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

COMMENT AND RESPONSE DOCUMENT 

for 2008 Final SPCC Amendments, Comment Period Ending  March 2009

40 CFR Part 112

November 2009

U.S. Environmental Protection Agency

Office of Emergency Management

Table of Contents

  TOC \o "1-1" \h \z \u    HYPERLINK \l "_Toc235331959"  INTRODUCTION	 
PAGEREF _Toc235331959 \h  4  

  HYPERLINK \l "_Toc235331960"  General Opposition to the Amendments	 
PAGEREF _Toc235331960 \h  9  

  HYPERLINK \l "_Toc235331961"  Issue Specific Comments	  PAGEREF
_Toc235331961 \h  9  

  HYPERLINK \l "_Toc235331962"  I.      Hot-mix Asphalt	  PAGEREF
_Toc235331962 \h  9  

  HYPERLINK \l "_Toc235331963"  Ii. 	Pesticide Application Equipment and
Related Mix Containers	  PAGEREF _Toc235331963 \h  12  

  HYPERLINK \l "_Toc235331964"  III.	Applicability Of Mobile Refueler
Requirements To Farm Nurse Tanks	  PAGEREF _Toc235331964 \h  13  

  HYPERLINK \l "_Toc235331965"  IV.   Residential Heating Oil Containers
  PAGEREF _Toc235331965 \h  15  

  HYPERLINK \l "_Toc235331966"  V.    Definition of Facility	  PAGEREF
_Toc235331966 \h  16  

  HYPERLINK \l "_Toc235331967"  VI.   Facility Diagram	  PAGEREF
_Toc235331967 \h  18  

  HYPERLINK \l "_Toc235331968"  VII. 	Loading/Unloading Racks	  PAGEREF
_Toc235331968 \h  19  

  HYPERLINK \l "_Toc235331969"  VIII.	Tier I Qualified Facilities	 
PAGEREF _Toc235331969 \h  22  

  HYPERLINK \l "_Toc235331970"  IX.	Revisions to the General Secondary
Containment Requirement	  PAGEREF _Toc235331970 \h  29  

  HYPERLINK \l "_Toc235331971"  XI. 	Extend Security Requirements for
Qualified Facilities to All Facilities	  PAGEREF _Toc235331971 \h  32  

  HYPERLINK \l "_Toc235331972"  XII.	Extend Integrity Testing Use of
Industry Standards  for Flexibility to All Facilities	  PAGEREF
_Toc235331972 \h  33  

  HYPERLINK \l "_Toc235331973"  XIII.	Integrity Testing Requirements for
Animal Fats and Vegetable Oils	  PAGEREF _Toc235331973 \h  35  

  HYPERLINK \l "_Toc235331974"  XIV.	Tailored Requirements for Oil
Production Facilities	  PAGEREF _Toc235331974 \h  41  

  HYPERLINK \l "_Toc235331975"  XV.  Manmade Structure	  PAGEREF
_Toc235331975 \h  68  

  HYPERLINK \l "_Toc235331976"  XVI.	Underground Emergency Diesel
Generator Tanks  at Nuclear Power Stations	  PAGEREF _Toc235331976 \h 
69  

  HYPERLINK \l "_Toc235331977"  XVII.	  Wind Turbines	  PAGEREF
_Toc235331977 \h  70  

  HYPERLINK \l "_Toc235331978"  XVIII.  Delay of the Effective Date of
the Rule	  PAGEREF _Toc235331978 \h  71  

  HYPERLINK \l "_Toc235331979"  XIX.  Further Delay of the Effective
Date of the Rule	  PAGEREF _Toc235331979 \h  73  

 INTRODUCTION

Purpose of This Document

The purpose of this document is to provide complete responses to
comments requested in a notice published in the Federal Register on
February 3, 2009 (74 FR 5900).  The notice delayed the effective date of
amendments to the Oil Pollution Prevention and Response rule (40 CFR
part 112), also known as the Spill Prevention, Control, and
Countermeasure (SPCC) rule, that were published on December 5, 2008 (73
FR 74236), to April 4, 2009.  The notice also requested comment on all
of the regulatory amendments in the December 2008 amendments.  This
document summarizes and responds to comments on both the delay of the
effective date and the regulatory amendments contained in the December
5, 2008 final rule.  

Additionally, the last section of this document summarizes comments
requested in an April 1, 2009 notice in the Federal Register (74 FR
14736).  The April notice further delayed the effective date of the
December 5, 2008 amendments to 40 CFR part 112 to January 14, 2010, and
requested comment on any additional delay of the effective date.  

Organization of This Comment and Response Document

To develop this document, EPA reviewed the submissions made to public
docket number EPA-HQ-OPA-2007-0584 in response to the February 3, 2009
and the April 1, 2009 notices.  Comments submitted to the public docket
for this rulemaking appear in their entirety at
http://www.regulations.gov, identified by Docket number
“EPA-HQ-OPA-2007-0584.”

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

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

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

Table 1 below lists the names and FDMS identification numbers of all
anonymous, private citizens and organizations submitting comments to the
docket on this rule.  Table 1.  Comments Submitted to the Docket 

FDMS Number	First Name	Last Name	Organization

187	Anonymous

Anonymous

188	J. 	Lee	Anonymous

189	Anonymous

Anonymous 

190	Anonymous

Anonymous

191	A.  	Martins	Private Citizen

192	J. 	Turner	Private Citizen

193	E. 	Duffy	Private Citizen

194	David	Darling	National Paint & Coatings Association 

195	Angie 	Burckhalter	Oklahoma Independent Petroleum Association (OIPA)


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

197	A.  	Douglas	Private Citizen

198	S. 	Hibbs	Private Citizen

199	Douglas	Greenhaus	National Automobile Dealers Association (NADA) 

200	James	Stine	National Rural Electric Cooperative Association (NRECA) 

201	Robert	Garfield	Food Industry Environmental Council (FIEC) 

202	L.	Nickell 	Private Citizen

203	Anonymous

Anonymous

204	Anonymous

Anonymous

205	Anonymous

Anonymous

206	Anonymous

Anonymous

207	Anonymous

Anonymous

208	Anonymous

Anonymous

209	Gregory	Russell	Ohio Oil and Gas Association (OOGA) 

210	Lee	Fuller	Independent Petroleum Association of America (IPAA), et
al. 

211	Pamela	Faggert	Dominion Resources Services, Inc. (Dominion) 

212	Jeff	Spillyards	Entergy Services, Inc. (Entergy)

213	Steven 	Hensley	USA Rice Federation (USA Rice) 

214	Celeste 	Powers	Independent Lubricant Manufacturers Association
(ILMA) 

215	J. 	Billings	Private Citizen

216	Anonymous

Anonymous

217	Anonymous

Anonymous

218	Anonymous

Anonymous

219	Nancy	Erickson	Illinois Farm Bureau 

220	Roger	Claff	American Petroleum Institute (API) 

221	Anonymous

Anonymous

222	James	Roewer	Utility Solid Waste Activities Group (USWAG) 

223	Adam	Haynes	Texas Independent Producers & Royalty Owners Association
(TIPRO) 

224	Traylor 	Champion	Environmental Affairs, Georgia-Pacific LLC (GP) 

225	Charles	Kruse	Missouri Farm Bureau 

226	Nicholas	DeMarco	West Virginia Oil and Natural Gas Association
(WVONGA) 

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

228	Lisa	Beal	Interstate Natural Gas Association of America (INGAA) 

229	Chris	Tolsdorf	Automotive Oil Change Association (AOCA) 

230	Anonymous

Anonymous

231	Lisa	Kelley	Agriculture Coalition (The Coalition) 

232	Filipa 	Rio	Alliance of Automobile Manufacturers (Alliance) 

233	Daniel 	Moss	Synthetic Organic Chemical Manufacturers Association
(SOCMA) 

234	David 	Wagger	Institute of Scrap Recycling Industries, Inc. (ISRI) 

235	Tim	Crouch	Indiana Statewide Association of Rural Electric
Cooperatives, Inc. 

236	Anne 	Coan	North Carolina Farm Bureau Federation (NCFB) 

237	Craig 	Head	Nebraska Farm Bureau Federation 

238	Mark	Morgan	New England Fuel Institute (NEFI) 

239	E. 	Roberts	Private Citizen

240	Bruce	Thompson	American Exploration and Production Council (AXPC)

241	Jerry 	Schwartz	American Forest & Paper Association (AF&PA)

242	Richard	Lutz	Williams Gas Pipeline (WGP) 

243	Mark	Morgan	Petroleum Marketers Association of America (PMAA)

244	Kellie	Skelton	Energen Resources

245	Katherine	Mural	Farm Bureau of New York

246	Anonymous

Anonymous

247	--	--	American Forest and Paper Association

American Public Power Association

American Petroleum Institute

Alliance of Automobile Manufacturers

Independent Lubricant Manufacturers Assoc.

National Automotive Dealers of America

NORA

National Paint and Coatings Association

National Rural Electric Cooperative Assoc.

Society of Chemical Manufacturers & Affil.

Utility Solid Waste Activities Group

248	Gary	Reeves	Private Citizen

249	Jerry	Zutz	Private Citizen

250	Pamela	Faggert	Dominion

251	Gregory	Russell	VORYS

252	Jeff	Spillyards	Entergy Services, Inc.

253	William 	Schmidt	Polk Burnett

254	Filipa 	Rio	Alliance of Automobile Manufacturers

255	James 	Roewer	USWAG

256	Paul	Reynolds	Sunflower Electric Power Corporation

257	W.Hugh	O’Riordan	Northwest Public Power Association

258	--	--	The Agricultural Coalition on the Spill Prevention, Control
and Countermeasure Rule

259	Ronald	Harris	Rappahannock Electric Cooperative

260	Mark	Barbee	Kansas Electric Power Cooperative, Inc.

261	James 	Roewer	USWAG

262	James	Moss	Northern Neck Electric Cooperative

263	Gregory	Arthur	Chugach 

264	David 	Robinson	Choptank Electric Cooperative

265	Tim 	Crouch	Indiana Statewide Association of Rural Electric
Cooperatives, Inc.

266	Steve	Hensely	USA Rice

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

268	James	Hathaway	Dunn Energy Cooperative

269	L.Davis	Phaup, III	Old Dominion Electric Cooperative (ODEC)

General Opposition to the Amendments

Several comments opposed any reduction of, or facility relief from, the
rule’s regulatory requirements, and requested the amendments be
withdrawn. (198, 221, 239) Additionally, one comment stated that EPA had
not published proposed changes to the December 5, 2008 final rule.  "API
reminds EPA that the Administrative Procedure Act good cause exemption
is narrowly construed and acceptable only when delay would be
'impracticable, unnecessary or contrary to the public interest.' API
does not believe EPA

has made such a showing." (220)

RESPONSE

  SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1 The December 5, 2008 (73 FR
74236) action amended the SPCC rule to clarify certain provisions, to
tailor requirements to particular industry sectors, and to streamline
certain rule requirements. The effective date of this action was delayed
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 all of the
regulatory amendments contained in the final rule amendments (74 FR
5900, February 3, 2009). While the February 2009 notice requested public
comment on the entire 2008 final rule, the Agency specifically requested
comments on the optional approaches for produced water containers and
the criteria for qualified oil production facilities, and explicitly on
the preamble and regulatory texts for both those amendments. The Agency
also requested that comments include appropriate rationale and
supporting data for Agency review and consideration. On April 1, 2009
(74 FR 14736), the Agency further delayed the effective date of the
December 2008 rulemaking until January 14, 2010 to allow sufficient time
to address the comments received on the February 3, 2009 notice. 

EPA disagrees with comments opposing all of the amendments and
requesting that they be withdrawn.  Having reviewed the record for the
amendments and the additional comments, and after consideration of all
relevant facts, EPA has decided it is appropriate 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 certain produced water containers at an oil production facility; and
alternative qualified facility eligibility criteria for an oil
production facility.

Issue-Specific Comments

I. Hot-Mix Asphalt

Issue: EPA exempted hot-mix asphalt (HMA) from the SPCC requirements. 
The Agency stated that HMA is unlikely to flow as a result of the
entrained aggregate, such that there would be very few circumstances in
which a discharge of HMA would have the potential to reach navigable
waters or adjoining shorelines. EPA will continue to regulate asphalt
cement (AC), asphalt emulsions, and cutbacks, which are not HMA because
they are not entrained with aggregate.

COMMENTS

Support 

General support. Several comments generally supported this exemption.
(194, 232, 247, 253, 255, 256, 257, 259, 260, 261, 262, 263, 264, 265,
268, 269)  

Oppose 

Generally oppose. Two comments stated that HMA should not be exempt from
regulation. (202, 215) One of these comments stated that there is no
data in the docket supporting an exemption. (215)

Alternative Approaches

Extend the exemption to other products.  One comment suggested extending
the exemption to other products like paraffin wax, AC, 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 risk of a spill reaching navigable waters. (194)

RESPONSE

EPA agreed with the comments in support of the HMA exemption and is
making no change to this provision. However, EPA disagrees with the
comment stating that the lack of spill data is a reason to exempt heavy
oils. The SPCC regulation addresses a facility’s reasonable
expectation of an oil discharge in quantities that may be harmful to
navigable waters and adjoining shorelines.  Heavy oils can flow and
cause harm to waters of the U.S. and adjoining shorelines. The lack of
spill data for facilities that are in compliance with SPCC regulations
is an indicator that the spill prevention regulations may be effective. 

EPA also disagrees with comments requesting that the Agency consider
extending the proposed HMA exemption to oils (including AC) which,
according to comments, are unlikely to flow at ambient temperatures.
Unlike HMA, these materials do have the potential to discharge oil into
navigable waters or adjoining shorelines. Additionally, because these
oils are often stored at elevated temperatures, they are capable of
flowing if there is a discharge from the container.  As stated in the
2007 proposal, the threat that AC, as well as other semi-solid oils
including waxes, poses to navigable waters and adjoining shorelines can
be effectively addressed by implementing the procedures and measures
required under the SPCC rule, therefore, EPA did not propose an
exemption. Furthermore, no new data was provided by comments that would
support EPA taking action beyond the exemption of HMA. Finally, because
EPA did not propose an exemption for oils other than HMA, expanding the
exemption is outside the scope of the rulemaking.

