[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Rules and Regulations]
[Pages 58784-58832]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27156]
[[Page 58783]]
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Part III
Environmental Protection Agency
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40 CFR Part 112
Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
(SPCC) Rule--Amendments; Final Rule
Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 /
Rules and Regulations
[[Page 58784]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2007-0584; FRL-8979-8]
RIN 2050-AG16
Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure (SPCC) Rule--Amendments
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: On December 5, 2008, EPA amended the Spill Prevention Control,
and Countermeasures (SPCC) rule to provide increased clarity with
respect to specific regulatory requirements, to tailor requirements to
particular industry sectors, and to streamline certain rule
requirements. The Agency subsequently delayed the effective date of
these amendments to January 14, 2010, to allow the Agency time to
review the amendments to ensure that they properly reflect
consideration of all relevant facts. EPA also requested public comment
on the delay of the effective date and its duration, and on the
December 2008 amendments. Having reviewed the record for the amendments
and the additional comments, EPA has decided to make only limited
changes to the amendments. With respect to the majority of the December
amendments, EPA is either taking no action or providing minor technical
corrections. EPA is, however, removing the following provisions in the
December 2008 amendments: the exclusion of farms and oil production
facilities from the loading/unloading rack requirements; the exemption
for produced water containers at an oil production facility; and the
alternative qualified facility eligibility criteria for an oil
production facility.
DATES: This final rule is effective on January 14, 2010.
ADDRESSES: The public docket for this rulemaking, Docket ID No. EPA-HQ-
OPA-2007-0584, contains the information related to this rulemaking,
including the response to comment document. All documents in the docket
are listed in the index at http://www.regulations.gov. Although listed
in the index, some information may not be publicly available, such as
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Certain other material,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically at http://www.regulations.gov or in hard copy at the EPA
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number of the Public Reading Room is 202-566-1744, and the telephone
number to make an appointment to view the docket is 202-566-0276.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP, and Oil Information Center at 800-424-9346
or TDD at 800-553-7672 (hearing impaired). In the Washington, DC
metropolitan area, contact the Superfund, TRI, EPCRA, RMP, and Oil
Information Center at 703-412-9810 or TDD 703-412-3323. For more
detailed information on specific aspects of this final rule, contact
either Vanessa E. Principe at 202-564-7913 (principe.vanessa@epa.gov),
or Mark W. Howard at 202-564-1964 (howard.markw@epa.gov), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC, 20460-0002, Mail Code 5104A.
SUPPLEMENTARY INFORMATION: The contents of this preamble are:
I. General Information
II. Entities Potentially Affected by This Final Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
A. Final Amendments Effective without Change
1. Hot-Mix Asphalt (HMA)
2. Pesticide Application Equipment and Related Mix Containers
3. Applicability of Mobile Refueler Requirements to Farm Nurse
Tanks
4. Residential Heating Oil Containers
5. Definition of Facility
6. Facility Diagram
7. Loading/Unloading Racks
8. General Secondary Containment
9. General Secondary Containment for Non-Transportation-Related
Tank Trucks
10. Security
11. Integrity Testing
12. Integrity Testing Requirements for Animal Fats and Vegetable
Oils
13. Oil Production Facilities
a. Definition of Production Facility
b. Modifications to Sec. 112.9 for Drilling and Workover
Facilities
c. Exemption for Certain Intra-Facility Gathering Lines
d. Flowlines and Intra-facility Gathering Lines
(i) Compliance Alternative in Lieu of Secondary Containment for
Flowlines and Intra-facility Gathering Lines
(ii) Contingency Plan for Flowlines and Intra-facility Gathering
Lines
(iii) Requirements for a Flowline and Intra-Facility Gathering
Line Maintenance Program
e. Flow-Through Process Vessels
(i) Exemption from Sized Secondary Containment for Flow-Through
Process Vessels
(ii) Additional Requirements in Lieu of Sized Secondary
Containment for Flow-Through Process Vessels
(iii) Reportable Discharge from Flow-Through Process Vessels
f. Alternative Compliance Measures for Produced Water Containers
g. Clarification of the Definition of Permanently Closed
Containers
14. Man-made Structures
15. Wind Turbines
16. Technical Corrections
B. Technical Corrections to Provisions of the December 2008
Amendments
1. Tier I Qualified Facilities and Appendix G Plan Template
2. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations
3. SPCC Plan Preparation and Implementation for New Oil
Production Facilities
4. Compliance Date Provisions Specific to Farms
C. Provisions Removed from Final Rule
1. Exclusions for Oil Production Facilities and Farms from
Loading/Unloading Rack Requirements
2. Alternative Qualified Facility Eligibility Criteria for an
Oil Production Facility
3. Exemption for Produced Water Containers
D. Oil and Natural Gas Pipeline Facilities
VI. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order--13132 Federalism
F. Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045--Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
On December 5, 2008, the Environmental Protection Agency (EPA or
the Agency) amended the Spill Prevention, Control, and Countermeasure
(SPCC) rule to address a number of issues raised by the regulated
community (73 FR 74236). EPA is now amending the December
[[Page 58785]]
2008 amendments to make technical corrections. In addition, EPA has
decided to remove three provisions from the SPCC rule it had adopted in
December 2008. In all other respects, the amendments have not been
changed. The following provisions, which are intended to clarify,
tailor, and streamline certain requirements for those facility owners
or operators who are required to prepare and implement an SPCC Plan (or
``Plan''), will become effective without modification:
Exemption for hot-mix asphalt (HMA);
Exemption for pesticide application equipment and related
mix containers, regardless of ownership or where used, that may
currently be subject to the SPCC rule when crop oil or adjuvant oil is
added to pesticide formulations;
Exemption for residential heating oil containers, which
applies to aboveground containers, as well as completely buried heating
oil containers, at single-family residences, including those located at
farms;
Clarification that the definition of mobile refueler
includes a nurse tank, which is a mobile/portable container used at
farms to store and transport fuel for transfers to or from farm
equipment (such as tractors and combines) to other bulk storage
containers (such as containers used to provide fuel to wellhead/relift
pumps) at the farm;
Amendment of the definition of ``facility'' to clarify
that contiguous or non-contiguous buildings, properties, parcels,
leases, structures, installations, pipes, or pipelines may be
considered separate facilities, and to reaffirm that the ``facility''
definition governs the applicability of 40 CFR part 112;
Amendment of the facility diagram requirement at Sec.
112.7(a)(3) to clarify how containers, fixed and mobile, are identified
on the facility diagram. EPA also clarified that where facility
diagrams become complicated due to the presence of multiple fixed oil
storage containers or complex piping/transfer areas at a facility, the
owner or operator can include that information separately in the SPCC
Plan in an accompanying table or key. For any mobile or portable
containers located in a certain area of the facility, an owner or
operator can mark the area on the diagram, as well as indicate the
potential range in number of containers and the anticipated contents
and capacities of the mobile or portable containers;
Definition of the term ``loading/unloading rack,'' and
clarification that this definition governs the applicability of the
provisions for facility tank car and tank truck loading/unloading racks
at Sec. 112.7(h);
Amendment of the general secondary containment
requirements at Sec. 112.7(c) to clarify the scope of secondary
containment so that an owner or operator need only take into
consideration the typical failure mode, and most likely quantity of oil
that would be discharged, consistent with current Agency guidance. This
amendment also provides additional examples of prevention systems for
onshore facilities found at Sec. 112.7(c)(1);
Extension of the exemption from the sized secondary
containment requirement for mobile refuelers provided in the December
2006 SPCC rule amendments (71 FR 77266, December 26, 2006) to non-
transportation-related tank trucks at a facility subject to the SPCC
rule;
Amendment of the facility security requirements at Sec.
112.7(g) to allow an owner or operator of a facility to tailor his
security measures to the facility's specific characteristics and
location;
Amendment of the requirements at Sec. Sec. 112.8(c)(6)
and 112.12(c)(6) to allow an owner or operator to consult and rely on
industry standards to determine the appropriate qualifications for
personnel performing tests and inspections, as well as the type and
frequency of integrity testing required for a particular container size
and configuration;
Amendment of the integrity testing requirements at Sec.
112.12(c)(6) for an owner or operator of a facility that handles
certain types of animal fats and vegetable oils (AFVOs) so as to
provide the Professional Engineer (PE) or an owner or operator self-
certifying an SPCC Plan with the flexibility to determine the scope of
integrity testing that is appropriate for containers that store AFVOs,
based on compliance with certain FDA regulations and other criteria
relating to container construction and configuration;
Amendment of the definition of ``production facility'' to
be consistent with the amended definition of ``facility'';
Clarification that drilling and workover activities are
not subject to the provisions at Sec. 112.9;
Alternative compliance option for flow-through process
vessels at oil production facilities requiring general secondary
containment and additional oil spill prevention measures in lieu of the
sized secondary containment requirements that would apply to this
equipment;
Definition of the term ``produced water container'', and
an alternative compliance option for these containers at oil production
facilities requiring general secondary containment, a PE-certified
process or procedure designed to remove free-phase oil that accumulates
on the surface of the produced water container, and additional oil
spill prevention measures in lieu of the sized secondary containment
requirements that would apply to these containers;
Exemption for certain intra-facility gathering lines
subject to requirements of the U.S. Department of Transportation's
(DOT's) pipeline regulations in 49 CFR parts 192 or 195;
Specific requirements for a flowline/intra-facility
gathering line maintenance program and an alternative compliance option
of contingency planning for flowlines and intra-facility gathering
lines in lieu of the general secondary containment requirements; and
Clarification of the definition of ``permanently closed''
as it applies to oil production facilities and containers present at an
oil production facility.
The following provisions of the 2008 amendments will become effective
with technical corrections:
Exemption for underground oil storage tanks that supply
emergency diesel generators at nuclear power generation facilities,
revising the provision to state that the exemption applies ``provided
that such a tank is subject to any Nuclear Regulatory Commission
provision regarding design and quality criteria, including but not
limited to* * *'' (emphasis added);
Designation of a subset of qualified facilities (``Tier I
qualified facilities'') with a set of streamlined SPCC rule
requirements. The owner or operator of a Tier I qualified facility has
the option to complete a self-certified SPCC Plan template (found in
Appendix G to 40 CFR part 112) in lieu of a full SPCC Plan. In Sec.
112.6 and the Appendix G SPCC Plan template, technical corrections
include clarifications and corrections of typographical and formatting
errors; and,
Amendment of the compliance date provision for new oil
production facilities, so that it applies to new oil production
facilities that begin operations after November 10, 2010. This change
is necessary to align with the current compliance date for other
facilities.
In this notice, EPA is also removing the paragraphs in Sec. 112.3
specific to farms because on June 19, 2009 EPA established the same
compliance dates for farms as for all other facilities (74 FR 29136);
such differentiated provisions are no longer necessary.
Additionally, EPA was particularly interested in receiving comments
on
[[Page 58786]]
these provisions as indicated in the February 2009 notice. After
consideration of all relevant facts and public comments, EPA is
removing the following provisions which were promulgated on December 5,
2008 from the SPCC regulation:
The exemption for certain produced water containers that
do not contain oil in amounts that may be harmful as certified by a PE;
and
The alternative criteria for an oil production facility to
be eligible to self-certify an SPCC Plan as a qualified facility.
The Agency is also removing the specific exclusion of oil production
facilities and farms from the loading/unloading rack requirements at
Sec. 112.7(h). Finally, EPA commits to continue inter-Agency
discussions with DOT to clarify jurisdiction over facilities as
described in the joint memorandum ``Jurisdiction over Breakout Tanks/
Bulk Storage Tanks (Containers) at Transportation-Related and Non-
Transportation-Related Facilities'' (February 4, 2000).
This rulemaking marks the completion of the SPCC action proposed on
October 15, 2007 (72 FR 58378), finalized on December 5, 2008 (73 FR
74236), and for which the Agency considered public comments again in
February 2009 (74 FR 5900, February 3, 2009). Hereafter, comments
addressing the December 5, 2008 amendments will be referred to as
``comments from the 2009 comment period.'' However, EPA recognizes that
because of the changes in this action, and specifically provisions that
have been removed from the December 2008 Amendments, facilities may
need additional time to comply with the SPCC amendments. For example,
owners or operators of facilities with marginal wells may need a PE to
certify amendments to their SPCC Plan if the facility does not meet the
qualified facility eligibility criteria. Because of the uncertainty
surrounding the final amendments to the December 5, 2008 rule and the
delay of the effective date, the Agency will propose to extend the
compliance date.
II. Entities Potentially Affected by This Final Rule
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Industry sector NAICS Code
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Oil Production............................... 211111
Farms........................................ 111, 112
Electric Utility Plants...................... 2211
Petroleum Refining and Related Industries.... 324
Chemical Manufacturing....................... 325
Food Manufacturing........................... 311, 312
Manufacturing Facilities Using and Storing 311, 325
Animal Fats and Vegetable Oils..............
Metal Manufacturing.......................... 331, 332
Other Manufacturing.......................... 31-33
Real Estate Rental and Leasing............... 531-533
Retail Trade................................. 441-446, 448, 451-454
Contract Construction........................ 23
Wholesale Trade.............................. 42
Other Commercial............................. 492, 541, 551, 561-562
Transportation............................... 481-488
Arts Entertainment & Recreation.............. 711-713
Other Services (Except Public Administration) 811-813
Petroleum Bulk Stations and Terminals........ 4247
Education.................................... 61
Hospitals & Other Health Care................ 621, 622
Accommodation and Food Services.............. 721, 722
Fuel Oil Dealers............................. 45431
Gasoline stations............................ 4471
Information Finance and Insurance............ 51, 52
Mining....................................... 212
Warehousing and Storage...................... 493
Religious Organizations...................... 813110
Military Installations....................... 928110
Pipelines.................................... 4861, 48691
Government................................... 92
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The list of potentially affected entities in the above table may
not be exhaustive. The Agency's goal is to provide a clear guide for
readers to consider regarding entities that potentially could be
affected by this action. However, this action may affect other entities
not listed in this table. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding section titled FOR FURTHER INFORMATION CONTACT.
III. Statutory Authority and Delegation of Authority
Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33
U.S.C. 1321(j)(1)(C), requires the President to issue regulations
establishing procedures, methods, equipment, and other requirements to
prevent discharges of oil to navigable waters or adjoining shorelines
from vessels and facilities and to contain such discharges. The
President delegated the authority to regulate non-transportation-
related onshore facilities to EPA in Executive Order 11548 (35 FR
11677, July 22, 1970), which was superseded by Executive Order 12777
(56 FR 54757, October 22, 1991). An MOU between DOT and EPA (36 FR
24080, November 24, 1971) established the definitions of
transportation-related and non-transportation-related facilities. An
MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59
FR 34102, July 1, 1994) re-delegated the responsibility to regulate
certain offshore facilities from DOI to EPA.
IV. Background
The SPCC rule was originally promulgated on December 11, 1973 (38
FR 34164). On July 17, 2002, EPA
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published a final rule amending the SPCC rule, formally known as the
Oil Pollution Prevention regulation (40 CFR part 112). The July 2002
rule amendments (67 FR 47042) included revisions to the requirements
for SPCC Plans and for Facility Response Plans (FRPs). It also included
new subparts outlining the requirements for various classes of oil;
revised the applicability of the regulation; amended the requirements
for completing SPCC Plans; and made other modifications. After
publication of these rule amendments, several members of the regulated
community filed legal challenges to certain aspects.\1\ All of the
issues raised in the litigation have now been resolved; EPA published
clarifications in the Federal Register to several aspects of the
amended rule (69 FR 29728, May 25, 2004).\2\ In a separate Federal
Register notice, the Agency published a final rule announcing the
vacatur of the July 17, 2002 definition of ``navigable waters'' in 40
CFR part 112,\3\ and restoring it back to the regulatory definition
promulgated by EPA in 1973 (73 FR 71941, November 26, 2008).
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\1\ American Petroleum Institute v. Johnson, 571 F.Supp. 2d 165
(D.D.C. 2008). The only issue resolved through litigation was the
challenge to the definition of navigable waters in the July 2002
rule amendment.
\2\ Several comments requested that the Agency codify the
clarifications as part of the December 2008 rulemaking. To the
extent the subject matter of the clarification were reflected in the
rulemaking, the Agency either incorporated the clarification in the
regulatory text or reaffirmed the Agency's position in the preamble.
See 73 FR 74236, December 5, 2008.
\3\ This action was taken in accordance with an order issued by
the United States District Court for the District of Columbia
(D.D.C.) in American Petroleum Institute v. Johnson, 571 F.Supp.2d
165 (D.D.C. 2008).
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Concerns were also raised about the ability to implement certain
aspects of the July 2002 rule amendments. As a result, EPA proposed
additional amendments to the SPCC rule in December 2005 and finalized
them in December 2006 to address a number of issues, including those
pertaining to certain ``qualified'' facilities, qualified oil-filled
operational equipment, motive power containers, mobile refuelers,
removal of provisions inapplicable to AFVOs, and the compliance date
for farms (71 FR 77266, December 26, 2006). Additionally, EPA made
available the SPCC Guidance for Regional Inspectors in December 2005.
This guidance document is intended to assist regional inspectors, as
well as members of the regulated community, in reviewing the
implementation of the SPCC rule at a regulated facility. The guidance
document is designed to provide more detail about the rule's
applicability, to help clarify the role of the inspector in reviewing
and evaluating a facility owner or operator's compliance with the
performance-based SPCC requirements, and to provide a consistent
national policy on several SPCC-related issues. The guidance is
available on the Agency's Web site at http://www.epa.gov/emergencies.
EPA intends to revise this guidance to address the regulatory
amendments in this action and the December 2006 amendments (71 FR
77266, December 26, 2006). EPA welcomes comments from the regulated
community and the public on the guidance document at any time.
Instructions for submitting comments are provided on the EPA Office of
Emergency Management Web site.
On December 5, 2008 (73 FR 74236), EPA again amended the SPCC rule
to clarify certain provisions, to tailor requirements to particular
industry sectors, and to streamline certain rule requirements. These
requirements were to become effective on February 3, 2009. However, the
effective date of the December 2008 rulemaking was delayed for 60 days
from February 3, 2009 to April 4, 2009, in accordance with the January
20, 2009 White House memorandum entitled ``Regulatory Review,'' and the
January 21, 2009 memorandum from the Office of Management and Budget
entitled ``Implementation of Memorandum Concerning Regulatory Review''
(M-09-08, January 21, 2009 OMB memorandum). (These memoranda are
available for review in the docket for this rulemaking.) The Agency
took this action to ensure that the rule properly reflected
consideration of all relevant facts. Accordingly, EPA requested public
comment on the delay of the effective date and its duration, and
further comment on the regulatory amendments contained in the final
rule amendments (74 FR 5900, February 3, 2009). On April 1, 2009, the
Agency further delayed the effective date of the December 2008
rulemaking until January 14, 2010 (74 FR 14736). The Agency took this
action to allow sufficient time to address the comments received on the
February 3, 2009 notice. EPA is now promulgating several limited
revisions to the December 2008 amendments as a result of the Agency's
review of comments and consideration of all relevant facts.
