
[Federal Register: August 3, 2010 (Volume 75, Number 148)]
[Proposed Rules]               
[Page 45572-45579]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au10-21]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2009-0880; FRL-9184-2]
RIN 2050-AG59

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule; compliance date amendment.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
is proposing to amend the date by which certain facilities must prepare 
or amend their Spill Prevention, Control, and Countermeasure (SPCC) 
Plans, and implement those Plans. This action would allow additional 
time for those affected in the regulated community to understand the 
revisions to the SPCC rule finalized in December 2008 and November 
2009. In light of the recent uncertainty surrounding EPA's review of 
the final amendments to the December 2008 rule and the delay of that 
rule's effective date, the Agency is proposing to provide an additional 
year for certain facilities, with a new compliance date of November 10, 
2011. Additionally, the Agency is proposing to further delay the 
compliance date for facilities with milk containers, associated piping 
and appurtenances that are constructed according to the current 
applicable 3-A Sanitary Standards, and subject to the current 
applicable Grade ``A'' Pasteurized Milk Ordinance (PMO) or a State 
dairy regulatory requirement equivalent to the current applicable PMO. 
The delay would allow the Agency to take final action on a January 15, 
2009 action that proposed to exempt these containers from the SPCC 
requirements. The compliance date would be delayed one year from the 
effective date of a final rule specifically addressing SPCC 
requirements for these milk containers, associated piping and 
appurtenances, or as specified by a rule that otherwise establishes a 
new compliance date for these facilities. Both the extension and the 
delay would provide sufficient time for facilities to undertake the 
actions necessary to prepare or amend their SPCC Plans, as well as 
implement them. However, EPA is not proposing to extend the compliance 
date for drilling, production and workover facilities that are offshore 
or that have an offshore component, or for onshore facilities required 
to submit Facility Response Plans (FRPs).

DATES: Comments on this proposed rule must be received by August 18, 
2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2009-0880, by one of the following methods:
    (1) http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    (2) E-mail: Docket.RCRA@epa.gov, Attention Docket ID No. EPA-HQ-
OPA-2009-0880.
    (3) Fax: 202-566-9744, Attention Docket ID No. EPA-HQ-OPA-2009-
0880.
    (4) Mail: EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-
2009-0880, Mail Code 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460.
    (5) Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room 3334, 
1301 Constitution Ave., NW., Washington DC 20460. Attention Docket ID 
No. EPA-HQ-OPA-2009-0880. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: EPA's policy is that all comments received will be 
included in the public docket without change, and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
regulations.gov or e-mail.
    The Federal regulations.gov Web site is an ``anonymous access'' 
system, which means that EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of the comment and along with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the docket are listed in the docket index 
at

[[Page 45573]]

http://www.regulations.gov. Although listed in the index, some 
information is not publicly available (i.e., CBI or other information 
whose disclosure is restricted by a statute). Certain material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form.
    Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy at the EPA 
Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number to make an appointment to view the docket is (202) 
566-0276.

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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    In the table below, EPA is providing a list of potentially affected 
entities. However, this proposed action may affect other entities not 
listed below. The Agency's goal is to provide a guide for readers to 
consider regarding entities that potentially could be affected by this 
action. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding section titled FOR FURTHER INFORMATION CONTACT.

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          Industry sector                        NAICS code
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Oil Production....................  211111
Farms.............................  111, 112
Electric Utility Plants...........  2211
Petroleum Refining and Related      324
 Industries.
Chemical Manufacturing............  325
Food Manufacturing................  311, 312
Manufacturing Facilities Using and  311, 325
 Storing Animal Fats and Vegetable
 Oils.
Metal Manufacturing...............  331, 332
Other Manufacturing...............  31-33
Real Estate Rental and Leasing....  531-533
Retail Trade......................  441-446, 448, 451-454
Contract Construction.............  23
Wholesale Trade...................  42
Other Commercial..................  492, 541, 551, 561-562
Transportation....................  481-488
Arts Entertainment & Recreation...  711-713
Other Services (Except Public       811-813
 Administration).
Petroleum Bulk Stations and         4247
 Terminals.
Education.........................  61
Hospitals & Other Health Care.....  621, 622
Accommodation and Food Services...  721, 722
Fuel Oil Dealers..................  45431
Gasoline stations.................  4471
Information Finance and Insurance.  51, 52
Mining............................  212
Warehousing and Storage...........  493
Religious Organizations...........  813110
Military Installations............  928110
Pipelines.........................  4861, 48691
Government........................  92
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B. Tips for Preparing Your Comments