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

The SPCC rule provides the facility owner or operator with significant
flexibility to select prevention and control measures that are
appropriate for the facility and type of product being stored. For
example, the secondary containment requirements of the SPCC rule may be
satisfied if the secondary containment system, including walls and
floor, are capable of containing the oil and are constructed so that any
discharge from a primary containment system will not escape secondary
containment before cleanup occurs (§112.7(c)) and diked areas are
sufficiently impervious to contain the oil (§112.8(c)(2) and
§112.12(c)(2)). Therefore, the flow properties of oils may be
considered in designing appropriate means of secondary containment. If,
once cooled, the oil remains in place, an effective means of secondary
containment may involve surrounding the bulk storage container with an
earthen berm that will contain the oil until it can solidify or
providing drainage controls to allow discharges to be captured in a
remote, earthen, impounding structure.

Ii. 	Pesticide Application Equipment and Related Mix Containers

Issue: EPA exempted 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
formulations.  The Agency also modified §112.1(d)(2) so that the
capacity of these pesticide application equipment and related mix
containers is not counted toward the facility’s oil storage capacity
calculation.  

COMMENTS

General support. Several comments generally supported the exemption of
pesticide application equipment and related mix containers from SPCC
requirements. (219, 231, 232, 245, 247, 253, 255, 256, 257, 259, 260,
261, 262, 263, 264, 265, 268, 269)

RESPONSE

EPA agrees with comments that pesticide application equipment and
related mix containers should be exempted from SPCC requirements and is
making no change to this provision.

III.	Applicability of Mobile Refueler Requirements to Farm Nurse Tanks

Issue: EPA clarified that the definition of mobile refueler includes a
nurse tank, which is a mobile vessel used at farms to store and
transport fuel for transfers to or from farm equipment, such as tractors
and combines, and to other bulk storage containers, such as containers
used to provide fuel to field equipment (such as tractors) at farms.

COMMENTS

General support. Several comments supported the Agency’s
clarification. (219, 232) 

RESPONSE

EPA agrees with comments supporting the clarification.  EPA is
maintaining these clarifications.

III.A  	Differentiating the SPCC Requirements for Farms 

Issue: EPA considered alternatives for differentiating the SPCC
requirements for farms, but did not finalize them.  The alternatives
included (1) providing no additional amendments to the SPCC rule related
to farms; (2) providing alternative qualified facility criteria for
farms; and (3) exempting farms that store oil below a certain storage
capacity threshold from SPCC requirements.

III.A.i  	No Further Action

COMMENTS

[No comments were submitted on this topic.]

III.A.ii   Exempt Farms Below a Certain Storage Capacity Threshold

COMMENTS

[No comments were submitted on this topic.]

III.A.iii  Alternative Qualified Facility Eligibility Criteria for Farms

COMMENTS

Adopt a higher storage capacity threshold. Two comments suggested that
EPA adopt a 20,000-gallon threshold as criteria for alternative
qualified facility eligibility. (219, 245)  Another comment stated that
a 10,000-gallon aggregate threshold limits the ability of growers to
move to bulk orders and save money because the loss of a
self-certification plan would require the hiring of PE’s at
substantial cost.  “The 10,000-gallon aggregate threshold trigger
causes great concern for the agricultural industry. EPA has yet to
produce the data needed to determine a meaningful trigger for all
sectors of agriculture.” (231)

Provide all agricultural facilities the option for self-certification. A
comment suggested that given the minimal threat of a discharge or spill
when compared to other sectors storing significantly larger quantities
of fuel and for longer periods of time, the option to self-certify
should be extended to all farms and ranches. “Such self-certification
must be based on commonsense and give producers the flexibility to
develop a plan that fits their specific operation.” (225) The
recommendation of the Missouri Farm Bureau is based on the rationale
that farm tanks are used seasonally, and thus requiring PE certification
would be an unnecessary cost for tanks that are empty for up to nine
months of the year.  Additionally, comments question the value added of
a PE when the owner operator is capable of self-certification.  Comments
also argued for self-certification based on the fact that farm
owners/operators can change frequently because leasing and rental
agreements change, and tank ownership may be complicated by the incoming
owner or renter owning some or all of the tanks. Comments stated that
this scenario will require a new plan and new costs by both the incoming
and outgoing operators.  (258, 266) Finally, one comment questioned how
a facility that produces oil on a constant basis can be granted an
alternative option while farms are not, and how a volume-sized capacity
threshold can be applied to agricultural, seasonal-use tanks, while
other criteria such as equipment configuration for oil production tanks
is cited in the same rulemaking. (258)  

RESPONSE

EPA disagrees with the suggestions for modifying the existing qualified
facilities threshold of 10,000 U.S. gallons total aboveground storage
capacity.  EPA is retaining the 10,000-gallon threshold for all
qualified facilities, including farms and oil production facilities.
Comments from the agricultural community provided significant insight
into the nature of farming with respect to ownership and leasing. 
However, EPA has concluded that farms or any other SPCC-subject
facilities storing oil above 10,000 gallons should have a PE-certified
Plan.  EPA does not agree that farm oil storage and handling activities
are sufficiently different from the activities conducted at other oil
storage and handling facilities, and therefore warranting a higher
qualified facilities threshold, such as 20,000 U.S. gallons.  Other
sectors have similar needs to purchase fuel in bulk and seasonal demands
for oil, and may have similar if not identical storage needs as
identified by agricultural stakeholders. This rationale is no different
from that of other sectors that use fuel in their operations. Other
industry sectors have similar concerns with changes in ownership or
operators at a facility and must also be prepared to address new oil
storage containers that are brought to the facility to support
activities by the operator. Comments stated that farm owners/operators
are capable of self-certification without providing any evidence to
support this assertion. Thus, EPA is not persuaded by these comments to
raise the existing qualified facilities threshold solely for farms
beyond 10,000 U.S. gallons.  The Agency agrees with the comment that a
capacity-based criterion for qualified facility eligibility is
appropriate for all types of facilities and that alternative criteria
based on equipment or flow capacities for the production sector, or any
other sector, are not warranted. As described elsewhere in this
document, EPA has abandoned any other alternative criteria outside the
capacity-based criteria established in the 2006 final action.

IV.   Residential Heating Oil Containers

IV.A  Exemption for Residential Heating Oil Containers

Issue: EPA exempted residential heating oil containers (those used
solely at single-family residences) from the SPCC requirements.  This
exemption applies to aboveground containers as well as completely buried
heating oil tanks, at single-family residences, including those located
at farms. 

COMMENTS

General support. Two comments generally supported the exemption of
residential heating oil containers from SPCC requirements. (219, 238)

RESPONSE

The Agency agrees with comments that support the exemption, and is
making no change to this provision.  

V. Definition of Facility

V.A 	Revisions to the Definition of Facility 

Issue: EPA modified the definition of “facility” to clarify that
contiguous or non-contiguous buildings, properties, parcels, leases,
structures, installations, pipes, or pipelines may be considered
separate facilities, and to specify that the ‘‘facility’’
definition governs the applicability of 40 CFR part 112.  An owner or
operator may separate or aggregate containers to determine the facility
boundaries, based on such factors as ownership or operation of the
buildings, structures, containers, and equipment on the site, the
activities being conducted, property boundaries, and other relevant
considerations.  The modifications to the definition codify the
flexibility that an owner or operator has always had.

COMMENTS

Support 

General support. Many comments generally supported this amendment. (209,
211, 219, 227, 231, 232, 238, 245, 266) 

Oppose 

Definition leads to uncertainty. One comment stated, “…the preamble
suggests that the use of ‘one-plan’ could invoke a Facility Response
Plan (FRP) designation.  In order to facilitate easy use for operators
because of the similarity of E&P facilities, companies use a plan
template that works for all operations but includes specifics where
appropriate. This approach is extremely valuable to producers because
they provide a straightforward method to improve responses if spills
occur.  Denial of these types of approaches will not improve the ability
to respond but would be necessary to avoid an FRP designation and the
additional requirements it brings. Similarly, the reference to
‘…property, parcels, leases….’ in the proposed definition causes
uncertainty.  For example, leases regularly extend beyond the size of
the facility.” (210)

RESPONSE

EPA agrees with comments supporting the revised definition and is making
no change to this provision.  The Agency disagrees that the
modifications to the definition lead to uncertainty. The use of a
“one-plan”, or an Integrated Contingency Plan (ICP), does not by
itself invoke Facility Response Plan (FRP) jurisdiction.  Such a Plan
combines two or more plans or components to comply with differing
statutory requirements.  EPA encourages the use of ICPs and disagrees
that their use will trigger FRP jurisdiction where it does not already
exist or trigger additional requirements.  There may be common elements
that a facility owner or operator may use to satisfy one or more plans. 
Once the owner or operator defines his facility, that definition is
applicable for all purposes under 40 CFR part 112, regardless of whether
he uses a stand-alone SPCC Plan or FRP, or whether he combines one or
both plans into a larger document.  EPA disagrees that the reference to
“property, parcels, or leases” causes uncertainty.   These terms
help an owner or operator better define his facility.  The fact that a
lease may extend beyond the size of the facility does not necessarily
mean that the entire lease must be included in the facility.  The part
of a lease that does not relate to the facility need not be included.

An owner or operator may also combine multiple facilities into a single
SPCC Plan, combining common elements, while retaining facility-specific
information (a multi-facility

Plan). While the Plan may encompass multiple facilities, the
applicability of SPCC and FRP requirements is determined by the extent
of each individual facility. The amendment to the definition of facility
and the clarifications described in this action

should not be viewed as a deterrent to the use of multi-facility SPCC
Plans.

VI.   Facility Diagram

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

Issue:  EPA revised the facility diagram requirement at §112.7(a)(3) to
clarify how containers, fixed and mobile, are identified on the facility
diagram.  For any mobile or portable containers located in a certain
area of the facility, an owner or operator can mark that area on the
diagram where such containers are stored. If the total number of mobile
or portable containers changes, the owner or operator can indicate in
the Plan the potential range in number of containers and the anticipated
contents and capacities of the mobile or portable containers maintained
at the facility.

COMMENTS

Support 

General support. Many comments generally supported this amendment. (201,
211, 224, 232, 233, 238, 247, 253, 255, 256, 257, 259, 260, 261, 262,
263, 264, 265, 268, 269)

Oppose

Labeling underground storage tanks as exempt on the facility diagram. 
“Most of our member companies have already created facility diagrams
indicating USTs but not labeling them as exempt.  The companies
typically hire consultant to develop the drawings and changing them
would seem to be an unnecessary expense.” (232)

RESPONSE

The Agency agrees with comments supporting the proposal, and that
clarification and simplification of these requirements will reduce costs
and facilitate compliance.  The requirement to identify exempt USTs is
not the result of the 2008 final rule, thus the comment is outside the
scope of this rulemaking.  However, the facility diagram can be
supplemented with a table or log that indicates which USTs are exempt
from the SPCC rule. 

VI.B  	Indicating Complicated Areas of Piping or Oil-Filled Equipment on
a Facility Diagram

Issue: In the final rule, EPA 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.

COMMENTS

[No comments were submitted on this topic.] 

VII. 	Loading/Unloading Racks

VII.A 	Definition of Loading/Unloading Rack 

Issue: EPA defined the term ‘‘loading/unloading rack’’ and
specified that this definition would govern the applicability of the
provisions at §112.7(h), Facility tank car and tank truck
loading/unloading rack. This amendment provides clarity to the regulated
community over whether this provision applies to a facility. 

COMMENTS

Support 

		

General support. Many comments generally supported the definition. (211,
224, 232, 233, 238, 247, 253, 255, 256, 257, 259, 260, 261, 262, 263,
264, 265, 268, 269)

Other Definition

Clarify relationship to flexible hoses in definition.  “FIEC believes
that EPA’s definition, which includes a ‘loading/unloading arm,’
should not be read to include a flexible hose used in loading and
unloading materials from a tanker truck or railcar. FIEC requests that
EPA clarify that flexible hoses used to load and unload material from a
tanker or railcar are not considered a ‘loading/unloading arm’ in
the context of a loading/unloading rack.” (201)

RESPONSE

EPA agrees with comments supporting the new definition of
“loading/unloading rack.” EPA also 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. EPA modified
the definition in the 2008 final rule from that which was proposed in
2007 in order to provide more clarity, and to indicate that a
loading/unloading arm is an essential component of a loading 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 in the December 2008
final rule. 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 hosing.

VII.B 	Requirements for Loading/Unloading Racks

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

COMMENTS

[No comments were submitted on this topic.]

VII.C	Exclusion of Onshore Production Facilities and Farms from
§112.7(h)

Issue: EPA specifically excluded oil production facilities and farms
from the requirements at §112.7(h) because loading/unloading racks are
not typically found at these facilities (though loading/unloading
activities will remain subject to the general secondary containment
requirements of §112.7(c)).  

COMMENTS 

Support 

General support. Several comments supported the amendments regarding
onshore oil production facilities. (195, 209, 227)

Oppose 

Generally oppose.  Two comments opposed the amendments. These comments
argued that there is no need to treat certain facilities differently
than others, even if loading racks appear only infrequently at these
facilities (e.g. production facilities as opposed to farms).  (202, 215)

RESPONSE

The Agency 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. 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.  EPA
is removing this exclusion from the requirements of §112.7(h) for these
facilities because it is unnecessary. The new definition for
loading/unloading rack (finalized in December 2008 at §112.2) clarifies
the type of equipment that is subject to the requirements at §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 §112.2, the provisions at §112.7(h) do not apply (although
general containment (§112.7(c)) is required for these transfer areas);
therefore, a specific exclusion for facilities based on the assumption
that they do not have loading/unloading racks is unnecessary.
Furthermore, although this equipment may not be commonly used in certain
industry sectors, it is not appropriate to exclude loading/unloading
racks from the requirements at §112.7(h) solely because of their
location at a facility within a specific industry sector.

VII.D	No Action Option

Issue:  EPA considered not providing any amendments to the SPCC rule
related to loading/unloading racks.  However, EPA did not choose this
approach because it was important to address some of the confusion and
questions raised by the regulated community.

COMMENTS 

[No comments were submitted on this topic.]