Section V of this notice describes EPA's action on the December
2008 amendments. For a complete discussion of the comments received
during the 2009 comment period, see Comment and Response Document for
2008 Final SPCC Amendments, Comment Period Ending March 2009, a copy of
which is available in the docket for this rulemaking.
Furthermore, EPA has extended the dates for preparing or amending,
and implementing revised SPCC Plans in 40 CFR 112.3(a), (b), and (c) in
a rule published on June 19, 2009 (74 FR 29136). In that action, the
Agency also established dates for the owners and operators of farms to
prepare or amend their SPCC Plans, and implement those Plans.
V. This Action
A. Final Amendments Effective Without Change
EPA has not modified the following provisions of the December 2008
amendments (73 FR 74236, December 5, 2008):
Exemptions for HMA and HMA containers, pesticide
application equipment and related mix containers, and heating oil
containers at single-family residences, including those located at
farms;
Clarification that the definition of mobile refueler
includes a nurse tank at farms;
Amended definition of ``facility'' to clarify the existing
flexibility associated with describing a facility's boundaries;
Amended facility diagram requirements to provide
additional flexibility;
A definition of ``loading/unloading rack'' to clarify the
oil transfer equipment subject to the provisions for facility tank car
and tank truck loading/unloading racks, as well as amended provisions
for this equipment;
Amended general secondary containment requirements to
provide more clarity;
Exemption of non-transportation-related tank trucks from
the sized secondary containment requirements;
Amended security requirements;
Amended integrity testing requirements to allow greater
flexibility in the use of industry standards;
Amended integrity testing requirements for containers that
store AFVOs and meet certain criteria;
Amended definition of ``production facility'';
Clarification that drilling and workover activities are
not subject to the provisions at Sec. 112.9;
Exemption for certain intra-facility gathering lines at
oil production facilities from the SPCC requirements;
More prescriptive requirements for a flowline/intra-
facility gathering line maintenance program for all oil production
facilities and an alternative
[[Page 58788]]
compliance option of contingency planning for flowlines and intra-
facility gathering lines in lieu of all secondary containment;
Alternative compliance option for flow-through process
vessels at oil production facilities to comply with the general
secondary containment requirements and additional oil spill prevention
measures in lieu of the sized secondary containment requirements;
A definition of ``produced water container'';
Alternative compliance option to sized secondary
containment for produced water containers that includes general
secondary containment, a PE-certified process or procedure designed to
remove free-phase oil that accumulates on the surface of the produced
water container, and additional oil spill prevention measures;
Clarification of the definition of ``permanently closed''
as it applies to an oil production facility; and
Technical corrections.
This preamble discusses each of these provisions, and any related
comments received during the 2009 comment period that raise substantive
policy issues, in more detail below. For a complete discussion of the
comments received in 2009, see Comment and Response Document for 2008
Final SPCC Amendments, Comment Period Ending March 2009, a copy of
which is available in the docket for this rulemaking.
1. Hot-Mix Asphalt (HMA)
In the December 2008 amendments, EPA exempted HMA and HMA
containers from SPCC rule applicability. HMA is a blend of asphalt
cement (AC) and aggregate material, such as stone, sand, or gravel,
which is formed into final paving products. All types of asphalt,
including HMA, are petroleum products.
EPA exempted HMA from SPCC rule applicability by adding a new
paragraph (8) under the general applicability section, Sec. 112.1(d),
and modifying Sec. 112.1(d)(2) so that the capacity of HMA containers
is not counted toward the facility's oil storage capacity calculation.
EPA took this action based on the fact that this material is unlikely
to flow as a result of the entrained aggregate, such that there would
be very few circumstances, if any, in which a discharge of HMA would
have the potential to reach navigable waters or adjoining shorelines.
This is particularly of concern at facilities subject to the SPCC
requirements solely because of the presence of HMA. See Section V.A of
the December 5, 2008 notice at 73 FR 74240 for more information about
this amendment.
EPA received one comment that recommended that EPA also extend the
exemption to other products like paraffin wax, asphalt cement, certain
resins, and various animal fats, and suggested the exemption be based
on the unique ``self-containing'' characteristics of all these
materials and the low probability of a spill reaching navigable waters
or adjoining shorelines. The Agency disagrees with this comment. As EPA
discussed in the December 5, 2008 amendments, these materials, unlike
HMA, do have the potential to discharge in quantities that may be
harmful into navigable waters or adjoining shorelines, because they are
generally stored at elevated temperatures, and thus are capable of
flowing if there is a release from the container. Conversely, HMA is
unlikely to flow as a result of the entrained aggregate. The commenter
did not provide new or compelling data supporting their position.
Further, it should be noted that the SPCC rule only applies to
facilities that, due to their location, can reasonably be expected to
discharge oil to navigable waters or adjoining shorelines. In
determining whether there is a reasonable expectation of discharge, an
owner or operator of a facility may consider the nature and flow
properties of the oils handled at the facility. If a facility owner or
operator determines that there is no reasonable expectation of a
discharge of oil to navigable waters or adjoining shorelines from every
single oil container at the facility (excluding exempt containers),
then the facility would not be subject to the rule's requirements.
However, if the facility owner or operator determines that any oil
container (excluding exempt containers) may have a reasonable
expectation of a discharge of oil to navigable waters or adjoining
shorelines, then the facility is subject to the rule provisions.
Other comments generally supported the amendments to the exemption
for HMA and HMA containers. Based on this and review of all relevant
facts, the Agency is making no changes to this provision.
2. Pesticide Application Equipment and Related Mix Containers
In the December 2008 amendments, EPA added a new paragraph (10)
under the general applicability section, Sec. 112.1(d), to exempt all
pesticide application equipment and related mix containers regardless
of ownership or where used when crop oil or adjuvant oil is added to
the pesticide formulation. EPA also modified Sec. 112.1(d)(2) so that
the capacity of pesticide application equipment and related mix
containers is not counted toward the facility's oil storage capacity
calculation. Pesticide application equipment includes ground boom
applicators, airblast sprayers, and specialty aircraft containers/
equipment that are used to apply measured quantities of pesticides to
crops and/or soil. Related mix containers are those used to mix
pesticides with water and, as needed, adjuvant oils, just prior to
loading into the application equipment. EPA adopted this exemption
because this type of pesticide use and related mix containers are
already subject to regulation under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA), as codified in 40 CFR part 165, to assure
the safe use (including discharge), reuse, storage, and disposal of
pesticide containers. Containers (55 U.S. gallons or greater in
capacity) storing oil prior to mixing it with a pesticide, or
containers used to store pesticides that contain oil (after mixing
occurs), are considered bulk storage containers and are not exempt
under the SPCC rule. See Section V.B of the December 5, 2008 notice at
73 FR 74240 for more information about this amendment.
Comments generally supported the exemption for pesticide
application equipment and related mix containers. Based on this and
review of all relevant facts, the Agency is making no change to this
provision.
3. Applicability of Mobile Refueler Requirements to Farm Nurse Tanks
In Section V.B. of the preamble to the December 2008 amendments (73
FR 74241, December 5, 2008), EPA clarified that the definition of
mobile refueler, as promulgated in the December 2006 amendments to the
SPCC rule (71 FR 77266, December 26, 2006), includes a nurse tank,
which is a mobile/portable container used at farms to store and
transport fuel for transfers to or from farm equipment (such as
tractors and combines) to other bulk storage containers (such as
containers used to provide fuel to wellhead/relift pumps) at the farm.
A nurse tank is often mounted on a trailer for transport around the
farm, and thus its function is consistent with that of a mobile
refueler. A nurse tank, like other types of mobile refuelers, is exempt
from the sized secondary containment requirements at Sec. Sec.
112.8(c)(2) and 112.12(c)(2), but is still subject to the general
secondary containment requirements at Sec. 112.7(c).
[[Page 58789]]
Comments generally supported the clarification regarding the
applicability of mobile refueler requirements to farm nurse tanks.
Based on this and review of all relevant facts, the Agency is making no
change to this clarification.
4. Residential Heating Oil Containers
In the December 2008 amendments, EPA added a new paragraph (9)
under the general applicability section, Sec. 112.1(d), to exempt from
SPCC applicability containers that are used to store oil for the sole
purpose of heating single-family residences (including a residence at a
farm). EPA also modified Sec. 112.1(d)(2) so that the capacity of
single-family residential heating oil containers is not counted toward
facility aggregate oil storage capacity. Thus, the owner or operator is
not required to count any residential heating oil container (i.e.,
those at non-commercial buildings) as part of the facility's aggregate
storage capacity for the purpose of determining SPCC applicability, and
no SPCC requirements will apply to these exempt containers. The SPCC
requirements continue to apply, however, to oil containers used to heat
other non-residential buildings within a facility, because the
exemption covers only residential heating oil containers at single
family residences. See Section V.C of the December 5, 2008 notice at 73
FR 74243 for more information about this amendment.
Comments generally supported the amendments to the exemption for
residential heating oil containers. The Agency did not intend for the
presence of heating oil containers at a single-family residence to, by
itself, trigger SPCC applicability. Based on this and review of all
relevant facts, the Agency is making no change to this provision.
5. Definition of Facility
In the December 2008 amendments, EPA amended the definition of
``facility,'' as found in Sec. 112.2. (EPA defined both ``facility''
and ``production facility'' at Sec. 112.2 in the July 2002 amendments
to the SPCC rule (67 FR 47042, July 17, 2002).) EPA modified the
definition of ``facility'' in three ways: (1) To clarify that this
definition alone governs the applicability of 40 CFR part 112; (2) to
clarify that containers can be aggregated or disaggregated (i.e.,
counted separately), based on various factors in defining the
``facility'' (in other words, the owner or operator has the discretion
to identify which contiguous or non-contiguous buildings, properties,
parcels, leases, structures, installations, pipes, or pipelines make up
the facility); and (3) to add the qualifier ``oil'' before the term
``waste treatment.''
EPA maintains that under this provision, the owner or operator
defines the boundaries of his facility, except as noted below. A
facility may or may not be subject to the SPCC rule depending on how
the facility owner or operator aggregates buildings, structures or
equipment and associated storage or type of activity. EPA recognizes
that this provision clarifies that a facility owner/operator may
determine that he is no longer subject to the SPCC requirements.
However, an owner or operator may not characterize a facility so as to
simply avoid applicability of the rule (for example, defining separate
facilities around oil storage containers that are located side-by-side
or within close proximity, and are used for the same purpose). See
Section V.D of the December 5, 2008 notice at 73 FR 74244 for more
information about this amendment.
Comments generally supported the amendments to the definition of
``facility.'' Based on this and review of all relevant facts, the
Agency is making no change to this provision.
6. Facility Diagram
In the December 2008 amendments, EPA revised the requirement that
the facility diagram include the location and contents of each
container to provide additional flexibility. EPA amended Sec.
112.7(a)(3) to clarify that the facility diagram must include all fixed
containers (that is, those containers that are not mobile or portable).
For any mobile or portable containers (such as drums or totes), a
facility owner or operator must mark the storage area on the facility
diagram for these containers. For the purposes of this provision,
``storage area'' means the location of their out-of-service containers
or designated storage area, primary storage area, or areas where mobile
or portable containers are most frequently located. The facility owner
or operator may mark the number of containers, contents and capacity of
each container either on the facility diagram or in a separate
description in the SPCC Plan. If the total number of mobile or portable
containers changes, the owner or operator need only include an estimate
in the Plan of the number of mobile or portable containers, the
anticipated contents, and capacities of the mobile or portable
containers maintained at the facility in the Plan.
EPA also required that certain intra-facility piping (i.e.,
gathering lines) exempted from the SPCC requirements in the December
2008 action be identified on the facility diagram and marked as
``exempt.'' This will help facility and EPA personnel define the
jurisdictional boundaries at the facility and provide emergency
response personnel with information that can be used to identify
hazards during a spill response activity. However, EPA has not required
that all containers exempted from the rule be marked on the facility
diagram because in many cases, it would be impracticable. For example,
the mobility of motive power containers and mobile/portable containers
with a capacity of less than 55 U.S. gallons makes them difficult to
accurately represent on a facility diagram. See Section V.E of the
December 5, 2008 notice at 73 FR 74246 for more information about this
amendment.
Comments generally supported the amendments to the facility diagram
provision. One commenter claimed that his facility diagrams identify
underground storage tanks, but do not label them as exempt from the
SPCC requirements. The comment argued that marking them as ``exempt''
would be an unnecessary expense. The requirement to identify exempt
USTs was finalized in July 2002 (67 FR 47042, July 17, 2002) and so
antedates the December 2008 amendments; thus the comment is outside the
scope of this rulemaking. However, in response, we would note that the
facility diagram can be supplemented with a table or log that indicates
which USTs are exempt from the SPCC requirements. Based on this and
review of all relevant facts, the Agency is making no change to this
provision.
7. Loading/Unloading Racks
In the December 2008 amendments, EPA finalized a definition for the
term ``loading/unloading rack,'' which governs whether a facility's oil
transfer equipment and areas are subject to Sec. 112.7(h). Under this
provision, the requirements described at Sec. 112.7(h) only apply to
oil transfer areas of a regulated facility where a loading/unloading
rack, as defined in Sec. 112.2, is located. EPA modified the
definition to provide more clarity, and to indicate that a loading/
unloading arm is an essential component of a loading/unloading rack.
Other components that may be found at a loading or unloading rack are
described in the definition. Equipment present at a loading/unloading
area where a pipe stand connects to a tank car or tank truck via a
flexible hose, which is not equipped with a loading or unloading arm,
is not considered a loading/unloading rack as defined by the December
2008 amendments.
[[Page 58790]]
EPA also changed all references from loading/unloading ``area'' to
loading/unloading ``rack,'' including modifications to the language in
Sec. 112.7(h)(1), and corrected the word ``break'' to ``brake'' in
Sec. 112.7(h)(2). Finally, EPA clarified that Sec. 112.7(h) applies
to a loading/unloading rack associated with a container that is
exempted from the rule, such as underground storage tanks (USTs) that
are subject to all of the technical requirements of 40 CFR part 280 or
a State program approved under part 281. Additionally, EPA clarified
that transfer areas (equipped with dispensers or other transfer
equipment) that are associated with exempted USTs, at an otherwise
regulated SPCC facility, are subject to the requirements of Sec.
112.7(c). See Section V.F of the December 5, 2008 notice at 73 FR 74248
for more information about this amendment.
EPA agrees with the comment that EPA's definition of ``loading/
unloading rack'' does not apply to a flexible hose used to load and/or
unload oil from a tanker truck or railcar unless the flexible hose is
connected to a loading/unloading arm. The Agency does not intend this
definition to include areas where loading or unloading is achieved
using only flexible hoses. However, the presence of flexible hoses on
oil transfer equipment does not always indicate that the equipment is
exempt from the definition of loading/unloading rack because some top
and bottom loading/unloading racks consist of a combination of steel
loading arms connected by flexible hoses.
Comments generally supported the ``loading/unloading rack''
definition and amendments to the requirements for a ``loading/unloading
rack.'' Based on this and review of all relevant facts, the Agency is
making no change to these provisions.
8. General Secondary Containment
In the December 2008 amendments, EPA amended the general secondary
containment requirement at Sec. 112.7(c) in three ways:
By adding text regarding the method, design and capacity
of secondary containment-- to make it clear that the scope of the
general secondary containment requirements takes into consideration the
typical failure mode, and most likely quantity of oil that would be
discharged, consistent with EPA guidance (SPCC Guidance for Regional
Inspectors);
By specifically referencing both active and passive
measures of secondary containment to make it clear that general
containment requirements allows for the use of both active and passive
secondary containment measures to prevent a discharge to navigable
waters or adjoining shorelines. Active containment measures are those
that require deployment or other specific action by an operator. These
measures may be deployed either before an activity involving the
handling of oil starts, or in reaction to a discharge, as long as the
active measure is designed to prevent an oil discharge from reaching
navigable waters or adjoining shorelines. Passive measures are
permanent installations and do not require deployment or action by the
owner or operator. The design and capacity flexibility described in
paragraph Sec. 112.7(c) is specifically for equipment and containers
subject to this paragraph and not for other secondary containment
provisions of this rule; and.
By including the following additional examples of
prevention systems for onshore facilities: drip pans, sumps, and
collection systems. Drip pans are typically used to isolate and contain
small drips or leaks until the source of the leak is repaired. They are
commonly used with product dispensing containers (such as drums), when
uncoupling hoses after bulk transfer operations, and for pumps, valves,
and fittings. Sumps and collection systems generally involve a
permanent pit or reservoir connected to troughs/trenches that collect
oil. By expanding the list of examples of secondary containment
methods/prevention systems found in Sec. 112.7(c)(1), EPA intended to
increase the clarity and better represent current prevention practices.
EPA emphasizes that the list of containment methods/prevention systems
are examples only; other containment methods may be used, consistent
with good engineering practice. See Section V.H of the December 5, 2008
notice at 73 FR 74261 for more information about this amendment.
As EPA discussed in the December 5, 2008 amendments, the Plan
preparer should include enough detail in the SPCC Plan to describe the
efficacy of the measures used to comply with the general secondary
containment requirements (see the SPCC Guidance for Regional
Inspectors, Chapter 4). While EPA does not require that calculations be
kept in the Plan, it recommends the facility owner or operator maintain
them such that if questions arise during the inspection, the
calculations which serve as the basis for the capacity of the secondary
containment system will be readily available for review.
Comments generally supported the amendments to the general
secondary containment requirements. Based on this and review of all
relevant facts, the Agency is making no change to these provisions.
9. General Secondary Containment for Non-Transportation-Related Tank
Trucks
In the December 2008 amendments, EPA extended the exemption from
the sized secondary containment requirements provided to mobile
refuelers in the December 2006 amendments (71 FR 77266, December 26,
2006) to non-transportation-related tank trucks at a facility subject
to the SPCC rule. Other non-transportation-related tanker trucks may be
transferring non-fuel oils (i.e., transformer oils, lubrication oils,
or certain AFVOs) and operate similarly to mobile refuelers; therefore,
they may not be able to comply with the sized secondary containment
requirements. Specifically, EPA amended Sec. Sec. 112.6(a)(3)(ii),
112.8(c)(2), 112.8(c)(11), 112.12(c)(2), and 112.12(c)(11) to include
the phrase ``except mobile refuelers and other non-transportation-
related tank trucks.'' Such non-transportation-related tank trucks
include those used to store and transport fuel, crude oil, condensate,
non-petroleum, or other oils for transfer to or from bulk storage
containers; for example, a truck used to refill oil-filled equipment at
an electrical substation or a pump truck at an oil production facility.