    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Authority

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

III. Background

    On July 17, 2002, the Agency published a final rule that amended 
the Spill Prevention, Control and Countermeasure (SPCC) regulation (67 
FR 47042). The rule became effective on August 16, 2002. The final rule 
included compliance dates in Sec.  112.3 for preparing, amending, and 
implementing SPCC Plans. The dates for complying with amendments to the 
SPCC

[[Page 45574]]

regulations have been amended a number of times: On January 9, 2003 (68 
FR 1348), on April 17, 2003 (68 FR 18890), on August 11, 2004 (69 FR 
48794), on February 17, 2006 (71 FR 8462), on May 16, 2007 (72 FR 
27444), and again on June 19, 2009 (74 FR 29136). These extensions 
alleviated the need for individual extension requests and provided 
additional time for the regulated community to, among other things: 
Understand the July 2002 SPCC amendments and the implications of the 
litigation (see 69 FR 29728, May 25, 2004 and 73 FR 71941, November 26, 
2008); allow those potentially affected in the regulated community an 
opportunity to make changes to their facilities and to their SPCC Plans 
necessary to comply with amendments to the SPCC rule as finalized in 
December 2006, December 2008, and November 2009; and to understand the 
material presented in the SPCC Guidance for Regional Inspectors before 
preparing or amending their SPCC Plans. All of these changes and 
amendments were promulgated to provide increased clarity, to tailor 
requirements to particular industry sectors, and to streamline certain 
requirements for those facility owners or operators subject to the 
rule. The current date under Sec.  112.3(a), (b) and (c) by which 
owners/operators of facilities must prepare or amend their SPCC Plans, 
and implement those Plans, is November 10, 2010.
    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), the effective date of the December 2008 rulemaking was 
delayed until April 4, 2009 (74 FR 5900, February 3, 2009) and then 
until January 14, 2010 (74 FR 14736, April 1, 2009). The Agency took 
this action to ensure that the rule reflected proper consideration of 
all relevant facts. In the February 3, 2009 notice, EPA requested 
public comment on the extension of the effective date and its duration, 
and on the regulatory amendments contained in the December 2008 final 
rule. Upon reviewing the record for the amendments and the additional 
comments, EPA promulgated further amendments to the SPCC rule on 
November 13, 2009 (74 FR 58784), making limited changes to the December 
2008 amendments. The effective date for both the December 5, 2008 and 
the November 13, 2009 final rule is January 14, 2010, with a compliance 
date of November 10, 2010. Because of the uncertainty that surrounded 
EPA's review of the final amendments to the December 5, 2008 rule, 
publication of final rule amendments on November 13, 2009 and the delay 
of the effective date, the Agency is now proposing to further extend 
the compliance date for certain facilities.
    On January 15, 2009, EPA proposed to exempt from the SPCC 
requirements milk containers, associated piping and appurtenances 
provided they are constructed according to current applicable 3-A 
Sanitary Standards, and are subject to the current applicable PMO or a 
State dairy regulatory requirement equivalent to the current applicable 
PMO (74 FR 2461). The Agency also proposed that the capacity of these 
milk containers would not be included in a facility's total oil storage 
capacity calculation. This action proposes to further delay the 
compliance date for facilities that would be impacted by the proposed 
rule to exempt milk containers, associated piping and appurtenances.