VIII.	Tier I Qualified Facilities

VIII.A  	Eligibility Criteria

Issue: EPA established a tiered approach for qualified facilities.  A
qualified facility is one that meets the following criteria: has an
aggregate aboveground oil storage capacity of 10,000 U.S. gallons or
less; and has had no single discharge as described in §112.1(b)
exceeding 1,000 U.S. gallons or no two discharges as described in
§112.1(b), each exceeding 42 U.S. gallons within any twelve-month
period in the three years prior to the SPCC Plan self-certification
date, or since becoming subject to 40 CFR part 112 if the facility has
been in operation for less than three years. 

These criteria do not include discharges as described in §112.1(b) that
are the result of natural disasters, acts of war, or terrorism. When
determining spill history, the gallon amount specified in the criteria
(either 1,000 or 42) refers to the amount of oil that actually reaches
navigable waters or adjoining shorelines of the United States, adjoining
shorelines, the contiguous zone or in connection with specified
activities in waters and not the total amount of oil spilled. EPA
considers the entire volume of the discharge to be oil for the purposes
of these reporting requirements as specified in the December 5, 2008
notice, and revised language in the preamble of the December 5, 2008
notice accordingly. In that notice, EPA indicated that the gallon amount
described in this criterion addresses the amount of the discharge that
actually reaches navigable waters or adjoining shorelines (73 FR 74252).

Qualified facilities can now be further classified as either Tier I or
Tier II. To be eligible as a Tier I qualified facility, the owner or
operator must meet the criteria for a qualified facility (see
(§112.3(g)) and not have any aboveground oil storage container with a
capacity greater than 5,000 U.S. gallons. All other qualified facilities
are designated as “Tier II qualified facilities.”

COMMENTS

Support 

General support.  Several comments supported these amendments. (224,
227, 235) 

Alternative Approaches Suggested

Apply similar provision to small production facilities with aggregate
storage greater than 10,000 gallons.  “IOGA believes that similar
provisions should be applied to small production facilities that
aggregate storage greater than 10,000 gallons.  A small production
facility is not likely to have a container with a capacity greater than
5,000 gallons and, therefore, it should be allowed to use the SPCC Plan
template in Appendix G. Such a facility would be very similar to "Tier
I" facilities and, as such, should be treated the same.”  (227)

Adopt a 20,000-gallon threshold. Several comments supported the tiered
approach for qualified facilities, but suggested that the Agency adopt
an aggregate aboveground oil storage capacity threshold of 20,000
gallons. Comments claim that this is similar to the approach recommended
by the Small Business Administration and that it fits the nature of
farming operations which are spread out and remote. (219, 231, 245)

RESPONSE

Although EPA agrees that oil production facilities should also be
eligible as Tier I qualified facilities, the Agency does not agree that
the Tier I template should be used at facilities where the aggregate
aboveground oil storage capacity is greater than 10,000 gallons. The
relief provided by the SPCC Plan template and other streamlined
requirements are targeted to a specific segment of the universe of
regulated facilities based upon simplicity of configuration and a
5,000-gallon limit on the aboveground storage capacity for any single
container. Facilities that qualify for Tier I have a reduced threat of
discharge in harmful quantities due to this limit on the storage
capacity for each individual aboveground container. Comments did not
include data to support a larger threshold or demonstrate how this would
maintain environmental protection. 

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

VIII.B	Streamlined Provisions for Tier I Qualified Facilities 

Issue: EPA established a tiered approach for qualified facilities with
an option to allow the owners and operators of Tier I qualified
facilities to complete and implement a streamlined, self-certified SPCC
Plan template (proposed as Appendix G to 40 CFR part 112), in lieu of a
full SPCC Plan.  By completing the SPCC Plan template, an owner or
operator of a Tier I qualified facility would certify that the facility
complies with a set of streamlined SPCC rule requirements. 

COMMENTS

Support 

General support. Several comments supported the amendments. (199, 232,
233, 238, 241)  

Alternative Approaches Suggested 

Reconsider the PE certification requirement.  Reconsider the PE
certification requirement to allow Tier I facilities to rely on the
exemption or alternative requirements for produced water containers and
still make use of the Template. (209)

RESPONSE

EPA agrees with the comments supporting this provision. As described in
section XIV.H of this document (Produced Water Storage Containers), EPA
has removed all rule elements associated with the exemption for produced
water containers and retained the 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.

EPA disagrees with the comment to incorporate the alternative
requirements for produced water containers in the Appendix G template.
The alternative requirements for produced water containers require a PE
certification and EPA decided not to allow Tier I facilities to utilize
a “hybrid approach,” since the primary purpose of the “Tier I
category” is to allow those facilities with simple oil storage
configurations to have a relatively simple means to comply with the SPCC
requirements. Incorporating alternative requirements that require PE
certification, as is the case for certain produced water containers,
would add additional complexity to the template and seem to defeat the
goal of providing a simple means to comply with the rule. The owner or
operator of the facility may instead choose to develop a hybrid Plan
following the Tier II qualified facility requirements in §112.6(b) or a
PE-certified SPCC Plan following §112.7 and subparts B and C, as
applicable.

VIII.C 	SPCC Plan Template

Issue: The Agency is making the Plan template available on its Web site
(http://www.epa.gov/emergencies) to facilitate Plan development.  EPA
will provide the template in multiple formats to facilitate compliance.
Once completed and certified by the owner or operator, the Plan template
serves as the SPCC Plan for the facility and must be implemented.  The
use of the template is optional.  The Agency has modified the Plan
template based on specific comments received regarding the clarity and
ease-of-use.

COMMENTS

Support

General support.  Several comments supported the template format and/or
content.  (211, 224, 227)

Alternative Approaches Suggested 

Allow Tier II to use template.  “Tier II should also have a
streamlined form/template for those sites where there is no deviation
from the requirements. Again, there should be less requirements for
these types of wells that have relatively uncomplicated configurations
with simple straightforward processes and equipment that handle small
quantities of oil.” (195)

Allow use of an industry-specific template.  “EPA’s proposal to
provide the benefit of Tier I facility requirements only to those who
use its template would penalize AOCA and its members who created an
industry template pursuant to EPA’s self-certification criteria in
2007. If the goal of compliance includes full comprehension, then an
industry-specific template should be encouraged rather than
discouraged."  (229)

Clarity and corrections.  Another comment identified several areas in
the template that may require additional clarification (224).  

There appears to be text missing in Table G-3, in the sentence starting,
"The entire secondary containment system…"

Provision 3(d) does not appear to be sentence, nor does it appear to
relate to or make sense when combined with any of the preceding
sentences.

Please clarify that the intent of the "Drainage activity supervised"
column in Table G-18 relates only to the drainage being supervised and
not the employee doing the draining.

RESPONSE

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

EPA agrees that it is appropriate to allow the use of an
industry-specific template as long as all applicable rule requirements
are included in the SPCC Plan. Therefore, the rule language in
§112.6(a)(1) allows for a flexible Plan format for owners or operators
of Tier I qualified facilities that do not choose to use the template
provided in Appendix G of the rule. The amended rule text states that if
you do not follow the sequence specified in this section for the Plan,
you must prepare an equivalent Plan acceptable to the Regional
Administrator that meets all of the applicable requirements listed in
this part, and you must supplement it with a section cross-referencing
the location of requirements listed in this part and the equivalent
requirements in the other prevention plan. If the Appendix G template is
not used, then an equivalent Plan must be prepared in writing, and
include all requirements applicable to Tier I qualified facilities. 

The Agency appreciates the input received in comment, and has made
technical corrections to the finalized Appendix G to improve the
template clarity and accuracy.  A list of the corrections and edits are
described in the preamble to the final rule.

VIII.D 	Self-Certification and Plan Amendments

Issue: The Agency streamlined and tailored SPCC requirements for a
subset of qualified facilities and allows for owner or operator
self-certification of Plan amendments under certain conditions.

COMMENTS

Support

Allow environmental equivalence and impracticability determinations.
Three comments requested that EPA consider changing its position to
allow entities to self-certify while incorporating the use of some
alternative environmentally equivalent measures and applying
impracticability determinations for qualified facilities given that
agricultural entities vary in size, layout, topography, and other
characteristics. (219, 231, 245)  “Without this flexibility,
self-certification may be impractical for our industry. Most farms do
not have extra staff on hand to designate as environmental managers nor
can they afford to hire one. They will not have a budget to pay for PEs
for each of their tanks.” (219)  “Knowing that farming operations
and other agricultural entities vary in size, layout, topography, etc.,
EPA must consider changing its position to allow entities to
self-certify while incorporating the use of some alternative
environmentally equivalent measures and applying impracticability
determinations for qualified facilities.” (231)

 

Oppose

Do not allow self-certification of Plans.  “Among other things, a
qualified facility Plan does not have to be reviewed/certified by a P.E.
It should be obvious that any facility with discharges of any harmful
quantity (i.e., which results in a sheen or slick) within the last three
years is a facility whose Plan needs P.E. review/certification, to
determine whether it’s adequate, yet the 2008 amendments allow
qualified facilities to self-certify their Plans.” (221)

RESPONSE

EPA agrees that in some cases, an owner or operator of a qualified
facility should be able to self-certify an SPCC Plan that includes
alternative environmentally equivalent measures or impracticability
determinations. In fact, owners or operators of Tier II qualified
facilities can include environmental equivalence or impracticability
determinations in their Plans, provided they have a PE certify those
specific elements of the Plan where they choose to substitute an
environmentally equivalent measure or to make an impracticability
determination. The owner/operator still self-certifies the SPCC Plan
under this “hybrid approach.” 

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


The Agency does not agree with the comments suggesting that any facility
with discharges of any harmful quantity within the last three years
needs PE review/certification of the Plan, to determine whether the Plan
is adequate. Discharges may occur as a result of a failure to implement
the SPCC Plan, and therefore no Plan amendment may be necessary.
Additionally, certain reportable discharges caused by external factors
beyond the control of the facility owner or operator should not
disqualify a facility from having a self-certified SPCC Plan.  However,
EPA does have the authority to inspect a facility after any discharge
and require amendments to the SPCC Plan.

VIII.E 	Tier II Qualified Facility Requirements

Issue: The Agency designated qualified facilities that do not meet the
additional criterion for Tier I qualified facilities (i.e., no
individual aboveground oil storage container with a capacity greater
than 5,000 U.S. gallons) as Tier II qualified facilities. Although the
organization of the regulatory text in §112.6 has changed in order to
accommodate the tiered approach, the requirements for Tier II qualified
facilities remain the same as they were finalized in December 2006 (71
FR 77266).

COMMENTS

General support.  Several comments generally supported the Tier II
qualified facility requirements. (199, 200, 232, 233, 241) 

RESPONSE

EPA agrees with comments supporting this amendment and is making no
substantive changes to these provisions.

VIII.F	Alternative Options

Issue: EPA considered exempting a certain subset of qualified facilities
from the SPCC requirements altogether, based on a lower facility storage
capacity threshold (e.g., 5,000 U.S. gallons). However, this concept was
not included in the final rule.

COMMENTS

[No comments were submitted on this topic.]

IX.	Revisions to the General Secondary Containment Requirement

Issue: EPA amended the general secondary containment requirement at
§112.7(c) to make clear that the scope of secondary containment takes
into consideration the typical failure mode, and most likely quantity of
oil that would be discharged, consistent with current EPA guidance. This
amendment also provides additional examples of prevention systems for
onshore facilities found at §112.7(c)(1). 

COMMENTS

General support. Several comments generally supported the amendments.
(201, 213, 238, 247, 253, 255, 256, 257, 259, 260, 261, 262, 263, 264,
265, 268, 269)  Regarding the expanded list for onshore facilities,
“the Association supports these changes as well as the decision to
expand the examples of secondary containment given in the SPCC rule to
include the non-exclusive use of drip pans, sumps, and other collection
systems.” (209)

RESPONSE

EPA agrees with comments supporting the amendments and is making no
change to these provisions.

X.	General Secondary Containment for Non-Transportation Related Tank
Trucks

Issue: EPA is extending the exemption from the sized secondary
containment requirement for mobile refuelers to
non-transportation-related tank trucks at a facility meeting the
rule’s applicability requirements.

COMMENTS

Support 

General support. Several comments supported extending regulatory relief
provided to mobile refuelers to non-transportation-related tank trucks
at a facility subject to the SPCC rule. (195, 231, 232, 238, 245, 247,
253, 255, 256, 257, 259, 260, 261, 262, 263, 264, 265, 268, 269)

Oppose 

Rescind the expanded exemption.  A comment stated that, given the
relatively high risks associated with all mobile/portable tanks, the
expanded exemption should be rescinded. The comment suggests that many
truck and skid mounted tanks are used primarily as storage containers at
temporary sites (and only incidentally for mobile refueling), so this
amendment will result in the riskiest storage containers not being
required to provide secondary containment. (221)

Expand amendment to heating oil delivery trucks.  The New England Fuel
Institute requested expansion of the mobile refueler amendment to
heating oil delivery trucks with retained product during overnight
parking.  (238)

RESPONSE

EPA agrees with the comments arguing that non-transportation-related
tank trucks subject to the rule’s requirements should be exempted from
the sized secondary containment requirements, but should remain subject
to the general secondary containment requirements. The Agency is making
no change to this provision.

EPA disagrees with the comment opposing the exemption of
non-transportation-related tank trucks from sized secondary containment.
 Sized secondary containment is generally impracticable for tank trucks
and therefore EPA is extending the exemption for sized secondary
containment to non-transportation-related tank trucks for the same
reasons we exempted mobile refuelers from the sized secondary
containment requirements in the December 2006 SPCC amendments (71 FR
77266, December 26, 2006). However, the general secondary requirement in
§112.7(c) still applies, which provides adequate flexibility for the
prevention of oil discharges as described in §112.1(b). For example,
active measures to respond to an oil discharge from a vehicular accident
may be used to comply with the general secondary containment
requirement. 

In response to the point that these containers pose a high risk of a
discharge, this action balances the impracticability concerns with sized
secondary containment for these mobile units with the risk of discharge
by tailoring the rule requirements to these unique containers.  Despite
the exemption from sized secondary containment requirements, the
facility owner/operator is still responsible for preventing oil
discharges as described in §112.1(b) from these containers.
Additionally, the revision to the secondary containment requirements for
these tank trucks does not relieve the owner/operator of his
responsibility to comply with the security and personnel training
requirements of the rule.  