Under this approach, the general secondary containment requirements at
Sec. 112.7(c) still apply. See Section V.I of the December 5, 2008
notice at 73 FR 74262 for more information about this amendment.
EPA agrees with comments supporting the exemption from the sized
secondary containment requirements for non-transportation-related tank
trucks at a facility subject to the SPCC rule. One comment noted that
the exemption from sized secondary containment should be rescinded,
given the use of truck and skid mounted tanks as storage containers at
temporary sites and the high risks associated with these tanks. EPA
disagrees with the comment. As stated in the preamble to the December
5, 2008 amendments, the Agency concluded that it is generally not
practicable to provide sized secondary containment for non-
transportation-related tank trucks because they are moving from
location to location within a facility. A non-transportation-related
tank truck that only operates in a single or fixed location within the
facility (i.e., it does not move within the facility for
[[Page 58791]]
purposes of transferring oil) is not eligible for this provision and
would still be subject to the sized secondary containment requirement.
Based on this and review of all relevant facts, the Agency is making no
change to this provision.
10. Security
In the December 2008 amendments, EPA amended the facility security
requirements at Sec. 112.7(g) to be performance-based and allow an
owner or operator of a facility to tailor its security measures to the
facility's specific characteristics and location. This provision
extended the streamlined security requirements that EPA provided to
qualified facilities in the December 2006 SPCC rule amendments (71 FR
77266, December 26, 2006) to all facilities subject to the security
requirements.
Specifically, EPA modified the security requirements at Sec.
112.7(g) to allow an owner or operator to design the security
arrangements at the facility to address the specific circumstances that
apply. This provision allows an owner or operator to describe in his
SPCC Plan how he will:
Secure and control access to all oil handling, processing
and storage areas;
Secure master flow and drain valves;
Prevent unauthorized access to starter controls on oil
pumps;
Secure out-of-service and loading/unloading connections of
oil pipelines; and
Address the appropriateness of security lighting to both
prevent acts of vandalism and assist in the discovery of oil
discharges.
A facility owner or operator is required to document in the SPCC
Plan how these security measures are implemented. These requirements
replace the more prescriptive fencing and other requirements,
previously found in Sec. 112.7(g)(1) through (5). Because the revised
requirements at Sec. 112.7(g) apply to all facilities (excluding oil
production facilities), EPA removed the security requirements
previously found at Sec. 112.6(c)(3) for qualified facilities; the
provision would be redundant. See Section V.J of the December 5, 2008
notice at 73 FR 74263 for more information about this amendment.
Comments generally supported the amendments to the provision for
security requirements. Based on this and review of all relevant facts,
the Agency is making no change to this provision.
11. Integrity Testing
In the December 2008 amendments, EPA amended the requirements at
Sec. Sec. 112.8(c)(6) and 112.12(c)(6) to provide flexibility in
complying with the bulk storage container integrity testing
requirements. Specifically, EPA modified the provision to allow an
owner or operator to consult and rely on industry standards to
determine the appropriate qualifications for tank inspectors/testing
personnel and the type and frequency of integrity testing required for
a particular container size and configuration. Thus, EPA extended the
streamlined bulk storage container integrity testing requirement that
EPA provided to qualified facilities in the December 2006 SPCC rule
amendments (71 FR 77266, December 26, 2006) to all facilities subject
to the integrity testing provision.
Specifically, EPA replaced the previous regulatory requirements at
Sec. Sec. 112.8(c)(6) and 112.12(c)(6) with the requirement for a
facility owner or operator to:
Test/inspect each aboveground container for integrity on a
regular schedule and whenever material repairs are made.
Determine, in accordance with industry standards, the
appropriate qualifications of personnel performing tests and
inspections and the frequency and type of testing and inspections,
which take into account container size, configuration, and design.
These revised provisions allow, for example, an owner or operator
to adopt visual inspections for certain types of containers, as
outlined in industry standards, to satisfy the integrity testing
requirements without the need for environmental equivalence
determinations certified by a PE. However, EPA notes that certain
containers may not fall within the scope of an industry standard or may
not have an applicable industry standard; in this case, the owner or
operator of the facility may develop an environmentally equivalent
inspection and testing program in accordance with Sec. 112.7(a)(2) to
comply with the integrity testing requirements described in Sec. Sec.
112.8(c)(6) and 112.12(c)(6) (for more information, see Chapter 7 of
the SPCC Guidance for Regional Inspectors). In the case of a Tier II
qualified facility, the environmentally equivalent integrity testing
program will require PE certification. See Sec. 112.6(b)(3)(i) and
112.6(b)(4) for more information on PE certification of environmental
equivalence for Tier II qualified facilities.
An owner or operator is still required to keep comparison records
(records of inspections and tests kept under usual and customary
business practices will suffice) and to inspect the container's
supports and foundations. The owner or operator must also conduct
frequent inspection of the outside of the container for signs of
deterioration, discharges, or accumulation of oil inside diked areas.
Because the revised requirements at Sec. Sec. 112.8(c)(6) and
112.12(c)(6) apply to all facilities (excluding oil production
facilities), EPA removed the integrity testing requirements previously
found at Sec. 112.6(c)(4) for qualified facilities. See Section V.K of
the December 5, 2008 notice at 73 FR 74264 for more information about
this amendment.
EPA agrees with the comments supporting the provision for integrity
testing requirements. However, several comments generally opposed these
amendments, and one comment questioned the need for more flexibility
with regard to the integrity testing requirements. EPA recognizes that
certain containers do not have applicable industry standards and notes
that the rule already provides flexibility to integrity testing in that
the owner or operator can rely on a PE to provide an environmentally
equivalent method of integrity testing in Sec. 112.7(a)(2).
Nonetheless, the December 2008 amendments address broader concerns with
the integrity testing requirements by revising the rule text under
Sec. Sec. 112.8(c)(6) and 112.12(c)(6). No new or compelling
information or data was provided by comments that supported changing
EPA's position. Based on this and review of all relevant facts, the
Agency is making no change to this provision.
12. Integrity Testing Requirements for Animal Fats and Vegetable Oils
In the December 2008 amendments, EPA differentiated the integrity
testing requirements at Sec. 112.12(c)(6) for an owner or operator of
a facility that handles certain types of AFVOs. Specifically, EPA
provided the PE or an owner or operator self-certifying an SPCC Plan
with the flexibility to use a visual inspection program for integrity
testing for containers that store AFVOs and that meet certain criteria
identified in Sec. 112.12(c)(6)(ii). This flexibility applies to those
bulk storage containers that are subject to the applicable sections of
the Food and Drug Administration (FDA) regulation 21 CFR part 110,
Current Good Manufacturing Practice in Manufacturing, Packing or
Holding Human Food, as well as meet the following additional criteria:
(1) The
[[Page 58792]]
containers are elevated; (2) the containers are made from austenitic
stainless steel; (3) the containers have no external insulation; and
(4) the containers are shop-built. That is, an owner or operator with
containers meeting these criteria can use visual inspection of these
containers equivalent to industry standards, in lieu of the revised
integrity testing requirements found at Sec. 112.12(c)(6)(i), without
having to document the reasons for using an environmentally equivalent
measure in accordance with Sec. 112.7(a)(2). The owner or operator is
required to document the procedures for inspections and testing in the
SPCC Plan, including those for AFVO bulk storage containers that are
eligible for the differentiated requirements described in this
provision.
EPA does not require that an owner or operator use this alternative
compliance option. This alternative provides additional flexibility in
meeting the provisions set forth in Sec. 112.12(c)(6) to address
stakeholder concerns. EPA recognizes that certain types of containers
do not have applicable industry standards. The December 2008 amendments
revised the SPCC rule to provide an environmentally equivalent approach
to comply with the integrity testing requirements for AFVO containers
or have a PE provide an environmentally equivalent method of integrity
testing in accordance with Sec. 112.7(a)(2). See Section V.K of the
December 5, 2008 notice at 73 FR 74264 for more information about this
amendment.
EPA agrees with comments supporting the differentiated integrity
testing requirements for an owner or operator of a facility that
handles certain types of AFVOs. One comment requested greater
flexibility in determining the appropriate integrity testing measures
for bulk AFVO storage containers, including an extension of the
inspection frequency for tanks storing AFVO. The owner or operator can
identify the appropriate integrity testing measures for bulk AFVO
storage containers following either Sec. 112.12(c)(6)(i) or Sec.
112.12(c)(6)(ii). Additional flexibility may be achieved when a PE
provides an environmentally equivalent method of integrity testing in
accordance with Sec. 112.7(a)(2). The SPCC rule requires that
inspections of AFVO bulk storage containers be conducted on a regular
schedule, but does not otherwise specify an inspection frequency for
these containers. The owner or operator can identify the appropriate
inspection frequency for the AFVO containers and document the
inspection frequency in the SPCC Plan. No new or compelling information
or data was provided by comments that would cause the Agency to change
its position. Thus, based on this and review of all relevant facts, the
Agency is making no change to this provision.
13. Oil Production Facilities
Since its original promulgation in 1973, the SPCC rule has included
differentiated requirements for oil production facilities (Sec.
112.9), as compared to other types of facilities (Sec. Sec. 112.8,
112.10, 112.11, and 112.12). Based on issues presented by the regulated
community, in the December 2008 amendments EPA adopted certain
revisions that further streamline, tailor or clarify the SPCC
requirements for oil production facilities (see Section V.M of the
December 5, 2008 notice at 73 FR 74270). EPA has decided not to modify
the following provisions: amended definition of ``production
facility''; clarification that drilling and workover activities are not
subject to the provisions at Sec. 112.9; exemption from the SPCC
requirements for certain intra-facility gathering lines subject to the
DOT pipeline regulations in 49 CFR parts 192 or 195; specific
requirements for a flowline/intra-facility gathering line maintenance
program and an alternative compliance option of contingency planning
for flowlines and intra-facility gathering lines at oil production
facilities in lieu of secondary containment requirements; an
alternative compliance option for flow-through process vessels at oil
production facilities that requires general secondary containment and
additional oil spill prevention measures in lieu of the sized secondary
containment requirements; definition of ``produced water container''
and alternative compliance measures for these containers which requires
general secondary containment, a process or procedure certified by a PE
designed to remove free-phase oil on the surface of the produced water
container and compliance with additional oil spill prevention measures
in lieu of sized secondary containment requirements; and clarification
of the definition of ``permanently closed'' as it applies to an oil
production facility.
a. Definition of Production Facility
Consistent with the revisions to the definition of ``facility'' (as
described in Section V.D of the December 2008 amendments (73 FR
74236)), EPA also modified the definition of ``production facility.'' A
``production facility'' is a type of ``facility'' as defined in Sec.
112.2. With the December 2008 amendments, EPA added a sentence at the
end of the definition to clarify that while only the definition of
``facility'' governs the overall applicability of 40 CFR part 112, the
definition of ``production facility'' is used to determine which
sections of the rule may apply at a particular facility. (The sections
for administrative and general rule requirements continue to apply at
all facilities under 40 CFR part 112.) This change to the definition of
production facility addresses concerns raised during litigation
challenging the July 2002 rule amendments and discussed in the May 25,
2004 Federal Register notice (69 FR 29728). EPA also modified the
phrase ``and located in a single geographical oil or gas field operated
by a single operator'' to clarify that a production facility ``is
located in an oil or gas field.'' This is consistent with the revisions
to the definition of ``facility'' that emphasize the flexibility in how
a facility owner or operator can determine the boundaries of a
facility. See Section V.M.1 of the December 5, 2008 notice at 73 FR
74270 for more information about this amendment.
EPA agrees with comments supporting the revisions to the definition
of ``production facility.'' One comment, however, suggested that the
Agency refer specifically to petroleum oil in the definition, to
clarify that the term does not apply to vegetable oil production
facilities. EPA disagrees with the comment; the addition of the term
``petroleum'' is unnecessary because the definition itself makes clear
that the type of facilities addressed under ``production facility'' are
those involved with petroleum crude oil production and not any other
type of oil production, such as AFVO production. EPA's intent has
always been that the definition of production facility addresses
petroleum crude oil production, extraction, recovery, lifting,
stabilization, separation or treatment and associated storage or
measurement. For example, the definition includes terms associated with
petroleum crude oil production, such as gathering lines and flowlines,
which are associated with upstream petroleum crude oil/gas production,
not AFVO production or processing facilities. Furthermore, the
definition specifies that certain structures, piping, or equipment be
located in an oil or gas field. The term ``oil or gas field'' is used
exclusively in upstream crude oil and gas production, not in AFVO
production; therefore the definition of production facility does not
apply to AFVO production facilities.
Based on this and review of all relevant facts, the Agency is
making no change to this provision.
[[Page 58793]]
b. Modifications to Sec. 112.9 for Drilling and Workover Facilities
To clarify that drilling and workover activities are not subject to
the provisions at Sec. 112.9, in the December 2008 amendments, EPA
revised the title of Sec. 112.9 to read ``Spill Prevention, Control,
and Countermeasure Plan requirements for onshore oil production
facilities (excluding drilling and workover facilities).'' EPA also
amended the introductory sentence of the section accordingly. See
Section V.M.2 of the December 5, 2008 notice at 73 FR 74272 for more
information about this amendment.
Comments generally supported the amendments to Sec. 112.9 for
drilling and workover facilities. Based on this and review of all
relevant facts, the Agency is making no change to this provision.
c. Exemption for Certain Intra-Facility Gathering Lines
In the December 2008 amendments, EPA provided an exemption for
intra-facility gathering lines subject to DOT requirements at 49 CFR
parts 192 (Transportation of Natural and Other Gas by Pipeline) or 195
(Transportation of Hazardous Liquids by Pipeline). EPA recognizes that
the DOT requirements for pipelines may be similar in scope to the SPCC
regulations, so that compliance with certain DOT requirements is
considered environmentally equivalent to certain SPCC requirements. For
example, DOT has the statutory authority over onshore gas or hazardous
liquid gathering lines in a non-rural area, as well as ``regulated
rural gathering lines'' (including certain gathering lines in or within
one-quarter mile of environmentally sensitive rural areas, defined as
``unusually sensitive areas''), and certain low-stress pipelines
transporting hazardous liquids. While many gathering lines are under
DOT's statutory authority, only a subset of them is subject to the DOT
regulatory requirements.
EPA recognizes that gathering lines can be outside the Agency's
jurisdiction because they ``transport'' oil outside of an oil
production facility. EPA has jurisdiction over non-transportation-
related facilities, which includes pipelines used to move oil within a
facility. Any inter-facility pipeline, including a gathering line, that
transports oil between facilities or from a facility to a vessel, or
from a facility to a transportation-related pipeline facility, such as
a transmission line, or a pipeline breakout tank, when used for this
purpose, is considered transportation-related and is therefore outside
EPA's jurisdiction and not subject to the SPCC rule. However, the
definition of ``facility,'' as it applies to the SPCC rule is flexible.
Depending upon how an owner/operator defines his facility under the
SPCC rule, an oil production facility may also include intra-facility
gathering lines.
While gathering lines within the SPCC facility boundaries are
intra-facility piping, EPA maintained the term intra-facility gathering
lines because it is a term that is well recognized within the
production sector. For those intra-facility gathering lines that are
regulated by DOT under 49 CFR part 192 or 195, EPA exempted them from
the SPCC requirements. In other words, the exemption is for intra-
facility gathering lines present at a facility where the piping
otherwise is subject to both EPA and DOT jurisdiction and regulations.
EPA's focus with the SPCC rule is the regulation of oil storage and
handling at facilities engaged in activities related to drilling,
producing, gathering, processing, refining, storing, transferring,
distributing and using oil, while DOT's focus is to regulate
transportation-related pipelines. Although EPA has jurisdiction over
these lines, EPA has concluded that it is appropriate to defer to DOT's
regulations, when applicable to intra-facility gathering lines, in lieu
of EPA's requirements. At the same time, the Regional Administrator has
the option under Sec. 112.1(f) to require owners and operators of
facilities, including those with exempt intra-facility gathering lines,
to prepare and implement an SPCC Plan or any applicable part, if a
determination is made that it is necessary to prevent a discharge of
oil into navigable waters or adjoining shorelines.
Only intra-facility gathering lines that are subject to these DOT
regulations are eligible for the exemption. Intra-facility gathering
lines located at a facility that are not subject to the regulatory
requirements at 49 CFR parts 192 or 195 remain subject to the
requirements at 40 CFR part 112. Other non-transportation-related
equipment and piping at an oil production facility (such as flowlines),
remain subject to the SPCC requirements. In addition, this exemption
requires that owners or operators of a facility identify and mark as
``exempt'' on the facility diagram the location of exempt piping. This
requirement will assist facility and EPA personnel in defining the
boundaries of EPA and DOT jurisdiction and provide response personnel
with information used to identify potential hazards during a spill
response activity. See Section V.M.4.a of the December 5, 2008 notice
at 73 FR 74273 for more information about this amendment.
Comments generally supported the exemption for intra-facility
gathering lines subject to the regulatory requirements at 49 CFR parts
192 or 195. Based on this and review of all relevant facts, the Agency
is making no change to this provision.
d. Flowlines and Intra-Facility Gathering Lines
EPA is making no changes to the following provisions related to
flowlines and intra-facility gathering lines.
(i) Compliance Alternative in Lieu of Secondary Containment for
Flowlines and Intra-Facility Gathering Lines
EPA has determined that secondary containment is, in most cases,
impracticable for flowlines and intra-facility gathering lines.
Therefore, in the December 2008 amendments, the Agency revised Sec.
112.7(c) to provide an optional compliance alternative consisting of
contingency planning and a written commitment of manpower, equipment,
and materials in lieu of the general secondary containment requirements
for flowlines and intra-facility gathering lines that are subject to
the SPCC regulation. The Agency tailored the requirements in an effort
to provide additional compliance options and enhance environmental
protection. See Section V.M.4.b of the December 5, 2008 notice at 73 FR
74274 for more information about this amendment.