IV. Proposal To Amend Compliance Date

    Under the current provisions in Sec.  112.3(a), the owner or 
operator of a facility that was in operation on or before August 16, 
2002 must maintain the facility's SPCC Plan, make any necessary 
amendments to the Plan, and fully implement it by November 10, 2010; 
the owner or operator of a facility that came into operation after 
August 16, 2002, but before November 10, 2010, must prepare and fully 
implement an SPCC Plan on or before November 10, 2010. Under Sec.  
112.3(b), the owner or operator of a facility (excluding oil production 
facilities) that becomes operational after November 10, 2010 must 
prepare and implement a Plan before beginning operations; the owner or 
operator of an oil production facility that becomes operational after 
November 10, 2010 must prepare and implement a Plan within six months 
after beginning operations. In addition, Sec.  112.3(c) requires the 
owners and operators of onshore and offshore mobile or portable 
facilities to prepare, implement, and maintain an SPCC Plan, and to 
amend it, if necessary to ensure compliance with this part, on or 
before November 10, 2010. The owner or operator of any onshore or 
offshore mobile or portable facility that becomes operational after 
November 10, 2010, must prepare and implement a Plan before beginning 
operations.
    This proposed rule would amend the dates in Sec.  112.3(a), (b) and 
(c) by which the owners/operators of facilities (except drilling, 
production or workover facilities that are offshore or that have an 
offshore component, and all onshore facilities required to have and 
submit FRPs \1\) must prepare or amend their SPCC Plans, and implement 
those Plans, to November 10, 2011, which is one year from the current 
SPCC compliance date of November 10, 2010. This proposed extension of 
the compliance date does not apply to drilling, production or workover 
facilities that are completely offshore or that have both onshore and 
offshore components (e.g., an oil production facility with offshore 
wellheads connected to an onshore tank battery by submerged flowlines). 
For offshore drilling, production or workover facilities, the Agency is 
concerned about the need to have the most up-to-date SPCC Plans due to 
the unusual combination of characteristics of these facilities: 
Continuous flow of oil at the facility, potential discharges being 
limited only by the capacity and pressure of the underground reservoir, 
and discharges that would have immediate and direct impact on water.
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    \1\ Offshore FRP facilities are addressed in the exception to 
the compliance date extension as part of the drilling, production or 
workover facilities that are offshore or that have an offshore 
component.
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    For onshore facilities, the Agency is concerned that further 
extending the existing compliance date for facilities with large oil 
storage capacities could further increase the potential to cause 
substantial harm if a discharge were to occur. Onshore facilities with 
large oil storage capacities have the potential to cause substantial 
harm as identified under the FRP regulation (40 CFR 112.20 and 112.21). 
FRP facilities are those with storage capacities of 1 million gallons 
or more that could cause substantial harm \2\ or those with storage 
capacities at or above 42,000 gallons and that transfer oil to or from 
a vessel over water. The Agency believes that FRP facilities should 
also have the most up-to-date SPCC Plans. It should be noted the Agency 
has not changed any

[[Page 45575]]

compliance dates with respect to the FRP regulations. Therefore, EPA is 
not proposing to extend the compliance date for drilling, production or 
workover facilities that are offshore or that have an offshore 
component, or all onshore facilities required to submit FRPs, due to 
the threats these facilities pose of significant oil spills to waters 
of the U.S. or adjoining shorelines.
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    \2\ A facility may pose ``substantial harm'' according to the 
FRP rule if it (1) has a total oil storage capacity greater than or 
equal to 42,000 gallons and it transfers oil over water to/from 
vessels; or (2) has a total oil storage capacity greater than or 
equal to one million gallons and meets one of the following 
conditions: (a) Does not have sufficient secondary containment for 
the capacity of the largest aboveground oil storage tank in each 
aboveground storage area; (b) is located at a distance such that a 
discharge from the facility could cause ``injury'' to fish, 
wildlife, and sensitive environments; (c) is located at a distance 
such that a discharge from the facility would shut down a public 
drinking water intake; or (d) has had, within the past five years, a 
reportable discharge greater than or equal to 10,000 gallons.
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    The Agency is also proposing to delay the compliance date for 
facilities with milk containers, associated piping and appurtenances. 
The delay would be effective for facilities with milk containers that 
are constructed according to the current applicable 3-A Sanitary 
Standards, and subject to the current applicable Grade ``A'' 
Pasteurized Milk Ordinance (PMO) or a State dairy regulatory 
requirement equivalent to the current applicable PMO. The delay would 
be for one year from the effective date of a final rule addressing the 
SPCC requirements specifically for these milk containers, associated 
piping and appurtenances, or as specified by a rule that otherwise 
establishes a compliance date for these facilities. The Agency would 
establish the new compliance date and publish it in the Federal 
Register as part of any final action on the proposed exemption (74 FR 
2461). The delay for these facilities is intended to provide the owner 
or operator of these facilities the opportunity to fully understand any 
regulatory amendments that may be finalized.
    The Agency is making changes to the regulatory text in Sec.  112.3 
to reflect how the compliance date extension would apply for different 
facilities, as provided for in the proposed rule.