XI. 	Extend Security Requirements for Qualified Facilities to All
Facilities

Issue: EPA amended the facility security requirements at §112.7(g) to
allow an owner or operator to tailor his security measures to the
facility’s specific characteristics and location. A facility owner or
operator is required to describe in the SPCC Plan how he secures and
controls access to the oil handling, processing, and storage areas;
secures master flow and drain valves; prevents unauthorized access to
starter controls on oil pumps; secures out-of-service and
loading/unloading connections of oil pipelines; and addresses the
appropriateness of security lighting to both prevent acts of vandalism
and assist in the discovery of oil discharges. The December 2008 final
rule extended the streamlined security requirements that EPA provided to
a qualified facility in the December 2006 final rule (71 FR 77266,
December 26, 2006) to all facilities subject to the security
requirements.

COMMENTS

General support. Several comments generally supported these amendments.
(211, 224, 232, 238, 247, 253, 255, 256, 257, 259, 260, 261, 262, 263,
264, 265, 268, 269)

RESPONSE

The Agency agrees with the comments’ general support and is making no
change to this provision.  With this amendment, the Agency recognizes
that there is no one single approach to ensure proper facility security,
and that all facilities should be able to benefit from this
performance-based rule requirement.

XII.	Extend Integrity Testing Use of Industry Standards 

for Flexibility to All Facilities

Issue: EPA amended the requirements at §§112.8(c)(6) and 112.12(c)(6)
to provide flexibility in complying with bulk storage container
integrity testing requirements. EPA modified the current provision to
allow an owner or operator to consult and rely on industry standards to
determine the appropriate qualifications for tank inspectors/testing
personnel and the type/frequency of integrity testing required for a
particular container size and configuration. The December 2008 final
rule extended the streamlined bulk storage container inspection
requirement that EPA provided to qualified facilities in the December
2006 final rule (71 FR 77266, December 26, 2006) to all facilities
subject to the integrity testing provision.

COMMENTS

Support 

General support. Many comments generally supported these amendments.
(211, 224, 231, 232, 233, 238, 245, 247, 253, 255, 256, 257, 259, 260,
261, 262, 263, 264, 265, 268, 269) 

Oppose 

Several comments generally opposed these amendments. (197, 198, 239)  
One comment stated, “the proposed amendment to the integrity testing
requirements of 40 C.F.R. pt. 112 is inconsistent with 33 U.S.C. §
1321(j)(5)(D)… We question the basis on which the EPA proposes to
eliminate or has eliminated these testing requirements for any
facilities, and we find the absence of a need for the “more flexible
language” the EPA proposes (or a showing of the impracticability of
the existing requirement) to reveal an unsupported attempt to reduce
regulatory requirements on a uniquely profitable industry with
participants that will do less than the minimum required to protect the
environment.” (197)

RESPONSE

EPA agrees with those comments supporting the amendment. EPA has
replaced the previous regulatory requirements at §§112.8(c)(6) and
112.12(c)(6) with the integrity testing requirements finalized in
December 2006 for qualified facilities (§112.6(c)(4)).

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

EPA recognizes that certain containers are not within the scope of
relevant industry inspection and testing standards or recommended
practices. In these cases, the owner or operator can rely on a PE to
provide an environmentally equivalent method of integrity testing per
§112.7(a)(2).  The amended rule offers significant flexibility to the
owner/operator to develop a site-specific integrity testing program,
based on the container size and configuration. Nonetheless, the December
2008 final rule addressed broader concerns with the integrity testing
requirements by revising the rule text under §§112.8(c)(6) and
112.12(c)(6). The information or data provided in comments did not
provide an adequate basis for EPA to change this requirement and
therefore, the Agency is making no change to this provision.XIII.
Integrity Testing Requirements for Animal Fats and Vegetable Oils

XIII.A	General	

Issue: EPA differentiated the integrity testing requirements at
§112.12(c)(6) for an owner or operator of a facility that handles
certain types of animal fats and vegetable oils (AFVOs). EPA provided
the PE or owner/operator certifying an SPCC Plan 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. 

COMMENTS

Allow visual inspection for AFVO storage tanks. “Visual inspection has
proven effective in the food industry, allowing potential leaks or
spills to be detected early. Moreover, AFVO tanks are bottom-discharge,
thus eliminating the buildup of water in the bottom of the tank and
preventing corrosion from the inside out.” (201)

Provide additional flexibility for AFVO tanks.  “FIEC strongly
supports greater flexibility in determining appropriate integrity
testing measures for bulk AFVO storage containers. The current rule as
amended, however, severely limits such flexibility to a relatively small
percentage of AFVO storage containers.” (201)

Extend the inspection frequency for AFVO tanks.  “Based on the
internal corrosion differences between AFVOs and petroleum-based oils,
we believe the inspection frequency should be extended for tanks storing
AFVOs.” (201)

RESPONSE

EPA revised the rule to provide an environmentally equivalent approach
to comply with the integrity testing requirements for AFVO containers
that comply with certain FDA regulations and meet specific criteria. EPA
recognizes that certain containers may not have applicable industry
standards and notes that the owner or operator can rely on the
alternative integrity testing provision in §112.12(c)(6)(ii) or have a
PE provide an environmentally equivalent method of integrity testing in
accordance with §112.7(a)(2). The revision did not specify any
inspection frequency.

EPA agrees that a visual inspection program may be appropriate for some
AFVO storage tanks that meet the proposed criteria under
§112.12(c)(6)(ii).  However, EPA disagrees that a visual inspection
program is appropriate for all bulk storage containers regardless of
other factors such as container configuration and materials of
construction simply because they store AFVOs.  As EPA noted in the
previous response to comment document (EPA-HQ-OPA-2007-0584-0183), the
revisions to §112.12(c)(6) may allow the owner or operator to conduct
visual inspections for some bulk storage containers to satisfy the
integrity testing requirements. EPA finalized changes to
§112.12(c)(6)(i) incorporating industry standards into an integrity
testing program for AFVO bulk storage containers (consistent with the
provision finalized at §112.8(c)(6) for other oils).  There is
sufficient flexibility provided in §112.7(a)(2) to make an
environmental equivalent determination with respect to developing a
hybrid integrity testing program. In addition, an interested party may
develop a consensus-based industry standard through standard setting
organizations such as the American Society for Testing and Materials
(ASTM).  Therefore, the rule already allows other design approaches,
other industry standards, or other good engineering practices to be used
alone or as a ‘hybrid’ program where equivalent results in meeting
the SPCC requirements is obtained.

The Agency acknowledges comments on the criteria being too limiting, in
addition to comments that the criteria are overly lax, in the previous
response to comment document (EPA-HQ-OPA-2007-0584-0183). EPA recognizes
that not all owners and operators of AFVO bulk storage containers may
benefit from the alternative option. The criteria developed strikes the
appropriate balance between regulatory requirements and environmental
protection. 

For some bulk storage container configurations other factors including,
but not limited to, external corrosion can be the primary concern with
respect to their integrity. For example, corrosion to the exterior
surface can occur from exposure to moisture and, in some cases, may be
enhanced if insulation is present. Corrosion can also occur from
overfills of oil and/or any associated substance(s) that have
accumulated on the exterior surface, as well as from cleaning and
sanitizing agents. The Agency disagrees with comments arguing that the
internal corrosion differences between AFVOs and petroleum-based oils
are enough to justify a different inspection frequency for AFVO bulk
storage containers. The rule does not establish a required inspection
frequency and the owner or operator of the facility, or PE, can
establish an inspection schedule that accounts for the chemical and
physical characteristics of the oil being stored and for any other
factors which may affect the integrity of a bulk storage container,
including those factors that may affect external corrosion.  AFVOs and
oils other than AFVOs, including oil mixtures, may have similar
corrosive properties. In addition, there are factors that affect the
integrity of a bulk storage container other than the corrosive
properties of the oil that is being stored which may affect the
inspection frequency of bulk storage containers, such as exposure of the
external container wall to moisture or to chloride-leaching insulation. 


The information or data provided in comment did not provide an adequate
basis for EPA to change this requirement and therefore, the Agency is
making no change to this provision.

XIII.B	Criteria for Alternative Approach for Integrity Testing 

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

XIII.B.i 	Use of FDA Requirements Under 21 CFR part 110

COMMENTS

General Support.  One comment agreed with the logic that container
foundations and support structures meeting FDA requirements would also
meet the intent and practicality of the SPCC requirements. (201)

RESPONSE

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

XIII.B.ii	Elevated AFVO Bulk Storage Containers 

COMMENTS

Generally Oppose. “FIEC is also concerned about EPA’s other criteria
for the integrity testing provision: that tanks be elevated, made of
stainless steel, and non-insulated.  FIEC is aware that many food
industry facilities use non-elevated tanks; these tanks comply with FDA
requirements, which allow tanks to be positioned on pads as long as the
area can be adequately cleaned and kept in good repair.” (201)

RESPONSE

The final rule provides an alternative option to comply with the
integrity testing requirements in §112.12(c)(6)(i). The alternative
option is tailored to bulk storage containers that store AFVOs intended
for human consumption and meet certain criteria. While EPA recognizes
similarities between elevated and bottom-discharge designs, the Agency
does not agree with the request to expand the scope of the AFVO
alternative criterion to include non-elevated bulk storage containers.
Although some food industry facilities may use non-elevated tanks, food
equipment is generally designed to be elevated (for example, to stand on
legs); this elevated design allows the space between the plant equipment
and the floor to be easily cleaned. FDA also recommends that all
equipment should be so installed and maintained so as to facilitate
cleaning of the equipment and of all adjacent spaces. 

Bottom-discharge designs similarly eliminate the build-up of water and
materials in the bottom of the tanks. However, having the tanks elevated
facilitates maintenance, inspections, and monitoring for oil discharges
all around the bulk storage container, all of which are critical in
allowing for the differentiated requirements. It is important to note
that the differentiated requirements are an available alternative. The
owner or operator may choose to include bulk storage container designs
that provide equivalent environmental protection in their SPCC Plan, in
accordance with §112.7(a)(2). 

XIII.B.iii	Containers Made of Austenitic Stainless Steel

COMMENTS

Generally oppose. “These tanks have been proven effective over many
years, and food industry facilities have maintained good housekeeping
practices with cooking oil and carbon steel equipment...Requiring AFVO
tanks to be made of stainless steel imposes a more stringent requirement
than currently applies to petroleum tanks.” (201)

RESPONSE

The Agency is not requiring that an owner or operator install austenitic
stainless steel bulk storage containers. However, facilities that
maintain these bulk storage containers for AFVOs and meet other criteria
can take advantage of the alternative compliance option.  In other
words, the final rulemaking provided an alternative option to comply
with the integrity testing requirements in §112.12(c)(6), and did not
require AFVO containers to be made of stainless steel.  EPA recognizes
that not all AFVO bulk storage containers may benefit from the
alternative option.  The criteria developed, including austenitic
stainless steel, strike the appropriate balance between regulatory
requirements and environmental protection.  

XIII.B.iv	Containers with No External Insulation 

COMMENTS

Oppose

Allow jacketed tanks.  “Insulated tanks can be visually inspected
through access ports installed permanently in the insulation at key
locations. Thus, EPA’s requirement that tanks be non-insulated to
qualify for the alternative integrity testing provision is inconsistent
with necessary industry practice and unnecessary to assure adequate
inspection. Therefore, FIEC respectfully requests that EPA revise its
AFVO alternate integrity testing criteria to permit jacketed tanks as
long as there are sufficient access ports installed in key locations to
observe an appropriate quantity of the exterior of the tank.” (201)

RESPONSE

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

XIII.B.v	Shop-Fabricated Containers 

COMMENTS

Oppose

These containers should qualify for the alternative provisions.  “FIEC
is aware that many AFVO facilities utilize tanks that are partially
assembled in the field. In many cases, large sections of a tank is
pre-fabricated in the shop, and then field-welded together in a few
places. The tank may be fabricated in halves or in three or four
pre-rolled sections, and then sent to the facility for final
welding...FIEC strongly believes that these types of AFVO tanks should
be covered by the alternative integrity testing provisions, and requests
that EPA modify the rule to clarify that tanks that are pre-fabricated
in sections, and then field-welded in a limited number of places, would
qualify for the alternative provisions.” (201)

RESPONSE

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

This criterion, in combination with the others, limits the applicability
of the integrity testing relief to those AFVO containers that, because
of equipment design and handling requirements, already provide
environmentally equivalent protection. In contrast, containers that are
partially shop-fabricated and then finalized in the field may be subject
to additional inspection requirements to bring these containers into
service and for continued service beyond the requirements for fully
shop-fabricated containers. It should also be noted that the rule
provides sufficient flexibility to make an environmental equivalence
determination, in accordance with §112.7(a)(2) of the SPCC rule, which
may be used to address fielded-erected containers that may vary in
complexity, including field-erected containers comprised of
pre-fabricated sections.

XIII.B.vi	Other Suggested Criteria and Options

COMMENTS

[No comments were submitted on this topic.]

XIII.C	Recordkeeping Requirements

cOMMENTS 

[No comments were submitted on this topic.]

XIV.	Tailored Requirements for Oil Production Facilities

XIV.A	Definition of Production Facility

Issue: EPA amended the definition of “production facility,” as found
in §112.2.  The Agency modified the definition to clarify the
flexibility allowed in determining the extent of the facility and to be
consistent with the litigation settlement. 

COMMENTS

Support 

General. Several comments generally supported EPA’s amended definition
of “production facility.” (209, 211, 226)

Oppose 

Clarify “production facility” refers to petroleum oil. “To reduce
the potential for misinterpretation with respect to vegetable oil
production facilities, FIEC believes the definition of an ‘production
facility,’ as found in 40 C.F.R. §112.2, should read: ‘Production
facility’ means all structures (including but not limited to wells,
platforms, or storage facilities), piping (including but not limited to
flowlines or gathering lines), or equipment (including but not limited
to workover equipment, separation equipment, or auxiliary
non-transportation-related equipment) used in the production,
extraction, recovery, lifting, stabilization, separation or treating of
petroleum oil, or associated storage or measurement, and may be located
in a single geographical oil or gas field operated by a single
operator.” (201)

RESPONSE

EPA agrees with comments supporting the revisions to the definition of
“production facility.” However, the Agency disagrees with the
comment that suggested that the addition of the term “petroleum” to
the definition of production facility is necessary to clarify that the
term does not apply to vegetable oil production facilities. The addition
of the term “petroleum” is unnecessary because the definition
clearly states that the type of facility addressed in the definition is
one that is involved with petroleum crude oil production and not any
other type of oil production, such as AFVO production. EPA’s intent
has always been that the definition of production facility 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 certain structures, piping, or equipment 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 AFVO
production facilities. Based on this and the review of all relevant
facts, the Agency is making no change to this provision.

