFVO 
facilities would have food oil tanks that are eligible.
    \8\ Certain industry sectors are affected by multiple rule 
provisions. As a result, taking advantage of one revised provision 
might preclude a facility from benefiting from another amendment. 
The six-month delay is specifically designed to allow time for the 
facility oil production operations to stabilize in order to avoid 
the need for multiple certifications of the Plan by a PE.
---------------------------------------------------------------------------

    The oil production sector and farms will benefit from multiple 
components of the 2008 and 2009 amendments. Specifically, farms will 
benefit from the exemption of pesticide application equipment, the 
exemption of residential heating oil containers, the clarification to 
the facility diagram requirements, the streamlined requirements for 
Tier I qualified facilities, the final amendments to the security 
requirements, and the amendments to integrity-testing requirements. The 
total cost savings to farm owners and operators from these amendments 
are estimated at $13 million on an annualized basis (2007$).
    The oil production sector will also benefit from a number of the 
revisions to the SPCC rules, including the clarification to the 
facility diagram requirements, the streamlined requirements for Tier I 
qualified facilities, the six-month delay in SPCC Plan preparation and 
implementation, the alternative measures for flow-through process 
vessels and produced water containers in lieu of sized secondary 
containment requirements. The total savings to owners and operators of 
oil production facilities from all of the amendments that affect this 
sector are estimated at $35 million on an annualized basis (2007$).

     Exhibit 1--Estimated Compliance Cost Savings for the Regulatory
                               Amendments
------------------------------------------------------------------------
                                   Annualized cost savings ($2007, in
   Rule component/scenario            millions, 7% discount rate)
------------------------------------------------------------------------
Hot-Mix Asphalt:
    Exempt HMA containers....  $8.
Farms:
    Exempt pesticide
     application equipment
     and related mix
     containers
    Applicability of Mobile    $4.
     Refueler Requirements to
     Farm Nurse Tanks.
Residential Heating Oil
 Containers:
    Exempt single-family       $2.
     residential heating oil
     containers.
Definition of Facility:
    Revise the definition of   No cost impact.
     ``facility''.
Facility Diagram:
    Revise facility diagram    $3.
     requirement.
Loading/Unloading Racks:
    Define ``loading/          No cost impact.
     unloading rack''.
Tier I Qualified Facilities:
    Provide streamlined        $24.
     requirements for Tier I
     qualified facilities.
General Secondary
 Containment:
    Revisions to the general   No cost impact.
     secondary containment
     provision.
General Secondary Containment
 for Non-Transportation-
 Related Tank Trucks:
    Extend regulatory relief   No cost impact.
     for mobile refuelers to
     the non-transportation-
     related tank trucks.
Security Requirements:
    Revise security            $9.
     requirements \2\.
Integrity Testing:
    Amend the integrity        $11.
     testing requirements to
     allow a greater amount
     of flexibility in the
     use of industry
     standards at all
     facilities.
Animal Fats and Vegetable
 Oil:
    Amend integrity testing    $2.
     requirements for AFVO
     containers that meet
     certain criteria \3\.
Oil Production Facilities:
    Six-month delay for Plan   $24.
     preparation and
     implementation.
    Exempt flowlines and       No net cost impact.
     gathering lines from
     secondary containment.
    Flow-through process       $7.
     vessels.

[[Page 58806]]


    Alternative compliance     No cost savings estimated.
     measures for produced
     water containers.
Man-Made Structures:
    Consider manmade           No cost impact.
     structures in
     determining SPCC rule
     applicability.
Nuclear Power Stations:
    Exempt underground oil     Less than $1.
     storage tanks at nuclear
     power generation
     facilities.
Wind turbines:
    Clarify applicability of   No cost impact.
     the rule to wind
     turbines used to produce
     electricity.
                              ------------------------------------------
        Total................  $95.
------------------------------------------------------------------------
\2\ Mid-point estimate (50% of farms affected). Cost savings might be
  higher or lower using different assumptions.
\3\ Mid-point estimate (65% of facilities affected). Cost savings might
  be lower using different assumptions.

EPA recognizes that the economic analysis is constrained by limited 
availability of data and information. The SPCC regulation does not have 
a notification requirement for regulated facilities and thus, EPA 
relies on State information; Federal and proprietary databases; and 
information from industry experts as a basis for the cost information 
included in the analysis.