Proposal To Extend Compliance Date by One Year

    This proposed rule would extend for most facilities the dates in 
Sec.  112.3(a), (b) and (c) by which the owner or operator must prepare 
or amend and implement an SPCC Plan. Exclusions to this compliance date 
extension are described below. Today's proposed rule amends and 
combines the current Sec.  112.3(a) with the current Sec.  112.3(b)(1) 
and (c) to:
     Amend the compliance date for a facility, including a 
mobile or portable facility, in operation on or before August 16, 2002 
that requires the owner or operator to make any necessary amendments to 
an SPCC Plan and fully implement the amended Plan by November 10, 
2011.\3\
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    \3\ To be eligible for the compliance extension, owners or 
operators of facilities in operation before August 16, 2002 must 
continue to maintain their existing SPCC Plans.
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     Amend the compliance date for a facility, including a 
mobile or portable facility, which came into operation after August 16, 
2002, but before November 10, 2011, that requires the owner or operator 
to prepare and fully implement an SPCC Plan on or before November 10, 
2011.
     Amend the compliance date for a facility, including a 
mobile or portable facility, (except an oil production facility \4\) 
which becomes operational after November 10, 2011 that requires the 
owner or operator to prepare and implement an SPCC Plan before 
beginning operations.
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    \4\ On December 5, 2008 (73 FR 74236) EPA finalized an amendment 
to allow a new oil production facility (i.e., one that becomes 
operational after the compliance date) a period of six months after 
the start of operations to prepare and implement an SPCC Plan.
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     Incorporate the language under the current Sec.  112.3(c) 
for mobile or portable facilities (such as an onshore drilling or 
workover rig, or a portable fueling facility) to amend the compliance 
date for these facilities to November 10, 2011 and maintain the 
language that allows mobile or portable facilities to prepare a general 
Plan.
    An extension of the compliance date for these facilities is 
appropriate because it provides the owners or operators of SPCC-
regulated facilities the opportunity to fully understand the regulatory 
amendments offered by revisions to the SPCC rule promulgated on 
December 5, 2008 (73 FR 74236) and November 13, 2009 (74 FR 58784).\5\ 
Given the delay in the effective date for the December 2008 rule 
amendment, and the uncertainty that surrounded the final amendments 
because of this delay, this proposed extension would allow potentially 
affected facilities an additional year beyond the current compliance 
date of November 10, 2010 to make any changes to their facilities and 
SPCC Plans to comply with the revised SPCC requirements. Considering 
that the changes in the final November 2009 amendments were very 
limited, and that most of the December 2008 amendments offered 
compliance options and regulatory burden relief, a limited timeframe 
for this extension is appropriate. A one-year period from the current 
compliance date provides sufficient time to understand and implement 
the streamlined amendments to the SPCC rule.
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    \5\ A facility owner or operator in operation before August 16, 
2002 must continue to maintain an existing Plan. A facility owner or 
operator who wants to take advantage of the 2002, 2006, 2008, and 
2009 regulatory changes may do so, but will need to modify the 
existing Plan accordingly. Additionally, an owner or operator may 
need to amend the Plan prior to the new compliance date to address 
facility modifications for which more stringent requirements apply.
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    The Agency seeks comment on the proposed compliance date by which 
owners and operators would be required to prepare, amend, and implement 
SPCC Plans in accordance with amendments to the SPCC rule. Any 
alternative dates suggested must include appropriate rationale and 
supporting data for the Agency to be able to consider them for final 
action.