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

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

COMMENTS

General Support. One comment supported EPA’s clarification excluding
drilling and workover facilities from the provisions at §112.9. (211)

RESPONSE

EPA with comments supporting the revisions and is making no change to
this provision.

XIV.C	SPCC Plan Preparation and Implementation Six-Month Date/Timeframe 

Issue: EPA finalized an amendment allowing a new oil production (that
is, a facility that becomes operational after July 1, 2009) a period of
six months after the start of operations to prepare and implement an
SPCC Plan.  The amendment does not apply to drilling or workover
activities at a production facility.

COMMENTS

General support. A number of comments supported EPA’s amendment to
allow new production facilities six months to prepare and implement a
Plan. (195, 209, 210, 211, 240)

RESPONSE

EPA agrees with comments supporting the provision to allow new oil
production facilities six months to prepare and implement a Plan. This
additional time for Plan preparation allows production facilities time
to stabilize operations and promotes the continued use of green
completion techniques.  Under the December 2008 amendments, the
provision applied at a new oil production facility that began operations
after July 1, 2009, which was the applicable compliance date. Since
then, the compliance date for SPCC has been amended. 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 date for all other facilities.  

XIV.D	Flowlines and Intra-Facility Gathering Lines 

XIV.D.i		Definition for Flowlines and Intra-Facility Gathering Lines 

Issue: EPA did not promulgate definitions of flowlines or intra-facility
gathering lines in the 2008 final rule.

COMMENTS

[No comments were submitted on this topic.]

XIV.D.ii	Exemption of Flowlines and Intra-Facility Gathering Lines from
the Secondary Containment Requirements

Issue: EPA finalized a conditional exemption from secondary containment
requirements under the SPCC rule for flowlines and intra-facility
gathering lines.  

COMMENTS

Support 

General Support.  Several comments supported the Agency’s exemption of
secondary containment requirements for flowlines and intra-facility
gathering lines at an oil production facility. (209, 210, 211, 226, 227)
 

Oppose

Generally Oppose.  Several comments opposed any reduction in secondary
containment requirements, indicating that underlying data do not support
this decision. (197, 239)  Another comment stated that “EPA proposes
to exempt these flowlines and gathering lines from secondary containment
requirements in exchange for the implementation of inappropriately broad
contingency plans and a commitment to do what 33 U.S.C. § 1311(a) and
33 U.S.C. § 1321(j)(5) already require. As suggested above, eliminating
regulatory requirements in exchange for inappropriate and preexisting
requirements is poor public policy and, in this case, should be
abandoned because it is inconsistent with the statutory requirement to
‘mitigate or prevent a substantial threat of’ a worst case
discharge.” (198)

RESPONSE

EPA agrees with the majority of comments that secondary containment for
flowlines and intra-facility gathering lines is, in most cases,
impracticable and that providing secondary containment for these lines
can be difficult for an owner/operator. Flowlines and intra-facility
gathering lines are often several miles long, can be buried, can extend
far from the main facility, and are often placed across land that is not
owned by the owner or operator of the oil production facility. Providing
secondary containment structures for these lines may result in soil
erosion and negative impacts to the land (such as when they are located
in farm fields). Buried flowlines present additional difficulty, because
their exact location may be uncertain, especially at an oil production
facility that has changed ownership since the original installation of
the lines.

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

Contingency planning is one of the many tools that the Agency has
provided in the SPCC regulatory requirements. The Agency disagrees with
the comment arguing that a contingency plan requirement is somehow
inconsistent with the intent of the law (33 U.S.C. 1321(j)(5)). The
Agency’s authority to promulgate the SPCC regulations is found in
Section 311(j)(1)(C) of the Clean Water Act, 33 U.S.C. § 1321(j)(1)(C),
not in Section 301(a); 33 U.S.C. § 1311(a). Section 311(j)(1)(C)
requires the President to issue regulations establishing procedures,
methods, equipment, and other requirements to prevent discharges of oil
to navigable waters or adjoining shorelines from vessels and facilities
and to contain such discharges. The statutory provision gives the Agency
broad discretion to establish the requirements under the SPCC rule.
Also, Section 311(j)(5)(D), 33 U.S.C. 1321(j)(5)(D), lists the
requirements for FRPs.  The Agency has promulgated regulations for FRPs
in 40 CFR 112.20 and 21.  The purpose of the SPCC program is to prevent
and control oil discharges from reaching navigable waters or adjoining
shorelines. However, it is important to recognize that despite best
prevention efforts, discharges may occur. The contingency plan
requirements under the SPCC program have dual purposes. They include
components to prevent oil that has escaped its container or secondary
containment from reaching navigable waters or adjoining shorelines, and
also include components that address the timely and appropriate response
actions to be implemented when an oil discharge does impact navigable
waters or adjoining shorelines. 

XIV.D.iii Contingency Plan Requirements in Lieu of General Secondary
Containment 

Issue: EPA finalized the requirement for implementation of an oil spill
contingency plan in accordance with 40 CFR part 109 (Criteria for State,
Local and Regional Oil Removal Contingency Plans) in lieu of secondary
containment requirements for flowlines and intra-facility gathering
lines at an oil production facility.  This requirement also includes a
written commitment of manpower, equipment, and materials required to
expeditiously control and remove any quantity of oil discharged that may
be harmful, without having to make an impracticability determination for
each piece of piping. 

COMMENTS

Support 

General Support.  Two comments supported EPA’s proposal to require an
oil spill contingency plan in lieu of secondary containment. (211, 226) 

Oppose

Generally Oppose. One comment stated 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 clean them up after they occur. (197)

Alternative Approaches Suggested

Excessive documentation. One comment suggested EPA reduce the burden of
using this alternative option.  “This documentation effort is
excessive, especially for marginal wells that produce on average 2
barrels of oil per day.” (195)  

Inspection and isolation valves.  One comment suggested that instead of
the requirement for secondary containment for flowlines and gathering
lines, operators should be encouraged to perform annual physical
inspections of the lines and install isolation valves on the ends of
lines. (209)

RESPONSE

EPA agrees with comments supporting the provision to require an oil
spill contingency plan in lieu of general secondary containment.

EPA understands that although these lines are often the source of
discharges, secondary containment is often impracticable.  EPA has
provided an alternative compliance option to secondary containment which
combines the development of a contingency plan to respond to discharges
with a set of enhanced maintenance, inspection and repair requirements.
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 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 and adjoining shorelines, the RA may request that the
facility amend the SPCC Plan and provide secondary containment for this
piping in accordance with §112.1(f) or §112.4(d).

EPA disagrees with the comment on excessive documentation. This
alternative provision for flowlines and intra-facility gathering lines
is an option, and some facilities may choose to provide secondary
containment for these lines. This option provides an alternative to
secondary containment that may be otherwise impracticable. Flowlines and
intra-facility gathering lines are often the source of discharges and
therefore, EPA does not consider these requirements excessive.
Furthermore, this option eliminates the cost associated with preparing
an impracticability determination (§112.7(d)) by allowing the use of
contingency planning instead of secondary containment without an
impracticability determination. 

EPA agrees that some form of enhanced inspection program is necessary to
assure the primary integrity of the flowlines and intra-facility
gathering lines and to implement a contingency plan. However, inspection
frequency is a site-specific determination and setting a prescriptive
timeframe is inappropriate.  Although, the Agency agrees that the
installation of isolation valves may be appropriate in some cases, EPA
is not including 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 §112.7(a)(2). 

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

Issue: EPA moved the requirement for a flowline maintenance program to
§112.9(d)(4), added specificity to the provision, and clarified that
the requirement applies to intra-facility gathering lines, as well as
flowlines at an oil production facility.

COMMENTS

Oppose

Concern that program requirements are excessive. “…we are concerned
that both the language in the proposed regulations and the material
contained in the Guidance Document will be construed to compel
monitoring and maintenance programs that are excessive. Other submitters
have recommended that the existing language of Section §112.9(3),
“Have a program of flowline maintenance to prevent discharges from
each flowline,” be maintained. This would allow the plan designer, in
consultation with the owner/operator, to design a flowline maintenance
program utilizing good engineering judgment appropriate to the
site-specific conditions of the facility. We support this approach.”
(210)

Alternative Approaches Suggested 

Corrosion protection. One comment stated that corrosion protection for
flowlines and intra-facility gathering lines should be a requirement
because corrosion is a major cause of spills. (197)

RESPONSE

EPA disagrees with comments that the flowline maintenance program is
excessive and is making no change to the amended requirements for a
flowline and intra-facility maintenance program under §112.9(d)(4),
which specify that the requirements apply to intra-facility gathering
lines, as well as flowlines at an oil production facility. 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 or other response
action may be taken. Maintaining the previous language for the provision
is not appropriate; eliminating the requirement for secondary
containment necessitates the added specificity to the existing program
for discharge prevention.  This added specificity of the flowline and
intra-facility gathering line maintenance program is intended to ensure
the integrity of the primary containment of the pipe itself. 
Furthermore, by setting minimum expectations, this amendment responds to
industry concerns about the scope of the maintenance program because
there are currently no industry standards for the maintenance of
flowlines and intra-facility gathering lines.  Finally, the owner or
operator has flexibility with the flowline and intra-facility gathering
line program requirements because they are subject to the environmental
equivalence provision found at §112.7(a)(2). That is, the facility
owner or operator may deviate from the requirements if an
environmentally equivalent alternate measure is implemented. EPA
recognizes that other Federal or state requirements may be
environmentally equivalent. An environmental equivalence determination
is subject to review and certification by a PE.

EPA agrees with the comment stating corrosion is a source of spills from
these piping systems.  Accordingly, EPA has added specificity for the
flowline and intra-facility gathering line maintenance program which is
intended to ensure the integrity of the primary containment of the pipe.
The finalized rule text states: “Ensure that flowlines and
intra-facility gathering lines and associated valves and equipment are
compatible with the type of production fluids, their potential
corrosivity, volume, and pressure, and other conditions expected in the
operational environment.” This measure is intended to preserve the
integrity of the lines, valve and equipment and reduce the potential
effects of corrosion or other factors that may lead to a discharge. The
performance-based language illustrates that a PE may tailor the program
to address site specific concerns.

XIV.E	Exemption of Flow-Through Process Vessels from Sized Secondary
Containment 

XIV.E.i	General

Issue: EPA modified the requirements at §112.9(c) to provide an
alternative to the sized secondary containment requirements for
flow-through process vessels at oil production facilities.  In lieu of
sized secondary containment, an owner or operator may opt to provide
general secondary containment, inspect or test flow-through process
vessels and components for leaks, corrosion or other conditions that
could lead to a discharge, and promptly take corrective actions should a
discharge occur.

COMMENTS

Support 

General support.  Several comments supported EPA’s alternative option
for flow-through process vessels in lieu of sized secondary containment.
(209, 210, 211, 226, 227)  

Oppose 

Secondary containment is necessary. Two comments stated that secondary
containment is needed for flow-through process vessels, and that
allowing an exemption would cause a greater risk for discharges of
harmful quantities to reach navigable waters. (202, 215)  

Oppose any relief from regulatory requirements. Several comments opposed
any relief from regulatory requirements for production facilities. (192,
197, 198, 230)  One comment suggested that flow-through process vessels
incorporate secondary containment with storage capacity greater than
their contents.  The rationale for this suggestion is that there is
typically no one on site at production facilities, and a failure of
these vessels may not be detected for hours or days. (197)

RESPONSE

Flow-through process vessels are bulk storage containers and, therefore,
are subject to the bulk storage container requirements under §112.9(c)
including sized secondary containment; however, EPA agrees with comments
supporting the provision to provide an alternative compliance option for
flow-through process vessels in lieu of sized secondary containment. 

EPA agrees that some form of secondary containment is required for these
vessels. EPA also agrees that sized secondary containment is always
preferable to general secondary containment because these flow-through
process vessels often operate at unattended facilities and at remote
locations. To address this concern, EPA has provided the owner or
operator with a choice to comply with either sized secondary containment
requirements (§112.9(c)(2)) or the general secondary containment
requirements (§112.7(c)) along with additional measures for inspection
and corrective action (§112.9(c)(5)). These compliance options allow
the owner or operator to tailor the SPCC Plan to meet the facility’s
operational needs. The information or data provided no adequate basis
for EPA to change this requirement and therefore, the Agency is making
no change to this provision.

XIV.E.ii  Additional Requirements

Issue: Because oil production facilities are typically unattended during
the hours of operation, EPA added a provision at §112.9(c)(5) to
provide additional requirements for flow-through process vessels at
those facilities that do not provide sized secondary containment. These
additional requirements include periodic inspection and/or testing,
corrective action, and prompt removal of any oil accumulations.

COMMENTS

General support.  Several comments supported the additional requirements
including inspections, corrective action, and prompt removal of oil
discharges. (210, 211)

Generally oppose.  One comment stated that the risk of discharge from
flow-through process vessels is so low that there should be no
additional requirements. (195)

 

RESPONSE

The Agency agrees with comments supporting the revision and is making no
change to this provision.

EPA disagrees with the comment arguing that no additional requirements
are needed for flow-through process vessels. Flow-through process
vessels contain oil and therefore pose the threat of a discharge. 
However, the Agency has provided the owner or operator with a choice to
comply with either sized secondary containment requirements or the
general secondary containment requirements along with additional
measures for inspection and corrective action. Based on a review of all
relevant facts, the Agency is making no change to this provision.