EPA agrees with comments supporting the provision of an alternative
option to the secondary containment requirements for flowlines and
intra-facility gathering lines at an oil production facility. A few
comments specifically opposed any reduction in secondary containment
requirements, but no new or compelling information or data was provided
by comments that supported revising the requirements. While EPA
understands that flowlines and intra-facility gathering lines are
typically a source of discharges, secondary containment is often
impracticable. In the December 2008 amendments, EPA provided an
alternative compliance option to secondary containment which combines
the development of a contingency plan and a written commitment of
manpower, equipment, and materials to respond to discharges from
flowlines and intra-facility gathering lines. In addition, EPA has also
established requirements to add specificity to the flowline and intra-
facility gathering line maintenance program. Finally, if this method of
spill prevention does not accomplish the goal of protecting
[[Page 58794]]
navigable waters or adjoining shorelines, under Sec. 112.1(f) the RA
may request that the facility amend the SPCC Plan and provide secondary
containment for this piping.
Based on this and review of all relevant facts, the Agency is
making no change to this provision.
(ii) Contingency Plan for Flowlines and Intra-Facility Gathering Lines
In the December 2008 amendments, EPA revised Sec. Sec. 112.7(c)
and 112.9(d)(3) to provide a compliance alternative to the general
secondary containment requirements under Sec. 112.7(c) for flowlines
and intra-facility gathering lines at an oil production facility.
Specifically, in lieu of general secondary containment, a facility
owner or operator may opt to develop and implement an oil spill
contingency plan in accordance with 40 CFR part 109 (Criteria for
State, Local and Regional Oil Removal Contingency Plans) and prepare a
written commitment of manpower, equipment, and materials required to
expeditiously control and remove any quantity of oil discharged that
may be harmful, without having to make an impracticability
determination for each piece of piping. The Agency amended this
provision in an effort to provide additional compliance options and
enhance environmental protection. The use of a contingency plan does
not relieve the owner or operator of liability associated with an oil
discharge to navigable waters or adjoining shorelines that violates the
provisions of Section 311(b)(3) of the CWA, 33 U.S.C. 1321(b)(3). EPA
also amended Sec. 112.7(a) to make it clear that the contingency plan
provisions under Sec. 112.9(d)(3) are not subject to the environmental
equivalence provision. See Section V.M.4.c of the December 5, 2008
notice at 73 FR 74275 for more information about this amendment.
EPA agrees with comments supporting the provision to require an oil
spill contingency plan in lieu of general secondary containment.
However, one comment suggested that a contingency plan should not be
used in lieu of secondary containment, because the purpose of the SPCC
rule is to prevent spills, not to clean them up after they occur. While
EPA understands that although these lines can be the source of
discharges, the Agency also recognizes that secondary containment is
often impracticable. EPA has provided an alternative compliance option
to secondary containment which combines the development of a
contingency plan and a written commitment of manpower, equipment, and
materials to respond to discharges. In addition, EPA has also
established requirements to add specificity to the flowline and intra-
facility gathering line maintenance program. These additional measures
are intended to enhance the primary integrity of the flowlines and
intra-facility gathering lines to prevent the discharges of oil in the
first place, and thus, EPA is not solely relying on a contingency plan.
Finally, if this method of spill prevention does not accomplish the
goal of protecting navigable waters or adjoining shorelines, then under
Sec. 112.1(f), the RA has the authority to request that the facility
amend the SPCC Plan and provide secondary containment for this piping.
Another comment suggested that the burden for this alternative
option is excessive. EPA disagrees. First, as already noted, this
alternative provision for flowlines and intra-facility gathering lines
is optional; some facilities may choose to provide secondary
containment for these lines. Flowlines and intra-facility gathering
lines can be a source of discharges and when secondary containment is
not provided then it is appropriate for the facility to have a
contingency plan and a written commitment of manpower, equipment, and
materials in place to respond to these discharges. Additionally, by
removing the need to determine impracticability, the Agency has reduced
the burden to allow for contingency planning for these flowlines and
intra-facility gathering lines. Therefore, EPA has concluded that the
requirements are not excessive. Furthermore, by removing the
requirement that a PE make the determination of impracticability (Sec.
112.7(d)), the cost of preparing a contingency plan should decrease.
Another comment suggested that in lieu of the secondary containment
requirements for flowlines and intra-facility gathering lines, EPA
should require annual physical inspections of the lines and
installation of isolation valves on the ends of lines. EPA agrees that
some form of enhanced inspection program is appropriate to assure the
primary integrity of the flowlines and intra-facility gathering lines
and to implement a contingency plan. However, EPA has concluded that
inspection frequency is a site-specific determination and setting a
prescriptive (``one-size fits all'') timeframe is inappropriate.
Although the Agency agrees that the installation of isolation valves
may be appropriate in some cases, it did not include this as a
requirement because it may be impracticable for some oil production
facilities. However, an owner or operator may choose to install
isolation valves as an environmentally equivalent measure to comply
with the flowline/intra-facility gathering line maintenance
requirements in accordance with Sec. 112.7(a)(2).
No new or compelling information or data was provided by comments
that support modification of the provision. Based on this and review of
all relevant facts, the Agency is making no change to this provision.
(iii) Requirements for a Flowline and Intra-Facility Gathering Line
Maintenance Program
In the December 2008 amendments, EPA revised the requirement for an
owner or operator to prepare and implement a written flowline and
intra-facility gathering line maintenance program under Sec.
112.9(d)(4) to add specificity to the existing provision. This
provision specifies that the requirements apply to non-transportation-
related intra-facility gathering lines, as well as to flowlines at an
oil production facility. Intra-facility gathering lines pose the same
potential for discharge as flowlines. EPA never intended to regulate
the two types of piping differently. In response to industry concerns,
EPA has established requirements to add specificity to the existing
flowline/intra-facility gathering line maintenance program provision,
because there are no industry standards for maintenance of this
equipment. The Agency believes that an effective flowline maintenance
program is necessary to detect a discharge in a timely manner so that
the oil discharge response operations described in the contingency plan
may be implemented effectively. Additionally, eliminating the
requirement for secondary containment necessitates more prescriptive
requirements for discharge prevention to ensure the integrity of the
primary containment of the pipe itself. Finally, EPA believes that it
is appropriate to establish a minimum set of requirements for a
flowline and intra-facility gathering line maintenance program in order
to facilitate consistent compliance. Under the amended provisions, a
maintenance program must address procedures to:
Ensure that such flowlines and intra-facility gathering
lines and associated valves and equipment are compatible with the type
of production fluids, their potential corrosivity, volume, and
pressure, and other conditions expected in the operational environment.
Visually inspect and/or test flowlines and intra-facility
gathering lines and associated appurtenances on a
[[Page 58795]]
periodic and regular schedule for leaks, oil discharges, corrosion, or
other conditions that could lead to a discharge as described in Sec.
112.1(b). The frequency and type of testing must allow for the
implementation of a contingency plan, as described under part 109 of
this chapter, if there is no secondary containment.
Take corrective action or make repairs to any flowlines
and intra-facility gathering lines and associated appurtenances as
indicated by regularly scheduled visual inspections, tests, or evidence
of a discharge.
Promptly remove or initiate actions to stabilize and
remediate any accumulations of oil discharges associated with
flowlines, intra-facility gathering lines, and associated
appurtenances.
The Agency concludes that if the requirement for general secondary
containment for these lines is eliminated, then some minimal
prescriptive requirements for discharge prevention to ensure the
integrity of the primary containment of the pipe itself are
appropriate. However, the facility owner or operator may deviate from
the flowline and intra-facility gathering line maintenance program
requirements if an environmentally equivalent alternative measure is
implemented in accordance with Sec. 112.7(a)(2). EPA recognizes that
other Federal or State requirements may be environmentally equivalent
to certain SPCC requirements, including the flowline and intra-facility
gathering line maintenance program requirement. An environmental
equivalence determination is subject to review and certification by a
PE. An effective flowline and intra-facility gathering line maintenance
program includes timely detection of an oil discharge so that response
operations described in the contingency plan may be implemented
effectively. See Section V.M.4.d of the December 5, 2008 notice at 73
FR 74276 for more information about this amendment.
A comment suggested that the amended requirements for a flowline
and intra-facility gathering line maintenance program are excessive.
The Agency disagrees. As noted previously, if the requirement for
general secondary containment is eliminated, then some minimal
requirements that add specificity to the flowline and intra-facility
gathering line maintenance program are appropriate, particularly since
there are no industry standards for the maintenance of flowlines and
intra-facility gathering lines. To the extent that an owner and
operator of a facility cannot comply with this provision, he can
deviate from these requirements if an environmentally equivalent
alternative is implemented in accordance with Sec. 112.7(a)(2). No new
or compelling information or data was provided in comments that would
cause the Agency to change its position. Based on this and review of
all relevant facts, the Agency is making no change to this provision.
e. Flow-Through Process Vessels
EPA is making no changes to the following provisions related to
flow-through process vessels.
(i) Exemption From Sized Secondary Containment for Flow-Through Process
Vessels
Flow-through process vessels, such as horizontal or vertical
separation vessels (for example, a heater-treater, free-water knockout,
gun-barrel, etc.) have the primary purpose of separating the oil from
other fractions (water and/or gas) and sending the separated fluid
streams to the appropriate container. In the December 2008 amendments,
EPA revised the requirements in Sec. 112.9(c)(2) to remove the
requirement to provide sized secondary containment for flow-through
process vessels at oil production facilities without making an
impracticability determination, and to allow the facility owner or
operator the option to comply with the alternate requirements in Sec.
112.9(c)(5) instead (see Section ii, below).
EPA agrees with concerns regarding the impracticability of
providing sized secondary containment around certain flow-through
process vessels at production facilities. EPA also recognizes that
similar flow-through process equipment at non-production facilities are
not subject to the more stringent sized secondary containment and
inspection requirements for bulk storage containers; only the general
secondary containment requirements at Sec. 112.7(c) apply. However,
due to the unattended (and in some cases remote) nature of oil
production operations, EPA concluded that it was appropriate to require
additional measures in lieu of sized secondary containment for this
equipment. Thus, in the December 2008 amendments, EPA provided an
alternative compliance option to address these concerns.
It is important to note that although the Agency provided an option
that allows the owner and operator to not provide sized secondary
containment for flow-through process vessels at oil production
facilities, the general secondary containment requirement of Sec.
112.7(c) still applies to these vessels. See Section V.M.5.a of the
December 5, 2008 notice at 73 FR 74277 for more information about this
amendment.
EPA agrees with comments supporting the provision to exempt flow-
through process vessels from the sized secondary containment
requirement. However, two comments suggested that any exemption from
the secondary containment requirement for flow-through process vessels
would cause a greater risk for discharges of harmful quantities of oil
to reach navigable waters or adjoining shorelines. EPA agrees that some
form of secondary containment is required for these vessels. EPA also
agrees that sized secondary containment is generally preferable to
general secondary containment because these flow-through process
vessels operate at unattended facilities and often at remote locations.
However, there are instances where providing such sized secondary
containment is not always practicable. To address this concern, EPA
provided the owner or operator with a choice to comply with either the
sized secondary containment requirements, or the general secondary
containment requirements along with additional measures for inspection
and corrective action. These compliance options allow the owner or
operator to tailor the SPCC Plan to meet the facility's operational
needs while maintaining environmental protection.
No new or compelling information or data was provided in comments
that supported modification of the provision. Based on this and review
of all relevant facts, the Agency is making no change to this
provision.
(ii) Additional Requirements in Lieu of Sized Secondary Containment for
Flow-Through Process Vessels
Oil production facilities are generally unattended. EPA recognizes
that process equipment at other types of facilities is typically
attended during hours of operation and there is a greater potential to
immediately discover and correct a discharge. Therefore, in the
December 2008 amendments, EPA required additional measures for flow-
through process vessels at oil production facilities that do not have
sized secondary containment. EPA provided requirements in Sec.
112.9(c)(5) that include the following: Periodic inspection and/or
testing for leaks, corrosion, or other conditions that could lead to a
discharge as described in Sec. 112.1(b); corrective action or repairs
to flow-through process vessels and any associated components as
indicated by regularly scheduled visual inspections, tests, or evidence
of an oil discharge; and prompt removal or initiation of
[[Page 58796]]
actions to stabilize and remediate any accumulations of oil discharges
associated with flow-through process vessels. See Section V.M.5.b of
the December 5, 2008 notice at 73 FR 74278 for more information about
this amendment.
Comments generally supported the additional requirements in lieu of
sized secondary containment for flow-through process vessels. One
comment, however, suggested that the risk of discharge from flow-
through process vessels is so low that there should be no additional
requirements. EPA disagrees with the comment because flow-through
process vessels contain oil and therefore pose a potential threat of a
discharge (e.g., failure of a dump valve). Additionally, this
alternative compliance option removes the sized secondary containment
specification for flow-through process vessels that are located at
unmanned facilities, which are often remotely located, and constantly
operating. Therefore, EPA has established alternative prevention
measures along with the general secondary containment requirement in
order to maintain environmental protection. However, the Agency
provided the owner or operator with a choice to comply with either the
sized secondary containment requirements, or the general secondary
containment requirements along with the additional measures for
inspection and corrective action. Based on this and review of all
relevant facts, the Agency is making no change to this provision.
(iii) Reportable Discharge From Flow-Through Process Vessels
In the December 2008 amendments, EPA finalized a provision to
require that if an oil production facility owner or operator has a
discharge as described in Sec. 112.9(c)(5)(iv) from a flow-through
process vessel, then he must ensure that all flow-through process
vessels using general secondary containment comply with the sized
secondary containment requirements of Sec. 112.9(c)(2) and periodic
inspection requirements of paragraph (c)(3) within six months of the
discharge discovery. A discharge, as described in Sec.
112.9(c)(5)(iv), is either a single discharge of more than 1,000 U.S.
gallons of oil or two discharges within any twelve month period, each
of more than 42 U.S. gallons of oil. The amount of oil specified in
this criterion refers to the amount of the discharge that actually
reaches navigable waters or adjoining shorelines, not the total amount
of the discharge released from the container. Owners and operators do
not need to include the amount of oil discharges that are the result of
natural disasters, acts of war, or terrorism when evaluating this
criterion. See Section V.M.5.c of the December 5, 2008 notice at 73 FR
74279 for more information about this amendment.
No comments specific to reportable discharges from flow-through
process vessels were received in the 2009 comment period. Based on this
and review of all relevant facts, the Agency is making no change to
this provision.
f. Alternative Compliance Measures for Produced Water Containers
Produced water containers are typically located within a tank
battery at an oil production facility where they are used to store well
fluids that result after marketable crude oil is separated from the
fluids extracted from the reservoir and prior to disposal, subsequent
use (e.g., re-injection or beneficial reuse), or further treatment.
Under normal operating conditions, a layer of oil may be present on top
of the fluids in these produced water containers. The amount of oil by
volume observed in produced water containers varies, but based on EPA's
understanding, is generally estimated to range from less than one to up
to ten percent, and can be greater. These produced water containers are
typically at the end of the oil treatment process and often accumulate
emulsified oil not captured in the separation process.\4\
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\4\ Considerations for the Regulation of Onshore Oil Exploration
and Production Facilities Under the Spill Prevention, Control, and
Countermeasure Regulation (40 CFR part 112)) found in the docket for
this rulemaking at EPA-HQ-OPA-2007-0584-0015; and Supplemental DOE
Information Relating to Oil and Gas Industry Relief from Some SPCC
Requirements, found in the docket for this rulemaking at EPA-HQ-OPA-
2007-0584-0175.
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In the December 5, 2008 SPCC rule amendments, EPA adopted two
alternatives for produced water containers at oil production
facilities. Under the first alternative, EPA exempted produced water
containers at oil production facilities from the requirements of the
SPCC rule if a PE certified, as part of the SPCC Plan, that the
contents of a produced water container, if completely discharged, would
not contain oil in amounts that may be harmful (as described in 40 CFR
part 110) based on the efficiency of the oil/water separation
technology used. Under this alternative, the capacity of the exempted
containers would not count towards the facility aggregate oil storage
capacity. EPA is removing this exemption. See the discussion in section
V.C.3 of this notice.
For those produced water containers that were not eligible for the
exemption, the facility owner/operator could comply with the general
secondary containment requirements in lieu of sized secondary
containment and conduct visual inspections, maintenance and corrective
action, if a PE described in the SPCC Plan and certified that a
practice was established that was designed to remove the amount of
free-phase oil from the produced water container on a scheduled and
routine basis. These containers would count toward the aggregate oil
storage capacity. If the production facility had certain types of oil
discharges or failed to meet the requirements of this part of the rule,
the facility would no longer be eligible for the exemption or the
streamlined requirements. EPA also promulgated a definition of produced
water container to clarify which containers were eligible for these
rule provisions.
In this action, EPA is not making any changes to the definition of
produced water container in Sec. 112.2 or the alternative compliance
measures for produced water containers in lieu of sized secondary
containment as finalized in the December 5, 2008 notice. The
alternative measures to sized secondary containment requirements and
inspections under Sec. 112.9(c)(2) and (c)(3) for produced water
containers include: compliance with general secondary containment
requirements; implementation of a procedure or process to remove free-
phase oil (e.g., skimming program) as certified by a PE; visual
inspection; corrective action or repairs to the container; and prompt
removal or remediation of oil discharges.
EPA acknowledges comments that expressed general support for, as
well as opposition to, the alternatives for produced water containers
finalized in the December 2008 notice (73 FR 74236, December 5, 2008).
Good general secondary containment practices can be successfully
implemented in lieu of sized secondary containment, if such practices
are designed by a PE in consideration of site-specific factors and in
combination with additional oil spill prevention practices including
inspections, procedures to minimize the amount of free-phase oil in the
container, and procedures to remove/remediate discharged oil. The
Agency acknowledges that skimming operations at produced water
containers may operate similarly to separation operations at flow-
through process vessels when free phase oil is being removed or
recovered from them on a regular basis. Therefore, including the
additional compliance measures for produced water containers with
procedures to minimize the amount of
[[Page 58797]]
free-phase oil, including remediation and inspections, is appropriate
and consistent with alternative compliance options provided for other
bulk storage containers (i.e., flow-through process vessels) which
separate oil and water mixtures. As with flow-through process vessels
at oil production facilities, EPA remains concerned that these produced
water containers are typically located at unattended, often remote
facilities, and therefore has retained the additional provisions for
maintenance, inspection, and remediation to maintain environmental
protection. The Agency agrees with comments that expressed concern
regarding the threat of discharges from produced water containers. Oil
may be present not only in free phase, but also in other forms, such as
in a dissolved phase, emulsion or sludge at the bottom of the produced
water container. EPA is addressing these concerns by retaining the
additional spill prevention measures in addition to general secondary
containment for these containers.