B. Paperwork Reduction Act

    The information collection requirements for this final rule have 
been submitted for approval to OMB under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. The information collection requirements are not 
enforceable until OMB approves them. The Information Collection Request 
(ICR) document prepared by EPA has been assigned EPA ICR number 
0328.15.
    EPA does not collect the information required by the SPCC rule on a 
routine basis. SPCC Plans ordinarily need not be submitted to EPA, but 
must generally be maintained at the facility. Preparation, 
implementation, and maintenance of an SPCC Plan by the facility owner 
or operator helps prevent oil discharges to navigable waters or 
adjoining shorelines and mitigate the environmental damage caused by 
such discharges. Therefore, the primary user of the data is facility 
personnel. While EPA may, from time to time, request information under 
these regulations, such requests are not routine.
    Although facility personnel are the primary data user, EPA also 
uses the data in certain situations. In particular, EPA reviews SPCC 
Plans: (1) When it requests a facility owner or operator to submit 
required information in the event of certain discharges of oil or to 
evaluate an extension request; and (2) as part of EPA's inspection 
program. State and local governments also may use the data, which are 
not necessarily available elsewhere and can greatly assist local 
emergency preparedness efforts. Preparation of the information for 
affected facilities is required under section 311(j)(1) of the CWA, as 
implemented by 40 CFR part 112.
    EPA estimates that in the absence of the December 2008 final rule 
and the changes made in this action, approximately 623,000 existing 
facilities would be subject to the SPCC rule in November 2010 and would 
be expected to have SPCC Plans. In addition, EPA estimates that 
approximately 17,400 new facilities would become subject to the SPCC 
requirements during that year, resulting in a total of about 640,000 
regulated facilities in 2010.\9\
---------------------------------------------------------------------------

    \9\ To estimate the number of SPCC-regulated facilities in 2010, 
EPA used the estimated number of facilities for 2005 (571,000) and 
applied annual, industry-specific growth rates that resulted in 
about 640,000 facilities.
---------------------------------------------------------------------------

    Under the December 2008 and 2009 amendments, EPA is: exempting the 
storage capacity of containers solely containing HMA, residential 
heating oil containers at single-family residences, pesticide 
application equipment and related mix containers, and underground oil 
storage tanks at nuclear power generation facilities from the SPCC 
requirements; amending 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, 
rather than the ``production facility'' definition, governs the 
applicability of 40 CFR part 112; amending the facility diagram 
requirement to provide additional clarity for all facilities; providing 
a definition for the term ``loading/unloading rack,'' which determines 
whether a facility is subject to the provisions at Sec.  112.7(h); 
providing an option that allows a subset of qualified facilities (Tier 
I) to complete and implement an SPCC Plan template (Appendix G to 40 
CFR part 112) in order to comply with the SPCC rule requirements; 
amending the general secondary containment requirements to provide more 
clarity; exempting non-transportation-related tank trucks from the 
sized secondary containment requirements; modifying the security 
requirements to allow an owner or operator to tailor its security 
measures to the facility's specific characteristics and location, which 
are the same as those provided for qualified facilities, as promulgated 
in December 2006; replacing the current integrity testing requirements 
with the requirements provided for qualified facilities, as promulgated 
in December 2006; providing flexibility in the rule for determining the 
scope of integrity testing that is appropriate for containers that 
store AFVOs that are intended for human consumption and that meet other 
criteria; and finally, streamlining the requirements for oil production 
facilities by modifying the definition of production facility to be 
consistent with the amendments to the definition of facility, extending 
the timeframe by which a new oil production facility must prepare and 
implement an SPCC Plan, providing an alternative option for flow-
through process vessels at oil production facilities to comply with the 
general secondary containment requirements and additional oil spill 
prevention measures in lieu of the sized secondary containment 
requirements, providing an alternative option for produced water 
containers to comply with general secondary containment and additional 
oil spill prevention measures including a PE certified program to 
remove free-phase oil from the surface of the produced water container 
in lieu of the sized secondary containment requirements, establishing 
more specific requirements for the flowline/intra-facility gathering 
line maintenance program, providing an alternative compliance option 
for contingency planning in lieu of secondary containment for flowlines 
and intra-facility gathering lines at oil production facilities, 
providing an exemption for certain intra-facility