XIV.E.iii Reportable Discharge

Issue: EPA proposed a provision at §112.9(c)(5)(iv) stating that if an
oil production facility has discharged more than 1,000 U.S. gallons of
oil in a single discharge as described in §112.1(b), or discharged more
than 42 U.S. gallons of oil in each of two discharges as described in
§112.1(b), occurring within any twelve month period, from a
flow-through process vessel, then the facility owner or operator must
provide sized secondary containment for all flow-through process vessels
at the facility within six months from the discovery of the
discharge(s).

COMMENTS

[No comments were submitted on this topic.]

XIV.E.iv Contingency Plan without Impracticability Determination

Issue: EPA finalized a provision at §112.9(c)(5)(iv) to require that a
production facility owner or operator ensure that all flow-through
process vessels subject to this subpart comply with §112.9(c)(2) and
(c)(3) within six months from discovery of a discharge from a
flow-through process vessel, as described in §112.1(b). 

COMMENTS

[No comments were submitted on this topic.]

XIV.F	Small Oil Production Facilities as Qualified Facilities 

Issue: EPA finalized an amendment that provided alternative criteria for
identifying qualified facilities in the oil production sector for
onshore facilities.  These other criteria, unique to small oil
production facilities, serve to identify a qualified facility similar to
the approach as promulgated in December 2006 (71 FR 77266), by
identifying the simplest operations by factors other than strictly
capacity.  The criteria include: an average production rate of ten
barrels or less of crude oil per well per day; and, maximum or two
producing wells per single tank battery (with no injection wells at
facility).

XIV.F.i	General Comment

COMMENT

Support

General.  Several comments supported identification of specific criteria
for small oil production facilities to be considered qualified
facilities. (195, 205, 211, 244)    

Oppose

General. Several comments generally opposed allowing oil production
facilities to be defined as qualified facilities. (197, 198, 202, 203,
208, 215, 218, 230, 239) 

Approaches do not provide enough relief. One comment opposed the idea of
creating a qualified production facility because this still imposes
construction costs and does not take away other requirements. This
comment argues that the regulatory relief for production facilities
should be broader. (210)  

“A PE certification is required in all three cases, as are records of
regular inspections and maintenance, regardless of whether there is a
measurable amount of oil in a tank… The only advantage accorded a
qualified facility is the ability to self-certify, saving the costs of a
professional engineer certification. The much larger costs associated
with SPCC compliance are the construction of containment along with
other regulatory requirements like response equipment.” (240)

Abandon relief for production facilities.  “EPA should abandon relief
for production facilities as there is no record to support the action
and the reasoning is inconsistent with the original self certification
action of 2006. These production facilities store large quantities of
oil. EPA is already on the record stating that volume is the best
consideration for establishing the threshold of self-certification.”
(230)

RESPONSE

The Agency agrees with comments that oppose this amendment and has
concluded that the alternative approach is inconsistent with the
existing 10,000-gallon aggregate aboveground oil storage capacity
eligibility criteria available to any other facility.  Although a small
oil production facility produces low quantities of oil on a daily basis,
the accumulated quantity of oil or oily fluids stored in containers can
far exceed 10,000 gallons.  The existing criterion limits the oil
storage capacity, restricting this option to only those facilities with
a smaller discharge potential.  Consequently, the Agency has
reconsidered its decision and has determined that the alternative
qualified facility eligibility criteria for oil production facilities
are not as similarly protective of the environment as the qualified
facility criteria promulgated on December 26, 2006 (71 FR 77266).  Based
on all relevant facts, the Agency has concluded that the alternative
criteria would not effectively protect the environment from discharges
of oil in quantities that may be harmful. A Professional Engineer (PE)
should be involved in the development and implementation of an SPCC Plan
at most oil production facilities because they typically have complex
equipment and store large quantities of oil and oily fluids. 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.  Nonetheless, some oil
production facilities are, and will continue to be, eligible to self
certify their Plans based on the qualified facilities criteria finalized
on December 26, 2006 (71 FR 77266).

EPA provided the rationale for the December 2008 action as follows:
“given (1) the large number of marginal or stripper wells in the U.S.;
(2) that they contribute a significant portion of the country’s oil
production; and (3) EPA’s understanding of the particular aboveground
oil storage container capacities and the nature of the fluids handled at
certain small oil production facilities, other criteria beyond oil
storage container capacity are more appropriate in determining whether
an owner or operator of such a facility should self-certify his SPCC
Plan.” (73 FR 74281) After consideration of all relevant facts, the
Agency has determined that the number of stripper wells and the amount
of oil they produce is not an appropriate rationale for this relief, is
not protective of the environment and is inconsistent with the intent of
the qualified facility approach– providing relief for less complex
facilities with no more than 10,000 gallons of aggregate aboveground
storage capacity.  As stated in the preamble of the 2006 amendments to
the rule (71 FR 77270), 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 are commonly not
in an oil production or distribution business and 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 at these
facilities 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 in a
standard configuration.  This configuration changes little from one
facility to another.  Additionally, these facilities typically do not
have significant transfers of oil because they do not distribute nor
produce oil.

Finally, in the 2006 action, EPA responded to comments requesting that
EPA raise the qualified facility capacity threshold. Many of these
comments were provided by stakeholders representing oil production
facilities that can operate constantly, and unattended, in remote
locations. EPA stated in the preamble (71 FR 77271) that other
commenters suggested higher threshold quantities, generally based upon
the quantities of oil used or stored in their particular industry
sector. EPA does not agree that this provides a rational basis for
raising the threshold limit for qualified facilities. Higher thresholds
would potentially allow the option of foregoing the services of a PE to
owners and operators of facilities (which can be unattended) with more
complex operations or more complex oil system configurations, designs
and layouts, and with the potential for an increased number of
transfers. Thus, self-certification for owners and operators of more
complex facilities would not be commensurate with the potential spill
risks.

  

XIV.F.ii  Alternative Eligibility Criteria

Generally oppose alternative eligibility criteria.  Several comments
generally opposed the eligibility criteria for qualified small oil
production facilities. (195, 209, 227, 244) One comment simply stated
that eligibility for a qualified facility should be based on storage
capacity alone. (215)  Another comment stated that any facility that has
had a reportable discharge should not be able to self-certify. (221)

No more than four wells associated with a tank battery. One comment
stated that more than four wells should be allowed, because some
marginal wells make fewer than 2 barrels of oil per day. (195, 244) 

Another comment urged EPA to “adopt the recommendation made by IPAA in
previous filings that a small oil production facility definition be
introduced based on existing industry understandings of marginal
production, eliminating the ‘x-well or less’ and ‘injection
well’ limitations that needlessly restrict the applicability of a
reduced regulatory structure for marginal wells.” (209)

Allow injection wells. “Marginal wells with associated injection wells
or which utilize tertiary recovery should not be denied the opportunity
to self-certify simply due to the presence of these extraneous factors
that will not increase either the likelihood of a spill of the magnitude
of harm that may result from a spill.” (227)

	Another comment suggested eliminating the injection well “limitations
that that needlessly restrict the applicability of a reduced regulatory
structure for marginal wells.” (209)

Aggregate Oil Storage Capacity Threshold

Storage capacity. One comment stated that qualified production facility
status should be based on storage capacity. One comment suggested
offering limited regulation to small production facilities that have
“15,000 gallons or less in aggregate above-ground storage capacity,
with no individual containers having a capacity greater than 9,240
gallons.” (209) 

Stripper Well Definition

Use IRS definition for stripper well definition.  One comment suggested
using the Internal Revenue Service tax code definition because “no new
interpretation is required,...the EPA proposed definition is
arbitrary” and “the EPA definition remains linked to storage
capacity.” (210)

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

Exemption of stripper oil and natural gas wells from all SPCC
requirements. One comment supported the approach proposed by the
Department of Energy which would exempt existing stripper oil and
natural gas wells from all SPCC requirements, save for those applicable
to crude oil and condensate tanks. (227)  This comment then goes on to
urge EPA to specifically “exempt any natural gas well that produces
less than ten barrels of oil per day from all SPCC requirements,
including those applicable to produced water storage tanks, other than
those applicable to crude oil and condensate tanks.”

Regulate crude oil and condensate containers.  One comment suggested
regulating only crude oil and condensate containers. (210)

Other Regulatory Programs Address the Objectives of the SPCC

States’ programs.  One comment suggested that individual state spill
prevention regulatory programs should serve small production facilities
rather than one federal program. (209)

RESPONSE

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 decided that
criteria established in the December 2008 amendments specific for oil
production facilities are not appropriate to determine whether an owner
or operator of such a facility may self-certify their 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 intent of the approach promulgated on
December 26, 2006 amendments (71 FR 77266), which focused on facilities
with small oil storage capacities. 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.”  The amended definition
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, these facilities, which are in constant operation, located
often in remote areas, and generally unattended, can store large
quantities of oil and oil/water mixtures in a variety of containers that
may have large capacities. These factors, as well as others, highlight
the hazard potential posed by these operations (see Considerations for
the Regulation of Onshore Oil Exploration and Production Facilities
Under the Spill Prevention, Control, and Countermeasures Regulation, May
30, 2007, in the docket for this rulemaking (EPA-HQ-OPA-2007-0584-0015).
Thus, based on this hazard, and without sufficient rationale, it is
inappropriate to grant an outright exemption for such stripper oil and
natural gas wells from the SPCC requirements.  

Production operations typically have other equipment and containers that
store, process or transfer oil, which if discharged, can cause harm as
described in 40 CFR part 110. The hazard posed by these operations are
also described in Considerations for the Regulation of Onshore Oil
Exploration and Production Facilities Under the Spill Prevention,
Control, and Countermeasures Regulation, May 30, 2007, in the docket for
this rulemaking (EPA-HQ-OPA-2007-0584-0015).  Therefore, it is not
appropriate to regulate only crude oil and condensate containers because
other production equipment at the facility that contains oil can also
pose the threat of discharge.

Regarding the comment on the definition of stripper well, the “ten
barrels or less 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). These wells are often referred to as “marginal
wells.” This criterion limits the total flow rate 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 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 Plan without the spill prevention
benefits afforded by PE review and certification. In fact, some of the
facilities that potentially qualify under the alternative criteria may
store oil in quantities above the threshold for which an FRP is
required, which are recognized by the Agency as high-risk facilities. 

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. There may be facilities
storing produced water and oil in large quantities (e.g., up to one
million gallons) at oil production facilities qualifying under these
alternative criteria. Therefore, establishing a threshold for the
production rate per well does not limit the amount of oil storage,
including oils in associated fluids.

EPA disagrees with comments suggesting that the SPCC regulations are not
needed for production facilities because of other regulatory programs,
such as state programs, or the NPDES or UIC programs. EPA conducted a
comparison of a number of these programs with the SPCC program and found
that they are not nationally uniform (see Review of State Regulations
Pertaining to Oil Spill Prevention at Onshore Production Facilities and
Produced Water Containers and the Summary of Supplemental DOE Comments
and EPA Response Documents found in the docket for today’s
rulemaking). Further, under the Oil Pollution Act and CWA, EPA is
required to promulgate oil spill prevention regulations, and it cannot
delegate its responsibilities to other federal or state programs, but
has streamlined SPCC requirements or provided targeted exemptions from
SPCC regulation when such regulations provide comparable or equivalent
environmental protection. However, EPA has stated previously that, if a
facility owner or operator must comply with a state or Federal
requirement that also satisfies an SPCC requirement, the owner or
operator can include and reflect such effort in his SPCC Plan and not
duplicate it solely for SPCC. DOE also conducted an analysis of the
State regulatory programs for production operations and how they compare
to EPA SPCC program.  This document is also found in the docket for this
rulemaking.

XIV.G	Production Issue Paper Data and Other Concerns

Issue: In a notice published in the Federal Register on February 3, 2009
(74 FR 5900), EPA delayed the effective date of the December 2008 SPCC
rule amendments and requested comment on them.  Included in the
rulemaking docket was a report entitled “Considerations for the
Regulation of Onshore Oil Exploration and Production Facilities under
the Spill Prevention, Control, and Countermeasure Regulation”
(“Production Issue Paper”) which summarized findings of research Abt
Associates Inc. conducted on various issues pertaining to the production
sector.  The following are comments received on the Production Issue
Paper.

XIV.G.i  Concerns Associated with the Fisher and Sublette Study

COMMENT

Lack of State review.  “Without going into the database used for the
Fisher and Sublette study, it is difficult to assess whether the
underlying information is limited to E&P facilities.” [195, 210] 

Data may be skewed the way it is currently presented.  “One tank
release from overfilling is shown as 89,000 barrels. That size vessel
seems too large for an E&P operation. In fact, based on conversations
with the Oklahoma agency responsible for oil facility regulation, the
spill was attributable to operations at Cushing oil storage facilities
– facilities that are world scale oil storage operations taking crude
oil from throughout the midcontinent for shipment to refineries.”
[195, 210].  “Some of the data clearly skew the results.” [195, 210]
 “The 89,000 barrel tank spill shifts the mean upward and accounts for
70 percent of the total tank spill volume. It would clearly improve the
study to correct the error associated with this spill and determine
whether there were some similar large spills that shift the data and the
nature of those spills.” [210]  “There is a similar large saltwater
spill that affects that data.” [210] 

RESPONSE

Lack of State review.  The Agency has prepared a revised version of the
paper to address concerns raised in comments.  EPA added a footnote in
the section introducing the Fisher and Sublette study (Section 2.3.3 of
the revised paper, page 52) to mention that, to EPA’s knowledge, OCC
has not reviewed the data or findings presented in the study. Therefore,
the findings are solely those of the study authors.  The Agency also has
(a) added a short paragraph at the start of Section 2.3.3 (page 51) to
explain the purpose of the review of the state data, which was primarily
to further inform EPA understanding of trends observed in the analysis
of the National Reporting Center (NRC) data; (b) added, in the
introduction to sections that present the findings from the Oklahoma and
Colorado data (for findings reported by the Oil and Gas Accountability
Project), sentences to clarify that EPA did not independently review
individual data records analyzed by the authors of the two studies, and
that findings discussed in the paper are therefore based on conclusions
from the original studies; and, (c) added a paragraph in Section 2.3.6
which discusses limitations of the spill data analysis to highlight the
fact that EPA did not independently review data used in the two cited
studies but is instead relying on the findings presented by the authors.