Exceptions to the Proposal To Extend Compliance Date by One Year

    The Agency is not proposing to extend the compliance date for 
drilling, production and workover facilities that are offshore or that 
have an offshore component; or for onshore facilities required to have 
and submit FRPs. The Agency is particularly concerned about the 
potential for immediate environmental impacts resulting from oil spills 
to waters of the U.S. or adjoining shorelines posed by these 
facilities. All of these facilities have potentially significant 
quantities of oil that could be discharged to navigable waters or 
adjoining shorelines. Offshore drilling, production and workover 
facilities (and those with an offshore component) have a constant flow 
of oil associated with them and discharges could be in amounts that far 
exceed the oil storage capacity of the facility. As in the case of the 
recent Gulf of Mexico oil spill, the Agency is concerned that any 
potential oil discharge may be limited only by the capacity and 
pressure of the underground petroleum reservoir. The Agency's concern 
regarding these facilities is reflected in the fact that they have a 
greater number of requirements under the SPCC rule because of their 
location over waters of the U.S. or adjoining shorelines (40 CFR 
112.11). In addition to those facilities completely offshore, the 
Agency has identified many onshore facilities with offshore components, 
as in the case of over-water production platforms. While these 
facilities have their tank batteries located onshore, their wellhead 
and portions of the flow lines are below the surface of the water. 
Offshore components include, but are not limited to, flow lines, 
gathering lines, wellheads, shut in valves, pressure control and 
sensing devices, cathodic protection devices and related piping and 
appurtenances. Because the Agency is equally concerned with the 
potential for immediate environmental impacts resulting from oil spills 
from a facility's offshore components, it is also excluding these 
facilities from the proposed extension. FRP facilities are those with 
storage capacities of 1

[[Page 45576]]

million gallons or more that could cause substantial harm, or those 
with storage capacities at or above 42,000 gallons and that transfer 
oil to or from a vessel over water. The Agency is proposing to exclude 
all onshore FRP facilities from the extension because of their large 
oil storage capacities and their potential to cause substantial harm in 
the event of a discharge as identified under the FRP regulation (40 CFR 
112.20).
    Today's proposed rule amends the current Sec.  112.3(b)(1) to 
maintain the existing compliance date for this subset of facilities, 
and combines it with the current Sec.  112.3(c) provision to indicate 
that the existing compliance date also applies to mobile or portable 
facilities within this subset:
     Maintain the existing compliance date for a drilling, 
production and workover facility, including a mobile or portable 
facility, that is offshore or that has an offshore component; or of an 
onshore facility required to have and submit an FRP, that was in 
operation on or before August 16, 2002, that requires the owner or 
operator to make any necessary amendments to an SPCC Plan and fully 
implement the amended Plan by November 10, 2010.\6\
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    \6\ As noted previously, owners or operators of facilities in 
operation before August 16, 2002 must continue to maintain existing 
SPCC Plans.
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     Maintain the existing compliance date for a drilling, 
production and workover facility, including a mobile or portable 
facility, that is offshore or that has an offshore component; or of an 
onshore facility required to have and submit an FRP, that came into 
operation after August 16, 2002, but before November 10, 2010, that 
requires the owner or operator to prepare and fully implement an SPCC 
Plan on or before November 10, 2010.
     Maintain the existing compliance date for a facility 
(except an oil production facility \7\) that is either: a drilling, 
production and workover facility, including a mobile or portable 
facility, that is offshore or that has an offshore component; or an 
onshore facility required to have and submit an FRP, that becomes 
operational after November 10, 2010, that requires the owner or 
operator to prepare and implement an SPCC Plan before beginning 
operations.
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    \7\ On December 5, 2008 (73 FR 74236) EPA finalized an amendment 
to allow a new oil production facility (i.e., one that becomes 
operational after the compliance date) a period of six months after 
the start of operations to prepare and implement an SPCC Plan.
---------------------------------------------------------------------------

     Incorporate language under the current 112.3(c) to 
maintain the existing compliance date for mobile or portable facilities 
that fall within this subset of facilities (such as a barge mounted 
offshore drilling or workover rig), and maintains the language that 
allows mobile or portable facilities to prepare a general Plan.
    The Agency seeks comment on the proposed exceptions to the 
compliance date extension. Any alternative exceptions suggested must 
include appropriate rationale and supporting data for the Agency to be 
able to consider them for final action.