A comment noted that it is common practice to locate produced water
bulk storage containers with other bulk storage containers in the tank
battery surrounded by sized secondary containment. EPA agrees that some
oil production facilities already provide sized secondary containment
around their bulk storage containers, including around their produced
water containers. Engineered secondary containment measures, such as
dikes or berms, are particularly appropriate for oil production
facilities (including produced water containers) since these facilities
can be remotely located and are often unattended, and thus there may be
delays in detecting and mitigating an oil spill. In fact, the data
referenced in comments show that a number of spills from produced water
containers were specifically contained by a sized secondary containment
berm or other man-made structure which prevented the migration of the
fluids offsite and to waters. Therefore, the alternative measures for
produced water containers under Sec. 112.9(c)(6) are optional. An
owner or operator may choose to comply with the sized secondary
containment requirements in Sec. 112.9(c)(2) along with the inspection
requirements in Sec. 112.9(c)(3). However, because the alternative
removal procedure is essential for reducing the amount of free-phase
oil in the produced water container, if it is not implemented as
described in the Plan or no records are maintained, then the owner/
operator must comply with Sec. 112.9(c)(2) and (c)(3).
Additionally, if the facility experiences a discharge of more than
1,000 U.S. gallons of oil in a single discharge as described in Sec.
112.1(b), or discharges more than 42 U.S. gallons of oil in each of two
discharges as described in Sec. 112.1(b), occurring within any twelve
month period (excluding discharges that are the result of natural
disasters, acts of war, or terrorism) from a produced water container,
then the facility owner or operator may no longer take advantage of
this alternative option and must comply with the sized secondary
containment requirements at Sec. 112.9(c)(2) and the inspection
requirements at Sec. 112.9(c)(3) within six months. Section
112.9(c)(6)(v) has been retained to provide this requirement. As stated
in the December 2008 amendments, a produced water container must
already comply with Sec. 112.9(c)(1) and Sec. 112.9(c)(4) and
therefore these requirements were not added to Sec. 112.9(c)(6)(v).
See Section V.M.7.b of the December 5, 2008 notice at 73 FR 74287 for
more information about this amendment.
Based on this and review of all relevant facts, the Agency is
making no change to this provision or to the definition of produced
water container.
g. Clarification of the Definition of Permanently Closed Containers
In the preamble to the December 2008 amendments, the Agency
addressed concerns expressed by the regulated community over the
requirements for permanently closing a container, as described in the
definition of ``permanently closed'' at Sec. 112.2. There, EPA
clarified that the permanent closure requirements under the SPCC rule
are separate and distinct from the closure requirements in regulations
promulgated under Subtitle C of the Resource Conservation and Recovery
Act (RCRA). Consequently, an oil production facility does not have to
undergo the expense of permanent closure under 40 CFR part 264 or 265
of RCRA, because the drilling fluids, produced waters, and other wastes
associated with the exploration, development, or production of crude
oil are not subject to those regulations. See Section V.M.8 of the
December 5, 2008 notice at 73 FR 74290 for the full text of this
preamble clarification.
No comments were received in the 2009 comment period addressing the
clarifying language and therefore, EPA maintains its position on this
clarification.
14. Man-Made Structures
In the preamble to the December 2008 amendments, EPA clarified
that, consistent with statements made in the preamble to a 1976
amendment to the SPCC rule (41 FR 34164, December 11, 1976), manmade
features, such as drainage control structures and dikes, cannot be used
to conclude that there is no reasonable expectation that a discharge
from the facility will reach navigable waters or adjoining shorelines.
That is, if there is a reasonable expectation that a discharge from the
facility would reach navigable waters or adjoining shorelines in the
absence of such containment or other structures, the facility is
subject to the SPCC requirements. However, EPA noted that it may be
appropriate for a facility owner or operator to consider man-made
structures (for example, dikes, equipment, buildings, basements or
other containment structures) to determine how to comply with the SPCC
rule. See Section V.N of the December 5, 2008 notice at 73 FR 74292 for
the full text of this preamble clarification.
EPA agrees with the comment that generally supported the
clarifications on man-made structures. Based on this and review of all
relevant facts, the Agency is making no change to this clarification.
15. Wind Turbines
In the preamble to the December 2008 amendments, EPA clarified that
wind turbines meet the definition of oil-filled operational equipment
adopted in the December 2006 SPCC rule amendments (71 FR 77266,
December 26, 2006). Thus, the alternative compliance option provided
for this type of equipment in Sec. 112.7(k) is available for wind
turbines, to the extent that the wind turbines meet the oil storage
capacity threshold in the rule. The amendments to the SPCC rule
promulgated in December 2006 allow owners and operators of facilities
with qualified oil-filled operational equipment the option of preparing
an oil spill contingency plan and a written commitment of manpower,
equipment, and materials to expeditiously control and remove any oil
discharged that may be harmful without having to make an individual
impracticability determination as required in Sec. 112.7(d). If an
owner or operator chooses this option, he is also required to establish
and document an inspection or monitoring program for this qualified
oil-filled operational equipment to detect equipment failure and/or a
discharge in lieu of providing secondary containment. See Section V.P
of the December 5, 2008 notice at 73 FR 74294 for the full text of this
preamble clarification.
No comments were received in the 2009 comment period on the
[[Page 58798]]
clarification and therefore, EPA maintains its position.
16. Technical Corrections
In the December 2008 amendments, EPA corrected the text of the
introductory paragraph of Sec. 112.3 to move the phrase ``in writing''
after ``must prepare'' and then insert the phrase ``and implement''
after the phrase ``in writing,'' in order to make it explicit that a
facility owner or operator must prepare and implement an SPCC Plan.
EPA also amended the introductory paragraph of Sec. 112.12 to
delete the phrase ``(excluding a production facility).'' This amendment
corrected an inadvertent omission when EPA removed several sections in
Subpart C of 40 CFR part 112 that were inappropriate for AFVOs in the
December 2006 amendments to the SPCC rule (71 FR 77266, December 26,
2006).
Finally, the Agency amended the regulation to include ``U.S.''
before gallons in several places, to indicate that the Agency means the
U.S. gallon unit of measure and not the Imperial unit of measure. See
Section V.Q of the December 5, 2008 notice at 73 FR 74294 for more
information about these technical corrections.
Comments generally supported the technical corrections. Based on
this and review of all relevant facts, the Agency is making no change
to these provisions.
B. Technical Corrections to Provisions of the December 2008 Amendments
EPA is correcting the text of several of the provisions promulgated
on December 5, 2008. These corrections further clarify or update the
provisions of the December 2008 amendments without making substantive
changes to the regulatory requirements.
1. Tier I Qualified Facilities and Appendix G Plan Template
As required in the December 2008 amendments, a Tier I qualified
facility must meet all of the eligibility criteria for qualified
facilities promulgated by EPA in December 2006 (71 FR 77266, December
26, 2006), as well as not have any aboveground oil storage container
with a capacity greater than 5,000 U.S. gallons. EPA developed this
individual container capacity criterion in order to link any
streamlined requirements with a reduced potential for oil discharge.
The selection of the maximum individual aboveground container capacity
threshold of 5,000 U.S. gallons is consistent with the applicable
industry consensus standard that calls for varying levels of inspection
requirements based on container size and configuration.
EPA designated qualified facilities that have an individual
aboveground oil storage container with a capacity greater than 5,000
U.S. gallons as Tier II qualified facilities. Although the organization
of the regulatory text in Sec. 112.6 was modified to accommodate the
tiered approach, the requirements for Tier II qualified facilities
remained the same as promulgated on December 26, 2006 (71 FR 77266).
The December 2008 amendments eliminated and/or modified several
SPCC requirements for Tier I qualified facilities. For example, the
facility diagram requirements (Sec. 112.7(a)(3)) and certain
provisions that generally do not apply to facilities that store or
handle smaller volumes of oil, such as requirements for transfers at
loading racks (Sec. 112.7(h)) were removed. The list of applicable
rule provisions for Tier I qualified facilities is included in Sec.
112.6(a)(3).
The Tier I self-certification requirement is similar in scope to
that required for an owner or operator of a Tier II qualified facility
who chooses to self-certify an SPCC Plan (as promulgated in December
2006, 71 FR 77266). Consistent with the current requirement for
qualified facilities, the owner or operator of a Tier I qualified
facility is also allowed to self-certify any technical amendments to
the Plan under Sec. 112.6(a)(2), and document this certification in
the Plan template (or some other equivalent Plan).
The December 2008 amendments provided the owner or operator of a
Tier I qualified facility with the option to complete a self-certified
SPCC Plan template (found in Appendix G to 40 CFR part 112) in lieu of
a full SPCC Plan. The owner or operator can complete the SPCC Plan
template, which is comprised of a set of streamlined SPCC rule
requirements, and implement those streamlined requirements, to comply
with the SPCC regulation. The SPCC Plan template for Tier I qualified
facilities is intended to facilitate the development of SPCC Plans at
Tier I qualified facilities. Once completed and certified by the owner
or operator, the Plan template serves as the SPCC Plan for the
facility. As for any facility subject to the SPCC rule, the owner or
operator must maintain a written copy of the Plan--which in this case
would be the completed and self-certified SPCC Plan template--at the
facility or at the nearest field office if the facility is attended
less than four hours per day (Sec. 112.3(e)(1)).
The Agency emphasizes that use of the Plan template approach is
optional. An owner or operator of a Tier I qualified facility can
choose to prepare and implement either a full PE-certified SPCC Plan or
a self-certified SPCC Plan following all of the requirements of Sec.
112.6(b) (for a Tier II qualified facility) in order to comply with the
requirements under 40 CFR part 112. See Section V.G of the December 5,
2008 notice at 73 FR 74256 for more information about these technical
corrections.
EPA is now further clarifying the earlier amendments, as well as
correcting typographical and formatting errors in the following
sections of the Appendix G SPCC Plan Template:
Introduction--in the second sentence, the term ``meet''
was replaced by ``addresses'' for clarity; and a sentence was added to
clarify that an owner or operator should follow State and local
requirements (such as for permitting, design and construction) and
obtain professional assistance, as appropriate;
Section I, Self-Certification Statement (Sec.
112.6(a)(1))--points 3c and 3d are combined and edited for increased
clarity. The phrase ``By completing this Plan template'' was removed
because this text is unnecessary; with this revision, EPA clarifies
that completing the template represents the preparation of a Plan, but
not its implementation.
Section II, Record of Plan Review and Amendments. In the
Five Year Review (Sec. 112.5(b)) paragraph, EPA inserted the term
``SPCC Plan'' for clarity.
Table G-2 Oil Storage Containers and Capacities--In the
footnote to the table, EPA inserted the word applicability to the
phrase ``qualified facility applicability threshold'' for clarity.
Table G-3 Secondary Containment and Oil Spill Control--EPA
added the phrase ``cleanup occurs'' which was unintentionally not
printed in the Federal Register notice for the December 2008
amendments;
Table G-5 Inspections, Testing, Recordkeeping and
Personnel Training--EPA added the word ``bulk'' to clarify that this
provision only applies to aboveground bulk storage containers; added
citations that were inadvertently omitted; corrected typographical
errors; and removed an unnecessary blank row;
Section A, Onshore Facilities (excluding production)
(112.8(b) through (d). 112.12(b) through (d)). The title of this
section was amended to correct a typographical error.
Table G-10 General Rule Requirements for Onshore
Facilities--
[[Page 58799]]
EPA added the requirement for manual activation of pumps or ejectors
and inspection of accumulations prior to discharge, a rule requirement
that was unintentionally omitted from this Table; fixed typographical
errors; added the word ``bulk'' to clarify that certain provisions only
apply to aboveground bulk storage containers; and defined the table
border;
Table G-11 General Rule Requirements for Onshore Oil
Production Facilities--EPA defined the table border;
Table G-15 Checklist of Development and Implementation
Criteria for State, Local and Regional Oil Removal Contingency Plans
(Sec. 109.5)--EPA removed inappropriate checkboxes and reformatted the
table to be consistent with the other tables in Appendix G; and
Table G-20 Information provided to the National Response
Center in the Event of a Discharge--EPA deleted an unnecessary blank
row.
Additionally, EPA is providing technical corrections in Sec. 112.6
and Appendix G to amend the self-certification requirements that refer
to produced water containers, as discussed further in Section A.13.f
and C.3 of this notice. EPA is also adding extra space in many of the
tables and formatting them so that each table begins on a new page.
EPA's amendments to the SPCC rule will have no effect on whether a
facility owner or operator must use a PE to meet the State or local
requirements, because the SPCC rule does not pre-empt any State or
local requirements. In States where the engineer licensing boards have
prohibited SPCC Plan self-certification, the owner or operator must
have a PE certify the Plan. Although this may limit the relief for Tier
II qualified facilities, the owner/operator can develop and certify a
Tier I qualified facility Plan to comply with the SPCC rule and have a
PE certify the SPCC Plan to meet the state requirements.
2. Underground Emergency Diesel Generator Tanks at Nuclear Power
Stations
In the December 2008 amendments, EPA exempted from SPCC
applicability underground oil storage tanks deferred from regulation
under 40 CFR part 280, as originally promulgated, that supply emergency
diesel generators at nuclear power generation facilities licensed by
the Nuclear Regulatory Commission (NRC) and that meet the NRC design
criteria and quality assurance criteria. EPA amended Sec.
112.1(d)(2)(i) and Sec. 112.1(d)(4) to include an exemption applicable
to both tanks that are completely buried and tanks that are below-grade
and vaulted. Under NRC regulations, a nuclear power generation facility
must meet certain design criteria to ensure that the plant will be
operated in a manner protective of the public's health and safety,
including a requirement to provide redundant standby power systems (see
10 CFR part 50, Appendix A). These NRC design criteria cover the
design, fabrication, installation, testing and operation of structures,
systems and components important to safety. NRC Regulatory Guide 1.137
describes an acceptable method to comply with NRC requirements
regarding fuel oil systems for standby diesel generators and assurance
of adequate fuel-oil quality. See Section V. O. of the December 5, 2008
notice at 73 FR 74293 for more information.
The Agency agrees with comments supporting the exemption for
emergency diesel generator tanks at nuclear power stations. EPA has
further amended Sec. 112.1(d)(4) to clarify that this exemption
applies to ``any underground oil storage tanks including below-grade
vaulted tanks, deferred under 40 CFR part 280, as originally
promulgated, that supply emergency diesel generators at a nuclear power
generation facility licensed by the Nuclear Regulatory Commission,
provided that such a tank is subject to any Nuclear Regulatory
Commission provision regarding design and quality criteria, including
but not limited to, 10 CFR part 50.'' (Emphasis added to show modified
wording.) EPA has concluded that this revision makes this provision
easier to understand. EPA has also amended Sec. 112.1(d)(2)(i) to
include the phrase ``including but'' before ``not limited to 10 CFR
part 50'' for consistency.
3. SPCC Plan Preparation and Implementation for New Oil Production
Facilities
The variables associated with the start of operations and the
employment of green completion techniques at new oil production
facilities could lead to significant changes in necessary storage
capacity and facility design. In the December 2008 amendments,
therefore, EPA finalized an amendment to allow a new oil production
facility a period of six months after the start of operations to
prepare and implement an SPCC Plan. EPA excluded oil production
facilities from the current requirements at Sec. 112.3(b)(1), and
added a new paragraph at Sec. 112.3(b)(3) to require the owner or
operator of a new oil production facility to prepare and implement an
SPCC Plan six months after the start of operations. See Section V.M.3
of the December 5, 2008 notice at 73 FR 74272 for more information
about this amendment.
This provision does not apply to drilling or workover activities at
existing oil production facilities. Drilling and workover operations
are subject to the requirements at Sec. 112.3(c) for mobile
facilities, and facility owners or operators may implement a general
SPCC Plan. This provision also does not apply to an existing oil
production facility in which a new well is drilled, and added to the
existing tank battery/facility. In this case, the facility owner or
operator must amend the SPCC Plan in accordance with Sec. 112.5(a),
which requires the Plan to be amended within six months of the facility
change, and implemented within six months of the amendment.
EPA agrees with comments supporting the provision to allow new oil
production facilities six months to prepare and implement a Plan. On
June 19, 2009 (74 FR 29136), EPA amended the compliance date for the
amended SPCC rule to November 10, 2010. When the December 2008
amendments were promulgated, the provision applied at a new oil
production facility that began operations after July 1, 2009, which was
the applicable compliance date. In this action, EPA is making a
technical correction to change the compliance date to November 10,
2010, to align with the current SPCC Plan preparation and
implementation compliance date for all other facilities.
4. Compliance Date Provisions Specific to Farms
EPA is removing the paragraphs in Sec. 112.3 specific to farms
(the current Sec. 112.3(a)(2) and (b)(2)) because on June 19, 2009 EPA
established the same the compliance dates for farms as for all other
facilities (74 FR 29136); such differentiated provisions are no longer
necessary.
This amendment does not remove any regulatory requirement for
owners or operators of facilities, including farms, in operation before
August 16, 2002, to develop, implement and maintain an SPCC Plan in
accordance with the SPCC regulations then in effect. Such facility
owners and operators continue to be required to maintain (that is, keep
on-site and implement) their Plans during the interim until the
November 10, 2010 date for revising and implementing their Plans under
the new amendments.
C. Provisions Removed From Final Rule
After review of comments received and consideration of all relevant
facts, EPA is removing three of the provisions promulgated on December
5, 2008.
[[Page 58800]]
These are described in the section below.
1. Exclusions for Oil Production Facilities and Farms From Loading/
Unloading Rack Requirements
In the December 2008 amendments, EPA specifically excluded onshore
oil production facilities and farms from the loading/unloading rack
requirements at Sec. 112.7(h). This is because the Agency believed,
and comments supported, that loading and unloading racks are not
typically associated with these types of facilities. See Section V.F.3
of the December 5, 2008 notice at 73 FR 74251 for more information
about this amendment.
Based on review of comments and consideration of all relevant
facts, EPA is removing the specific exclusion for farms and oil
production facilities from the loading/unloading rack requirements of
Sec. 112.7(h). Thus, EPA agrees with comments received on this
amendment stating that certain facilities (i.e., farms and oil
production facilities) should not be treated differently than other
facilities, even if loading/unloading racks are not typically
associated with these types of facilities. In particular, the new
definition for loading/unloading rack (finalized in December 2008 at
Sec. 112.2) clarifies the type of equipment that is subject to the
requirements at Sec. 112.7(h), eliminating the uncertainty that may
have existed at farms and oil production facilities. For facilities
(including farms and oil production facilities) that do not have a
loading/unloading rack as defined in Sec. 112.2, the provisions at
Sec. 112.7(h) do not apply; therefore, a specific exclusion for
facilities based on the assumption that they do not have loading/
unloading racks is unnecessary.
EPA does not believe there is any basis to specifically exclude
loading/unloading racks from the requirements at Sec. 112.7(h) simply
because they are not typically associated at a facility within a
specific industry sector.