Data may be skewed the way it is currently presented. The Agency has
added the inter-quartile range (25th and 75th percentile) provided in
the Fisher and Sublette paper to the summary tables of Exhibits 40 and
41, to address the concern that the average spill volume may be biased
by large incidents whose inclusion in the original study were questioned
in the comments. The Agency also added a note at the bottom of each of
the tables to qualify the annual average, total, and maximum volumes by
noting concerns that the largest incident reported by the authors of the
original study may not be from a production facility. 

XIV.G.ii  Lack of Clarity Regarding Origin of Reported Leaks and
Selection of Relevant Incident Data

COMMENT

“There are a number of line leaks but it is unclear whether these are
E&P lines or gathering lines or intrastate pipelines.” [195, 210]

RESPONSE

This comment could apply to the published studies cited in the paper or
to the Agency’s analysis of the NRC data. EPA discusses this issue in
the limitations section (section 2.3.6) by expanding on the existing
discussion of “selection of production-related spill incidents” to
describe how relevant spills were selected to mitigate the potential
inclusion of transportation-related incidents in the analysis of the NRC
data (e.g., by excluding piping the NRC characterized as regulated by
DOT, excluding incidents involving large diameter piping, and excluding
incidents where the responsible party is a known pipeline operator that
does not have oil extraction and production operations).  For cited
studies, the Agency reiterates that EPA did not review the individual
data records.

XIV.G.iii  Use of SPCC Plans

COMMENT

“In the context of SPCC Plans, the study does not address whether
Plans existed and were effective. Spills occur whether there are SPCC
Plans or not.” [210]   “SPCC Plans are required under the Clean
Water Act if there is a risk to contaminate navigable waters.” [210] 

RESPONSE

The Agency addresses this issue within the limitation section (section
2.3.6) by noting that the discharges are for “potentially” regulated
facilities and furthermore, that sources of spill data typically do not
indicate whether a facility has the requisite spill prevention measures
or is located in relative proximity to waters of the U.S. EPA also
notes, within this same paragraph, that for spills for which impacts to
water are reported in the original data source, the question of whether
the facility had a reasonable expectation of a discharge to water may
not be pertinent.  EPA also added text to the review of EPA Region 8
SPCC inspection data, presented at the end of Section 1.1.3 (page 14) to
discuss the (small) fraction of inspected production facilities that
regional staff determined were not subject to SPCC. 

XIV.G.iv  Potential Underestimation of the Universe of Regulated
Facilities 

COMMENT

“EPA has regularly used an assumption that the universe of production
facilities affected by the regulations is about 144,000. The Abt Report
states that EPA has now estimated a universe of about 166,000 oil
production facilities based on an assumption of four wells per facility.
This would then translate to 664,000 wells.  However, IPAA’s United
States Petroleum Statistics reports that in 2006 there were
approximately 914,000 producing oil and natural gas wells in the United
States, suggesting that the EPA number is about 72 percent of the United
States total. On the other hand, nothing in The Abt Report suggests
whether these assumptions include an assessment of whether these
facilities also pose a risk to navigable waters – important because a
navigable waters link is required before SPCC Plans must be
developed.” [210]

RESPONSE

The numbers cited in the Production Issue Paper are those estimated as
part of the economic analysis for the rulemaking. The number of 914,000
wells reflects the total number of producing oil and natural gas wells
in the United States. EPA’s estimate of 664,000 wells reflects the (1)
total number of oil-producing wells and (2) natural gas wells that
produce condensate oil in the United States. Gas wells that do not
produce condensate oil are not included in the analysis – EPA assumes
that those wells/facilities do not store oil on site and thus, that
those facilities are not subject to the SPCC regulation.

XIV.G.iv  Lack of Peer-Review

COMMENT

“While it is not a thorough – or peer reviewed – document, the Abt
Report presents issues that should be addressed. Clearly, it is crafted
as a document to justify the actions proposed in the current regulatory
action. [210]

RESPONSE

The Agency has added an introductory paragraph describing the process
used by EPA to develop the Production Issue Paper. After the outline of
the sections on page 1, the text now states:

“This paper presents research into secondary data and information
available to EPA on the characteristics of onshore production
facilities, including as they relate to oil storage practices, spill
history, and requirements applicable under state or other federal
regulations. Information presented in the paper was compiled over the
period of December 2006 through May 2007 from publicly available
material covering the range of issues of concern to the industry
regarding how specific SPCC provisions apply to onshore production
facilities. The paper reflects comments and suggestions of EPA reviewers
and other reviewers from the Department of Energy and the Small Business
Administration – suggestions that were incorporated in the version
dated May 2007. The current version of the paper reflects minor
revisions made to address additional comments received subsequent to the
distribution of the paper in the docket to EPA’s proposed amendments
to the SPCC rule in October 2007.” 

The paper was drafted in response to claims by DOE regarding the
characteristics of production facilities, discharges from these
facilities and the composition of produced water.  The paper represents
an overview of publicly available data including data from DOE and their
website.

XIV.G.vi  Lack of Context to Spill Volumes

COMMENT

“Using data from the National Reporting Center (NRC), the Abt Report
concludes that the number of incidents from 2000 through 2005
‘…remained relatively constant during the six-year period, with an
average of 501 incidents per year.’ Similarly, the average release was
approximately 548,000 gallons per year. How do these incidents relate to
the scope of oil that the industry manages yearly? Using EPA’s
assessment of the number of onshore facilities of 166,000, 500 releases
represent 0.30 percent of the operations. From a volumetric standpoint,
548,000 gallons is about 13,050 barrels. Based on information in ‘IPAA
Oil & Gas Producing Industry in Your State’ and the National Ocean
Economics Program, onshore production of oil and natural gas liquids in
2004 totaled about 2,001,000,000 barrels. The oil spill volumetric loss
was approximately 0.00065 percent of the total volume produced.” [210]

RESPONSE

To address the concern that there is insufficient context to assess the
relative scale of the volume, EPA has added a new Section 2.3.5,
“Significance of Oil Discharge Frequency and Volume” to summarize
the findings and provide additional context for the annual spill volume.
In addition to relating the volume discharged to the total production of
crude oil from onshore fields, the paragraph also provides information
on the effects that such discharges may have on the local environment,
drawing on examples from past discharges from production facilities
reported by EPA Regions. Additionally, the section summarizes available
information on the costs of responding and cleaning oil discharges,
including reference to Section 5 (“Oil Spill Cleanup and Remediation
Costs”).

XIV.H	Produced Water Storage Containers 

XIV.H.i	 General

Issue: In the December 5, 2008 amendments, EPA finalized two
alternatives for produced water containers at oil production facilities.
Under the first alternative, EPA exempted certain 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 based on the
efficiency of the oil/water separation technology used, 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; the
capacity of the exempted containers would not count towards the facility
aggregate oil storage capacity. Under the second alternative, for those
produced water containers that are not eligible for the exemption, the
facility owner/operator could comply with general secondary containment
requirements and conduct visual inspections, maintenance and corrective
action, in lieu of sized secondary containment, if a PE described in the
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.

COMMENT

Support

Support for exemption (first alternative).  Several comments supported
the exemption of produced water containers and wet gas production
facilities under §112.9(c)(6)(i) of the rule. (211, 220, 226, 227)

Support for exemption from sized secondary containment with additional
measures (second alternative). One comment supported the alternative
option at §112.9(c)(6)(ii) for non-exempt produced water containers
because “it also protects the environment while allowing flexibility
for the regulated community.” (211)  Several other comments stated
that produced water containers located at oil production facilities
should be subject to the wastewater treatment exemption to the same
extent as similar facilities in other industrial sectors. (195, 210,
244)

Exempt produced water from SPCC requirements. Several comments stated
that produced water should not be regulated under this rule. (209, 210,
223, 240)  One comment stated that regulation of produced water is
outside of the SPCC rule’s jurisdiction. (209) 

No PE certification for exemption. Two comments suggested (209, 227)
that an exempt produced water container should not have to be certified
by a Professional Engineer because “the cost of complying with SPCC
requirements for these tanks far outweighs whatever minimal benefit may
be gained by imposing these requirements.” (227) 

Oppose

Oppose. Several comments opposed the exemption of produced water tanks
from the sized secondary containment rule. (188, 192, 197, 202, 206,
207, 208, 215, 239) “This implies that the agency has historically
taken a container by container based approach for applicability, this is
untrue, the EPA has required that an operator determine if their
‘facility’ poses a threat of discharge, not a specific container.
EPA provides no explanation why a produced water container should be
allowed to be exempted out the rule, when all along the applicability
determination was facility based not container based. The lack of
rationale and record should be the basis for removing this provision for
produced water container.” (206)  “Even though it is unlikely that
most produced water containers can meet the requirement not to discharge
oil in a harmful quantity to navigable waters, should a separation
system at a facility be efficient enough to prevent such a discharge,
then it would not be regulated under the SPCC Rule of 1973 or the rule
of 2002. Therefore the exemption proposed in this amendment is
superfluous and confusing. There is also a higher potential for abuse of
the exemption and PE's could be placed under unwarranted pressure to
make certifications they doubt a facility owner or operator can
maintain.” (202) “… production sector is the only sector showing
an increasing trend in frequency of spills. Common sense suggests
reducing requirements including no or inadequate secondary containment
would only magnify the problem.” (192) “EPA has always said an oil
with anything else is an ‘oil.’ So [neither] a produced water tank
which is just water with no sheen, nor oil content which would violate
water quality standards, was [n]ever regulated. So this exemption is not
needed and has no scientific basis. It just makes it more confusing
about which tanks are regulated and which are not.” (215)

Produced water containers should be fully regulated as bulk containers.
Many comments stated that produced water containers should be fully
regulated under this rule and the relief withdrawn. (202, 203, 207, 215,
218) Some felt that the section on produced water is confusing and
unnecessary. (202, 203) “EPA should eliminate these rule provisions
for produced water containers because the rationale for the relief…is
flawed.” (207) One comment stated that very few PEs would risk their
licenses by certifying produced water containers to not have oil, and as
such, this provision should be withdrawn. (205) 

Other Oil Mixtures.  One comment questioned why EPA would regulate
agricultural mixes (e.g. pesticides) more strictly than produced water
when “produced water containers commonly have oil and these containers
may be of much greater capacity than crude oil tanks or pesticide
containers.” (202)

Inefficiency of Separation and Treatment.  One comment noted, generally,
that “separation systems typically in use at onshore oil production
facilities tend to be very inefficient.” (202)

RESPONSE

The Agency is amending the December 2008 rule to remove all rule
elements associated with the exemption for produced water containers.
However, the Agency is retaining the 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. 

Alternative Option for Secondary Containment.  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. The Agency acknowledges that
owners and operators of produced water containers may use a process to
remove free-phase oil on a regular scheduled 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 actions to
stabilize/remediate oil discharges from produced water containers. 

Furthermore, 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 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
operate at unattended, often remotely located facilities, and has added
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.  

Removal of Exemption for Produced Water Containers.  After reviewing
comments and relevant facts, the Agency is maintaining its position on
produced water as stated in the 2002 final rule (July 17, 2002, 67 FR
47068).  

Several comments supported 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 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 is expected as a matter of regular
operations. 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 support observations by Agency personnel during inspections
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 EPA document Considerations for the Regulation of
Onshore Oil Exploration and Production Facilities Under the Spill
Prevention, Control, and Countermeasures Regulation, May 30, 2007
(EPA-HQ-OPA-2007-0584-0015) , indicates that 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 agrees with comments that a fluid containing no oil is not
subject to SPCC requirements. A container that does not hold oil is not
regulated under the SPCC rule; therefore, a specific exemption for a
produced water container that holds no oil is unnecessary. However, EPA
echoes comments by noting that generally, produced water containers may
contain oil in sufficient quantity to cause a harmful discharge. In
fact, the Agency received no 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. 

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 the crude
oil. Based on information reviewed by the Agency, included in the docket
in EPA documents titled Considerations for the Regulation of Onshore Oil
Exploration and Production Facilities Under the Spill Prevention,
Control, and Countermeasures Regulation, May 30, 2007
(EPA-HQ-OPA-2007-0584-0015) and Summary of DOE Comments and Response,
June 6, 2008 (EPA-HQ-OPA-2007-0584-0175), 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 the quiescent conditions
present in the produced water container. Furthermore, separation
equipment can become less efficient with age and use, thus allowing more
oil into a produced water container. It is therefore common for a layer
of oil to accumulate in a produced water container. 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.  The Agency acknowledges that
owners and operators of produced water containers may use a process to
remove free-phase oil on a regular scheduled 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 actions to
stabilize/remediate oil discharges from produced water containers.

EPA does not agree with comments stating that produced water containers
located at oil production facilities should be subject to the wastewater
treatment exemption to the same extent as similar facilities in other
industrial sectors. In the 2002 amendments (67 FR 47068) the Agency
stated that production facilities are normally unattended and therefore
lack constant human oversight and inspection. Produced water generated
by the production process normally contains saline which is an oil
contaminant.  In the case of a discharge, the oil as well as the saline
could aggravate environmental conditions.  Additionally, the goal of an
oil production, oil recovery, or oil recycling facility is to maximize
the production or recovery of oil while eliminating impurities in the
oil, including water.  The goal of a wastewater treatment facility is to
purify water. 

Neither an oil production facility nor an oil recovery or oil recycling
facility treats water; they treat oil. For purposes of this exemption,
produced water is not considered wastewater, and treatment of produced
water is not considered wastewater treatment. Therefore, a facility that
stores, treats, or otherwise uses produced water remains subject to the
rule. At oil drilling, oil production, oil recycling, or oil recovery
facilities, treatment units subject to the rule include open oil pits or
ponds associated with oil production operations, oil/water separators
(gun barrels), and heater/treater units. Open oil pits or ponds function
as another form of bulk storage container and are not used for
wastewater treatment. Open oil pits or ponds also pose numerous
environmental risks to birds and other wildlife.

In some cases produced water containers are used as part of the
separation process. In the preamble of the 2008 rule, EPA stated that
produced water containers are 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 §112.9(c).  

EPA agrees with comments arguing that spill data show that produced
water containers are a common 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 an EPA paper titled Considerations for the
Regulation of Onshore Oil Exploration and Production Facilities Under
the Spill Prevention, Control, and Countermeasures Regulation, May 30,
2007 (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 risk that the container will overflow. Finally,
the primary responsibility of the lease pumper or lease operator is to
maximize oil production. Incentives and daily activities therefore
naturally focus on crude oil stock tanks, which hold the marketable
product, rather than the produced water containers. 