Oil Production Facilities Beginning Operations After the Compliance 
Date

    The Agency is proposing to amend the current Sec.  112.3(b)(2) to 
distinguish the two separate compliance dates that would apply to oil 
production facilities that become operational after the proposed 
compliance dates. The Agency is also moving this provision to Sec.  
112.3(c). These changes are intended to reflect the amendments and 
rearranged provisions for Sec.  112.3(a), (b), and (c). The new Sec.  
112.3(c) would be amended to:
     Maintain the existing compliance date for an oil 
production facility that is offshore or that has an offshore component; 
or of an onshore oil production facility required to submit an FRP, 
that becomes operational after November 10, 2010, and could reasonably 
be expected to have a discharge as described in Sec.  112.1(b), that 
requires the owner or operator to prepare and implement a Plan within 
six months after beginning operations.
     Amend the compliance date for an onshore oil production 
facility (i.e. one that is not required to submit an FRP) that becomes 
operational after November 10, 2011, and could reasonably be expected 
to have a discharge as described in Sec.  112.1(b), that requires the 
owner or operator to prepare and implement a Plan within six months 
after beginning operations.
    The Agency seeks comment on the proposed extension of the 
compliance date by which owners and operators would be required to 
prepare, amend, and implement SPCC Plans in accordance with amendments 
to the SPCC rule. Any alternative dates or approaches suggested must 
include appropriate rationale and supporting data for the Agency to be 
able to consider them for final action.

Proposal for Facilities With Milk Containers, Associated Piping and 
Appurtenances

    The Agency is proposing to further delay the compliance date for 
the owners and operators of facilities with milk containers, associated 
piping and appurtenances that are constructed according to the current 
applicable 3-A Sanitary Standards, and subject to the current 
applicable Grade ``A'' Pasteurized Milk Ordinance (PMO) or a State 
dairy regulatory requirement equivalent to the current applicable PMO. 
The Agency is taking this action for facilities that would be affected 
by any final determination on the proposed rule to exempt these milk 
containers from SPCC requirements (74 FR 2461; January 15, 2009). The 
compliance date would be delayed to one year from the effective date of 
a final rule addressing the SPCC requirements specifically for these 
milk containers, associated piping and appurtenances, or as specified 
by a rule that otherwise establishes a new compliance date for these 
facilities.\8\ The Agency would establish the new compliance date and 
publish it in the Federal Register as part of any final action on the 
proposed exemption. The delay for these facilities is intended to 
provide the owner or operator of the facility the opportunity to fully 
understand any new regulatory amendments for milk containers, 
associated piping and appurtenances. Today's proposed rule amends Sec.  
112.3(b)(2) to:
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    \8\ As noted previously in Sec.  112.3(a) and (b)(1), to be 
eligible for the compliance extension, owners or operators of 
facilities in operation before August 16, 2002 must continue to 
maintain existing SPCC Plans. This includes facilities with milk 
containers, associated piping and appurtenances.
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     Further delay the compliance date for any facility that 
has milk containers, associated piping and appurtenances that are 
constructed according to the current applicable 3-A Sanitary Standards, 
and subject to the current applicable Grade ``A'' Pasteurized Milk 
Ordinance (PMO) or a State dairy regulatory requirement equivalent to 
the current applicable PMO. The delay would be for one year from the 
effective date of a final rule addressing the SPCC requirements 
specifically for these milk containers, associated piping and 
appurtenances, or as specified by a rule that otherwise establishes a 
new compliance date for these facilities.
    The Agency seeks comment on the proposed delay of the compliance 
date by which owners and operators of facilities that have milk 
containers, associated piping and appurtenances would be required to 
prepare, amend, and implement SPCC Plans in accordance with amendments 
to the SPCC rule. Any alternative dates or approaches suggested must 
include appropriate rationale and supporting data for the Agency to be 
able to consider them for final action.

[[Page 45577]]