[[Page 58807]]

gathering lines that are regulated by DOT, and clarifying the 
definition of ``permanently closed'' as it applies to an oil production 
facility.
    Under the 2008 and 2009 final amendments, an estimated 640,000 
regulated facilities are subject to the SPCC information collection 
requirements of this rule in 2010.\10\ The Agency estimates that as a 
result of these amendments to tailor, clarify, and streamline certain 
SPCC requirements, the reporting and recordkeeping burden would 
decrease by approximately 1.3 million hours. The rule amendments would 
reduce capital and operation and management costs by approximately $7.5 
million on an annualized basis. Burden is defined at 5 CFR 1320.3(b).
---------------------------------------------------------------------------

    \10\ To estimate the number of SPCC-regulated facilities in 
2010, EPA used the estimated number of facilities for 2005 (571,000) 
and applied annual industry-specific growth rates.
---------------------------------------------------------------------------

    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is 
approved by OMB, the Agency will publish a technical amendment to 40 
CFR part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in this 
final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of this final rule on small 
entities, a small entity is defined as: (1) a small business as defined 
in the U.S. Small Business Administration's (SBA) regulations at 13 CFR 
121.201--the SBA defines small businesses by category of business using 
North American Industry Classification System (NAICS) codes, and in the 
case of farms and oil production facilities, which constitute a large 
percentage of the facilities affected by this rule, generally defines 
small businesses as having less than $0.5 million to $27.5 million per 
year in sales receipts, depending on the industry, or 500 or fewer 
employees, respectively; (2) a small governmental jurisdiction that is 
a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of the December 2008 
amendments and the changes made in this action on small entities, the 
Agency certifies that this action would not have a significant economic 
impact on a substantial number of small entities. In determining 
whether a rule has a significant economic impact on a substantial 
number of small entities, the impact of concern is any significant 
adverse economic impact on small entities, since the primary purpose of 
the regulatory flexibility analyses is to identify and address 
regulatory alternatives ``which minimize any significant economic 
impact of the rule on small entities'' (5 U.S.C. 603 and 604). Thus, an 
agency may certify that a rule would not have a significant economic 
impact on a substantial number of small entities if the rule relieves 
regulatory burden, or otherwise has a positive economic effect on all 
of the small entities subject to the rule.
    Under the 2008 and 2009 amendments, the following issues are 
addressed: exempt HMA and HMA containers, pesticide application 
equipment and related mix containers, residential heating oil 
containers at single-family residences, and underground oil storage 
tanks at nuclear power generation facilities from the SPCC 
requirements; amend the definition of ``facility'' to clarify the 
flexibility associated with the existing definition in describing a 
facility's boundaries; clarify how containers, fixed and mobile, are 
identified on the facility diagram; define ``loading/unloading rack'' 
to clarify whether a facility is subject to the SPCC rule requirements 
of Sec.  112.7(h); streamline the requirements for a subset of 
qualified facilities (Tier I qualified facilities); amend the general 
secondary containment requirements to provide more clarity; exempt non-
transportation-related tank trucks from the sized secondary containment 
requirements; amend the facility security requirements to allow an 
owner or operator to tailor security measures to a facility's specific 
characteristics and location, which are the same as those provided for 
qualified facilities, as promulgated in December 2006; replace the 
current integrity testing requirements with the regulatory requirements 
for a qualified facility promulgated in December 2006; provide 
flexibility in the rule to determine the scope of integrity testing 
that is appropriate for containers that store AFVOs that are intended 
for human consumption and that meet other criteria; and initiate a 
number of amendments to tailor the requirements for oil production 
facilities to address concerns raised by the oil production sector, 
respectively.
    Overall, EPA estimates that the December 2008 amendments and the 
revisions made in this action will reduce annual compliance costs by 
approximately $95 million on an annualized basis (2007$) for owners and 
operators of affected facilities. Total costs were annualized over a 
10-year period using a seven percent discount rate. EPA derived these 
savings by estimating the number of facilities affected by each 2008 
and 2009 amendment; identifying the specific behavioral changes that 
may occur (for example, choosing to prepare an SPCC Plan template 
instead of a full SPCC Plan); estimating the unit costs of compliance 
under the baseline and amended scenarios; and applying the change in 
unit costs to the projected number of affected facilities.
    EPA has therefore concluded that this rule will relieve regulatory 
burden for small entities and therefore, certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to

[[Page 58808]]

adopt an alternative other than the least costly, most cost-effective, 
or least burdensome alternative if the Administrator publishes with the 
rule an explanation why that alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    EPA has determined that this action does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. The December 2008 final rule and the changes 
made in this action would reduce compliance costs on owners and 
operators of affected facilities by approximately $95 million on an 
annualized basis (2007$), although EPA acknowledges this total estimate 
is derived from analyses of individual major components of the rule 
that are not necessarily additive, given that they do not account for 
interactions that may exist among the various components. Thus, this 
rule amendment is not subject to the requirements of sections 202 and 
205 of the UMRA.
    EPA has determined that this rule amendment contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As explained above, the effect of the rule amendment will 
be to reduce burden for facility owners and operators, including 
certain small governments that are subject to the rule.