Produced water can cause harm to surface waters, flora, fauna, and other
sensitive resources and ecosystems. As described in Considerations for
the Regulation of Onshore Oil Exploration and Production Facilities
Under the Spill Prevention, Control, and Countermeasure Regulation
(EPA-HQ-OPA-2007-0584-0015) and Summary of DOE Comments and Response,
June 6, 2008 (EPA-HQ-OPA-2007-0584-0175), 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 indicated concern that
produced water could contaminate surface waterways, groundwater and
drinking water; kills 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 land
or 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 sub-lethal 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.  Based on these facts
EPA recognizes the point made by a comment questioning the inequity of
regulating oil water mixtures contained in agricultural mixes (e.g.
pesticides) more strictly than produced water when “produced water
containers commonly have oil and these containers may be of much greater
capacity than crude oil tanks or pesticide containers.”  

  

Furthermore, EPA agrees with comments that the exemption for produced
water containers predicated on a container-based approach is
inconsistent with the determination of applicability of the oil
pollution prevention regulation which is based on a facility-wide
determination. 

XV.H.ii  Production Issue Paper as it Related to December 2008 Produced
Water Container Amendments 

Issue: Several comments referenced the Production Issue Paper when
questioning the approaches proposed in the 2007 Notice of Proposed
Rulemaking.

Production sector shows no decrease in spill frequency.  “The Oklahoma
Corporation Commission data shows no decrease in the frequency of spills
or average volume of spills despite the fact that crude oil production
has decreased by 32% in that state.  It also shows that spills of up to
300,000 gallons occur in one year alone in that one state.  So the NRC
data showing an average spill volume of 548,000 for the entire nation
seems vastly underestimated.”  [192]  “EPA should not even consider
reducing requirements for a major industry group which has such a large
number and volume of spills as identified in the Docket
EPA-HQ-OPA-2007-0584-0015. Accordingly, the production sector is the
only sector showing an increasing trend in frequency of spills. Common
sense suggests reducing requirements including no or inadequate
secondary containment would only magnify the problem. The ERC data shows
that production activities account for 1/3 of the volume of spills by
all industry sectors and 1/5 of the frequency of spills.” [192]

Production issue paper supports withdrawal of December 2008 Final
Amendments, particularly produced water.  “Cost of the changes and so
called rationale in these amendments directly contradicts previous
statements in EPA rule making (for example that regarding produced
water). There is no scientific basis nor other valid data in the docket
to support these changes. Most of the real data in papers in the docket
support the opposite of what the rule is trying to do…The Agency needs
to look at what impact these proposals will have on the environment and
waters of the United States which are already in peril. All of these
rule amendments should be reviewed again and most should be withdrawn
permanently, especially regarding any reduction of secondary containment
and integrity testing or inspection requirements.”[239]

RESPONSE

The Agency is amending the December 2008 rule to remove the rule
amendment associated with the exemption of certain produced water
containers.  EPA agrees that information received by the Agency from
other sources, which are summarized in the EPA document Considerations
for the Regulation of Onshore Oil Exploration and Production Facilities
Under the Spill Prevention, Control, and Countermeasures Regulation, May
30, 2007, (EPA-HQ-OPA-2007-0584-0015) supports this action in addition
to the other rationale described above. The production paper was drafted
in response to claims by DOE regarding the characteristics of production
facilities, discharges from these facilities and the composition of
produced water.  The paper represents an overview of publicly available
data including data from DOE and their website. EPA has updated this
paper to address comments and concerns received during the comment
period, as discussed below. These updates do not change the underlying
substance of the report, which describes the characteristics of
production facilities. 

XIV.I	Clarification of the Definition of “Permanently Closed”
Containers 

Issue: EPA did not take any further regulatory action to address this
issue.  The SPCC rule exempts from applicability and from capacity
threshold determinations any oil storage container that is
“permanently closed.”

COMMENT

 [No comments were submitted on this topic.]

XIV.J	Oil and Natural Gas Pipeline Facilities

Issue: The final rule makes no change in these provisions and is not
otherwise intended to impose new requirements on DOT-regulated oil and
natural gas pipelines. Rather, by granting new flexibility in
delineating facility boundaries, the final rule should reduce
uncertainty and minimize, where appropriate, overlapping regulation.

COMMENT

General support.  Several comments supported EPA and DOT in committing
to a revision of the 1971 MOU. (220, 226)  

Incorporate a primary function test in agreement to determine
jurisdiction.  “Prior to the Administration Change, it was our
understanding that EPA and PHMSA were developing a new letter of
agreement incorporating a primary function test to determine
jurisdiction. The goal of this new agreement would be to eliminate gaps
and overlaps in the separate spill prevention regulations. API fully
supports this goal and would like to work with the agencies to provide
any information needed to complete this agreement to both agencies’
satisfaction.” (220)

RESPONSE

Several comments expressed support for the 2007 rule proposal in which
EPA and DOT committed to a revision of the 1971 MOU.  As stated in the
2008 final rule, EPA will continue to collaborate with DOT to work on
guidance for pipeline operators, where appropriate and where the
regulatory requirements are substantially equivalent to the extent
possible with respect to environmental protection.

EPA is committing to work with DOT to address confusion within the
regulated community. Under the 1971 Memorandum of Understanding (MOU)
between EPA and DOT (36 FR 24080, November 24, 1971) (See Appendix A of
part 112), transportation-related activities regulated by DOT and
non-transportation-related activities regulated by EPA are defined.
Based on the 1971 MOU, EPA has jurisdiction over
non-transportation-related facilities.  

Equipment, operations, and facilities are subject to DOT jurisdiction
when they are engaged in activities subject to DOT jurisdiction. If
those 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. “Complex” is defined in §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 for a
different purpose. 

The Agency is concerned that the ‘‘primary function test’’
approach described in comments may circumvent the meaning of the term
“complex.”  EPA will continue work to improve guidance to address
regulatory jurisdiction at “complex” facilities. 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 regarding, “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, and where the regulatory requirements are substantially
equivalent to the extent possible with respect to environmental
protection.XV. Manmade Structures

Issue: EPA stated that it is appropriate for a facility owner or
operator to consider man-made structure to determine how to comply with
the SPCC rule.  Given the clarifications provided in the preamble
discussion of the 2008 proposal, further regulatory action is not needed
to address this issue.

COMMENT

General support. One comment supported the clarifications regarding the
consideration of manmade features to meet the secondary containment
requirements and integrity testing requirements of the rule. (231)

RESPONSE

EPA agrees with the comment that supported the clarifications on
man-made structures and therefore maintains its position on this
clarification.

XVI.	Underground Emergency Diesel Generator Tanks 

at Nuclear Power Stations

Issue: EPA exempted underground oil storage tanks including below-grade
vaulted tanks deferred under 40 CFR 280 that supply emergency diesel
generators at nuclear power generation facilities and that are subject
to design criteria under the Nuclear Regulatory Commission regulations. 
This exemption includes both tanks that are completely buried and tanks
that are below-grade and vaulted.

COMMENT

Support 

General Support.  Several comments generally supported the amendments in
order to avoid dual regulation by EPA and NRC. (211, 238, 247, 253, 255,
256, 257, 259, 260, 261, 262, 263, 264, 265, 268, 269)

RESPONSE

The Agency agrees with comments supporting the exemption for underground
oil storage tanks including below-grade vaulted tanks deferred under 40
CFR 280 that supply emergency diesel generators at nuclear power
generation facilities and that are subject to design criteria under the
Nuclear Regulatory Commission regulations. EPA is making a technical
correction to amend the provision at §112.1(d)(4) and 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.) This technical correction should make this provision easier to
understand.Wind Turbines

Issue:  The Agency addressed the applicability of the rule to wind
turbines and finds that wind turbines meet the definition of oil-filled
operational equipment.  Thus, owners or operators of this equipment can
take advantage of the alternative compliance option provided for this
type of equipment, to the extent that the wind turbines meet the oil
storage capacity threshold in the rule. 

COMMENT

General support.  Several comments generally supported this amendment. 
(247, 253, 255, 256, 257, 259, 260, 261, 262, 263)

RESPONSE

The Agency agrees with comments supporting this clarification.  EPA
maintains its position on this clarification.XVIII. Delay of the
Effective Date of the Rule

Issue: On January 29, 2009, in accordance with the January 20, 2009,
White House memorandum entitled "Regulatory Review" and the Office of
Management and Budget memorandum entitled, "Implementation of Memorandum
Concerning Regulatory Review," EPA delayed by 60 days the effective date
of the final rule that amends the Spill Prevention, Control, and
Countermeasure (SPCC) regulations promulgated in the Federal Register on
December 5, 2008. This action delayed the effective date of the
amendments to April 4, 2009.  EPA requested public comment on the delay
of the effective date.

COMMENTS

Support

General support. Several comments supported making the rule effective on
April 4, 2009. (200, 214, 222, 232, 233)  

Oppose 

Delaying date may result in harm. One comment stated that delaying the
effective date of the rule any further may result in environmental harm,
and unnecessary compliance confusion and costs. (232)  

No justification to delay further. Several comments stated that there is
no reason or justification to further delay the effective date of the
rule. (214, 222)  

Alternative Approaches Suggested

Rule should be reviewed further before becoming effective. “The rule
was obviously rushed through to provide changes to the regulation which
benefit industry, not the environment…Either withdraw the entire rule
permanently or extend the effective date indefinitely until each
proposal can be carefully reconsidered and acted upon without unbiased
pressure from special interests.” (239)

Uncertainty of applicability should allow for more time. “The
uncertainty surrounding the applicability of the SPCC regulations to
natural gas pipeline facilities makes it difficult to adequately and
efficiently prepare SPCC plans… It would not be unreasonable to extend
the effective date for natural gas pipeline facilities to a year after
the finalization of the EPA/DOT jurisdictional issues.” (242)

RESPONSE

The Agency agrees with the comments that support delay of the effective
date.  In accordance with the January 20, 2009 White House memorandum
entitled, “Regulatory Review,” and the memorandum from the Office of
Management and Budget entitled “Implementation of Memorandum
Concerning Regulatory Review” (M-09-08, January 21, 2009 OMB
memorandum),   SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1 the effective
date of the December 2008 rulemaking was delayed for 60 days, from
February 3, 2009 to April 4, 2009 (These memorandums 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 on the multiple regulatory
amendments contained in the final rule (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. 

While the delay to January 14, 2010 was needed to allow time to
adequately address the concerns raised about the December 2008 rule, the
Agency disagrees with comments that suggested an indefinite delay, or a
delay contingent on resolution of EPA/DOT jurisdictional issues.  The
jurisdictional issues are broader than this action and do not justify a
delay of the effective date. Additionally, many gas and liquid pipeline
facilities are complexes that store oil as part of a non-transportation
related activity and meet the rule’s eligibility requirements, and
therefore have already been subject to the SPCC requirements.  A
majority of December 2008 rule provided regulatory relief so a further
delay of the effective date is not needed.  EPA and DOT will continue to
address jurisdictional concerns outside the regulatory process.  It is
appropriate to now have a date certain for facilities to be able to take
full advantage of the flexibility and compliance options offered in the
SPCC rule amendments, including the December 2008 rule.  EPA will
continue to work with DOT to minimize dual regulation, where
appropriate, and where the regulatory requirements are substantially
equivalent with respect to environmental protection. XIX. Further Delay
of the Effective Date of the Rule

Issue: On April 1, 2009, EPA published a notice in the Federal Register
delaying the effective date of the December 5, 2008 amendments from
April 4, 2009 to January 14, 2010.  EPA also requested comment on
whether a further extension of the effective date may be warranted.

COMMENTS

Support

Extend effective date to 2013.  One comment urged EPA to extend the
effective date of the amendments for oil production facilities to a date
no earlier than November 20, 2013, the date previously proposed by EPA
for qualified facilities. The comment cites justification for this
extension based on rationale provided by EPA in an earlier rulemaking: 
“The proposed dates will allow this sector ample time to make changes
to their facilities and to their SPCC Plans necessary to comply with the
revised requirements. This extension will also provide the Agency with
sufficient time to initiate work with relevant trade associations, the
Interstate Oil and Gas Compact Commission and the Department of Energy
on outreach and compliance assistance tools to help qualified oil
production facilities to develop their self-certified Plans.” (73 FR
72019, November 26, 2008). (251)

Oppose

Most amendments were not controversial, so effective date should not be
delayed any further.  Several comments opposed any further delay beyond
January 14, 2010 since most, if not all of the December 5, 2008
amendments, were noncontroversial and generated few adverse comments.
(252, 255)

Further delay would make compliance impossible based on the current July
1, 2009 compliance date.  Several comments pointed out that the new
effective date (and any later date) is too close to the current
compliance date to allow regulated facilities to effectively understand
and comply with the new rule.  (247, 253, 255, 256, 257, 259, 260, 261,
262, 263, 267)

Alternative Approaches Suggested

Allow at least the many non-controversial portions of the December 5,
2008 SPCC final rule to become effective immediately. (254, 252)

RESPONSE

At this time the Agency is not considering a further delay in the
effective date of January 14, 2010.  Most of the provisions in the
December 2008 action were non-controversial and the Agency is making
minor or no change to many provisions.  Publication of the current
action is expected approximately one year in advance of the current
compliance date of November 10, 2010.  The Agency never proposed an
effective date November 20, 2013, as one commenter indicated.  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. 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. 

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

 EPA has updated this paper to address comments and concerns received
during the comment period. These updates do not change the underlying
substance of the report, which describes the characteristics of
production facilities. This updated version of the paper has been
included in the docket for this rulemaking.

 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).

 Berton J. Fisher and Kerry L. Sublette. Environmental Releases from
Exploration and Production Operations and Oklahoma: Type, Volume,
Causes, and Prevention, in Environmental Geosciences, V. 12, No. 2 (June
2005), pp. 89-99.

 Since the publication of the notice of proposed rulemaking for which
this document provides a summary of public comment, the Agency has
further delayed the effective date to January 14, 2010.

 PAGE   

 PAGE   1 

		