Alternative Approach to the Proposed Compliance Date Extension

    While the Agency believes that a one-year compliance date extension 
is appropriate, as discussed previously, the Agency also is requesting 
comments on an alternative approach to extend the compliance date for 
these facilities. This approach would extend the compliance date to 
either May 10, 2011 or August 10, 2011 for all SPCC regulated 
facilities, except for: drilling, production and workover facilities 
that are offshore or that have an offshore component, or for onshore 
facilities required to have and submit an FRP, which must comply by 
November 10, 2010. This alternative approach would not impact the 
Agency's proposal to delay the compliance date for facilities with milk 
containers, associated piping and appurtenances that are constructed 
according to the current applicable 3-A Sanitary Standards, and subject 
to the current applicable Grade ``A'' Pasteurized Milk Ordinance (PMO) 
or a State dairy regulatory requirement equivalent to the current 
applicable PMO.
    Specifically, for SPCC-regulated facilities, the Agency believes 
that a compliance date extension is appropriate for these facilities 
because of the multiple regulatory amendments to the SPCC rule. 
However, we are also requesting comment on whether it would be 
appropriate to consider a shorter compliance date extension, such as 
either six or nine months for them. In considering the shorter 
compliance date extension, we request comments as to the type of 
criteria to consider, such as discharge history, size and type of 
facility, the ability to come into compliance, or the potential risk 
presented. This extension would not apply to drilling, production and 
workover facilities that are offshore or that have an offshore 
component, or for onshore facilities required to have and submit an 
FRP, which must comply by November 10, 2010.
    The Agency seeks comment on the alternative approach to the 
proposed compliance date extension. Any alternative dates or approaches 
suggested must include appropriate rationale and supporting data for 
the Agency to be able to consider them for final action.
Other Considerations
    If an owner or operator of an SPCC-regulated facility requires 
additional time to comply with the SPCC rule, he may submit a written 
request to the Regional Administrator in accordance with Sec.  
112.3(f). Such requests may be granted if the Regional Administrator 
finds that the owner or operator cannot comply with all SPCC 
requirements by the compliance date as a result of either non-
availability of qualified personnel, or delays in construction or 
equipment delivery beyond his control and without the fault of such 
owner or operator.
    It should be noted that these proposed compliance date amendments 
would affect only the requirements of the July 2002, December 2006, 
December 2008, and November 2009 SPCC rule amendments (67 FR 47042, 
July 17, 2002; 71 FR 77266, December 26, 2006; 73 FR 74236, December 5, 
2008; and 74 FR 29136, November 13, 2009) that are new (i.e., 
requirements that did not exist or were not in effect prior to the 2002 
amendments) or more stringent compliance obligations to those that were 
in effect in the 1973 SPCC rule. Provisions that provide regulatory 
relief to facilities are applicable as of the effective date of the 
amendment and would not require revisions to existing Plans ``to ensure 
compliance'' (see Sec.  112.3). However, the facility owner or operator 
must amend the SPCC Plan to include new or more stringent provisions by 
the compliance date.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under the terms of Executive Order 12866 (58 FR 51735, October 4, 
1993), this action has been determined to be a ``significant regulatory 
action.'' This rule was submitted to the Office of Management and 
Budget (OMB) for review. Any changes made in response to OMB's 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. This proposed rule would merely extend the compliance date 
for certain facilities subject to the rule. The Office of Management 
and Budget (OMB) has previously approved the information collection 
requirements contained in the existing regulations at 40 CFR part 112 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2050-0021. The OMB control 
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this proposed action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    This proposed rule seeks to extend the compliance date in Sec.  
112.3(a) for most facilities by one year and to delay the compliance 
date in Sec.  112.3(b)(2) for facilities with milk containers, 
associated piping and appurtenances that meet certain conditions for 
one year from the effective date of a final rule addressing the SPCC 
requirements specifically for these containers, or as specified by a 
rule that otherwise establishes a compliance date for these facilities. 
The changes in the final November 2009 amendments were very limited, 
and the December 2008

[[Page 45578]]

amendments offered compliance options and regulatory burden relief. We 
have therefore concluded that today's proposed rule will relieve 
regulatory burden for all affected small entities. We continue to be 
interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This proposed action contains no Federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or 
the private sector. The action imposes no enforceable duty on any 
State, local or tribal governments or the private sector. Therefore, 
this action is not subject to the requirements of sections 202 or 205 
of the UMRA. This action is also not subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments. This proposed 
rule would merely extend the compliance date for most facilities 
subject to the rule.