E. Executive Order--13132 Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    The December 2008 amendments and the changes made in this action do 
not have federalism implications. It would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132. Under CWA section 311(o), States may impose 
additional requirements, including more stringent requirements, 
relating to the prevention of oil discharges to navigable waters or 
adjoining shorelines. EPA recognizes that some States have more 
stringent requirements (56 FR 54612, October 22, 1991). This rule 
amendment will not preempt State law or regulations. Thus, Executive 
Order 13132 does not apply to this action.

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

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

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    Although the combined impact of the December 2008 final rule and of 
the changes made in this action is economically significant, it is not 
subject to the Executive Order because the Agency does not have reason 
to believe the environmental health or safety risk addressed by this 
action presents a disproportionate risk to children.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. The 
overall effect of the action is to decrease the regulatory burden on 
facility owners or operators subject to its provisions.

I. National Technology Transfer and Advancement Act

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

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high

[[Page 58809]]

and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this action 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment. The overall effect of the action is to decrease the 
regulatory burden on facility owners or operators subject to its 
provisions, while increasing the level of compliance with the SPCC 
program requirements, which should provide greater environmental 
protection.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is a ``major rule'' as defined by 5 U.S.C. 804(2) 
because it will likely result in an annual effect on the economy of 
$100 million or more. This rule will be effective on January 14, 2010.

List of Subjects in 40 CFR Part 112

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

    Dated: November 5, 2009.
Lisa P. Jackson,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 112--OIL POLLUTION PREVENTION

0
1. The authority citation for part 112 continues to read as follows:

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

Subpart A--[Amended]

0
2. Amend Sec.  112.1 as follows:
0
a. By revising paragraph (d)(2)(i);
0
b. By removing paragraph (d)(2)(ii)(F);
0
c. By revising paragraph (d)(4); and
0
d. By removing paragraph (d)(12)


Sec.  112.1  General applicability.

* * * * *
    (d) * * *
    (2)(i) The completely buried storage capacity of the facility is 
42,000 U.S. gallons or less of oil. For purposes of this exemption, the 
completely buried storage capacity of a facility excludes the capacity 
of a completely buried tank, as defined in Sec.  112.2, and connected 
underground piping, underground ancillary equipment, and containment 
systems, that is currently subject to all of the technical requirements 
of part 280 of this chapter or all of the technical requirements of a 
State program approved under part 281 of this chapter, or the capacity 
of any underground oil storage tanks deferred under 40 CFR part 280 
that supply emergency diesel generators at a nuclear power generation 
facility licensed by the Nuclear Regulatory Commission and subject to 
any Nuclear Regulatory Commission provision regarding design and 
quality criteria, including, but not limited to, 10 CFR part 50. The 
completely buried storage capacity of a facility also excludes the 
capacity of a container that is ``permanently closed,'' as defined in 
Sec.  112.2 and the capacity of intra-facility gathering lines subject 
to the regulatory requirements of 49 CFR part 192 or 195.
* * * * *
    (4) Any completely buried storage tank, as defined in Sec.  112.2, 
and connected underground piping, underground ancillary equipment, and 
containment systems, at any facility, that is subject to all of the 
technical requirements of part 280 of this chapter or a State program 
approved under part 281 of this chapter, or any underground oil storage 
tanks including below-grade vaulted tanks, deferred under 40 CFR part 
280, as originally promulgated, that supply emergency diesel generators 
at a nuclear power generation facility licensed by the Nuclear 
Regulatory Commission, provided that such a tank is subject to any 
Nuclear Regulatory Commission provision regarding design and quality 
criteria, including, but not limited to, 10 CFR part 50. Such emergency 
generator tanks must be marked on the facility diagram as provided in 
Sec.  112.7(a)(3), if the facility is otherwise subject to this part.