2. Alternative Qualified Facility Eligibility Criteria for an Oil
Production Facility
In the December 2008 amendments, EPA finalized a provision that
provided alternative criteria to identify qualified facilities in the
onshore oil production sector. The alternative qualified facility
eligibility criteria for an oil production facility were: (1) No more
than two producing wells per single tank battery if the facility has an
injection well; or no more than four producing wells per single tank
battery with no injection wells at the facility; (2) each well produces
no more than ten barrels of crude oil per day; and (3) the facility has
not had a single discharge as described in Sec. 112.1(b) exceeding
1,000 U.S. gallons or two discharges as described in Sec. 112.1(b)
each exceeding 42 U.S. gallons within any twelve month period in the
three years prior to Plan certification, or since becoming subject to
40 CFR part 112 if the facility has been in operation for less than
three years. EPA developed these alternative criteria because most oil
production facilities would not be eligible as Tier I or Tier II
qualified facilities that would allow them the option to self-certify
their SPCC Plans because they generally exceed the maximum oil storage
capacity criterion.
In this action, EPA is removing the alternative qualified facility
eligibility criteria provision for oil production facilities in the
December 2008 amendments (as described in Section V.M.6, 73 FR 74280)
by amending Sec. 112.3 to remove (g)(2)(i) and (ii), and revising
(g)(2). Paragraph 112.3(g)(2) is amended to state that: ``A Tier II
qualified facility is one that has had no single discharge as described
in Sec. 112.1(b) exceeding 1,000 U.S. gallons or no two discharges as
described in Sec. 112.1(b) each exceeding 42 U.S. gallons within any
twelve month period in the three years prior to the SPCC Plan self-
certification date, or since becoming subject to this part if the
facility has been in operation for less than three years (other than
discharges as described in Sec. 112.1(b) that are the result of
natural disasters, acts of war, or terrorism), and has an aggregate
aboveground oil storage capacity of 10,000 U.S. gallons or less.''
EPA is taking this action based on review of all comments received,
including those comments that raised serious questions with this
specific exclusion and consideration of all relevant facts. In
particular, the Agency has reconsidered its decision and concluded that
the alternative qualified facility eligibility criteria for onshore oil
production facilities will not effectively protect the environment from
discharges of oil in quantities that may be harmful. The Agency also
believes a PE should be involved in the development and certification
of an SPCC Plan, unless the oil production facility is eligible to
self-certify their Plans based on the qualified facilities criteria
finalized in December 2006, because they typically have complex
equipment and store large quantities of oil. These facilities are of
further concern because they typically have operations in which oil
flows continuously in unattended, remote locations and therefore pose
an environmental threat.
Allowing unrestricted oil storage capacity undermines the existing
qualified facility eligibility criteria and may pose an environmental
risk. Many small oil production facilities produce low quantities of
oil on a daily basis. EPA intended to provide these small oil
production facilities an alternative approach to the existing 10,000
U.S. gallon aggregate aboveground oil storage capacity qualified
facility eligibility criteria. The qualified facility eligibility
criterion limits the oil storage capacity, restricting this option to
only those facilities with a smaller discharge potential. Although a
small oil production facility produces low quantities of oil on a daily
basis, the Agency recognizes that the accumulated quantity stored can
far exceed 10,000 U.S. gallons. Consequently, the Agency has determined
that the alternative qualified facility eligibility criteria for oil
production facilities are not as protective of the environment as the
qualified facility criteria promulgated on December 26, 2006 (71 FR
77266).
Based upon EPA's understanding of the particular aboveground oil
storage container capacities and the nature of the fluids handled at
certain small oil production facilities, the Agency has concluded that
the criteria established in the December 2008 amendments specific for
oil production facilities are not an appropriate basis to determine
whether an owner or operator of such a facility is a ``qualified
facility,'' and be eligible to self-certify his SPCC Plan. The
alternative eligibility criteria in the December 2008 amendments for
oil production facilities (73 FR 74236) do not serve to identify a
qualified facility consistent with the approach promulgated in the
December 26, 2006 amendments (71 FR 77266), which focused on facilities
with small oil storage capacities.
The ten barrels or fewer of oil per day production rate criterion
was used in the December 2008 rulemaking because it is consistent with
the definition of a ``stripper well,'' as codified under the CWA in
1979 (see 40 CFR 435.60) and used by the Interstate Oil and Gas Compact
Commission (IOGCC).\5\ These wells are often referred to as ``marginal
wells.'' This criterion limits the total flowrate of oil at the
facility, but it does not restrict the storage capacity. An oil
production facility with only marginal wells may accumulate large
amounts of oil in a relatively short period of time due to the large
amount of oil and water
[[Page 58801]]
mixtures typically stored at stripper well facilities. Without a limit
on storage capacity, the Agency is concerned this approach increases
the likelihood that relatively high-volume facilities will self-certify
their SPCC Plan without the spill prevention benefits afforded by PE
review and certification. This may also lead to certain oil production
facilities that could reasonably be expected to cause substantial harm
to the environment, and therefore subject to FRP requirements under 40
CFR 112.20, to potentially qualify to self-certify SPCC Plans under the
alternative criteria.
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\5\ See Interstate Oil and Gas Compact Commission, 2006:
``Marginal Wells: Fuels for Economic Growth'', p. 4 (defining
``stripper wells'' as wells that produce 10 barrels of oil per day
or less).
---------------------------------------------------------------------------
Finally, the production rate criterion does not include the
associated fluids, such as produced water, which typically contains
oil. Marginal or stripper wells are often older and near the end of
their production life. The fraction of produced water generated by each
stripper well may be far greater than that generated by other producing
wells and will likely require significant storage container capacity
prior to re-injection or removal from the facility. The Agency agrees
with the comment that stated there may be containers storing produced
water and oil in large quantities (e.g., up to one million gallons) at
oil production facilities qualifying under these alternative criteria.
The Agency has determined that establishing a threshold for the
production rate per well does not limit the amount of oil storage,
including oils in associated fluids.
The alternative qualified facility eligibility criteria for
production facilities includes more complicated facilities that may
pose a higher risk of oil discharge. EPA intended the alternative
qualified facility criteria for oil production facilities to identify
simple, uncomplicated operations consistent with the approach used for
all other qualified facilities. EPA reconsidered the type and scale of
operations and the equipment involved at those oil production
facilities that may meet the alternative criteria, and concluded that
they are generally more complex than the non-production facilities
eligible under the qualified facility approach in the December 26, 2006
amendments (71 FR 77266).
Although there may be some similarities across oil production
facilities, each is unique and tailored to address factors, such as the
oil field, production rate, type of fluid, location on a platform or
onshore, fluid viscosity, separation process, and type of water
injection or disposal. Given these factors, an oil production
facility's configuration and degree of complexity is variable,
regardless of flow rate.
EPA agrees with the comment that stated that a small production
facility is not necessarily less complex than any other oil production
facility. Small oil production operations often require the same
equipment, including pumping well heads, pump jacks, flowlines,
separators, heater-treaters, crude oil and produced water containers,
fittings, headers, valves, electrical lines and electrical motors.
Failure of any of this equipment may cause an oil discharge.
In the December 2008 amendments, EPA finalized a criterion that
allows the owner or operator of a facility with no more than two
producing wells per single tank battery and an injection well the
option to self-certify his SPCC Plan. After review of relevant facts
and comments, the Agency now has concluded that an oil production
facility with injection wells, regardless of the number of producing
oil wells, is more complex than the intended simplicity inherent in the
qualified facility eligibility criteria. An oil production facility
with injection would have equipment in addition to that found in the
tank battery. One or more injection wells are typically used to inject
produced water underground for disposal or to enhance recovery of the
oil. The underground injection process adds additional piping to the
oil production facility design and layout. The injection well process
typically consists of piping extending from a produced water container
to the injection wellhead, valves, and pumps and may include tank level
indicators, floats, flow controls, and actuators/switches. This
additional equipment offers more opportunity for a potential oil
discharge.
By setting a maximum number of wells as part of the alternative
eligibility criteria, the Agency intended to increase the likelihood
these wells were co-located with the tank battery or in relatively
close proximity. However, an oil production facility with up to four
wells may have long flowlines. Flowlines and intra-facility gathering
lines may extend for long distances to reach a tank battery, may cross
or be located closer to a navigable waterway or adjoining shorelines
than the tank battery, and often runs over land owned by an entity
other than the owner or operator of the oil production facility. The
Agency has concluded that the criterion that limits the number of wells
does not necessarily restrict the lengths of these lines, particularly
with the amendment to the definition of ``facility,'' which provides
the owner or operator of the facility with flexibility in defining the
oil production facility, such that a formal PE certification and
review, particularly for the flowline and intra-facility gathering line
maintenance program, at these facilities is likely appropriate.
Furthermore, the Agency recognizes that because there is currently no
industry standard for flowline maintenance, the need for a PE to
develop a flowline and intra-facility gathering line maintenance
program in accordance with good engineering practice is even more
significant.
As EPA stated in the preamble of the December 2006 final rule,
facilities handling smaller amounts of oil are typically simpler in
layout and operation. Most facilities with an oil storage capacity of
10,000 gallons or less are in industrial sectors that are end consumers
of oil (i.e., farms, real estate, rental and leasing, retail trade,
construction). These facilities generally tend to use oil on-site for
heating purposes, or to fuel emergency power generators or heavy
machinery. The configuration of the oil-related equipment tends to be
relatively standard and simple. Oil is commonly stored in a few bulk
storage containers which are often bought off-the-shelf from a tank
manufacturer or installer (e.g., standard UL-142 tanks) and connected
with few short lengths of piping (see December 26, 2006, 71 FR 77270).
This is generally not the case at oil production facilities. Therefore,
for the reasons discussed above, the alternative qualified facility
criteria for oil production facilities finalized in the December 2008
final rule did not achieve the result of limiting the eligibility to
self-certify SPCC Plans to those facilities with simple configurations
and operations.
The volume of oil discharged from production facilities is
increasing. As described in EPA's study of the oil production sector
(found in the docket for this rulemaking at EPA-HQ-OPA-2007-0584-0015),
there were 401,072 marginal oil wells (i.e., wells producing up to 10
barrels per day) operating in 2005. The percent of marginal oil wells
varies by State, from approximately 15 percent in South Dakota, to 100
percent in several Appalachian and mid-Western States. While individual
production rates may be small (an average of 2.2 barrels per day),
marginal wells collectively represent a significant, and growing, share
of U.S. oil production, due to the overall decline in domestic
production, particularly from onshore fields. Again, as described in
EPA's study of the oil production sector, according to the Department
of Energy, as of 2005, about 19 percent of crude oil produced in the
U.S. came from marginal wells. In the lower 48 States, marginal wells
[[Page 58802]]
represented approximately 30 percent of onshore oil production in
2003.\6\
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\6\ Considerations for the Regulation of Onshore Oil Exploration
and Production Facilities Under the Spill Prevention, Control, and
Countermeasure Regulation (40 CFR part 112)) found in the docket for
this rulemaking at EPA-HQ-OPA-2007-0584-0015, see page 9.
---------------------------------------------------------------------------
The SPCC regulation is based on oil storage capacity and the
potential for discharges of oil in quantities that may be harmful to
navigable waters or adjoining shorelines. The Agency has concluded that
small oil production facilities (i.e., those comprised of marginal
wells) have and can continue to pose a threat of an oil discharge to
navigable waters or adjoining shorelines. EPA has reviewed the spill
data for the oil production sector contained in its study of the
exploration and production sector (Considerations for the Regulation of
Onshore Oil Exploration and Production Facilities Under the Spill
Prevention, Control, and Countermeasure Regulation (40 CFR part 112))
found in the docket for this rulemaking at EPA-HQ-OPA-2007-0584-0015).
While these data do not characterize the extent of environmental damage
caused by oil discharges from small oil production facilities, they
demonstrate that the volume of oil discharged from onshore oil
production facilities are increasing, and the number of oil discharges
on a yearly basis has remained the same, despite a decline in crude oil
production. In addition, oil production facilities are often
unattended, and typically located in remote areas, which potentially
increases the risk of environmental damage from an oil discharge.
Therefore, the combination of the potential for oil storage capacity
greater than the 10,000 U.S. gallons threshold, identified risk factors
and spill history leads EPA to conclude that these facilities need the
benefit of PE review and certification of their SPCC Plans.
Furthermore, information received by the Agency from other sources,
which are summarized in the docket in EPA's ``Preliminary Assessment of
SPCC Compliance Costs and Energy Impacts on Oil Production and
Exploration'': Overall Conclusions and Response to Comments (EPA-HQ-
OPA-2007-0584-0173), indicate increased spill potential due to
equipment failure as oil production equipment ages, particularly if
maintenance has been inadequate. Much of the U.S. oil production
infrastructure has been in place for decades. Marginal wells, in
particular, are often older wells nearing the end of their production
life, and may have older equipment that may be more prone to failure.
EPA recognizes that several comments expressed general support for
the alternative qualified facility eligibility criteria for an oil
production facility. However, upon reconsideration of all relevant
facts, including comments opposing the approach, EPA has decided for
the reasons explained in detail above to remove the provisions related
to alternative qualified facility eligibility criteria for an oil
production facility in the final rule.
3. Exemption for Produced Water Containers
In this action, EPA is amending or removing all rule elements
associated with the exemption for produced water containers in the
December 2008 amendments (Section V.M.7, 73 FR 74285) as described
below:
Amending Sec. 112.1 to remove paragraphs (d)(2)(ii)(F)
and (d)(12);
Amending Sec. 112.3 by removing paragraph (d)(1)(vi) and
designating paragraph (d)(1)(vii) as (d)(1)(vi).
Amending Sec. 112.5 by removing paragraphs (b) and (c),
revising paragraph (d) to remove reference to deleted paragraphs, and
redesignating paragraphs (d) and (e) as paragraphs (b) and (c);
Amending Sec. 112.6 by revising paragraphs (a)(1)(vii),
(b)(1)(vii), (b)(3)(iii), and (b)(4)(ii) to remove references to the
produced water container exemption and associated appurtenances
downstream from the container;
Amending Sec. 112.7 by revising paragraph (a)(3) to
remove reference to produced water containers;
Amending Sec. 112.9 by revising paragraph Sec.
112.9(c)(6); and
Revising the reference to produced water containers in
Appendix G--Tier I Qualified Facility SPCC Plan Template.
EPA is taking this action after reviewing all of the relevant facts
and all of the comments received on this issue for the October 2007
proposed rule (72 FR 58378 October 15, 2007) and the December 2008
amendments (73 FR 74236 and 74 FR 5900 February 3, 2009). Several
comments expressed support for the exemption, with one comment arguing
that regulation of produced water is outside the SPCC rule's
jurisdiction. EPA also received comments that opposed the exemption for
produced water containers. Based on this review, the Agency has
determined that the exemption for produced water containers would not
effectively protect the environment from discharges of quantities of
oil that may be harmful. Comments submitted during the 2009 comment
period also pointed out that the provisions for produced water
containers were confusing and unnecessary, with one comment stating
that the exemption lacked a supportable rationale. Other comments noted
that discharges from produced water containers contain oil, and
discharges occur and can cause harm. These comments are discussed in
more detail below.
Containers with no oil are not subject to the SPCC rule. The Agency
agrees with comments that a fluid containing no oil is not subject to
the SPCC requirements. A container that does not hold oil is not
regulated under the SPCC rule; therefore, a specific exemption for
produced water containers that holds no oil is unnecessary. However,
EPA notes that generally, produced water containers may contain oil in
sufficient quantity to cause a harmful discharge. In fact, the Agency
received relatively little specific information on whether there are
unique characteristics to differentiate produced water containers from
other bulk storage containers found at onshore oil production
facilities, and none that warrant differentiated treatment.
Produced water containers typically contain oil. Several comments
expressed support for an exemption of produced water containers from
SPCC regulation. These comments stated that produced water containers
should not be subject to the rule. Most of the comments received,
however, focused on the composition of the produced water mixture and
noted that produced water generally contains varying quantities of oil.
While none of the comments offered detailed information on the amount
of free-phase oil measured in produced water containers as requested by
EPA, they generally confirm that the presence of oil in produced water
is not exceptional, but rather can be expected as a matter of regular
operations at oil production facilities. Oil may be recovered even
after the produced water has undergone several separations at the
onshore production facility, prior to reinjection of the produced water
into the geological formation. Comments point out that produced water
containers have an oil layer floating on top of the water. One comment
indicated that produced water contains about 0.1 percent oil, but did
not indicate whether this fraction represents oil dissolved or
suspended in the produced water mixture and whether produced water
containers may accumulate additional oil as a free-phase layer.
Information received by the Agency from other sources, which are
summarized in the docket (EPA-HQ-OPA-2007-0584-0015 and EPA-HQ-OPA-
2007-0584-0175), indicates that
[[Page 58803]]
while the fraction of oil dissolved or suspended within the aqueous
phase may be low, additional oil is often found as a free-phase layer
floating at the surface of the produced water container. In the event
of a discharge, the aqueous phase of the produced water mixture may
serve to carry the oil farther overland and into waters than cases
where crude oil alone is discharged.
The Agency received no additional data on the efficiency of
separators typically found at onshore oil production facilities or
comments on how the separation efficiency may vary over time. The
Agency agrees that residence time is a key factor in achieving
separation of the crude oil from other well fluids. Many oil production
facilities rely on gravitational separation and long retention times to
separate and recover the crude oil. Based on information reviewed by
the Agency, included in the docket to the rule, separation equipment
found at onshore oil production facilities are not perfectly efficient
at separating oil from the produced fluids and residual oil may remain
with the produced water and further separate in quiescent conditions
present in the produced water container. Furthermore, separation
equipment likely becomes less efficient with age and use, thus allowing
more oil into a produced water container. It is therefore not
exceptional for a layer of oil to accumulate in a produced water
container.
In some cases, produced water containers are used as part of the
separation process. In the preamble to the December 2008 amendments,
EPA suggested that produced water containers may be similar to flow
through-process equipment when they are used as separators (71 FR
74288, December 5, 2008). However, one comment pointed out that
produced water containers are typically atmospheric storage tanks,
whereas, process vessels have a pressure rating above atmospheric. EPA
agrees with the comment and acknowledges that produced water containers
are typically used as storage containers at the end of the separation
process. Produced water containers are bulk storage containers and,
therefore, are subject to the bulk storage container requirements under
Sec. 112.9(c). However, the Agency acknowledges that owners and
operators of these containers may use a process to remove free-phase
oil on a regular basis. To address this, the Agency is retaining the
option for owners and operators of produced water containers to comply
with alternative measures in lieu of sized secondary containment when a
PE describes in the Plan and certifies a procedure or process to remove
free-phase oil (e.g., a skimming program) has been established and the
facility complies with general secondary containment requirements;
visual inspection; corrective action or repairs to the container; and
prompt removal or remediation of oil discharges from produced water
containers. For a further discussion of the alternative compliance
option for produced water containers, see section V.A.13.f of this
notice.