E. Executive Order 13132: Federalism

    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Under CWA section 311(o), States 
may impose additional requirements, including more stringent 
requirements, relating to the prevention of oil discharges to navigable 
waters. EPA encourages States to supplement the Federal SPCC regulation 
and recognizes that some States have more stringent requirements (56 FR 
54612, October 22, 1991). This proposed rule would not preempt State 
law or regulations. Thus, Executive Order 13132 does not apply to this 
proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

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

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The 
proposed rule would not significantly or uniquely affect communities of 
Indian tribal governments. Thus, Executive Order 13175 does not apply 
to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risk

    This proposed action is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997) because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not 
believe the environmental health or safety risks addressed by this 
proposed action present a disproportionate risk to children. The public 
is invited to submit comments or identify peer-reviewed studies and 
data that assess the effects of early life exposure to oil as affected 
by the proposed revision to the compliance date.

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

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

I. National Technology Transfer and Advancement Act

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

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.

List of Subjects in 40 CFR Part 112

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

    Dated: July 28, 2010.
Lisa P. Jackson,
Administrator.
    For the reasons set forth in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 112--OIL POLLUTION PREVENTION

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

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

    2. Section 112.3 is amended by revising paragraphs (a), (b), and 
(c) to read as follows:


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

* * * * *
    (a) If your facility, or mobile or portable facility, was in 
operation on or before August 16, 2002, you must maintain your Plan, 
but must amend it, if necessary to ensure compliance with this part, 
and implement the amended Plan no later than November 10, 2011. If such 
a facility becomes operational after August 16, 2002, through November 
10, 2011, and could reasonably be expected to have a discharge as 
described in Sec.  112.1(b), you must prepare and implement a Plan on

[[Page 45579]]

or before November 10, 2011. If such a facility (excluding oil 
production facilities) becomes operational after November 10, 2011, and 
could reasonably be expected to have a discharge as described in Sec.  
112.1(b), you must prepare and implement a Plan before you begin 
operations. You are not required to prepare a new Plan each time you 
move a mobile or portable facility to a new site; the Plan may be 
general. When you move the mobile or portable facility, you must locate 
and install it using the discharge prevention practices outlined in the 
Plan for the facility. The Plan is applicable only while the mobile or 
portable facility is in a fixed (non-transportation) operating mode.
    (b) Notwithstanding the provisions of paragraph (a) of this 
section:
    (1) If your drilling, production or workover facility, including a 
mobile or portable facility, is offshore or has an offshore component; 
or your onshore facility is required to have and submit a Facility 
Response Plan pursuant to 40 CFR 112.20(a), and was in operation on or 
before August 16, 2002, you must maintain your Plan, but must amend it, 
if necessary to ensure compliance with this part, and implement the 
amended Plan no later than November 10, 2010. If such a facility 
becomes operational after August 16, 2002, through November 10, 2010, 
and could reasonably be expected to have a discharge as described in 
Sec.  112.1(b), you must prepare and implement a Plan on or before 
November 10, 2010. If such a facility (excluding oil production 
facilities) becomes operational after November 10, 2010, and could 
reasonably be expected to have a discharge as described in Sec.  
112.1(b), you must prepare and implement a Plan before you begin 
operations. You are not required to prepare a new Plan each time you 
move a mobile or portable facility to a new site; the Plan may be 
general. When you move the mobile or portable facility, you must locate 
and install it using the discharge prevention practices outlined in the 
Plan for the facility. The Plan is applicable only while the mobile or 
portable facility is in a fixed (non-transportation) operating mode.
    (2) If your facility has milk containers, associated piping and 
appurtenances constructed according to current applicable 3-A Sanitary 
Standards, and subject to current applicable Grade ``A'' Pasteurized 
Milk Ordinance (PMO) or a State dairy regulatory requirement equivalent 
to current applicable PMO, the compliance date described in paragraphs 
(a) and (b)(1) of this section shall be one year from the effective 
date of a final rule addressing SPCC requirements specifically for 
these milk containers, associated piping and appurtenances; or until a 
rule that otherwise establishes the date by which you must comply with 
the provisions of this part.
    (c) If your oil production facility as described in paragraph (a) 
of this section becomes operational after November 10, 2011, or as 
described in paragraph (b)(1) of this section becomes operational after 
November 10, 2010, and could reasonably be expected to have a discharge 
as described in Sec.  112.1(b), you must prepare and implement a Plan 
within six months after you begin operations.
* * * * *
[FR Doc. 2010-19075 Filed 8-2-10; 8:45 am]
BILLING CODE 6560-50-P