* * * * *


0
3. Amend Sec.  112.3 as follows:
0
a. By designating paragraph (a)(1) as paragraph (a), and removing 
paragraph (a)(2);
0
b. By revising the newly designated paragraph (a);
0
c. By removing paragraph (b)(2), and designating paragraph (b)(3) as 
(b)(2);
0
d. By revising paragraph (b)(1) and the newly designated paragraph 
(b)(2);
0
e. By removing paragraph (d)(1)(vi), and designating paragraph 
(d)(1)(vii) as (d)(1)(vi);
0
f. By revising the newly designated paragraph (d)(1)(vi);
0
g. By revising paragraph (g)(2).


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

* * * * *
    (a) If your onshore or offshore facility was in operation on or 
before August 16, 2002, you must maintain your Plan, but must amend it, 
if necessary to ensure compliance with this part, and implement the 
Plan no later than November 10, 2010. If your onshore or offshore 
facility becomes operational after August 16, 2002, through November 
10, 2010, and could reasonably be expected to have a discharge as 
described in Sec.  112.1(b), you must prepare and implement a Plan on 
or before November 10, 2010.
    (b)(1) If you are the owner or operator of an onshore or offshore 
facility (excluding oil production facilities) that becomes operational 
after November 10, 2010, and could reasonably be expected to have a 
discharge as described in Sec.  112.1(b), you must prepare and 
implement a Plan before you begin operations.
    (2) If you are the owner or operator of an oil production facility 
that becomes operational after November 10, 2010, and could reasonably 
be expected to have a discharge as described in Sec.  112.1(b), you 
must prepare and implement a Plan within six months after you begin 
operations.
* * * * *
    (d) * * *
    (1) * * *
    (vi) That, if applicable, for a produced water container subject to 
Sec.  112.9(c)(6), any procedure to minimize the amount of free-phase 
oil is designed to reduce the accumulation of free-phase oil and

[[Page 58810]]

the procedures and frequency for required inspections, maintenance and 
testing have been established and are described in the Plan.
* * * * *
    (g) * * *
    (2) A Tier II qualified facility is one that has had no single 
discharge as described in Sec.  112.1(b) exceeding 1,000 U.S. gallons 
or no two discharges as described in Sec.  112.1(b) each exceeding 42 
U.S. gallons within any twelve month period in the three years prior to 
the SPCC Plan self-certification date, or since becoming subject to 
this part if the facility has been in operation for less than three 
years (other than discharges as described in Sec.  112.1(b) that are 
the result of natural disasters, acts of war, or terrorism), and has an 
aggregate aboveground oil storage capacity of 10,000 U.S. gallons or 
less.

0
4. Amend Sec.  112.5 as follows:
0
a. By removing paragraphs (b) and (c) and designating paragraph (d) as 
paragraph (b)
0
b. By revising the newly designated paragraph (b); and
0
c. By designating paragraph (e) as paragraph (c).


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

* * * * *
    (b) Notwithstanding compliance with paragraph (a) of this section, 
complete a review and evaluation of the SPCC Plan at least once every 
five years from the date your facility becomes subject to this part; 
or, if your facility was in operation on or before August 16, 2002, 
five years from the date your last review was required under this part. 
As a result of this review and evaluation, you must amend your SPCC 
Plan within six months of the review to include more effective 
prevention and control technology if the technology has been field-
proven at the time of the review and will significantly reduce the 
likelihood of a discharge as described in Sec.  112.1(b) from the 
facility. You must implement any amendment as soon as possible, but not 
later than six months following preparation of any amendment. You must 
document your completion of the review and evaluation, and must sign a 
statement as to whether you will amend the Plan, either at the 
beginning or end of the Plan or in a log or an appendix to the Plan. 
The following words will suffice, ``I have completed review and 
evaluation of the SPCC Plan for (name of facility) on (date), and will 
(will not) amend the Plan as a result.''
* * * * *

0
5. Revise Sec.  112.6 as follows:
0
a. By revising paragraph (a)(1)(vii);
0
b. By revising paragraph (b)(1)(vii);
0
c. By revising paragraph (b)(3)(iii); and
0
d. By revising paragraph (b)(4)(ii);


Sec.  112.6  Qualified Facilities Plan Requirements.