Produced water containers are a source of oil discharges. EPA
agrees with comments arguing that spill data shows that produced water
containers are a source of oil discharges from onshore oil production
facilities. The Agency's analysis of spill notification data compiled
by the National Response Center (NRC) for the period of 2000 through
2005, for example, identified 314 oil discharges described as having
originated from tanks, including over a quarter specifically described
as involving produced water containers, compared to 20 percent from
crude oil stock tanks (the remaining 55 percent involved tanks holding
unspecified fluids). The Agency believes that additional discharges may
have been reported to State and local authorities.
Produced water containers may be equally or even more likely to
fail than other containers in the tank battery. Information reviewed by
the Agency and presented in the public docket (EPA-HQ-OPA-2007-0584-
0015) showed corrosion as a common cause of oil and produced water
discharges at onshore oil production facilities. The higher salt
content of produced water fluids as compared to crude oil may lead to
the increased corrosion rate of metallic components of the produced
water storage system. The oil production process is configured to send
continuously flowing and treated well fluids to the storage containers,
with the produced water containers often located at the end of that
process. The Agency's review of the circumstances of past oil
discharges reported to the NRC shows that produced water containers
often receive the additional well fluids when treatment equipment or
appurtenances fail or when a pumper's scheduled visit is delayed,
thereby increasing the amount of oil entering the produced water
container and the probability that the tank will overflow, or otherwise
discharge oil to navigable waters or adjoining shorelines.
Discharges of produced water can cause harm. Produced water can
cause harm to surface waters, flora, fauna, and other sensitive
resources and ecosystems. As described in the Summary of DOE Comments
and EPA Response (EPA-HQ-OPA-2007-1486-0175), and the Considerations
for the Regulation of Onshore Oil Exploration and Production Facilities
Under the Spill Prevention, Control, and Countermeasure Regulation (40
CFR part 112) (EPA-HQ-OPA-2007-1486-0015) the impacts of produced water
discharges are similar to the impacts observed following other oil
discharges. Additionally, the co-location of oil production facilities
with other land users, including farmers and ranchers, raises
additional concern over potential contamination of water resources that
are essential to agricultural production. One comment expressed concern
that produced water could contaminate surface waterways, groundwater
and drinking water; kill fish, birds, and wildlife; and cause severe
health effects in humans and impact wildlife habitats. The comment also
noted that it takes only a small amount of oil to affect a large area
of water. EPA agrees with this comment. Under 40 CFR part 110, a
discharge of oil in such quantities as ``may be harmful'' is defined as
one that may violate applicable water quality standards; or cause a
film or sheen upon or discoloration of the surface of the water or
adjoining shorelines; or cause a sludge or emulsion to be deposited
beneath the surface of the water or upon adjoining shorelines. In the
Federal Register notice published when EPA provided revisions to 40 CFR
part 110, EPA stated that ``[e]vidence from reviews of laboratory
studies further demonstrates that very small amounts of oil, e.g., less
than 1 mg/L (1 ppm) can have lethal and sublethal effects on a wide
variety of organisms.'' (52 FR 10716, April 2, 1987). Therefore, even
if a produced water container has a very small amount of oil, the
container still holds the potential to cause harm.
Upon reconsideration of all relevant facts, including comments
opposing the approach (as described above), EPA has decided for the
reasons explained in detail above to remove the provisions related to
the produced water containers exemption in the final rule.
D. Oil and Natural Gas Pipeline Facilities
In Section V.M.9 of the December 2008 amendments (73 FR 74291,
December 5, 2008), EPA provided preamble discussion regarding EPA and
DOT jurisdiction. In this notice, EPA is further clarifying the
jurisdiction between EPA and DOT to address confusion within the
regulated community and to note that future inter-Agency discussions in
the appropriate
[[Page 58804]]
forum on this issue will continue. The Agency continues to base its
jurisdictional boundaries on Executive Order 12777 and the 1971
Memorandum of Understanding (MOU) between DOT and EPA (36 FR 24080,
November 24, 1971). Under Executive Order 12777, EPA has jurisdiction
over non-transportation-related onshore and offshore facilities and DOT
has jurisdiction over transportation-related onshore and offshore
facilities. Under the 1971 MOU (See Appendix A of part 112),
transportation-related activities regulated by DOT and non-
transportation-related activities regulated by EPA are defined.
Equipment, operations, and facilities are subject to DOT
jurisdiction when they are engaged in activities subject to DOT
jurisdiction. If those same facilities are also engaged in activities
subject to EPA jurisdiction (such facilities are considered a
``complex''), such activities would subject the equipment, operation,
or facility to EPA jurisdiction, as well. ``Complex'' is defined at
Sec. 112.2 as a ``facility possessing a combination of transportation-
related and non-transportation-related components that is subject to
the jurisdiction of more than one Federal agency under section 311(j)
of the Clean Water Act.'' This definition was promulgated in 1994 (59
FR 34070, July 1, 1994) when EPA first required certain facility owners
and operators to prepare FRPs to respond to a worst-case discharge of
oil and to a substantial threat of such a discharge. During the
development of the FRP rule, EPA and other Federal agencies with
jurisdiction under OPA and E.O. 12777 (including DOT) met to create an
implementation strategy that minimized duplication, wherever
practicable and recognized State oil pollution prevention and response
programs. One of the critical outgrowths of these efforts was the
development of a definition for, and a consistent approach to regulate
``complexes.'' The jurisdiction over a component of a complex is
determined by the activity involving that component. An activity at one
time might subject a facility to one agency's jurisdiction, while a
different activity at the same facility using the same structure,
container or equipment might subject the facility to the jurisdiction
of another agency.
Owners and operators have questioned how to determine whether a
container (e.g., a breakout tank), an activity (e.g., drag reducing
agent storage/injection or other transfer activities) or a facility
(e.g., a terminal or a pipeline facility) is considered
``transportation-related'' or ``non-transportation-related,'' and,
subsequently, whether DOT and/or EPA regulatory requirements apply. To
clarify jurisdiction, particularly regarding jurisdiction over breakout
tanks and activities at certain facilities, in February 2000, EPA and
DOT signed a joint memorandum, ``Jurisdiction over Breakout Tanks/Bulk
Storage Tanks (Containers) at Transportation-Related and Non-
Transportation-Related Facilities'' (February 4, 2000). Industry has
raised questions and concerns about duplicative jurisdiction in the
joint memorandum and for other oil storage containers and activities
not specifically addressed by it. EPA will continue to work with DOT/
PHMSA to provide such clarification and to minimize dual regulation,
where appropriate.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866 and any changes made in response to OMB's recommendations have
been documented in the docket for this rulemaking. In addition, EPA
prepared a regulatory impact analysis (RIA) of the potential costs and
benefits associated with this action entitled, ``Regulatory Impact
Analysis for the 2008 and 2009 Final Amendments to the Oil Pollution
Prevention Regulations (40 CFR part 112)'' (October 20, 2009). A copy
of the RIA is available in the docket for this rulemaking and is
briefly summarized below.
EPA estimated the combined economic impact of the December 2008
amendments and the changes made to it in this action. The SPCC rule
requirements at 40 CFR part 112, as amended in July 2002 (67 FR 47042,
July 17, 2002) is the baseline to estimate the potential cost savings
to regulated facilities associated with these amendments. The RIA
compares the compliance costs for owners and operators facilities
affected by the 2008 and 2009 amendments to the costs associated with
the 2002 SPCC rule revisions. EPA estimated cost savings from the
following rule elements: (1) Exempt hot-mix asphalt (HMA) and HMA
containers; (2) exempt pesticide application equipment and related mix
containers when crop oil or adjuvant oil is added to pesticide
formulations; (3) clarify the applicability of mobile refueler
requirements to farm nurse tanks; (4) exempt residential heating oil
containers, including those located at farms; (5) amend the definition
of ``facility'' to clarify the currently existing flexibility
associated with describing a facility's boundaries; (6) amend the
facility diagram requirement to provide additional clarity; (7) define
``loading/unloading rack''; (8) provide streamlined requirements for a
subset of qualified facilities; (9) amend the general secondary
containment requirement to provide more clarity; (10) extend the
regulatory relief provided to mobile refuelers in 2006 to non-
transportation-related tank trucks at facilities subject to the SPCC
rule; (11) amend the security requirements; (12) amend the integrity
testing requirements to allow a greater amount of flexibility in the
use of industry standards; (13) amend the integrity testing
requirements for containers that store AFVOs that meet certain
criteria; (14) tailor a number of requirements at oil production
facilities; and (15) exempt underground oil storage tanks at nuclear
power generation facilities. EPA also provided clarification in the
preamble to the December 2008 amendments on two additional issues
identified by the regulated community: (1) The consideration of man-
made structures in determining how to comply with the SPCC rule
requirements and (2) the applicability of the rule to wind turbines for
electricity generation.
For each of these components, excluding those that only provide
clarity, EPA estimated potential cost savings to regulated facilities
that may result from reductions in compliance costs. The main steps
used to estimate the compliance cost impacts of the rule amendments
are:
Develop the baseline universe of SPCC-regulated
facilities;
Estimate the number of facilities affected by the rule
amendments;
Estimate changes in unit compliance cost for each
regulated facility affected by the rule;
Estimate total compliance cost savings to owners and
operators of potentially affected facilities; and
Annualize compliance cost savings over a ten-year period,
2010 through 2019, and discount the estimates using three and seven
percent discount rates.
In its RIA, EPA uses four key assumptions:
1. Cost minimization behavior applies to all owners and operators
of facilities that qualify for the reduced regulatory requirements,
whereby all those affected would seek burden relief.
[[Page 58805]]
2. Consistent with EPA's guidelines for conducting economic
analyses, all existing owners and operators of facilities are in full
compliance with the July 17, 2002 amendments to the SPCC rule (67 FR
47042).
3. Owners and operators of existing SPCC-regulated facilities would
forgo compliance activities offered as alternatives where there is only
a one-time initial investment because they would have already incurred
the one-time cost. For example, EPA assumes that an owner or operator
of an existing facility who qualifies for reduced security requirements
under the rule amendment that allows facility owners or operators to
tailor their security measures to the facility's specific
characteristics and location, would have already provided the security
measures under the July 2002 rule amendments or demonstrated
environmental equivalence for tailored security measures. Therefore,
owners and operators of existing facilities would not take advantage of
the provided alternative.
4. Compliance is nationally consistent, although EPA recognizes
that there is variability in State regulations and the distribution of
affected facilities.
Exhibit 1 presents the estimated cost savings for each rule
provision and for the rule amendments in total. For several rule
amendments, such as the security requirements and facilities handling
AFVOs, EPA did not have data on the number of affected facilities
within a general industry sector; thus, it developed three scenarios to
evaluate a range of cost savings.\7\ EPA estimates that the total cost
savings for this action is about $95 million on an annualized basis
(2007$). The total cost savings estimates range from a low of about $92
million to a high of about $100 million on an annualized basis
(2007$).These estimates are not necessarily additive, given that they
do not account for interactions that might exist among the various
components of the rule.\8\
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\7\ For example, to develop a range for the number of affected
AFVO facilities, EPA contacted industry experts who determined that
40 percent to 90 percent of containers at AFVO facilities are made
of stainless steel and almost all containers have bottom drainage.
Therefore, based on professional judgment, the Agency considered
three scenarios: 40% (low), 65% (medium) and 90% (high) of all AFVO
facilities would have food oil tanks that are eligible.
\8\ Certain industry sectors are affected by multiple rule
provisions. As a result, taking advantage of one revised provision
might preclude a facility from benefiting from another amendment.
The six-month delay is specifically designed to allow time for the
facility oil production operations to stabilize in order to avoid
the need for multiple certifications of the Plan by a PE.
---------------------------------------------------------------------------
The oil production sector and farms will benefit from multiple
components of the 2008 and 2009 amendments. Specifically, farms will
benefit from the exemption of pesticide application equipment, the
exemption of residential heating oil containers, the clarification to
the facility diagram requirements, the streamlined requirements for
Tier I qualified facilities, the final amendments to the security
requirements, and the amendments to integrity-testing requirements. The
total cost savings to farm owners and operators from these amendments
are estimated at $13 million on an annualized basis (2007$).
The oil production sector will also benefit from a number of the
revisions to the SPCC rules, including the clarification to the
facility diagram requirements, the streamlined requirements for Tier I
qualified facilities, the six-month delay in SPCC Plan preparation and
implementation, the alternative measures for flow-through process
vessels and produced water containers in lieu of sized secondary
containment requirements. The total savings to owners and operators of
oil production facilities from all of the amendments that affect this
sector are estimated at $35 million on an annualized basis (2007$).
Exhibit 1--Estimated Compliance Cost Savings for the Regulatory
Amendments
------------------------------------------------------------------------
Annualized cost savings ($2007, in
Rule component/scenario millions, 7% discount rate)
------------------------------------------------------------------------
Hot-Mix Asphalt:
Exempt HMA containers.... $8.
Farms:
Exempt pesticide
application equipment
and related mix
containers
Applicability of Mobile $4.
Refueler Requirements to
Farm Nurse Tanks.
Residential Heating Oil
Containers:
Exempt single-family $2.
residential heating oil
containers.
Definition of Facility:
Revise the definition of No cost impact.
``facility''.
Facility Diagram:
Revise facility diagram $3.
requirement.
Loading/Unloading Racks:
Define ``loading/ No cost impact.
unloading rack''.
Tier I Qualified Facilities:
Provide streamlined $24.
requirements for Tier I
qualified facilities.
General Secondary
Containment:
Revisions to the general No cost impact.
secondary containment
provision.
General Secondary Containment
for Non-Transportation-
Related Tank Trucks:
Extend regulatory relief No cost impact.
for mobile refuelers to
the non-transportation-
related tank trucks.
Security Requirements:
Revise security $9.
requirements \2\.
Integrity Testing:
Amend the integrity $11.
testing requirements to
allow a greater amount
of flexibility in the
use of industry
standards at all
facilities.
Animal Fats and Vegetable
Oil:
Amend integrity testing $2.
requirements for AFVO
containers that meet
certain criteria \3\.
Oil Production Facilities:
Six-month delay for Plan $24.
preparation and
implementation.
Exempt flowlines and No net cost impact.
gathering lines from
secondary containment.
Flow-through process $7.
vessels.
[[Page 58806]]
Alternative compliance No cost savings estimated.
measures for produced
water containers.
Man-Made Structures:
Consider manmade No cost impact.
structures in
determining SPCC rule
applicability.
Nuclear Power Stations:
Exempt underground oil Less than $1.
storage tanks at nuclear
power generation
facilities.
Wind turbines:
Clarify applicability of No cost impact.
the rule to wind
turbines used to produce
electricity.
------------------------------------------
Total................ $95.
------------------------------------------------------------------------
\2\ Mid-point estimate (50% of farms affected). Cost savings might be
higher or lower using different assumptions.
\3\ Mid-point estimate (65% of facilities affected). Cost savings might
be lower using different assumptions.
EPA recognizes that the economic analysis is constrained by limited
availability of data and information. The SPCC regulation does not have
a notification requirement for regulated facilities and thus, EPA
relies on State information; Federal and proprietary databases; and
information from industry experts as a basis for the cost information
included in the analysis.
B. Paperwork Reduction Act
The information collection requirements for this final rule have
been submitted for approval to OMB under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. The information collection requirements are not
enforceable until OMB approves them. The Information Collection Request
(ICR) document prepared by EPA has been assigned EPA ICR number
0328.15.
EPA does not collect the information required by the SPCC rule on a
routine basis. SPCC Plans ordinarily need not be submitted to EPA, but
must generally be maintained at the facility. Preparation,
implementation, and maintenance of an SPCC Plan by the facility owner
or operator helps prevent oil discharges to navigable waters or
adjoining shorelines and mitigate the environmental damage caused by
such discharges. Therefore, the primary user of the data is facility
personnel. While EPA may, from time to time, request information under
these regulations, such requests are not routine.
Although facility personnel are the primary data user, EPA also
uses the data in certain situations. In particular, EPA reviews SPCC
Plans: (1) When it requests a facility owner or operator to submit
required information in the event of certain discharges of oil or to
evaluate an extension request; and (2) as part of EPA's inspection
program. State and local governments also may use the data, which are
not necessarily available elsewhere and can greatly assist local
emergency preparedness efforts. Preparation of the information for
affected facilities is required under section 311(j)(1) of the CWA, as
implemented by 40 CFR part 112.
EPA estimates that in the absence of the December 2008 final rule
and the changes made in this action, approximately 623,000 existing
facilities would be subject to the SPCC rule in November 2010 and would
be expected to have SPCC Plans. In addition, EPA estimates that
approximately 17,400 new facilities would become subject to the SPCC
requirements during that year, resulting in a total of about 640,000
regulated facilities in 2010.\9\
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\9\ To estimate the number of SPCC-regulated facilities in 2010,
EPA used the estimated number of facilities for 2005 (571,000) and
applied annual, industry-specific growth rates that resulted in
about 640,000 facilities.
---------------------------------------------------------------------------
Under the December 2008 and 2009 amendments, EPA is: exempting the
storage capacity of containers solely containing HMA, residential
heating oil containers at single-family residences, pesticide
application equipment and related mix containers, and underground oil
storage tanks at nuclear power generation facilities from the SPCC
requirements; amending the definition of ``facility'' to clarify that
contiguous or non-contiguous buildings, properties, parcels, leases,
structures, installations, pipes, or pipelines may be considered
separate facilities, and to specify that the ``facility'' definition,
rather than the ``production facility'' definition, governs the
applicability of 40 CFR part 112; amending the facility diagram
requirement to provide additional clarity for all facilities; providing
a definition for the term ``loading/unloading rack,'' which determines
whether a facility is subject to the provisions at Sec. 112.7(h);
providing an option that allows a subset of qualified facilities (Tier
I) to complete and implement an SPCC Plan template (Appendix G to 40
CFR part 112) in order to comply with the SPCC rule requirements;
amending the general secondary containment requirements to provide more
clarity; exempting non-transportation-related tank trucks from the
sized secondary containment requirements; modifying the security
requirements to allow an owner or operator to tailor its security
measures to the facility's specific characteristics and location, which
are the same as those provided for qualified facilities, as promulgated
in December 2006; replacing the current integrity testing requirements
with the requirements provided for qualified facilities, as promulgated
in December 2006; providing flexibility in the rule for determining the
scope of integrity testing that is appropriate for containers that
store AFVOs that are intended for human consumption and that meet other
criteria; and finally, streamlining the requirements for oil production
facilities by modifying the definition of production facility to be
consistent with the amendments to the definition of facility, extending
the timeframe by which a new oil production facility must prepare and
implement an SPCC Plan, providing an alternative option for flow-
through process vessels at oil production facilities to comply with the
general secondary containment requirements and additional oil spill
prevention measures in lieu of the sized secondary containment
requirements, providing an alternative option for produced water
containers to comply with general secondary containment and additional
oil spill prevention measures including a PE certified program to
remove free-phase oil from the surface of the produced water container
in lieu of the sized secondary containment requirements, establishing
more specific requirements for the flowline/intra-facility gathering
line maintenance program, providing an alternative compliance option
for contingency planning in lieu of secondary containment for flowlines
and intra-facility gathering lines at oil production facilities,
providing an exemption for certain intra-facility
[[Page 58807]]
gathering lines that are regulated by DOT, and clarifying the
definition of ``permanently closed'' as it applies to an oil production
facility.