* * * * *
    (a) * * *
    (1) * * *
    (vii) The Plan does not deviate from any requirement of this part 
as allowed by Sec.  112.7(a)(2) and 112.7(d) or include measures 
pursuant to Sec.  112.9(c)(6) for produced water containers and any 
associated piping; and
* * * * *
    (b) * * *
    (1) * * *
    (vii) The Plan does not deviate from any requirement of this part 
as allowed by Sec.  112.7(a)(2) and 112.7(d) or include measures 
pursuant to Sec.  112.9(c)(6) for produced water containers and any 
associated piping, except as provided in paragraph (b)(3) of this 
section; and
* * * * *
    (3) * * *
    (iii) Produced Water Containers. Your Plan may not include any 
alternative procedures for skimming produced water containers in lieu 
of sized secondary containment pursuant to Sec.  112.9(c)(6), unless 
they have been reviewed and certified in writing by a Professional 
Engineer, as provided in paragraph (b)(4) of this section.
    (4) * * *
    (ii) As described in paragraph (b)(3) of this section, the facility 
owner or operator may not self-certify measures as described in Sec.  
112.9(c)(6) for produced water containers and any associated piping. 
Such measures must be reviewed and certified, in writing, by a licensed 
Professional Engineer, in accordance with Sec.  112.3(d)(1)(vi).
* * * * *

0
6. Amend Sec.  112.7 as follows:
0
a. By revising paragraph (a)(3) introductory text; and
0
b. By revising paragraph (h) introductory text.


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

* * * * *
    (a) * * *
    (3) Describe in your Plan the physical layout of the facility and 
include a facility diagram, which must mark the location and contents 
of each fixed oil storage container and the storage area where mobile 
or portable containers are located. The facility diagram must identify 
the location of and mark as ``exempt'' underground tanks that are 
otherwise exempted from the requirements of this part under Sec.  
112.1(d)(4). The facility diagram must also include all transfer 
stations and connecting pipes, including intra-facility gathering lines 
that are otherwise exempted from the requirements of this part under 
Sec.  112.1(d)(11). You must also address in your Plan:
* * * * *
    (h) Facility tank car and tank truck loading/unloading rack 
(excluding offshore facilities).
* * * * *

Subpart B--[Amended]

0
7. Amend Sec.  112.9 by revising paragraph (c)(6) to read as follows:


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

* * * * *
    (c) * * *
    (6) Produced water containers. For each produced water container, 
comply with Sec.  112.9(c)(1) and (c)(4); and Sec.  112.9(c)(2) and 
(c)(3), or comply with the provisions of the following paragraphs 
(c)(6)(i) through (v):
    (i) Implement, on a regular schedule, a procedure for each produced 
water container that is designed to separate the free-phase oil that 
accumulates on the surface of the produced water. Include in the Plan a 
description of the procedures, frequency, amount of free-phase oil 
expected to be maintained inside the container, and a Professional 
Engineer certification in accordance with Sec.  112.3(d)(1)(vi). 
Maintain records of such events in accordance with Sec.  112.7(e). 
Records kept under usual and customary business practices will suffice 
for purposes of this paragraph. If this procedure is not implemented as 
described in the Plan or no records are maintained, then you must 
comply with Sec.  112.9(c)(2) and (c)(3).
    (ii) On a regular schedule, visually inspect and/or test the 
produced water container and associated piping for leaks, corrosion, or 
other conditions that could lead to a discharge as described in Sec.  
112.1(b) in accordance with good engineering practice.
    (iii) Take corrective action or make repairs to the produced water 
container and any associated piping as indicated by regularly scheduled 
visual inspections, tests, or evidence of an oil discharge.
    (iv) Promptly remove or initiate actions to stabilize and remediate 
any accumulations of oil discharges

[[Page 58811]]

associated with the produced water container.
    (v) If your facility discharges more than 1,000 U.S. gallons of oil 
in a single discharge as described in Sec.  112.1(b), or discharges 
more than 42 U.S. gallons of oil in each of two discharges as described 
in Sec.  112.1(b) within any twelve month period from a produced water 
container subject to this subpart (excluding discharges that are the 
result of natural disasters, acts of war, or terrorism) then you must, 
within six months from the time the facility becomes subject to this 
paragraph, ensure that all produced water containers subject to this 
subpart comply with Sec.  112.9(c)(2) and (c)(3).
* * * * *

0
8. Revise Appendix G to Part 112 to read as follows:
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[FR Doc. E9-27156 Filed 11-12-09; 8:45 am]

BILLING CODE 6560-50-C