Under the 2008 and 2009 final amendments, an estimated 640,000
regulated facilities are subject to the SPCC information collection
requirements of this rule in 2010.\10\ The Agency estimates that as a
result of these amendments to tailor, clarify, and streamline certain
SPCC requirements, the reporting and recordkeeping burden would
decrease by approximately 1.3 million hours. The rule amendments would
reduce capital and operation and management costs by approximately $7.5
million on an annualized basis. Burden is defined at 5 CFR 1320.3(b).
---------------------------------------------------------------------------
\10\ To estimate the number of SPCC-regulated facilities in
2010, EPA used the estimated number of facilities for 2005 (571,000)
and applied annual industry-specific growth rates.
---------------------------------------------------------------------------
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of this final rule on small
entities, a small entity is defined as: (1) a small business as defined
in the U.S. Small Business Administration's (SBA) regulations at 13 CFR
121.201--the SBA defines small businesses by category of business using
North American Industry Classification System (NAICS) codes, and in the
case of farms and oil production facilities, which constitute a large
percentage of the facilities affected by this rule, generally defines
small businesses as having less than $0.5 million to $27.5 million per
year in sales receipts, depending on the industry, or 500 or fewer
employees, respectively; (2) a small governmental jurisdiction that is
a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise that is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of the December 2008
amendments and the changes made in this action on small entities, the
Agency certifies that this action would not have a significant economic
impact on a substantial number of small entities. In determining
whether a rule has a significant economic impact on a substantial
number of small entities, the impact of concern is any significant
adverse economic impact on small entities, since the primary purpose of
the regulatory flexibility analyses is to identify and address
regulatory alternatives ``which minimize any significant economic
impact of the rule on small entities'' (5 U.S.C. 603 and 604). Thus, an
agency may certify that a rule would not have a significant economic
impact on a substantial number of small entities if the rule relieves
regulatory burden, or otherwise has a positive economic effect on all
of the small entities subject to the rule.
Under the 2008 and 2009 amendments, the following issues are
addressed: exempt HMA and HMA containers, pesticide application
equipment and related mix containers, residential heating oil
containers at single-family residences, and underground oil storage
tanks at nuclear power generation facilities from the SPCC
requirements; amend the definition of ``facility'' to clarify the
flexibility associated with the existing definition in describing a
facility's boundaries; clarify how containers, fixed and mobile, are
identified on the facility diagram; define ``loading/unloading rack''
to clarify whether a facility is subject to the SPCC rule requirements
of Sec. 112.7(h); streamline the requirements for a subset of
qualified facilities (Tier I qualified facilities); amend the general
secondary containment requirements to provide more clarity; exempt non-
transportation-related tank trucks from the sized secondary containment
requirements; amend the facility security requirements to allow an
owner or operator to tailor security measures to a facility's specific
characteristics and location, which are the same as those provided for
qualified facilities, as promulgated in December 2006; replace the
current integrity testing requirements with the regulatory requirements
for a qualified facility promulgated in December 2006; provide
flexibility in the rule to determine the scope of integrity testing
that is appropriate for containers that store AFVOs that are intended
for human consumption and that meet other criteria; and initiate a
number of amendments to tailor the requirements for oil production
facilities to address concerns raised by the oil production sector,
respectively.
Overall, EPA estimates that the December 2008 amendments and the
revisions made in this action will reduce annual compliance costs by
approximately $95 million on an annualized basis (2007$) for owners and
operators of affected facilities. Total costs were annualized over a
10-year period using a seven percent discount rate. EPA derived these
savings by estimating the number of facilities affected by each 2008
and 2009 amendment; identifying the specific behavioral changes that
may occur (for example, choosing to prepare an SPCC Plan template
instead of a full SPCC Plan); estimating the unit costs of compliance
under the baseline and amended scenarios; and applying the change in
unit costs to the projected number of affected facilities.
EPA has therefore concluded that this rule will relieve regulatory
burden for small entities and therefore, certify that this rule will
not have a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to
[[Page 58808]]
adopt an alternative other than the least costly, most cost-effective,
or least burdensome alternative if the Administrator publishes with the
rule an explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that this action does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. The December 2008 final rule and the changes
made in this action would reduce compliance costs on owners and
operators of affected facilities by approximately $95 million on an
annualized basis (2007$), although EPA acknowledges this total estimate
is derived from analyses of individual major components of the rule
that are not necessarily additive, given that they do not account for
interactions that may exist among the various components. Thus, this
rule amendment is not subject to the requirements of sections 202 and
205 of the UMRA.
EPA has determined that this rule amendment contains no regulatory
requirements that might significantly or uniquely affect small
governments. As explained above, the effect of the rule amendment will
be to reduce burden for facility owners and operators, including
certain small governments that are subject to the rule.
E. Executive Order--13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
The December 2008 amendments and the changes made in this action do
not have federalism implications. It would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. Under CWA section 311(o), States may impose
additional requirements, including more stringent requirements,
relating to the prevention of oil discharges to navigable waters or
adjoining shorelines. EPA recognizes that some States have more
stringent requirements (56 FR 54612, October 22, 1991). This rule
amendment will not preempt State law or regulations. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This action does not have
tribal implications, as specified in Executive Order 13175. This rule
amendment will not significantly or uniquely affect communities of
Indian trial governments. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
Although the combined impact of the December 2008 final rule and of
the changes made in this action is economically significant, it is not
subject to the Executive Order because the Agency does not have reason
to believe the environmental health or safety risk addressed by this
action presents a disproportionate risk to children.
H. Executive Order 13211--Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. The
overall effect of the action is to decrease the regulatory burden on
facility owners or operators subject to its provisions.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards, such as materials specifications, test
methods, sampling procedures, and business practices that are developed
or adopted by voluntary consensus standards bodies. The NTTAA directs
EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
The owner or operator of a facility subject to the SPCC rule has
the flexibility to consider applicable industry standards in the
development of an SPCC Plan, in accordance with good engineering
practice. However, this rulemaking does not involve technical
standards, as it does not set or incorporate by reference any one
specific technical standard. Therefore, the NTTAA does not apply.
J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
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and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. EPA has determined that this action
will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
does not affect the level of protection provided to human health or the
environment. The overall effect of the action is to decrease the
regulatory burden on facility owners or operators subject to its
provisions, while increasing the level of compliance with the SPCC
program requirements, which should provide greater environmental
protection.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C. 804(2)
because it will likely result in an annual effect on the economy of
$100 million or more. This rule will be effective on January 14, 2010.
List of Subjects in 40 CFR Part 112
Environmental protection, Animal fats and vegetable oils, Hot-mix
asphalt, Farms, Flammable and combustible materials, Integrity testing,
Loading racks, Materials handling and storage, Natural gas, Oil
pollution, Oil and gas exploration and production, Oil spill response,
Oil spill prevention, Penalties, Petroleum, Reporting and recordkeeping
requirements, Secondary containment, Security, Tanks, Unloading racks,
Water pollution control, Water resources.
Dated: November 5, 2009.
Lisa P. Jackson,
Administrator.
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For the reasons stated in the preamble, title 40, chapter I, of the
Code of Federal Regulations is amended as follows:
PART 112--OIL POLLUTION PREVENTION
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1. The authority citation for part 112 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; and E.O.
12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.
Subpart A--[Amended]
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2. Amend Sec. 112.1 as follows:
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a. By revising paragraph (d)(2)(i);
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b. By removing paragraph (d)(2)(ii)(F);
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c. By revising paragraph (d)(4); and
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d. By removing paragraph (d)(12)
Sec. 112.1 General applicability.
* * * * *
(d) * * *
(2)(i) The completely buried storage capacity of the facility is
42,000 U.S. gallons or less of oil. For purposes of this exemption, the
completely buried storage capacity of a facility excludes the capacity
of a completely buried tank, as defined in Sec. 112.2, and connected
underground piping, underground ancillary equipment, and containment
systems, that is currently subject to all of the technical requirements
of part 280 of this chapter or all of the technical requirements of a
State program approved under part 281 of this chapter, or the capacity
of any underground oil storage tanks deferred under 40 CFR part 280
that supply emergency diesel generators at a nuclear power generation
facility licensed by the Nuclear Regulatory Commission and subject to
any Nuclear Regulatory Commission provision regarding design and
quality criteria, including, but not limited to, 10 CFR part 50. The
completely buried storage capacity of a facility also excludes the
capacity of a container that is ``permanently closed,'' as defined in
Sec. 112.2 and the capacity of intra-facility gathering lines subject
to the regulatory requirements of 49 CFR part 192 or 195.
* * * * *
(4) Any completely buried storage tank, as defined in Sec. 112.2,
and connected underground piping, underground ancillary equipment, and
containment systems, at any facility, that is subject to all of the
technical requirements of part 280 of this chapter or a State program
approved under part 281 of this chapter, or any underground oil storage
tanks including below-grade vaulted tanks, deferred under 40 CFR part
280, as originally promulgated, that supply emergency diesel generators
at a nuclear power generation facility licensed by the Nuclear
Regulatory Commission, provided that such a tank is subject to any
Nuclear Regulatory Commission provision regarding design and quality
criteria, including, but not limited to, 10 CFR part 50. Such emergency
generator tanks must be marked on the facility diagram as provided in
Sec. 112.7(a)(3), if the facility is otherwise subject to this part.
* * * * *
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3. Amend Sec. 112.3 as follows:
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a. By designating paragraph (a)(1) as paragraph (a), and removing
paragraph (a)(2);
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b. By revising the newly designated paragraph (a);
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c. By removing paragraph (b)(2), and designating paragraph (b)(3) as
(b)(2);
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d. By revising paragraph (b)(1) and the newly designated paragraph
(b)(2);
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e. By removing paragraph (d)(1)(vi), and designating paragraph
(d)(1)(vii) as (d)(1)(vi);
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f. By revising the newly designated paragraph (d)(1)(vi);
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g. By revising paragraph (g)(2).
Sec. 112.3 Requirement to prepare and implement a Spill Prevention,
Control, and Countermeasure Plan.
* * * * *
(a) If your onshore or offshore facility was in operation on or
before August 16, 2002, you must maintain your Plan, but must amend it,
if necessary to ensure compliance with this part, and implement the
Plan no later than November 10, 2010. If your onshore or offshore
facility becomes operational after August 16, 2002, through November
10, 2010, and could reasonably be expected to have a discharge as
described in Sec. 112.1(b), you must prepare and implement a Plan on
or before November 10, 2010.
(b)(1) If you are the owner or operator of an onshore or offshore
facility (excluding oil production facilities) that becomes operational
after November 10, 2010, and could reasonably be expected to have a
discharge as described in Sec. 112.1(b), you must prepare and
implement a Plan before you begin operations.
(2) If you are the owner or operator of an oil production facility
that becomes operational after November 10, 2010, and could reasonably
be expected to have a discharge as described in Sec. 112.1(b), you
must prepare and implement a Plan within six months after you begin
operations.
* * * * *
(d) * * *
(1) * * *
(vi) That, if applicable, for a produced water container subject to
Sec. 112.9(c)(6), any procedure to minimize the amount of free-phase
oil is designed to reduce the accumulation of free-phase oil and
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the procedures and frequency for required inspections, maintenance and
testing have been established and are described in the Plan.
* * * * *
(g) * * *
(2) A Tier II qualified facility is one that has had no single
discharge as described in Sec. 112.1(b) exceeding 1,000 U.S. gallons
or no two discharges as described in Sec. 112.1(b) each exceeding 42
U.S. gallons within any twelve month period in the three years prior to
the SPCC Plan self-certification date, or since becoming subject to
this part if the facility has been in operation for less than three
years (other than discharges as described in Sec. 112.1(b) that are
the result of natural disasters, acts of war, or terrorism), and has an
aggregate aboveground oil storage capacity of 10,000 U.S. gallons or
less.
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4. Amend Sec. 112.5 as follows:
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a. By removing paragraphs (b) and (c) and designating paragraph (d) as
paragraph (b)
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b. By revising the newly designated paragraph (b); and
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c. By designating paragraph (e) as paragraph (c).
Sec. 112.5 Amendment of Spill Prevention, Control, and Countermeasure
Plan by owners or operators.
* * * * *
(b) Notwithstanding compliance with paragraph (a) of this section,
complete a review and evaluation of the SPCC Plan at least once every
five years from the date your facility becomes subject to this part;
or, if your facility was in operation on or before August 16, 2002,
five years from the date your last review was required under this part.
As a result of this review and evaluation, you must amend your SPCC
Plan within six months of the review to include more effective
prevention and control technology if the technology has been field-
proven at the time of the review and will significantly reduce the
likelihood of a discharge as described in Sec. 112.1(b) from the
facility. You must implement any amendment as soon as possible, but not
later than six months following preparation of any amendment. You must
document your completion of the review and evaluation, and must sign a
statement as to whether you will amend the Plan, either at the
beginning or end of the Plan or in a log or an appendix to the Plan.
The following words will suffice, ``I have completed review and
evaluation of the SPCC Plan for (name of facility) on (date), and will
(will not) amend the Plan as a result.''
* * * * *
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5. Revise Sec. 112.6 as follows:
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a. By revising paragraph (a)(1)(vii);
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b. By revising paragraph (b)(1)(vii);
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c. By revising paragraph (b)(3)(iii); and
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d. By revising paragraph (b)(4)(ii);
Sec. 112.6 Qualified Facilities Plan Requirements.
* * * * *
(a) * * *
(1) * * *
(vii) The Plan does not deviate from any requirement of this part
as allowed by Sec. 112.7(a)(2) and 112.7(d) or include measures
pursuant to Sec. 112.9(c)(6) for produced water containers and any
associated piping; and
* * * * *
(b) * * *
(1) * * *
(vii) The Plan does not deviate from any requirement of this part
as allowed by Sec. 112.7(a)(2) and 112.7(d) or include measures
pursuant to Sec. 112.9(c)(6) for produced water containers and any
associated piping, except as provided in paragraph (b)(3) of this
section; and
* * * * *
(3) * * *
(iii) Produced Water Containers. Your Plan may not include any
alternative procedures for skimming produced water containers in lieu
of sized secondary containment pursuant to Sec. 112.9(c)(6), unless
they have been reviewed and certified in writing by a Professional
Engineer, as provided in paragraph (b)(4) of this section.
(4) * * *
(ii) As described in paragraph (b)(3) of this section, the facility
owner or operator may not self-certify measures as described in Sec.
112.9(c)(6) for produced water containers and any associated piping.
Such measures must be reviewed and certified, in writing, by a licensed
Professional Engineer, in accordance with Sec. 112.3(d)(1)(vi).
* * * * *
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6. Amend Sec. 112.7 as follows:
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a. By revising paragraph (a)(3) introductory text; and
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b. By revising paragraph (h) introductory text.
Sec. 112.7 General requirements for Spill Prevention, Control, and
Countermeasure Plans.
* * * * *
(a) * * *
(3) Describe in your Plan the physical layout of the facility and
include a facility diagram, which must mark the location and contents
of each fixed oil storage container and the storage area where mobile
or portable containers are located. The facility diagram must identify
the location of and mark as ``exempt'' underground tanks that are
otherwise exempted from the requirements of this part under Sec.
112.1(d)(4). The facility diagram must also include all transfer
stations and connecting pipes, including intra-facility gathering lines
that are otherwise exempted from the requirements of this part under
Sec. 112.1(d)(11). You must also address in your Plan:
* * * * *
(h) Facility tank car and tank truck loading/unloading rack
(excluding offshore facilities).
* * * * *
Subpart B--[Amended]
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7. Amend Sec. 112.9 by revising paragraph (c)(6) to read as follows:
Sec. 112.9 Spill Prevention, Control, and Countermeasure Plan
Requirements for onshore oil production facilities (excluding drilling
and workover facilities).
* * * * *
(c) * * *
(6) Produced water containers. For each produced water container,
comply with Sec. 112.9(c)(1) and (c)(4); and Sec. 112.9(c)(2) and
(c)(3), or comply with the provisions of the following paragraphs
(c)(6)(i) through (v):
(i) Implement, on a regular schedule, a procedure for each produced
water container that is designed to separate the free-phase oil that
accumulates on the surface of the produced water. Include in the Plan a
description of the procedures, frequency, amount of free-phase oil
expected to be maintained inside the container, and a Professional
Engineer certification in accordance with Sec. 112.3(d)(1)(vi).
Maintain records of such events in accordance with Sec. 112.7(e).
Records kept under usual and customary business practices will suffice
for purposes of this paragraph. If this procedure is not implemented as
described in the Plan or no records are maintained, then you must
comply with Sec. 112.9(c)(2) and (c)(3).
(ii) On a regular schedule, visually inspect and/or test the
produced water container and associated piping for leaks, corrosion, or
other conditions that could lead to a discharge as described in Sec.
112.1(b) in accordance with good engineering practice.
(iii) Take corrective action or make repairs to the produced water
container and any associated piping as indicated by regularly scheduled
visual inspections, tests, or evidence of an oil discharge.
(iv) Promptly remove or initiate actions to stabilize and remediate
any accumulations of oil discharges
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associated with the produced water container.
(v) If your facility discharges more than 1,000 U.S. gallons of oil
in a single discharge as described in Sec. 112.1(b), or discharges
more than 42 U.S. gallons of oil in each of two discharges as described
in Sec. 112.1(b) within any twelve month period from a produced water
container subject to this subpart (excluding discharges that are the
result of natural disasters, acts of war, or terrorism) then you must,
within six months from the time the facility becomes subject to this
paragraph, ensure that all produced water containers subject to this
subpart comply with Sec. 112.9(c)(2) and (c)(3).
* * * * *
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8. Revise Appendix G to Part 112 to read as follows:
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[FR Doc. E9-27156 Filed 11-12-09; 8:45 am]
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